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Out-of-state lawyers will have an easier path to represent pipeline protesters in criminal cases under a Jan. 18 order from the North Dakota Supreme Court ( In re Petition to Permit Temp. Provision of Legal Servs. by Qualified Attorneys from Outside N.D. , 2017 BL 13888, N.D., No. 20160436, 1/18/17 ).
The per curiam order puts in place—for the time being—streamlined procedures for cross-border practice by lawyers who want to defend Dakota Access pipeline protesters for free.
The court said it took this step as a matter of discretion because of the potential for delay or inconvenience stemming from the relatively large number of arrests.
The order is unusual in that it relaxes temporary admission in a special class of cases for an interim period, rather than making any permanent change to multijurisdictional practice rules.
“We attempted to balance the good faith offer to provide legal assistance with the obligation to protect the public,” Chief Justice Gerald W. VandeWalle told Bloomberg BNA.
“This is really a creative, thinking-outside-the-box solution, or partial solution, to a growing crisis here in North Dakota,” Timothy Q. Purdon of Robins Kaplan said in an interview with Bloomberg BNA.
“Our supreme court’s never done anything like this before,” Purdon said.
Purdon is a former U.S. Attorney for the District of North Dakota and one of 10 lawyers who filed a petition Dec. 14 proposing rule amendments that would allow out-of-state lawyers to freely represent pipeline protesters facing criminal charges.
Purdon said 600 people facing thousands of criminal charges have been arrested in the pipeline protests, and at one point 150 people were arrested and charged with felonies in the same conspiracy.
These numbers created a crisis in terms of the Sixth Amendment right to effective counsel despite the best efforts of public defenders and the local bar, Purdon said.
The court posted the proposed amendments for a comment period ending Dec. 30.
VandeWalle told Bloomberg BNA that the clerk’s office was swamped with comments, many of which were boilerplate statements that protesters can’t get justice in North Dakota.
The court received more than 16,000 comments, mostly fueled by social media and mostly unhelpful, according to the order.
VandeWalle said that because of the urgent nature of the problem, the court didn’t follow the usual procedure in which the Joint Committee on Attorney Standards vets proposals for changes to rules on attorney admission.
Instead, the court used “its own initiative and ingenuity” in determining how to meet the needs, VandeWalle said.
He said the court looked at an Louisiana rule and a New Mexico rule but drew mainly on North Dakota’s rule on provision of legal services following a major disaster and its rule on “pro hac vice” admission—that is, admission just for a particular case.
VandeWalle said the order is unique for North Dakota. “The protest is unique, too—it’s clearly a question of resources versus need,” he said.
Purdon said the order differs in a couple of ways from what the petition requested.
First, the order requires the out-of-state lawyer to provide services pro bono, he said.
Second, the order requires the out-of-state attorney to come in pro hac vice and associate with local counsel, Purdon said.
However, he noted that the court relaxed some of the requirements for pro hac vice admission, including the mandate for the associated North Dakota attorney to sign all pleadings and show up for all court appearances.
This makes it less onerous for North Dakota attorneys to serve as local counsel for out-of-state lawyers representing accused protesters, Purdon said.
The new framework allows lawyers who are licensed in another state and in good standing everywhere to provide legal services in protesters’ criminal cases in North Dakota’s South Central Judicial District on a temporary basis.
Lawyers who do so mustn’t expect any fee, but they can accept reimbursement for expenses, the court said.
The order outlines simplified procedures for temporary admission in this special class of cases. It excuses some requirements that out-of-state lawyers must satisfy for pro hac vice admission.
Lawyers have to register and provide a certificate of good standing from their home state. They must associate with a licensed North Dakota lawyer, but the associated lawyer doesn’t have to have to appear in court as required by the pro hac vice rule.
Moreover, lawyers who use these special procedures don’t have the pay the filing fee that’s otherwise necessary for pro hac vice admission, and they’re not limited in the number of appearances or clients.
However, a lawyer’s licensing state will get notice of any allegations of misconduct in these cases, the court said.
The court refused to do away with the current requirement that out-of-state lawyers associate with in-state counsel when they appear in a North Dakota case. That requirement protects the public from unlicensed lawyers who are often unfamiliar with state-specific laws and rules, it said.
The situation doesn’t amount to a judicial emergency or natural disaster, and no protesters are being denied their constitutional right to counsel, the court said.
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