Gerber v. Disciplinary Bd. of the N.D. Supreme Court (In re Petition for Leave to Appeal By Gerber)

• Decision Date: 25 August 2015
• Docket Number: No. 20150032.,20150032.
• Parties: In the Matter of the Petition for Leave to Appeal by Benjamin Loren GERBER. Benjamin Loren Gerber, Petitioner v. Disciplinary Board of the North Dakota Supreme Court, Respondent.
• Court: North Dakota Supreme Court

868 N.W.2d 861

In the Matter of the Petition for Leave to Appeal by Benjamin Loren GERBER.

Benjamin Loren Gerber, Petitioner

v.Disciplinary Board of the North Dakota Supreme Court, Respondent.

No. 20150032.

Supreme Court of North Dakota.

Aug. 25, 2015.

Scott K. Porsborg, Bismarck, ND, for petitioner.

Brent J. Edison (argued), Disciplinary Staff, Fargo, ND, and Kara J. Johnson (on brief), Disciplinary Staff, Bismarck, ND, for respondent.

Opinion

PER CURIAM.

[¶ 1] Gerber appeals a decision of the Disciplinary Board of the Supreme Court, affirming the Inquiry Committee West determination to admonish him for violating N.D.R. Prof. Conduct 5.5, relating to the unauthorized practice of law. We conclude clear and convincing evidence establishes that Gerber violated N.D.R. Prof. Conduct 5.5(d) and order that Gerber be admonished.

I

[¶ 2] From about September 2010 until late October or early November 2011, Gerber worked as a “staff attorney” in the Bismarck office of Fredrikson & Byron, P.A., a law firm based in Minneapolis, Minnesota. While in Bismarck, Gerber worked as a registered lobbyist, conducted title research, and assisted in drafting title opinions. Although Gerber was admitted to practice law in Minnesota in October 2010, Gerber has never been licensed to practice law in North Dakota. The Fredrikson firm announced Gerber's hiring in a news release:

For Immediate Release

Fredrikson & Byron Hires Five Attorneys

Minneapolis, MN December 9, 2010—Fredrikson & Byron announces five attorneys joined the firm to support the growing practice in the Bismarck office: ... Benjamin L. Gerber....

....

Gerber is a government relations specialist in the Government Relations Group and staff attorney in the Energy Group. Gerber works with clients to understand their goals and legislative needs and devises a practical strategy to help them achieve success. He also works as a representative between the client and the North Dakota Legislature, the Governor's office, state agencies, and other federal and local government officials. Gerber's energy practice focuses on title examination and oil and gas law.

[¶ 3] At the firm, Gerber worked as a “staff attorney” and a “government relations specialist” and represented Fredrikson's clients before the North Dakota Legislature as a registered lobbyist. He was supervised by an attorney in Fredrikson's Minneapolis office. Gerber also researched title issues and assisted in drafting title opinions under the supervision of an attorney in the Bismarck office. A supervising attorney reviewed, revised, approved and signed the final title opinions. Gerber did not obtain or retain his own clients, other than with respect to his lobbying activities, provide any legal advice independent of his supervising attorneys, or perform any work for Fredrikson's clients without their supervision.

[¶ 4] In October 2011, before leaving the firm, Gerber completed an application for admission to the North Dakota bar.

Concerned about Gerber's work at Fredrikson as a “staff attorney,” the State Board of Law Examiners requested he provide more information. Gerber responded to the request by affidavit in March 2012, describing his position as a “government relations attorney” and “staff attorney” with the Fredrikson firm in Bismarck and explaining his duties including title opinion research and lobbying work. Gerber also noted reasons for his separation from the firm in the affidavit, stating, “I was not happy with a position as a title exam attorney.” In April 2012, the State Board of Law Examiners spoke informally with Gerber by telephone. Gerber subsequently withdrew his application because he had obtained other employment in Minnesota.

[¶ 5] In September 2012, the State Board of Law Examiners sent a letter to the Disciplinary Board concerning Gerber and the Fredrikson firm “for violations of N.D.R. Prof. Conduct 5.5(a) and (e), as it is apparent from the information provided to the State Board of Law Examiners that Gerber, through Fredrikson & Byron, established a permanent office in Bismarck, North Dakota, and practiced law within the State for approximately 13 months without a license.” In September 2012, the Inquiry Committee West opened a file to investigate whether Gerber had violated N.D.R. Prof. Conduct 5.5(a). Gerber filed a written response, explaining his work at the firm and arguing it did not constitute the practice of law.

[¶ 6] In a June 2013 notice of disposition, the Inquiry Committee concluded the allegations that Gerber violated N.D.R. Prof. Conduct 5.5(a), (b), and (c) could not be sustained against Gerber and dismissed the complaint. In July 2013, Disciplinary Counsel appealed to the Disciplinary Board, citing N.D.R. Prof. Conduct 5.5(a) and (d), and arguing Gerber was held out to the public as entitled to practice law and working on legal matters as a “staff attorney” in a law office located in North Dakota for 13 months constituted the unauthorized practice of law. Disciplinary Counsel asserted the Inquiry Committee's contrary interpretation was wrong as a matter of law and requested the Disciplinary Board to remand the matter back to the Inquiry Committee. In a November 2013 letter, the Disciplinary Board advised the parties the Board had reversed the Inquiry Committee's decision and remanded for the Inquiry Committee to consider offering Gerber consent probation.

[¶ 7] In March 2014, Gerber filed an additional written response to the Inquiry Committee to consider on remand. In his March 5, 2014, letter, Gerber argued that he did not engage in the practice of law in North Dakota and no evidence showed Gerber held himself out to the public as being licensed in North Dakota. After its March 2014 meeting, the Inquiry Committee concluded Gerber “had violated the provisions of Rule 5.5, N.D.R. Prof. Conduct, when he engaged in work as an attorney in this state, but did not secure a temporary license to practice law.” The Inquiry Committee extended to Gerber an offer of consent probation, but Gerber declined. At its June 2014 meeting, the Inquiry Committee further considered the matter, and in a June 25, 2014, notice of disposition, reaffirmed its earlier conclusion that Gerber had “engaged in the unauthorized practice of law, in violation of Rule 5.5, N.D.[R.] Prof. Conduct, when he worked as a staff attorney in Bismarck between October 2010 and November 2011. The Committee determined that discipline in the form of an admonition is appropriate.”

[¶ 8] In July 2014, Gerber appealed the Inquiry Committee's decision to the Disciplinary Board, which the Board considered at its September 2014 meeting. In a September 24, 2014, letter the Chair of the Disciplinary Board advised Gerber's attorney the Disciplinary Board had affirmed the Inquiry Committee's disposition and approved the decision to impose an admonition. In February 2015, Gerber filed a petition with this Court for leave to appeal the Disciplinary Board's decision affirming the issuance of an admonition, which this Court granted.

II

[¶ 9] “This Court reviews the substantive evidence and merits of an informal disciplinary disposition de novo on the record.” In re Runge, 2015 ND 32, ¶ 9, 858 N.W.2d 901. “A violation of the Rules of Professional Conduct must be established by clear and convincing evidence.” Id.; see also Toth v. Disciplinary Bd., 1997 ND 75, ¶¶ 10–11, 562 N.W.2d 744. Clear and convincing evidence means “the trier of fact must be reasonably satisfied with the facts the evidence tends to prove and thus be led to a firm belief or conviction.” Disciplinary Bd. v. Hoffman, 2013 ND 137, ¶ 5, 834 N.W.2d 636 (quotations omitted).

III

[¶ 10] Gerber argues there is not clear and convincing evidence he violated N.D.R. Prof. Conduct 5.5, prohibiting the unauthorized practice of law, because he did not practice law in North Dakota when he worked as a lobbyist during the 2011 legislative session and when he assisted a licensed attorney at the firm with researching and drafting title opinions. We conclude, however, that whether Gerber violated N.D.R. Prof. Conduct 5.5(d) is dispositive of his appeal.

A

Rule 5.5, N.D.R. Prof. Conduct, addresses the unauthorized practice of law:

(a) A lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.

(b) A lawyer admitted to practice in another jurisdiction and not in this jurisdiction, who performs legal services in this jurisdiction on a temporary basis does not engage in the unauthorized practice of law in this jurisdiction when:

(1) the lawyer who is an employee of a client, acts on the client's behalf, or on behalf of the client's commonly owned affiliates, except for work for which pro hac vice admission or registration under Admission to Practice R. 3 is required;

(2) the lawyer acts with respect to a matter that arises out of the lawyer's representation of a client in a jurisdiction in which the lawyer is admitted to practice, except for work for which pro hac vice admission or registration under Admission to Practice R. 3 is required;

(3) with respect to matters for which registration or pro hac vice admission is available under Admission to Practice R. 3, the lawyer is authorized to represent a client or is preparing for a matter in which the lawyer reasonably expects to be so authorized;

(4) with respect to matters, transactions or proceedings pending in or substantially related to this jurisdiction and for which pro hac vice admission is not available under Admission to Practice R. 3, the lawyer is associated in the matter, transaction or proceeding with a lawyer admitted to practice in this jurisdiction who actively participates in the representation of the client in the matter, transaction or proceeding; or(5) the lawyer performs a service that may be performed by a person without a license to practice law or without other authorization from a federal, state or local governmental body.

(c) A lawyer admitted to practice in another jurisdiction

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