No Safe Harbor

A notice of appeal filed by a Colorado attorney on behalf of a corporation is void in North Dakota absent pro hac vice admission or a sponsoring attorney, according to an opinion of the North Dakota Supreme Court.

Job Service received an electronic appeal request for Blume signed by Craig Fidler. A telephone hearing was scheduled for February 27, 2014. Prior to the hearing, Blume requested the hearing be postponed because it had retained the service of Fidler, who was identified as a licensed attorney from Colorado. Fidler was not licensed to practice law in North Dakota. In approximately May 2014, Fidler notified the referee he was unable to secure a sponsoring attorney licensed in North Dakota. During that same time period, the referee was informed a North Dakota attorney would be representing Blume.

A hearing was scheduled for June 26, 2014. On the morning of the hearing, the referee became aware the electronic appeal was filed by Fidler. The hearing was not held. In a July 1, 2014, decision, the referee concluded pro hac vice admission was required for a nonresident attorney who engaged in the practice of law by appearing in an action filed in an administrative agency, Fidler did not properly register or move for pro hac vice admission under Admission to Practice R. 3, and the appeal request was void because it was filed by a nonresident attorney who was not admitted to practice in North Dakota. The referee concluded the determination was final in the absence of an appeal by the employer.

Blume requested review of the referee’s decision. Blume argued Job Service is estopped to reverse its previous decision accepting the appeal, Job Service did not timely advise Blume there appeared be to a defect in the filing, and Blume was deprived of an opportunity to correct the defect. Blume also argued the appeal was valid, it authorized Fidler to sign the appeal on behalf of the corporation, it could have authorized any third-person to complete and submit the form, and completion and submission of the appeal form does not constitute engaging in the practice of law. Job Service denied Blume’s request for review.

The court

We conclude Fidler’s actions filling out and submitting the appeal request form on behalf of a corporation were not services a person without a license to practice law could perform, and therefore the safe harbor of N.D.R. Prof. Conduct 5.5(b)(5) does not apply.

Blume also argues Fidler’s actions were protected by the safe harbor provision of N.D.R. Prof. Conduct 5.5(b)(3). Blume contends an attorney is allowed to perform certain preparatory activities prior to applying for pro hac vice admission, filing the request for an appeal was a preparatory action, and there is no evidence in the record suggesting Fidler did not reasonably expect to secure pro hac vice admission…

We conclude Fidler’s activities completing and submitting the appeal request on Blume’s behalf were not protected by the safe harbor provisions of N.D.R. Prof. Conduct 5.5(b). Fidler was required to move for pro hac vice admission under Admission to Practice R. 3(A)(2) within 45 days of filing the appeal request. There is no evidence in the record that Fidler moved for pro hac vice admission, and therefore we conclude Blume’s appeal request by its non-attorney agent was void. See Carlson, 2009 ND 87, ¶ 34, 765 N.W.2d 691. Blume failed to file a timely appeal, and Job Service’s determination is final.

Chief Judge VandeWalle concurred

Here, there is no doubt that Fidler signed the notice of appeal in the capacity of Blume’s attorney. However, I do not construe the safe harbor provision of N.D.R. Prof. Conduct 5.5(b)(5) to mean that an attorney who is not licensed in North Dakota is not acting as an attorney for the corporation, but rather to allow that attorney to perform a service that a non-lawyer could provide without engaging in the unauthorized practice of law.

In this case, we are concerned with the requirement for a rather simple notice of appeal which, under the administrative rules, a non-lawyer may file. However, as the majority opinion notes at ¶ 19, the person filing the appeal went beyond what was required; the notice of appeal is more like a petition for reconsideration and therefore the preparer provided a service that I agree is akin to a petition for reconsideration, a service that a non-lawyer in North Dakota could not provide. For that reason I agree the safe harbor provision in N.D.R. Prof Conduct 5.5(b)(5) does not apply.

(Mike Frisch)