868 N.W.2d 861
N.D.2015Background
- Benjamin L. Gerber, admitted in Minnesota but never in North Dakota, worked in Fredrikson & Byron’s Bismarck office from ~Sept 2010 to Oct/Nov 2011 as a "staff attorney" and "government relations specialist."
- His duties included registered lobbying before the North Dakota Legislature, title research, and assisting in drafting title opinions; supervising ND‑licensed attorneys reviewed and signed final opinions.
- The firm issued a public news release describing Gerber as a staff attorney with an energy practice focusing on title examination and oil & gas law; no disclaimers stated he was not licensed in North Dakota.
- The State Board of Law Examiners referred the matter to disciplinary authorities; the Inquiry Committee initially dismissed some allegations but later (after a remand) concluded Gerber violated Rule 5.5 and offered consent probation, which he declined.
- The Disciplinary Board affirmed the Inquiry Committee’s admonition; the North Dakota Supreme Court granted leave to appeal and, on de novo review, concluded Gerber violated N.D.R. Prof. Conduct 5.5(d) and ordered an admonition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gerber engaged in unauthorized practice of law in ND | Gerber: his lobbying and supervised title work did not constitute practicing law in ND | Disciplinary Board: Gerber was held out as an attorney and practiced in ND without admission | Court: Clear and convincing evidence of violation of Rule 5.5(d) (holding out as admitted) |
| Whether the firm’s representations can be imputed to Gerber | Gerber: firm assigned title; firm’s statements should not be imputed to him | Board: public protection requires attributing the holding‑out to Gerber as well as the firm | Court: firm’s public statements and Gerber’s own self‑identifications supported finding he was held out as admitted |
| Whether Gerber received adequate due process notice | Gerber: decisions were conclusory and failed to explain specific conduct; lack of written reason violated rule | Board: Gerber had opportunities to respond, addressed 5.5(d) in filings and hearings | Court: Gerber had fair notice and opportunity to be heard; due process not violated |
| Appropriate sanction for the violation | Gerber: (implicit) lesser or no public discipline | Board: admonition appropriate given facts and standards | Court: Admonition ordered as proportional discipline |
Key Cases Cited
- In re Runge, 2015 ND 32 (de novo review and clear‑and‑convincing standard for discipline)
- Disciplinary Bd. v. Hoffman, 2013 ND 137 (definition of clear and convincing standard)
- In re Reinstatement of Stensland, 2013 ND 244 (Rule 5.5(d) prohibits holding out as admitted in state)
- In re Disciplinary Action Against Giese, 2006 ND 13 (holding out as authorized constituted unauthorized practice)
- In re Application of Stage, 692 N.E.2d 993 (using titles like "General Counsel" without disclaimer can be unauthorized practice)