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MANDAN, N.D. | A petition to let out-of-state lawyers represent pipeline protesters has drawn thousands of public comments to the North Dakota Supreme Court.
The vast majority of the comments, which come from as far away as Hawaii, are in favor of the petition, which arose from concerns among some lawyers there were not enough criminal defense attorneys in the state to handle the 570-plus criminal cases arising from the Dakota Access pipeline protests.
When the petition was filed in mid-December, 264 people were listed as being without attorneys, a problem they said could be partly attributed to a shortage of public defenders and private criminal defense lawyers.
But many key North Dakota stakeholders, including the state bar association and the presiding district judge, expressed reservations about allowing such lawyers to practice in the state without strict supervision, a review of public comments shows.
The petition, which was submitted in mid-December by 10 North Dakota and Minnesota lawyers and organizations, asks the state Supreme Court to relax the rules on out-of-state lawyers. One way they suggest doing this would be to allow lawyers to practice in North Dakota as long as they are licensed in the federal system.
Currently, out-of-state lawyers must work closely with a local lawyer, who must appear at all hearings. According to the petition, willing lawyers have had trouble finding local partners because of existing workloads, conflicts and extra fees.
By leaving the rules as is, the petitioners say many people’s constitutional right to a defense attorney is at risk.
“The fallout from the DAPL protests is unprecedented in North Dakota. The sheer scale presents a legal crisis in providing quality representation to all defendants,” the petitioners wrote.
The State Bar Association of North Dakota did not oppose the petition but said it was “concerned with the protection of the public and unauthorized practice of law.”
The bar recommended that any rule changes apply only to lawyers working on protest-related cases. Also, it suggested there should be rules that lawyers must be in good standing in their respective states, pay licensure fees at least once and be subject to discipline. It also said it may not be the best organization to supervise such a program.
“If the court eases any of the requirements … those changes should be done in light of the interests of the protection of those being represented,” President Charles DeMakis wrote.
The Indigent Defense Commission remained neutral with respect to the petition, which is purportedly written to help it handle an ever-increasing number of cases. In a letter to the court, the executive director detailed the efforts the commission has taken to appoint 81 lawyers to pipeline cases and said she was committed to continuing to provide services to all who qualify.
“The DAPL cases have added significant work volume to an already record-breaking year. The commission and its employees and contractors are dedicated to their mission of providing high-quality, professional and effective defense services to those in need and will continue to fulfill it,” Executive Director Jean Delaney wrote.
South Central District Presiding Judge Gail Hagerty, writing on behalf of the judges in the district, including Morton County, opposed the petition and said she had not seen the issues obtaining lawyers that were pointed out in the brief.
“We have not experienced difficulty in having attorneys appointed for those who are indigent and are entitled to court-appointed counsel,” Hagerty wrote. “It should be remembered that there are only a handful of prosecuting attorneys involved in the cases involving pipeline protests.”
However, a judge on the Standing Rock Indian Reservation said he wished the court would allow the relaxed rules “as an excellent way to ensure legal counsel for defendants, many of whom are indigent, while saving Morton County and the state monies for court‐appointed counsel.”
The judge, B.J. Jones, said several attorneys had asked him to be their associate counsel, but the time commitment was too difficult, as he would need to appear with them at any proceeding.
“The rules associated with appearing with outside counsel are very laborious and would require me to be away from court so often that I have had to turn down these requests,” Jones wrote.
Neither the North Dakota State’s Attorney’s Association nor the North Dakota Criminal Defense Lawyers Association provided comments.
Among the supporters were civil rights and legal defense groups, including Amnesty International, the Civil Liberties Defense Center and the National Lawyers Group, which has helped coordinate out-of-state lawyers to assist protesters with their cases.
“The right of both indigent and non-indigent defendants to adequate and effective counsel undergirds the guarantees of a fair and speedy trial, due process and equal protection that constitute the cornerstones of the rule of law. Timely intervention by this court could protect these foundational principles and preclude the time and expense of years of subsequent litigation should these defendants be denied their constitutional rights,” the NLG commented.
The NLG said that, if the rules were approved, they could help provide attorneys from its network.
Some tribes and native organizations, including Standing Rock, also endorsed the measure.
Thousands of members of the public, many from other states and using a template response, also wrote the court to endorse a temporary change.
“Allowing out-of-state attorneys will help to ensure our water protectors receive as fair a trial as possible,” many wrote.
Meanwhile, some North Dakota members of the public rejected the idea, condemning it as special treatment or a way of pulling business from local lawyers.
Comments were accepted Dec. 15-30.
The court has yet to rule on the petition. There is no hearing scheduled.