Legal Memorandum: Evidence in Attorney Disciplinary Proceedings

Issue: Does Rule 408 of the North Dakota Rules of Evidence preclude use of prior civil suit settlements or pleadings in an attorney disciplinary proceeding?

Area of Law: Ethics & Professional Responsibility
Keywords: Attorney disciplinary proceeding; Prior civil suit settlements or pleadings; Evidence
Jurisdiction: North Dakota
Cited Cases: 600 N.W.2d 856; 500 N.W.2d 598; 629 N.W.2d 563; 714 N.W.2d 484
Cited Statutes: N.D. R. Evid. 408(a); N.D. R. Law. Discipline 3.5(B)
Date: 09/01/2008

The North Dakota Rules of Evidence apply in North Dakota attorney disciplinary proceedings.  N.D. R. Law. Discipline 3.5(B).  N.D. Rule of Evidence 408(a) provides:

Prohibited Uses.  Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:


(1)               furnishing, offering, or promising to furnish or accepting, offering, or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and

(2)               conduct or statements made in compromise negotiations is likewise not admissible.  Exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations is not required.

N.D. R. Evid. 408(a).  see also Berg v. Dakota Boys Ranch Ass’n, 629 N.W.2d 563 (N.D. 2001) (evidence of a compromise is admissible to rebut testimony); Thomas v. Strickland, 500 N.W.2d 598, 600 (N.D. 1993); Schlossman & Gunkleman, Inc. v. Tallman, 593 N.W.2d 374, 379 (N.D. 1999).  Accordingly, whether evidence of an Attorney’s settlement is admissible in the disciplinary proceedings depends on the purpose for which they are offered.  See City of Bismarck v. Mariner Constr. Co., Inc., 714 N.W.2d 484, 493 (N.D. 2006).

Rule 408 was implicated and discussed in In the Matter […]

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