863 N.W.2d 223
N.D.2015Background
- In March 2010 Martin Thompson (a landman) met with attorney Kerry J. Carpenter to discuss Thompson’s research into deceased owner’s Mountrail County mineral interests and possible compensation from the Christian Science Church, the will’s beneficiary.
- Thompson had spent >300 hours assembling research and provided Carpenter with documents (will, letters, notice of lapse); Thompson expected representation or partnership/compensation discussions.
- Carpenter sent a follow-up letter stating he did not represent Thompson and would only disclose public information; Thompson disputed some of Carpenter’s account.
- After the meeting Carpenter contacted Church representatives, agreed to represent the Church, filed claim documents, and later obtained a contingent 12% fee/interest from the Church for recovery work.
- The Disciplinary Board found Carpenter violated N.D.R. Prof. Conduct 1.18 (duties to potential clients) and 1.7 (conflicts of interest) and recommended a 90‑day suspension, CLE, and costs; the Supreme Court reviewed de novo and adopted the Board’s sanction for Rule 1.18 violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Thompson was a “potential client” under N.D.R. Prof. Conduct 1.18(a) | Thompson met with Carpenter to explore representation or partnership; therefore he was a potential client | Carpenter contended the meeting was not for representation and thus Thompson was not a potential client | Court: Clear and convincing evidence Thompson was a potential client |
| Whether Thompson disclosed “significantly harmful information” under Rule 1.18(b) | Thompson provided valuable, non‑ordinary‑course research and documents that were sensitive and useful | Carpenter argued most information was public and previously provided to the Church, so not "significantly harmful" | Court: Information was sufficiently sensitive/useful and Carpenter used it — Rule 1.18(b) violation proved |
| Whether the Church’s interests were materially adverse to Thompson under Rule 1.18(c) | Thompson sought compensation for his efforts; Church opposed payment — adverse interests | Carpenter disputed material adversity | Court: Interests were materially adverse; Carpenter’s subsequent representation of Church conflicted with Thompson |
| Appropriate sanction | Board recommended 90‑day suspension, 6 CLE hours on conflicts, and costs | Carpenter objected to findings and recommended lesser discipline | Court adopted Board’s recommendation: 90‑day suspension (effective July 1, 2015), 6 additional CLE hours, and $7,107.79 costs |
Key Cases Cited
- Disciplinary Board v. Light, 765 N.W.2d 536 (N.D. 2009) (standard of review and clear‑and‑convincing proof in disciplinary proceedings)
- Disciplinary Board v. Bullis, 723 N.W.2d 667 (N.D. 2006) (deference to hearing panel on witness credibility)
- Disciplinary Board v. Askew, 776 N.W.2d 816 (N.D. 2010) (de novo review with due weight to Board findings)
- Disciplinary Action Against Dvorak, 611 N.W.2d 147 (N.D. 2000) (factors for sanctions in attorney discipline)
- Sturdivant v. Sturdivant, 241 S.W.3d 740 (Ark. 2006) (prospective client disclosure can be "significantly harmful" warranting disqualification)
- O Builders & Assocs., Inc. v. Yuna Corp., 19 A.3d 966 (N.J. 2011) (harm must be fact‑sensitive for "significantly harmful" under prospective‑client rule)
- Zalewski v. Shelroc Homes, LLC, 856 F. Supp. 2d 426 (N.D.N.Y. 2012) (public records generally not confidential but collected research can have value and sensitivity)