799 N.W.2d 341
N.D.2011Background
- Stensland was hired in April 2008 to represent Jeffrey Schmeets on pending criminal matters and deposited a $9,200 retainer by affixing Schmeets’s signature to a refund check without written authorization.
- Schmeets denied authorizing the signature and no written fee or retainer agreement was provided when the check was deposited.
- Stensland represented Schmeets at a May 12, 2008 jury trial; Schmeets was acquitted on some counts and convicted on others.
- A June 23, 2008 plea agreement in Wells County bore signatures of Schmeets, Stensland, and the State’s attorney; later an amended judgment reduced penalties.
- After sentencing, Schmeets claimed not to have signed the plea; Stensland drafted a handwritten memo reallocating the retainer and did not pursue an appeal; Schmeets later secured new counsel for appeal.
- The Disciplinary Board found multiple violations, recommended one-year suspension, restitution of $2,700, and costs of $8,653.95, which the Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Affixing Schmeets’s signature to the plea agreement | Board asserts Stensland caused the signature to be affixed without authorization | Stensland claimed no memory of signing or authorizing; suggested a family member might obtain signature | Clear and convincing evidence supports that the signature was affixed without authorization |
| Whether Stensland earned the $2,700 balance of the retainer | Board argues the balance was for unperformed services or unearned fees | Stensland contends the funds were earned for appeal work or collateral matters | Evidence did not establish that Stensland earned the disputed $2,700; improper retention of unearned fees |
| Sequestration and fair hearing issues | Board contends sequestration agreement was violated | Stensland argues no classic sequestration violation occurred | No reversible sequestration violation; no denial of a fair hearing |
| Communication with the client (Fee basis and refunds) | Board asserts inadequate communication about fee basis and refunds | Stensland claims inadequate documentation and records were maintained | Clear and convincing evidence of improper communication regarding fees and refunds |
| Appropriateness of the sanction | Board supports substantial sanction given pattern of misconduct | Stensland challenges the severity or basis for the sanction | One-year suspension with restitution and costs proper given pattern of misconduct |
Key Cases Cited
- In re Askew, 2010 ND 7 (2010 ND) (standard of review in disciplinary proceedings; deference to panel on credibility)
- State v. Buchholz, 2004 ND 77 (2004 ND) (sequestration rule interpretation; post-testimony witness contact)
- In re Kirschner, 2011 ND 8 (2011 ND) (standard for imposing sanctions; pattern of misconduct factors)
- In re Stensland, 2009 ND 77 (2009 ND) (prior discipline for fraudulent signing and notice failures)
- In re Stensland, 2006 ND 251 (2006 ND) (prior suspension for fraudulently signing client document)