817 N.W.2d 351
N.D.2012Background
- Dyer and Summers, North Dakota lawyers practicing together in Bismarck, faced Disciplinary Counsel petitions for discipline on July 24, 2009.
- The petitions alleged violations of ND Rules: 1.15(c) for withdrawing client funds before fees/expenses were earned and 8.1(b) for failing to provide records during inquiry.
- Disciplinary Counsel sought records relating to September 2005–March 2008, including trust statements, client-specific records, and bills.
- Dyer and Summers refused to disclose, arguing confidentiality under Rule 1.6.
- The hearing panel granted a discovery motion in November 2009 and ordered production under protective measures; Dyer and Summers sought a supervisory writ which this Court denied in January 2010.
- The hearing panel ultimately found violations and recommended a nine-month suspension with costs; the ND Supreme Court conducted de novo review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was clear and convincing evidence of 1.15(c) violation | Dyer/Summers withdrew funds before earned, violating 1.15(c) | Dyer/Summers lacked sufficient evidence of untimely withdrawals to prove 1.15(c) | Yes; clear and convincing evidence supports 1.15(c) violation |
| Whether there was violation of 8.1(b) for failing to respond | Failure to disclose requested records violated 8.1(b) | Disclosures were permissible under Rule 1.6(c)(4) and 1.6(c)(5) | Yes; 8.1(b) violation established |
| Appropriate sanction | Suspension and costs warranted given aggravating factors | Sanction should be lesser due to mitigating factors and noncooperation by counsel | Nine-month suspension; each to pay $3,957.26 in costs; concurrent with related case; reinstatement governed by rules |
Key Cases Cited
- Kirschner v. Disciplinary Bd., 2011 ND 8, 793 N.W.2d 196 (ND 2011) (de novo review in disciplinary action; clear and convincing standard)
- In re Disciplinary Action Against Stensland, 2011 ND 110, 799 N.W.2d 341 (ND 2011) (standards for imposing sanctions; factors for suspension)
- Zdravkovich, Attorney Grievance Comm’n of Md., 381 Md. 680, 852 A.2d 82 (Md. 2004) (balance of trust-account balance as evidence of 1.15 violation; prima facie showing with shortfall in trust account)
- In re D.H., 507 N.W.2d 314 (ND 1993) (comital evidence; complainant testimony not always required; evidence must support petition)
- Adams v. Franklin, 924 A.2d 993 (D.C. 2007) (disclose under Rule 1.6(c)(5) after lawful order; appeal considerations)