Disciplinary Board of the Supreme Court of the State of North Dakota v. Feland
820 N.W.2d 672
N.D.2012Background
- Feland, a former Burleigh County Assistant State’s Attorney, prosecuted Blunt for misapplication of entrusted property in a series of cases culminating in Blunt III (2011 ND 127).
- During the Blunt investigation, Wahl from the State Auditor’s Office wrote a November 8, 2007 memo detailing interviews and the determination that Spencer’s relocation expenses were not to be recouped due to a nonvoluntary resignation issue.
- In 2010 a petition for discipline alleged Feland violated ND Rule of Professional Conduct 3.8(d) for failing to disclose the Wahl memo to Blunt’s defense counsel, Hoffman.
- A hearing panel found a Rule 3.8(d) violation, recommending a 60-day suspension and $11,272.21 in costs.
- The Court reviews de novo, determines Rule 3.8(d) applies to negligent as well as intentional withheld exculpatory evidence, and ultimately orders only an admonition and partial costs.
- The sanction recognizes the conduct as an isolated negligent act causing little or no injury, with costs reduced to $5,636.10.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 3.8(d) requires intent or applies to negligent conduct | Feland argues 3.8(d) requires intent (Attorney C). | Feland contends no intent element is required (3.8(d) broader). | Rule 3.8(d) applies to negligent as well as intentional withholding. |
| Whether the Wahl memo disclosure violated 3.8(d) under the facts | Disciplinary Counsel proves non-disclosure harmed defense; checklist showed missing disclosure. | Feland argues disclosure occurred via Bless; conflicting testimony on disclosure. | Disciplinary Counsel proved a negligent failure to disclose the Wahl memo. |
| What sanction is appropriate for a negligent, isolated 3.8(d) violation | 60-day suspension and full costs warranted by pattern of misconduct. | Isolated negligence warrants lesser sanction; admonition favored. | Admonition with partial costs ($5,636.10) is appropriate. |
| Did the record support the finding of negligence, not intentional withholding | Record shows recklessness/knowing disregard. | No conscious objective or knowledge; may be negligent. | Record shows only negligent conduct; no proof of intentional withholding. |
Key Cases Cited
- State v. Blunt, 2011 ND 127, 2011 ND 127, 799 N.W.2d 363 (N.D. 2011) (discusses voluntary vs. nonvoluntary resignation and discovery in Blunt case)
- State v. Blunt, 2010 ND 144, 2010 ND 144, 785 N.W.2d 909 (N.D. 2010) (early discovery and Brady-like issues in Blunt proceedings)
- State v. Blunt, 2008 ND 135, 2008 ND 135, 751 N.W.2d 692 (N.D. 2008) (earlier Blunt proceedings cited in related context)
- Disciplinary Board v. Summers, 2012 ND 116, 817 N.W.2d 363 (N.D. 2012) (standard of review in disciplinary proceedings; de novo with deference to panel)
- In re Hessinger & Assocs., 171 B.R. 366 (Bankr.N.D.Cal.1994) (N.D. Cal. 1994) (citation used for general principle about sanctions/isolation)
- Becker, 504 N.W.2d 303 (N.D. 1993), Becker, 504 N.W.2d 303 (N.D. 1993) (discusses public vs private discipline and sanction levels)
- McKechnie, 2003 ND 22, 656 N.W.2d 661 (N.D. 2003) (isolated negligence and sanctions under broader standards)
- Hoffman, 2005 ND 153, 703 N.W.2d 345, 2005 ND 153, 703 N.W.2d 345 (N.D. 2005) (isolated acts of negligence not always immunized from discipline)
- Attorney C, 47 P.3d 1167, 47 P.3d 1167 (Colo. 2002) (colloquy on mens rea in Rule 3.8(d) application)
- Jordan, 913 So.2d 775, 913 So.2d 775 (La. 2005) (Rule 3.8(d) may be violated by knowingly withheld evidence)