Disciplinary Board of the Supreme Court of the State of North Dakota v. Kellington
809 N.W.2d 298
| N.D. | 2011Background
- Kellington was admitted to practice in North Dakota on November 22, 1995.
- On February 27, 2011, Kellington admitted service of a Summons and Petition for Discipline.
- The Petition alleges improper handling of client funds, including failure to ensure staff compliance, commingling of unearned fees in a non-trust account, unearned funds withdrawn from trust, and late or absent refunds.
- The Hearing Panel recommended a 90-day suspension stayed, with one year of probation, and $500 in costs, based on violations of ND Rules of Professional Conduct 5.3, 1.15, and 1.16.
- The Supreme Court adopted the Stipulation and ordered probation with conditions and costs; the stay of suspension may be revoked for probation violations.
- The dissenting justice would reject the consent and remand for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kellington violated the professional conduct rules | Kellington violated 5.3, 1.15, 1.16 | Kellington argues compliance and supervisory efforts were adequate | Yes; violations proven; suspension stayed with probation. |
| Appropriateness of staying suspension | Discipline should reflect seriousness and prior history | Probation with conditioned supervision is appropriate | Probation with stay upheld. |
| Adequacy of probation terms | IAP, mentoring, and trust-account controls are sufficient | Terms may be insufficient given prior discipline | Probation terms accepted with LAP/IAP oversight. |
| Impact of prior discipline on sanction | Prior disciplines aggravate sanction | Mitigating factors may offset prior history | Court found aggravation and mitigation offset; sanction stayed probation. |
Key Cases Cited
- In re Anonymous, 698 N.E.2d 808 (Ind. 1998) (trust funds commingling risks and fiduciary duty principles cited)
- Disciplinary Board v. Overboe, 2009 ND 40, 763 N.W.2d 776 (ND 2009) (nonlawyer assistant handling of trust accounts and supervisory responsibility emphasized)
- In re Glorioso, 819 So.2d 320 (La. 2002) (trust fund handling and risk to clients under scrutiny)