Disciplinary Board of the Supreme Court of the State of North Dakota v. McDonagh
2013 ND 20
| N.D. | 2013Background
- McDonagh was admitted to the North Dakota Bar in 1997 and disbarred in 2012.
- In August 2012 a Petition for Discipline was served alleging he misapplied a $3,500 client advance and failed to deposit it in trust, complete work, or refund unearned funds.
- The Hearing Panel found violations of 1.3 (diligence), 1.15(a) (trust funds), 1.15(c) (advance fees in trust), and 1.15(d) (prompt accounting).
- The Panel recommended disbarment, reimbursement of $3,500, and costs of $472.50; it considered aggravating factors under the ND Standards.
- McDonagh did not respond to the petition or to mitigation, and no objections were filed to the Panel’s findings.
- The Supreme Court concluded disbarment was warranted and noted a five-year readmission bar given prior disbarment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a violation of 1.3/diligence? | Disciplinary Board argues McDonagh failed to diligently perform services. | McDonagh did not dispute all factual findings; argues the Panel mischaracterized the fee issue rather than diligence. | Yes, violation of 1.3 established. |
| Did McDonagh violate 1.15(a) and (c) by handling client funds improperly? | Funds were not kept in trust as required; advance payments must be deposited. | No explicit finding that funds were earned; there is a dispute about whether funds were properly categorized. | Yes, violations of 1.15(a) and 1.15(c) proven. |
| Did McDonagh violate 1.15(d) by failing to provide prompt accounting? | Client entitled to prompt accounting and return of unearned funds. | No direct challenge to accounting findings; emphasis on trust deposit issue. | Yes, violation of 1.15(d) shown. |
| Is the proposed discipline appropriate given prior disbarment? | Disbarment is appropriate to deter misconduct and protect clients. | McDonagh's prior disbarment already forecloses readmission for a period; focus on sanctions. | Disbarment warranted; five-year readmission bar applies. |
Key Cases Cited
- Disciplinary Board v. McDonagh, 2012 ND 224 (ND) (disbarment affirmed; prior disbarment affects readmission)
- Disciplinary Board v. Hann, 2012 ND 160 (ND) (advance fees—earned status; trust account implications)
- Disciplinary Board v. Wolff, 2010 ND 175 (ND) (adversarial process in discipline; special concurrence remarks)
- Disciplinary Board v. Stensland, 2011 ND 110 (ND) (credibility and witness demeanor in findings of fact)
- In the Matter of the Application for Disciplinary Action, 2013 ND 20 (ND) (discipline order affirming disbarment and restitution)