Disciplinary Board v. Foster
2018 ND 1
| N.D. | 2018Background
- Nicole E. Foster was admitted to the North Dakota Bar in 2002; she was placed on interim suspension in 2015 and subsequently disbarred in 2017.
- The Supreme Court retained jurisdiction to determine the amount of restitution owed to clients and remanded the matter to a hearing panel.
- Trustees were appointed to take control of Foster’s office and files; Foster cooperated minimally and later ceased assistance.
- Foster used paper files and an online storage/billing system but allowed online accounts to lapse and maintained no backups, leaving many records unavailable.
- Trustees (including a financial trustee) reconstructed client losses using available paper files, docket review, client questionnaires, and bank records; incomplete records limited precision.
- The hearing panel recommended restitution totaling $407,025 to 115 clients and recommended costs of $4,110.84; Foster did not file objections to the panel report.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to accept the hearing panel's findings and recommendations on restitution | Disciplinary Board: accept the panel's factual findings and order restitution as determined | Foster: did not file objections to the panel report on remand | Court accepted the hearing panel's findings and recommendations and ordered restitution |
| Whether trustees' restitution calculations were sufficiently reliable given missing records | Board: trustees used reasonable methods (files, dockets, client questionnaires) to determine restitution | Foster: contended by omission that missing records and her limited cooperation undermined accuracy | Court found trustees' methodology adequate under the circumstances and adopted Appendix A amounts despite some uncertainty |
| Whether Foster must pay costs of disciplinary proceedings | Board: costs should be assessed to Foster | Foster: no objections filed on this point | Court ordered Foster to pay $4,110.84 in costs to the Disciplinary Board secretary |
| Whether Foster must reimburse the Client Protection Fund for amounts it pays on her behalf | Board: require repayment to Client Protection Fund | Foster: no objection presented | Court ordered Foster to repay the Fund for any amounts paid on her behalf within the specified time frame |
Key Cases Cited
- Disciplinary Board v. Foster, 2015 ND 114, 863 N.W.2d 241 (interim suspension; trustee appointment and Foster's cooperation discussed)
- Disciplinary Board v. Foster, 2017 ND 113, 894 N.W.2d 378 (disbarment; Court retained restitution issue and remanded)
- Disciplinary Board v. Foster, 2017 ND 161, 896 N.W.2d 911 (subsequent disbarment proceeding)