Disciplinary Board v. Kirschner
793 N.W.2d 196
N.D.2011Background
- Kirschner, admitted to practice in North Dakota in 1980, represented both parents in a deprivation action seeking termination of parental rights.
- A scheduled October 2008 trial was moved to January 2009; Kirschner claimed discovery delays and Yom Kippur conflict, and he sought a continuance.
- A referee denied the continuance; Kirschner stated he would be out of state and appeared to acknowledge scheduling issues.
- January 2009 trial occurred with Kirschner absent; he later traveled to Florida and then attended Mayo Clinic with his daughter, while another attorney attended the first day as a courtesy.
- A referee denied a continued continuance but granted a trial continuation for the parents’ interests; disciplinary proceedings followed alleging violations of 3.4(c) and 3.5(d).
- The Disciplinary Board recommended a 30-day suspension and costs; the Supreme Court ultimately reprimanded Kirschner and ordered costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Kirschner violate 3.4(c) by disobeying a tribunal obligation? | Kirschner knew of the January 2009 trial but did not appear. | The continuance denial was unreasonable; but disciplinary review should not substitute for malpractice. | Yes; clear violation established. |
| Did Kirschner's conduct violate 3.5(d) by disrupting a tribunal? | Absence at trial inherently disrupted the tribunal. | Disruption requires objective disruption; not necessarily in-court conduct. | Yes; conduct was calculated to disrupt. |
| Should mitigating factors offset a harsher sanction? | Personal circumstances mitigate; no prior discipline; cooperation. | Mitigating factors may exist but do not negate the misconduct. | Mitigating factors present; reprimand appropriate. |
| Was the chosen sanction appropriate given standards and aggravating/mitigating factors? | Suspension warranted under standard 6.22; substantial experience as aggravator. | Reprimand sufficient given mitigating factors and absence of prior discipline. | Reprimand and costs affirmed. |
Key Cases Cited
- In re Disciplinary Action Against Korsmo, 2006 ND 148, 718 N.W.2d 6 (N.D. 2006) (clear duty to protect public and integrity; de novo review standard)
- Matter of Ellis, 439 N.W.2d 808 (N.D. 1989) (personal issues are mitigating, not excusing)
- Disciplinary Bd. v. Rau, 533 N.W.2d 691 (N.D. 1995) (mitigating factors recognized in sanctioning)
- Disciplinary Bd. v. LaQua, 548 N.W.2d 372 (N.D. 1996) (emphasizes mitigating factors when evaluating sanctions)
- Disciplinary Bd. v. Boulger, 2001 ND 210, 637 N.W.2d 710 (N.D. 2001) (agency findings given due weight but not automatic)
- Gray, 544 N.W.2d 168 (N.D. 1996) (ABA standards as framework for sanctions)
- Disciplinary Bd. v. McKechnie, 2003 ND 22, 656 N.W.2d 661 (N.D. 2003) (disciplinary proceedings not a malpractice forum)
- Disciplinary Bd. v. Stuhff, In re Discipline of Stuhff (1992 Nev.) (conduct outside courtroom can disrupt tribunal)