State, ex rel. Roseland v. Herauf
2012 ND 151
| N.D. | 2012Background
- Hann is a North Dakota attorney admitted May 5, 2005, subjected to a three-matter disciplinary action.
- First matter (Zastoupil): retainer agreements for divorce; $1,280 then $4,000 paid but funds reportedly not placed in trust; client sought refund of unused portion.
- Second matter (Munro): filed affidavits in a custody case containing statements asserting Munro’s status that were misleading; caption misidentified parties.
- Third matter (Kuntz): advised hiding or disposing of a $36,000 savings; failed to disclose this amount in the financial affidavit and did not correct the affidavit.
- Hearing panel found violations of 1.5(a) and 1.15(a)/(c) in the Zastoupil matter, 3.3(a)(1)/(3) and 8.4(c) in the Munro matter, and 3.3(a)(1)/(3) and 8.4(c) in the Kuntz matter.
- Court imposed a six-month-and-one-day suspension and $7,010.76 in costs to be paid.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Hann violate fee rules in Zastoupil matter? | Disciplinary Board | Hann denied nonrefundable retainer; fees reasonable | Yes, proven violations of 1.5(a), 1.15(a)/(c), 1.16(e). |
| Did Hann misrepresent in Munro affidavit? | Disciplinary Board | No knowing misrepresentation | Yes, violations of 3.3(a)(1)/(3) and 8.4(c). |
| Did Hann fail to disclose/hide the $36,000 for Kuntz? | Disciplinary Board | Unclear timing; not proven required acts | Yes, violations of 3.3(a)(1)/(3) and 8.4(c). |
| Is suspension appropriate sanction? | Disciplinary Board | Mitigation may apply; prior decisions limit sanction | Yes; six months and one day suspension. |
Key Cases Cited
- Disciplinary Action Against Dyer, 2012 ND 118 (N.D. 2012) (de novo review; clear and convincing standard heightened)
- In re Kirschner, 2011 ND 8 (N.D. 2011) (de novo review; standards for discipline)
- Rozan, 2011 ND 71 (N.D. 2011) (nonrefundable retainers; 1.5 and 1.16 considerations)
- Disciplinary Board v. Madlom, 2004 ND 206 (N.D. 2004) (nonrefundable fee issues; sanctions context)
- Richmond v. Nodland, 501 N.W.2d 759 (N.D. 1993) (nonrefundable retainers; caution in disciplinary context)