State v. Pelzl
2011 ND 3
| N.D. | 2011Background
- Kirschner has been a North Dakota attorney since 1980 and represented both parents in a deprivation action seeking termination of parental rights.
- A December 2008/January 2009 trial schedule was set for Jan. 20–23, 2009, with a continuance request denied by a referee.
- Kirschner claimed he could not attend due to travel and family medical appointments, and he argued discovery responses were incomplete.
- The trial proceeded without Kirschner on Jan. 20, 2009; another attorney attended as a courtesy but the continuance was denied.
- A disciplinary complaint followed alleging violations of N.D.R. Prof. Conduct 3.4(c) and 3.5(d); the hearing panel recommended a 30‑day suspension and costs.
- The Supreme Court, after de novo review, reprimanded Kirschner and ordered payment of $3,659.36 in costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kirschner violated 3.4(c) and 3.5(d) by missing the trial | Kirschner knowingly disobeyed a tribunal obligation | Referee/district court denial of continuance mitigates fault | Yes; violations established and sanction issued |
| Appropriate sanction for the misconduct | Suspension warranted given willful disruption | Mitigating factors justify reprimand | Reprimand with costs, rather than suspension |
| Whether mitigating factors offset aggravating factors | Substantial experience aggravates sanction | Lack of prior discipline and personal factors mitigate | Mitigation outweighed aggravation; reprimand appropriate |
Key Cases Cited
- Korsmo, In re Disciplinary Action Against Korsmo, 2006 ND 148 (ND) (discipline purpose to protect public; de novo review; clear and convincing standard)
- Kuhn, Disciplinary Bd. v. Kuhn, 2010 ND 127 (ND) (de novo review of disciplinary decisions; standard of review)
- Ellis, Matter of Ellis, 439 N.W.2d 808 (N.D. 1989) (disciplinary standards and mitigating factors illustrated)
- LaQua, Disciplinary Bd. v. LaQua, 548 N.W.2d 372 (N.D. 1996) (personal problems as mitigating, not excusing, factors)
- Rau, Disciplinary Bd. v. Rau, 533 N.W.2d 691 (N.D. 1995) (mitigating factors may reduce sanctions )
- Boulger, Disciplinary Bd. v. Boulger, 2001 ND 210 (ND) (multifactor examination; deference to board but not automatic)