State v. Unruh
2012 ND 107
| N.D. | 2012Background
- Disciplinary Board filed petitions against Edwin W.F. Dyer III and Anne E. Summers for violations of ND Rules of Professional Conduct 1.15(c) and 8.1(b).
- Disciplinary Counsel sought records from the trust accounts for Sept 2005–Mar 2008; Dyer/Summers refused citing confidentiality under Rule 1.6.
- A hearing panel granted a discovery order to compel production with confidentiality protections; Dyer/Summers sought supervisory writs.
- Hearing panel found no clear and convincing evidence of 1.15(c) violation but did find 8.1(b) due to failure to respond to lawful requests for information.
- The ND Supreme Court, reviewing de novo, held there was clear and convincing evidence of 1.15(c) violation and that 8.1(b) was also satisfied; suspension of nine months for each was imposed with costs.
- Summers also faced concurrent discipline in other case; sanctions run concurrently.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dyer/Summers violated 1.15(c). | Disciplinary Counsel asserts funds were withdrawn before earned. | Dyer/Summers argue no violation. | Yes, 1.15(c) violated. |
| Whether Dyer/Summers violated 8.1(b). | Disciplinary Counsel contends knowing failure to respond. | Argue information was protected by 1.6, no disclosure required. | Yes, 8.1(b) violated. |
| Whether Rule 1.6(c)(4) permits disclosure in disciplinary proceedings. | Not applicable; focus on required disclosures. | Rule 1.6(c)(4) does not apply. | Lawyer may disclose to respond to disciplinary proceedings; disclosure permitted. |
| Whether the sanction of nine-month suspension was appropriate. | Sanction proportionate to violations. | Consider mitigators; but not applicable here. | Nine-month suspension appropriate; costs awarded. |
Key Cases Cited
- In re Kirschner, 2011 ND 8 (ND 2011) (de novo standard; clear and convincing burden; weigh findings)
- In re Kellington, 2011 ND 241 (ND 2011) (distinguishable facts; good faith factors; restitution and cooperation considered)
- Attorney Grievance Comm’n of Maryland v. Zdravkovich, 852 A.2d 82 (Md. 2004) (trust/account records not confidential; relevant to Rule 1.6 disclosures)
- People v. Robnett, 859 P.2d 872 (Colo. 1993) (disclosures in disciplinary context permitted under similar rule)