900 N.W.2d 230
N.D.2017Background
- Gene W. Allen, a North Dakota lawyer, was his mother Margaret Allen’s attorney-in-fact and later served briefly as personal representative of her ~ $1 million estate.
- Using a 2011 power of attorney, Allen added himself as joint tenant with right of survivorship on two of his mother’s bank accounts shortly before her death in Feb. 2012.
- Allen filed for informal probate and used his law firm letterhead on estate filings; administration was minimal and recordkeeping was poor.
- After Allen’s son was born in 2013, Allen sought estate distributions favoring his son and himself, proposed alternative splits to the primary beneficiary (his daughter Baker), and later filed a petition seeking intestacy/benefits for himself.
- A disciplinary complaint alleged violations of N.D.R. Prof. Conduct 1.7, 1.9, 3.3, and 8.4 based on conflicts, duties to a former client, candor to the tribunal, and dishonest conduct.
- The Supreme Court found clear and convincing evidence of violations of Rules 1.7, 1.9, and 8.4(c), but not Rule 3.3(a)(1), suspended Allen for six months, and ordered payment of $15,360.77 in costs.
Issues
| Issue | Petitioner’s Argument | Allen’s Argument | Held |
|---|---|---|---|
| Whether Allen violated Rule 1.7 (conflict of interest) by serving as attorney for the personal representative while having personal interests adverse to the estate | Allen, as counsel for the personal representative, placed his personal interests (and his son’s) ahead of the estate and continued representation despite conflict | He denied acting as counsel for himself as personal representative and claimed permissive family exceptions | Held: Violation — Allen acted as counsel for the personal representative, created adverse self-interest, and should have withdrawn |
| Whether Allen violated Rule 1.9 (duties to a former client) by later representing himself in a matter materially adverse to his former client (the successor personal representative) | After withdrawing, Allen filed a petition advocating for himself against the estate without written consent from the former client | He argued his former client was not the successor personal representative (who retained new counsel), so Rule 1.9 didn’t bar his action | Held: Violation — former client was the personal representative; Allen needed written consent before adverse representation |
| Whether Allen violated Rule 3.3(a)(1) by failing to correct or by making false statements to the probate court about will validity and heirs | The panel said Allen made filings asserting the will’s validity, later pursued inconsistent positions disadvantaging the estate and failed to correct earlier statements | Allen contended correspondence and filings show he did not knowingly misrepresent and at times acknowledged the will’s effect | Held: No clear and convincing evidence — the record was insufficient to prove a Rule 3.3 violation |
| Whether Allen violated Rule 8.4(c) by dishonest conduct in obtaining joint tenancy on mother’s bank accounts | The panel found Allen’s testimony that his mother instructed the change not credible and concluded he engaged in dishonest communication with bank personnel and self-dealing | Allen relied on his testimony and others’ expectations and argued the issue belongs in civil probate, not disciplinary, and that he acted with authority | Held: Violation — panel’s credibility findings and circumstantial evidence supported a presumption of undue influence and dishonesty reflecting adversely on fitness |
Key Cases Cited
- Disciplinary Bd. v. Ward, 881 N.W.2d 206 (N.D. 2016) (standard of review and proof in disciplinary proceedings)
- Disciplinary Bd. v. Carpenter, 863 N.W.2d 223 (N.D. 2015) (deference to Disciplinary Board findings)
- Disciplinary Bd. v. Bullis, 723 N.W.2d 667 (N.D. 2006) (deference to panel on witness credibility)
- Disciplinary Bd. v. Johnson, 743 N.W.2d 117 (N.D. 2007) (credibility and hearing-panel deference)
- Moen v. Thomas, 682 N.W.2d 738 (N.D. 2004) (attorney-client relationship may be implied from conduct and client’s subjective belief)
- Disciplinary Bd. v. McIntee, 833 N.W.2d 431 (N.D. 2013) (Rule 1.9 protections for former clients and need for written consent)
- Disciplinary Bd. v. McDonald, 609 N.W.2d 418 (N.D. 2000) (use of circumstantial evidence and presumptions of undue influence in fiduciary misconduct)
- Estate of Vizenor ex rel. Vizenor v. Brown, 851 N.W.2d 119 (N.D. 2014) (confidential relationship and fiduciary duties created by power of attorney)