In the Matter of the Application for DISCIPLINARY ACTION AGAINST James G. WOLFF, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. James G. Wolff, Respondent.
Nos. 20100212, 20100213, 20100214
Supreme Court of North Dakota.
Sept. 20, 2010.
2010 ND 175
See also, 767 N.W.2d 170.
PER CURIAM.
[¶1] James G. Wolff was admitted to practice law in the state of North Dakota on January 13, 2004. On June 24, 2009, Wolff was placed on interim suspension under
[¶3] Two formal disciplinary proceedings, File No. 4677-W-0711 and File No. 4736-W-0803, were pending at the time of Wolff‘s interim suspension in 2009. The Supreme Court has before it Findings of Fact, Conclusions of Law, and Recommendations from a Hearing Panel of the Disciplinary Board regarding three complaint files against Wolff.
File No. 4677-W-0711
[¶4] On May 1, 2008, Wolff admitted service of a Summons and Petition for Discipline. The Petition asserts that in 2006 and 2007 Wolff billed hours to the files of four clients, who were represented by another attorney in his firm, for work that was not actually done or was of no value to the clients. When confronted with the suspicion of improperly billing clients, Wolff either refunded the money to the client or intended to credit the payment for the entries on a final bill.
[¶5] The Petition alleges that Wolff‘s conduct in this matter violates
[¶6] A Hearing Panel was appointed and the matter was scheduled for a hearing. Following the hearing, the Hearing Panel found that Wolff had billed one client for 9 hours and another for 16.39 hours at a rate of $150 per hour. The Hearing Panel found that the billed work was of no value, and when Wolff was confronted by the other attorney in the firm, Wolff refunded the money he had improperly billed to these clients. The Hearing Panel further found that Wolff had billed work that was of no value for two clients represented by the other attorney, who had been appointed by the U.S. District Court for the District of North Dakota. When confronted regarding bills paid by the Administrative Office of U.S. Courts, which included $5,400.40 for the work Wolff had billed, Wolff indicated he would credit the payment for the entries on a final bill to the government. The Hearing Panel found that while Wolff said he would credit the payment for the entries on a final bill to the government he has not done so; however Wolff continued to work on the two files after the other attorney left the firm and there is a net balance owed to the firm.
[¶7] The Hearing Panel concluded that Wolff‘s conduct violated
File No. 4736-W-0803
[¶9] On August 7, 2008, Wolff admitted service of another Summons and Petition for Discipline. On March 11, 2009, an Amended Petition and Summons were served on Wolff. Wolff served a Response to the Amended Petition for Discipline on March 25, 2009. The Amended Petition asserts that Wolff undertook the representation of a client regarding the death of her daughter. In connection with this representation, Wolff entered into a fee agreement with the client that provided that Wolff would receive one-third of any recovery as an attorney fee, with the attorney fee calculated prior to the deduction of costs which were to be born by the client, and also provided that in the event there was a dispute between the attorney and client of any type involving the engagement, it would be resolved solely by arbitration, or by applicable rules of the State Bar Association for resolution of fee
[¶10] According to the Amended Petition for Discipline, the lawsuit was settled and Wolff deposited $10,000 in his trust account, and informed the client that an accounting of the recovery left nothing for her after the deduction of the attorney‘s fee and the costs. The Amended Petition further alleges that during the investigation of the complaint Wolff told the Inquiry Committee West that he had provided his client with copies of statements and a trust ledger and discussed them with her, and that he had not done so. Additionally, the Amended Petition alleges Disciplinary Counsel had requested copies of billings and other documents which reflect the charges and payment of certain expenses in connection with the representation of the client, and the information was not provided.
[¶11] The Amended Petition alleges that Wolff‘s conduct in this matter violates
[¶12] Following the appointment of a Hearing Panel and a hearing, the Hearing Panel found that in regards to the fee agreement between Wolff and his client, Wolff did not discuss the dispute clause with his client. The Panel also found that Wolff did not supply copies of documents reflecting the charge and payment of certain claimed expenses as requested, informally as well as in interrogatories, by the Disciplinary Counsel. However, the Hearing Panel found that there is not clear and convincing evidence that Wolff did not discuss his billing statements and trust ledger with his client. Finally, the Hearing Panel found that billings sent to Wolff for expenses he claimed were paid on behalf of his client have not been paid in over two years.
[¶13] The Hearing Panel concluded that Wolff‘s conduct violated
File No. 4931-W-0906
[¶15] On August 11, 2009, Wolff admitted service of a Summons and Petition for Discipline. The Petition was for the conduct which resulted in Wolff‘s interim suspension. See Disciplinary Board v. Wolff, 2009 ND 111, 767 N.W.2d 170. The Petition asserts that during Wolff‘s representation of a client in a criminal matter, he met his client at a local bar and asked the client to find cocaine for him and her so they could party. Subsequently, the client telephoned Wolff to make arrangements for him to receive cocaine. Wolff met his client and paid her money and was subsequently arrested for Criminal Conspiracy to Unlawfully Possess a Controlled Substance Cocaine, a class C felony. He was also arrested for driving under the influence.
[¶16] The Petition for Discipline alleges that Wolff‘s conduct in this matter violates
[¶17] Following the appointment of the Hearing Panel and a hearing, the Hearing Panel found that Wolff had asked his client to find cocaine for him, gave her $200 for the cocaine, and was subsequently arrested and charged. The record reflects that on January 20, 2010, Wolff entered a guilty plea to Attempted Possession of Controlled Substance (Cocaine), which is a class A misdemeanor. Wolff was placed on supervised probation for two years, with conditions, and was ordered to pay fines and fees.
[¶18] The Hearing Panel found that Wolff‘s conduct violated
[¶19] In recommending a sanction, the Hearing Panel considered N.D. Stds. Imposing Lawyer Sanctions 5.11(a), which provides that disbarment is generally appropriate “when a lawyer engages in serious conduct a necessary element of which includes ... the sale, distribution or importation of controlled substances ... or an attempt or conspiracy or solicitation of another to commit any of these offenses[.]“; N.D. Stds. Imposing Lawyer Sanctions 9.22(b), dishonest or selfish motive, and (i) substantial experience in the practice of law, as adding to the aggravation of the appropriate discipline; and N.D. Stds. Imposing Lawyer Sanctions 9.32(c) which provides that personal or emotional problems may be a mitigating factor in discipline.
[¶20] The Hearing Panel recommended to the Supreme Court that Wolff be suspended for one year and that he pay the costs of the disciplinary proceeding in the amount of $8,022.60 for his misconduct in File Nos. 4677-W-0711 and 4736-W-0803, and that Wolff be disbarred for his misconduct in File No. 4931-W-0906.
[¶21] The Report of the Hearing Panel containing Findings of Fact, Conclusions of Law and Recommendations for all three files was served on July 7, 2010, and forwarded to the Supreme Court. Objections to the Report were due within 20 days of service of the report. No objections were received, and the matter was submitted to the Court for consideration.
[¶22] ORDERED, that the Findings of Fact, Conclusions of Law and Recommendations of the Hearing Panel are accepted.
[¶23] IT IS FURTHER ORDERED, that James G. Wolff is SUSPENDED from the practice of law in North Dakota for one year for his misconduct in File Nos. 4677-W-0711 and 4736-W-0803, effective October 1, 2010.
[¶24] IT IS FURTHER ORDERED, that James G. Wolff is DISBARRED from the practice of law in North Dakota for his misconduct in File No. 4931-W-0906, effective October 1, 2010.
[¶25] IT IS FURTHER ORDERED, that James G. Wolff pay the costs and expenses of these disciplinary proceedings in the amount of $8,022.60, payable to the Secretary of the Disciplinary Board.
[¶26] IT IS FURTHER ORDERED, that any reinstatement is governed by
[¶27] MARY MUEHLEN MARING, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.
CROTHERS, Justice, specially concurring.
[¶28] I concur in the disciplinary sanctions imposed by the Court and with much of what the Court has written in support of the sanctions. I write separately on two points of law arising, I believe, because disciplinary counsel is unnecessarily “stacking” allegations of rule violations and because the disciplinary board‘s hearing panel has not sufficiently explained the rationale behind several of its findings of fact and conclusions of law on those issues. Doing so, I recognize Wolff did not object to the hearing panel‘s findings of fact, conclusions of law and recommendation. Yet, I am mindful of our obligation to
[¶29] In File No. 4677-W-0711, disciplinary counsel alleged Wolff violated
[¶30] I agree these sparse findings and bare conclusions of Rule 1.15 violations were minimally sufficient where Wolff overcharged the Administrative Office of the United States Courts $1,794 on one file and $3,606.40 on another and where he agreed to credit that unearned fee on the final bills to the government. Order at ¶ 6. In those instances, the fees were received and acknowledged by Wolff to be unearned. At that point, the money in Wolff‘s possession should have been deposited into the client trust account as “legal fees and expenses paid in advance” and the money should not have been withdrawn until the fees were earned.
[¶31] I also agree the findings and conclusions are sufficient to support imposition of discipline in the Beckedahl case where Wolff falsified billing records by adding hours and then removed funds from his firm‘s client trust account as earned fees. See In re Kellogg, 274 Kan. 281, 50 P.3d 57, 64 (2002) (“By failing to keep [client‘s] unearned fees in the trust account the Respondent failed to appropriately safeguard her client‘s property in violation of KRPC 1.15(a).“).
[¶32] My concern relates to the remaining case involving Wolff‘s billing for work not performed, but where no promise existed to credit fees against future work and where no withdrawal from a trust account occurred. I am not confident that either the plain wording of the rule or a case in any jurisdiction supports imposition of discipline for this last scenario.
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[¶36] In File No. 4736-W-0803, I am troubled by the hearing panel‘s failure to adequately explain its application of
[¶37]
“(h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer‘s liability to a client for malpractice unless the client is independently represented in making the agreement.”
[¶38] The Amended Petition for Discipline in this case alleged at paragraph II:
The hearing panel‘s finding 2 is identical to paragraph II of the Petition. Neither is helpful to the resolution of this case.“Wolff represented Lisa Anderson in regard to litigation involving the death of her daughter. The fee agreement between the two provided that Wolff would receive 1/3rd of any recovery as an attorney fee, with the attorney fee calculated prior to the deduction of costs which were to be born by Anderson. The agreement also provided that in the event there was a dispute between the attorney and client of any type involving the engagement, it would be resolved solely by arbitration, or by applicable rules of the State Bar Association for resolution of fee disputes if applicable. It also provided that the prevailing party in any such disputes would be entitled
to attorney‘s fees and costs incurred in the resolution of the dispute. Wolff did not discuss the dispute clause in the agreement with Anderson.”
[¶39] The Petition concerns itself with the fee dispute clause not being disclosed or discussed with the client. Nothing in the Petition or the hearing panel‘s findings and conclusions bring this within the terms of
[¶40] Rather than involving malpractice, the hearing panel found that Wolff attempted to limit the remedies available to the client for any fee dispute that might arise and that he failed to properly disclose that provision to his client. Fee disputes are not malpractice claims, and although several ethics advisory opinions discussed application of Rule 1.8(h) in the context of fee disputes, I can find no authority from any court directly addressing the issue or holding Rule 1.8 can be extended to fee disputes. See, e.g., Okla. Adv. Op. 312, 2000 WL 33389634 (Aug. 18, 2000); Mich. Adv. Op. RI-257 (Apr. 8, 1996). Perhaps
[¶41] Even assuming
[¶42] Here, nothing in the Petition and no findings of fact by the hearing panel indicate Wolff violated
[¶43] The hearing panel did make a finding of fact (again adopted verbatim from the Petition for Discipline) that Wolff had the client sign a fee agreement containing a mandatory fee arbitration clause and findings that “Wolff did not discuss the dispute clause in the agreement with Anderson.” That finding, along with the broad arbitration clause found in the record but not quoted by the hearing panel,
[¶44] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, J., concur.