In the Matter of the Application for Disciplinary Action Against William E. McKechnie

Summary

The Supreme Court of North Dakota reviewed disciplinary proceedings against attorney William E. McKechnie arising from his representation of a client pursuing a sexual-harassment and discrimination claim. The court found clear and convincing evidence that McKechnie violated North Dakota Rule of Professional Conduct 1.4(b) by failing to adequately explain the representation and statute of limitations, but found insufficient evidence of a separate Rule 1.1 competence violation. The court imposed a public reprimand and ordered McKechnie to pay $5,375.59 in disciplinary proceeding costs.

Holdings

1. Detailed allegations concerning an attorney's prior nonpublic admonitions should not be included in a petition for public discipline; a general allegation that aggravating circumstances will be presented at a later sanction stage is sufficient.
2. Disciplinary counsel is not required to present expert testimony concerning the professional standard of care to prove a violation of the rules of professional conduct, and expert testimony interpreting those rules is not necessary to assist the trier of fact.
3. An attorney-client relationship may arise by implication from the parties' conduct and does not depend on an express contract, a written fee agreement, or payment of fees.
4. McKechnie's incorrect statute-of-limitations advice, standing alone, established only an isolated instance of ordinary negligence or error of judgment and did not constitute a violation of Rule 1.1 by clear and convincing evidence.
5. McKechnie violated Rule 1.4(b) because he failed to adequately explain the status of the representation and the applicable statute of limitations, and providing the client with a copy of the statute did not satisfy his explanatory duty when his specific advice was incorrect.

Questions Presented

1. Whether the hearing panel properly struck detailed allegations concerning McKechnie's prior private admonitions from the public disciplinary petition.
2. Whether the exclusion of a witness under N.D.R.E. 615 was properly preserved for review.
3. Whether the hearing panel properly excluded a letter offered for impeachment because disciplinary counsel failed to lay a foundation and show its criticality.
4. Whether expert testimony concerning the standard of care was required or admissible to establish a violation of the professional-conduct rules.
5. Whether an attorney-client relationship existed before the parties executed a written fee agreement.
6. Whether McKechnie's incorrect statute-of-limitations advice constituted a violation of N.D.R. Prof. Conduct 1.1.
7. Whether McKechnie's failure to explain the status of the representation and the applicable limitations period violated N.D.R. Prof. Conduct 1.4(b).
8. What sanction and costs should be imposed.

Disposition

other