Summary
The North Dakota Supreme Court reviewed disciplinary proceedings involving attorneys Edwin W.F. Dyer III and Anne E. Summers. The court held that the attorneys violated professional-conduct rules by withdrawing unearned funds from a client trust account and knowingly refusing to provide requested trust-account records after an order compelling disclosure. The court ordered each attorney suspended for nine months and required each to pay half of the disciplinary proceeding costs.
Topics
Practice areas
Questions Presented
- Whether clear and convincing evidence established that Dyer and Summers violated N.D.R. Prof. Conduct 1.15(c) by withdrawing client funds before fees were earned or expenses were incurred.
- Whether Dyer and Summers violated N.D.R. Prof. Conduct 8.1(b) by knowingly failing to respond to lawful demands for trust-account information from disciplinary authorities.
- Whether Rule 1.6 confidentiality prohibited disclosure of the requested trust-account records or permitted disclosure in the disciplinary proceeding and pursuant to the hearing panel's discovery order.
- Whether the disciplinary petition had to be dismissed because the original complainant did not testify.
- What sanction was appropriate for the violations.
Holdings
- Clear and convincing evidence established that Dyer and Summers withdrew funds from the client trust account before the fees were earned or expenses were incurred, violating N.D.R. Prof. Conduct 1.15(c).
- Rule 1.6 did not permit a blanket refusal to respond to disciplinary requests; lawyers must evaluate each requested item, and Rule 1.6(c)(4) permits disclosure of information relating to a client's representation in any proceeding concerning the lawyer's representation of the client, including a disciplinary proceeding initiated without a client complaint.
- The hearing panel's discovery order constituted law or a court order under Rule 1.6(c)(5), permitting and requiring disclosure of the requested information after the attorneys' challenge to the order was unsuccessful.
- Dyer and Summers knowingly failed to respond to lawful demands for information from disciplinary authorities and therefore violated N.D.R. Prof. Conduct 8.1(b).
- The disciplinary petition did not have to be dismissed merely because the original complainant did not testify; the allegations in the petition had no evidentiary value, but the proceeding could proceed where independent hearing evidence supported the violations.
- A nine-month suspension without provision for earlier reinstatement, together with payment of $3,957.26 in costs by each attorney, was the appropriate sanction.
Key quotations
“We review disciplinary proceedings de novo on the record.” (¶ 8)
“However, a lawyer may not respond to a request for information from a disciplinary authority with a blanket refusal; rather, the lawyer must consider whether each item requested is information protected by the rule.” (¶ 19)
“We conclude a lawyer is permitted to disclose information relating to the representation of a client in any proceeding concerning the lawyer’s representation of the client under Rule 1.6(c)(4).” (¶ 21)
“We agree with the hearing panel that suspension is an appropriate sanction, but we believe a nine-month suspension without provision for earlier reinstatement is appropriate because Dyer and Summers also violated N.D.R. Prof. Conduct 1.15.” (¶ 40)
Factual background
Dyer and Summers practiced law together and maintained a client trust account. Evidence concerning three clients showed that funds paid in advance were transferred from the trust account to the firm's business account before the fees were earned or expenses were incurred, and the trust-account balance fell below the amount that should have remained held for clients. During the disciplinary investigation, they refused to produce requested trust-account records, continued refusing after the hearing panel entered an order compelling production, and did not comply after the Supreme Court denied their request for a supervisory writ.
Procedural history
Disciplinary Counsel petitioned for discipline alleging violations involving client trust-account funds and failure to provide records to disciplinary authorities. The hearing panel ordered production of trust-account records; the attorneys sought a supervisory writ, which the Supreme Court denied. After a hearing, the panel found violations of N.D.R. Prof. Conduct 8.1(b), but not 1.15(c), and recommended nine-month suspensions with possible early reinstatement. On de novo review, the Supreme Court found clear and convincing evidence of violations of both Rules 1.15(c) and 8.1(b), imposed nine-month suspensions without early-reinstatement provisions, and ordered each attorney to pay $3,957.26 in costs.