Disciplinary Action Against Dvorak, Matter of

• Decision Date: 30 June 1998
• Docket Number: No. 970341,970341
• Citation: 580 N.W.2d 586,1998 ND 134
• Parties: In the Matter of the Application for DISCIPLINARY ACTION AGAINST Shirley A. DVORAK, 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. Shirley A. DVORAK, Respondent. Civil
• Court: North Dakota Supreme Court

Page 586

580 N.W.2d 586

1998 ND 134

In the Matter of the Application for DISCIPLINARY ACTION AGAINST Shirley A. DVORAK, 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. Shirley A. DVORAK, Respondent.

Civil No. 970341.

Supreme Court of North Dakota.

June 30, 1998.

Paul W. Jacobson (argued), Assistant Disciplinary Counsel, Bismarck, for petitioner.

Kermit E. Bye (argued), of Vogel, Kelly, Knutson, Weir, Bye & Hunke, Ltd., Fargo, for respondent.

PER CURIAM.

¶1 The Disciplinary Board petitions for reciprocal discipline under North Dakota Rules for Lawyer Discipline (NDRLD) 4.4, recommending discipline identical to that imposed by the Minnesota Supreme Court be imposed on Shirley A. Dvorak. See In re Disciplinary Action Against Dvorak, 554 N.W.2d 399 (Minn.1996). We accept the Board's recommendation and impose the identical discipline.

I

¶2 Dvorak was admitted to practice law in North Dakota in 1976 and has spent her entire professional career with the Moosbrugger, Dvorak & Carter law firm in Grand Forks. She was also admitted to practice in Minnesota in 1981 and in Florida in 1992.

¶3 In 1995 the Director of the Minnesota Office of Lawyers Professional Responsibility filed a petition for public discipline against Dvorak alleging she improperly billed Minnesota clients in a bankruptcy case. ¹ Following a hearing, a referee concluded fees Dvorak charged Alex and Edna Wald for handling their bankruptcy violated Minnesota Rules of Professional Conduct (MRPC) 3.4(c) and 1.5(a). The Minnesota Supreme Court explained the factual background:

The Walds hired Dvorak to represent them in the Chapter 11 bankruptcy of their farming operation in May 1985. The Walds orally agreed to pay Dvorak a retainer of $5,000 and made an initial payment of $2,700 toward that retainer. Their fee arrangement was outlined in the required Statement Pursuant to Rule 2016(b) filed with the bankruptcy court. On February 26, 1987, Dvorak submitted an Application for Administrative Compensation Allowance to the bankruptcy court seeking total compensation of $20,075.27, including costs. After a hearing, the court awarded the firm $10,000 in fees and $3,566.52 in costs, for a total of $13,566.52. Dvorak appealed the compensation award.

The Walds subsequently voluntarily settled with their creditors. Before the bankruptcy was officially dismissed by the court and while appeal of the fee award was pending, however, Dvorak collected an additional $11,332.42 in fees from the Walds. Along with other interim payments, this brought the Walds' total fee payments to $19,647.42 and exceeded the bankruptcy court's order by $6,080.90. In 1992, after the Walds were contacted by an Internal Revenue Service agent investigating the Moosbrugger firm, they sought, and ultimately received, a refund from Dvorak and the firm in the amount of $6,080.90 in fees and $3,949.34 in interest.

Dvorak, 554 N.W.2d at 401.

¶4 Dvorak challenged the referee's conclusion that, in her billing of the Walds, she knowingly disobeyed a bankruptcy court order in violation of MRPC 3.4(c) and, in so doing, charged an unreasonable fee in violation of MRPC 1.5(a). The Minnesota Supreme Court, however, ruled neither of the referee's conclusions were clearly erroneous. Dvorak, 554 N.W.2d at 403. In imposing a sanction, the Court considered as mitigating factors Dvorak's settlement of the fee dispute to the Walds' satisfaction before disciplinary proceedings were brought, Dvorak's lack of a disciplinary record in Minnesota during 15 years of practice there, Dvorak's substantial personal problems during the period in question, Dvorak's cooperation in the disciplinary investigation, Dvorak's substantial contribution of pro bono and volunteer work to her community, and Dvorak's outstanding reputation for honesty and hard work within the profession. Dvorak, 554 N.W.2d at 404. The Court concluded "a 30-day suspension from the practice of law ... is the appropriate sanction on this record." Dvorak, 554 N.W.2d at 404-405.

¶5 After the Disciplinary Board received a certified copy of the Minnesota Supreme Court's decision, the Board notified Dvorak of its intention to impose the identical discipline on her in North Dakota. Dvorak demanded a hearing, denied any wrongdoing, and asked this Court to dismiss the matter. On May 22, 1997, a hearing was held before three members of the Board. The hearing body recommended imposition of the identical discipline imposed by the Minnesota Supreme Court. The Board adopted the findings and recommendations of the hearing body, concluding Dvorak should be suspended from the practice of law in North Dakota for 30 days and pay $2,133.20 in costs and expenses incurred in these proceedings. The Board submitted the matter to this Court for consideration.

II

¶6 There are clear and specific disciplinary rules governing this Court's duty when a lawyer, who is admitted to practice in this state, has been disciplined in another jurisdiction. NDRLD 4.4(D) provides:

D. Discipline. ... [T]he court shall impose the identical discipline unless the lawyer demonstrates and the court finds that upon the face of the record from which the discipline is predicated, it clearly appears that:

(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or

(3) The imposition of the same discipline by the court would result in grave injustice; or

(4) The misconduct established warrants substantially different discipline in this state.

If the court determines that any of those elements exists, the court shall enter such other order as it deems appropriate. In all other aspects, a final determination in another jurisdiction that a lawyer has been guilty of misconduct establishes conclusively the misconduct for purposes of a disciplinary proceeding in this state.

A lawyer who has been disciplined in another jurisdiction has the burden to demonstrate that identical, reciprocal discipline should not be imposed. Disciplinary Action Against Lochow, 502 N.W.2d 252, 253 (N.D.1993).

A

¶7 Dvorak asserts the proceedings in Minnesota were so lacking in adequate notice and a fair opportunity to be heard that her due process rights were violated.

¶8 Dvorak claims she was not given fair and adequate notice of the charges concerning the Wald bankruptcy fees. Attorneys subjected to disciplinary proceedings are entitled to procedural due process, including fair notice of the charges against them. See Matter of Ellis, 504 N.W.2d 559, 562 (N.D.1993); In re Eaton, 60 N.D. 580, 235 N.W. 587, 592 (1931). However, on this record, Dvorak has failed to establish a lack of fair notice of the charge against her.

¶9 An original petition for disciplinary action concerning Dvorak's filing of a false tax return was instituted in May 1995. Dvorak answered the petition in June 1995. In late August 1995, the Minnesota Office of Lawyers Professional Responsibility asked Dvorak's counsel specific questions concerning Dvorak's involvement with the Wald bankruptcy and requested documents relating to Dvorak's representation. Dvorak's counsel complied with the request, asking disciplinary authorities to "review these enclosures, make whatever additional investigation you deem necessary, and thereafter I am confident you will conclude that the Wald matter is not anything upon which to base, at this extremely late date, a disciplinary proceeding against ... Dvorak." In a September 14, 1995 letter, disciplinary authorities again requested answers to "several specific questions" and requested several other documents not previously provided. On September 28, 1995, Dvorak's counsel complied with the request, arguing it was "grossly unfair to ... Dvorak to have her bear the brunt of a mammoth investigation undertaken by your office," and requested "after you have reviewed the enclosures, and have satisfied yourself that you have learned as much as you care to concerning this Wald bankruptcy, that this investigation be concluded and that we get on with the hearing based on the presently pending petition...."

¶10 An amended supplementary petition for disciplinary action alleging unprofessional conduct in regard to the Wald bankruptcy was served on Dvorak on November 8, 1995. The hearing on the amended supplemental petition was held on December 4 and 5, 1995. The record of those proceedings does not reflect Dvorak requested a continuance in order to have further time to prepare to defend the charges concerning the Wald bankruptcy. Rather, in defense of the bankruptcy charge, Dvorak relied on the telephone deposition testimony of a local bankruptcy law expert.

¶11 Against this backdrop, Dvorak relies on the United States Supreme Court's decision in In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), to support her argument that she was denied due process. In Ruffalo, a lawyer who handled Federal Employer's Liability Act (FELA) cases was charged by the bar association with a number of violations of the disciplinary rules, including his use of a part-time employee to solicit FELA clients. During the hearing, it was revealed that the part-time employee was also employed by one of the railroads against which the lawyer had brought some of his cases. The bar association immediately added this charge against the lawyer in the midst of the hearing and stated his employment of the part-time employee to investigate the employee's employer "was deceptive in its nature and was morally and legally wrong...." Ruffalo, 390 U.S. at 547, 88 S.Ct. 1222. The attorney was disbarred on this basis.

¶12 The Supreme Court reversed the lawyer's subsequent disbarment, as reciprocal...