Disciplinary Action Against LaQua, Matter of

• Decision Date: 14 May 1996
• Docket Number: No. 950406,950406
• Citation: 548 N.W.2d 372
• Parties: In the Matter of the Application for DISCIPLINARY ACTION AGAINST John F. LaQUA, 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. John F. LaQUA, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 372

548 N.W.2d 372

In the Matter of the Application for DISCIPLINARY ACTION AGAINST John F. LaQUA, 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. John F. LaQUA, Respondent.

Civ. No. 950406.

Supreme Court of North Dakota.

May 14, 1996.

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

Thomas L. Zimney (argued), of Vaaler, Warcup, Woutat, Zimney & Foster, Grand Forks, for respondent.

PER CURIAM.

A hearing panel of the Disciplinary Board found attorney John F. LaQua committed acts of professional misconduct in connection with the probate of an estate and recommended he be suspended for six months and placed on probation for an additional two months following the suspension. The Board considered the matter, accepted the findings and recommendation of the hearing panel, and under Rule 3.1(F) of the North Dakota Procedural Rules for Lawyer Disability and Discipline (NDPRLDD), ¹ submitted its report and recommendation of suspension for consideration by this court. LaQua filed objections to the Board's report and filed a brief with and presented oral argument before this court. We direct that LaQua be suspended from the practice of law for six months, followed by two months of probation with conditions, and that he pay the costs associated with these proceedings.

We review disciplinary proceedings against attorneys de novo on the record under a clear and convincing standard of proof. Disciplinary Action Against Rau, 533 N.W.2d 691, 692 (N.D.1995). In our review, we accord due weight to the findings, conclusions, and recommendation of the hearing panel as adopted by the Board. Matter of Dosch, 527 N.W.2d 270, 272 (N.D.1995). While we attempt to impose similar disciplinary measures for similar violations under similar circumstances, each case must be judged on its own facts and merits. Matter of Maragos, 285 N.W.2d 541, 546 (N.D.1979).

I

LaQua was admitted to practice as an attorney in North Dakota on October 10, 1951, and opened his practice in Langdon. In 1967, LaQua prepared a joint and mutual will for William and Anna Sheppler, a married couple, providing the property of each would pass to the survivor. The will further provided that after the survivor's death, the property would be converted to cash and several specific bequests made, with the residue of the estate to pass to the Diocese of Fargo, a Roman Catholic religious corporation located in Fargo. The will named LaQua as co-executor.

The Shepplers died within a short time of each other and LaQua began acting as co-executor of their estate in 1975. The other co-executor died a few years later. LaQua completed distribution of the specific bequests provided in the will within a reasonable time after his appointment. However, until his resignation as personal representative in 1994, LaQua essentially did nothing with the estate and did not distribute the residue of estate assets to the Diocese.

At the time of the last Sheppler's death, the value of the residue of the estate was approximately $227,000. During the ensuing years, the estate assets remained in accounts and investments originated by the Shepplers, consisting primarily of certificates of deposit, United States government bonds, noninterest bearing bank accounts, and J.C. Penney stock. From 1980 through 1986, LaQua did not deposit interest and dividend checks received from those investments, but instead placed them in a desk drawer. Most of the stale checks have since been reissued. LaQua also did not always file timely or appropriate fiduciary income tax returns and had to pay income tax, interest, and penalties on behalf of the estate. Although amended fiduciary tax returns have been filed and some tax, interest, and penalties have been recovered, questions remain concerning tax years before 1991. LaQua notified the Diocese in 1975 it was a named residual beneficiary in the will, but did not inform it that funds were held for its benefit or provide it with an accounting.

When asked why he did not distribute the residual estate assets to the Diocese, LaQua testified he had a mental blank or block and was unable to close the estate:

"If I could tell you that, gentlemen, I would. I don't know. Call it neglect, call it procrastination, but every time I picked that file up, my mind just became a mental blank. Like a bad dream and you hoped it would go away."

LaQua neither received a fee from the estate nor converted the assets for his personal use. The Board found no evidence that LaQua engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. The Board noted LaQua had cooperated fully in the disciplinary process, had no prior disciplinary record, and is remorseful over his handling of the estate.

The value of estate assets when they were turned over to the successor personal representative in 1994 was approximately $295,000. According to the comptroller for the Diocese, the assets could have generated earnings of between $674,000 and $2,336,000 during the 19 years they essentially sat idle. Civil litigation between the Diocese and LaQua resulted in a settlement from LaQua's malpractice insurer. The settlement amount is not a part of this record.

The Board found LaQua's 19 years of neglect of the estate constituted conduct that violated Rules 1.3 (Diligence), 1.4(a) (Communication), and 1.15(b) (Safekeeping Property), of the North Dakota Rules of Professional Conduct (NDRPC), and before January 1, 1988, Disciplinary Rules (DR) 1-102(A)(1) (Misconduct), 6-101(A)(3) (Failing to Act Competently), 7-101(A)(2) (Representing a Client Zealously), and 9-102(B) (Preserving Identity of Funds and Property of a Client), of the North Dakota Code of Professional Responsibility (NDCPR). LaQua does not challenge the Board's finding that he violated these provisions through his handling of the Sheppler estate. We conclude there is clear and convincing evidence that LaQua's failure to make a timely distribution of the residue of the estate to the Diocese and failure to close the estate for 19 years violated these provisions of the Rules of Professional Conduct and Code of Professional Responsibility.

II

LaQua does challenge, on several grounds, the Board's recommendation of the sanction to be applied for his violation of the disciplinary rules. The theoretical framework for imposing sanctions against lawyers who are guilty of professional misconduct directs that we consider: (1) the ethical duty violated by the lawyer; (2) the lawyer's mental state; (3) the extent of the actual or potential injury caused by the lawyer's misconduct; and (4) the existence of aggravating or mitigating factors. Disciplinary Board v Gray, 544 N.W.2d 168, 171 (N.D.1996); Standard 3 of the North Dakota Standards for Imposing Lawyer Sanctions (NDSILS). In its recommendation, the Board referred to NDSILS 4.12, which provides "[s]uspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client." The Board also referred to NDSILS 4.41(b), which provides "[d]isbarment is generally appropriate when ... a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; ..." The Board found LaQua's actions caused serious injury to the Diocese by depriving it for 19 years of the use and benefit of the sums left to it under the terms of the Sheppler will.

The Board found, as mitigating factors under NDSILS 9.1 and 9.32, LaQua's absence of a prior disciplinary record, the absence of a dishonest or selfish motive, his cooperative attitude, his reputation, and his remorse. The only aggravating factor found by the Board was LaQua's substantial experience in the practice of law. The Board recommended a six month suspension followed by two months of probation during which LaQua's files must be audited to insure they are current and no client is at risk of injury from lack of diligence. The Board also recommended that, because of LaQua's testimony about "mental blocks," during the probation period LaQua must receive a medical evaluation certifying he is not under a disability that would prevent him from practicing law.

LaQua asserts the Board's sanction of a six month suspension followed by two months probation is excessive. He urges a public reprimand is the maximum sanction that should be imposed under the circumstances.

A

LaQua asserts suspension is a disproportionate sanction when compared to other cases arising under similar circumstances. He relies on numerous decisions from North Dakota and other jurisdictions for the proposition that courts in similar circumstances have imposed no more than a public reprimand for neglecting to complete the probate of an estate.

The cases relied on by LaQua are not particularly helpful. The factual circumstances in each of the cases vary, and are distinguishable from LaQua's situation. The only unifying theme in them is that the courts approved recommendations of public reprimands for an attorney's delay in resolving probate matters. Disciplinary Action Against Sletten, 536 N.W.2d 354 (N.D.1995), involved an attorney's failure to timely file a petition for an elective share of an estate, resulting in substantial financial injury to the client, but there is no indication of the amount of time or injury involved. Although Disciplinary Board v. Amundson, 297 N.W.2d 433 (N.D.1980), involved an attorney who failed to take any significant action toward closing an estate and claimed a "mental block" prevented him from doing so, the length of his inaction on the estate was approximately four years.

Because the other cases relied on by LaQua are from other jurisdictions and are also factually distinguishable, we feel no compulsion to follow them. In Disciplinary Action Against MacGibbon, 535 N.W.2d 809 (M...