Disciplinary Action Against Swanson, Matter of, s. 980070

• Decision Date: 20 March 1998
• Docket Number: Nos. 980070,980071,s. 980070
• Citation: 575 N.W.2d 218,1998 ND 60
• Parties: In the Matter of the Application for DISCIPLINARY ACTION AGAINST Glenn K. SWANSON, a Member of the Bar of the State of North Dakota. DISCIPLINARY BOARD OF THE SUPREME COURT OF NORTH DAKOTA, Petitioner, v. Glenn K. SWANSON, Respondent.
• Court: North Dakota Supreme Court

Page 218

575 N.W.2d 218

1998 ND 60

In the Matter of the Application for DISCIPLINARY ACTION

AGAINST Glenn K. SWANSON, a Member of the Bar of

the State of North Dakota.

DISCIPLINARY BOARD OF THE SUPREME COURT OF NORTH DAKOTA, Petitioner, v. Glenn K. SWANSON, Respondent.

Nos. 980070, 980071.

Supreme Court of North Dakota.

March 20, 1998.

ORDER FOR DISCIPLINE

¶1 On March 3, 1998, the Disciplinary Board filed its Report with Conditional Admission for discipline of Glenn K. Swanson attached. The Disciplinary Board approved Mr. Swanson's Conditional Admission and submitted it to the Court for consideration under Rules 4.2 and 5.1, North Dakota Rules for Lawyer Discipline (NDRLD).

¶2 Under the Conditional Admission, Mr. Swanson consented to an order immediately transferring him to disability inactive status until further order of this Court. This consent was based on two pending disciplinary matters: Estate of Edwin O. Hoffas and Estate of Wilmer Anderson.

¶3 In the matter of the Estate of Hoffas, the Petition for Discipline asserts that Mr. Swanson represented the Personal Representative in the latter part of 1981. In May 1986, Mr. Swanson was paid $75,000 for attorneys fees but work on the estate was not complete. At the hearing on the final report and accounting on July 29,1986, the trial court directed Mr. Swanson to submit time sheets to the clerk not later than 5 p.m. that day; Mr. Swanson failed to do so. The Petition asserts that Mr. Swanson had an impermissible conflict of interest in his representation as his judgment and loyalty on behalf of the estate were likely to be affected by his interest in generating fees.

¶4 The Petition for Discipline states that Mr. Swanson's conduct in the Estate of Hoffas violated the Code of Professional Conduct (CPR) in effect until January 1, 1988, and statute, specifically Disciplinary Rule (DR) 1-102(A)(2) (circumvent a Disciplinary Rule through the actions of another), (5) (engage in conduct prejudicial to the administration of justice), and (6) (engage in any other conduct that adversely reflects on his fitness to practice law); DR 2-106(A) (a lawyer may not enter into an agreement for, charge, or collect an illegal or clearly excessive fee), and (B) (a fee is clearly excessive if, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee); DR 5-105(A) (lawyer shall decline proffered employment if his independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment or if it would be likely to involve him in representing differing interests); and DR 6-101(A) (a lawyer shall not handle a legal matter which he knows or should know that he is not competent to handle, handle a legal matter without adequate preparation, or neglect a legal matter entrusted to him); and § 27-14-02(2), NDCC, (willfully disobey or violate an order of the court requiring him to do or to refrain from doing an act connected with or in the course of his professional practice). As an aggravating circumstance, the Petition alleges that Mr. Swanson has developed a pattern of misconduct, which has been uncorrected by three prior disciplinary orders.

¶5 In the Conditional Admission, Mr. Swanson does not admit to any wrongdoing in the Estate of Hoffas. In his Answer, Mr. Swanson asserts that all unearned fees were deposited with the Court to be distributed between the personal representative and Mr. Swanson in proportion to their contributions. Mr Swanson does admit that the fee was substantially in excess of a fee for a normal estate proceeding but that this probate was not usual and the work performed substantially succeeded the work performed in a normal estate.

¶6 In the matter of the Estate of Anderson, the Petition for Discipline alleges that Mr. Swanson was appointed both Personal Representative and attorney for the estate. Under the terms of the will, the entire estate was left to Wilmer Anderson's sister Agness P. Bong. Mr. Swanson failed to distribute the assets and timely conclude the estate. He was removed as personal representative by order of the Court on July 25, 1994.

¶7 The Petition further alleges that in September 1983, Mr. Swanson secured a contract for deed wherein Agness P. Bong transferred real property, which she was to have inherited from her brother, to Mr. Swanson's wife and son, Bevdi L. Swanson and Marc K. Swanson. The purchase price for the property was $186,000 with a $6,000 down payment and the remainder to be paid in annual installments of 30% of the income derived from the property. The purchase price was one-half the evaluation of the property for estate tax purposes. Mr. Swanson also reported a $50,000 attorney fee on the federal estate tax return. The Petition asserts that the agreement on the property was obtained by fraud, deceit, misrepresentation, and overreaching in taking advantage of an elderly woman and breach of fiduciary duty of Mr. Swanson, as the Personal Representative and attorney of the Anderson Estate.

¶8 The Petition for Discipline states that Mr. Swanson's conduct violated the Code of Professional Responsibility and after January, 1988, the Rules of Professional Conduct (RPC), specifically ...