Disciplinary Bd. of Supreme Court v. O'Neil, No. 10204

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: PEDERSON; ERICKSTAD
• Citation: 326 N.W.2d 879
• Parties: . Patrick S. O'NEIL, Respondent. Civ. Supreme Court of North Dakota
• Decision Date: 02 December 1982
• Docket Number: No. 10204

Page 879

326 N.W.2d 879 DISCIPLINARY BOARD OF THE SUPREME COURT, Petitioner,
v.
Patrick S. O'NEIL, Respondent. Civ. No. 10204. Supreme Court of North Dakota. Dec. 2, 1982.

Joseph F. Larson, II, Bismarck, for petitioner.

Chapman & Chapman, Bismarck, for respondent; argued by Daniel J. Chapman, Bismarck.

Page 880

PEDERSON, Justice.

This is a disciplinary proceeding against Patrick S. O'Neil, an attorney who practiced law in Mandan until July 1980. The Disciplinary Board of the Supreme Court instituted formal proceedings against O'Neil after investigating five complaints made by various individuals. The disciplinary board appointed a three-member hearing panel to take evidence. A hearing on the complaints was held and the hearing panel made findings of fact, conclusions of law, and recommendations. A summary of the panel's relevant findings and conclusions follows.

THE LARSON ESTATE

In March of 1979 Stanley Larson retained O'Neil to probate the estate of Larson's father. The estate consisted of no real property and a minor amount of personal property. Larson was the sole beneficiary. O'Neil told Larson that the estate would be probated within 90 days. O'Neil never filed nor completed the probate and did not communicate with Larson. In April of 1980 Larson discharged O'Neil.

THE VIETZ BANKRUPTCY

On June 1, 1977 Delmer Vietz retained O'Neil to represent him in a bankruptcy proceeding. O'Neil began preparation of the bankruptcy petition but failed to proceed. Early in 1980 Vietz retained other counsel.

THE HURST BANKRUPTCY

On June 19, 1978 O'Neil accepted a $400 retainer fee from Mr. and Mrs. Henry Hurst to institute bankruptcy proceedings on their behalf and to represent them in the proceeding. O'Neil took no action on the matter. When Mr. Hurst repeatedly inquired about the status of his case, O'Neil promised that the bankruptcy proceeding would be completed by March of 1980. O'Neil, however, failed to prepare a petition for bankruptcy and never completed the matter. O'Neil returned the $400 retainer fee only after the Hursts brought suit in small claims court and obtained a judgment against O'Neil.

THE UNPAID COURT REPORTER

In October of 1976 O'Neil hired Christopher L. Columbus as the court reporter for a deposition in St. Paul, Minnesota. Columbus billed O'Neil $214.04 for the services rendered but was never paid.

THE HECK DIVORCE

In January 1979 O'Neil accepted a $400 retainer fee from Bonnie Heck to represent her in a divorce. O'Neil never completed the divorce. At the hearing before the panel, Heck testified that she had been pressured into filing the complaint by her father, and that she suffered no harm because of O'Neil's conduct.

The hearing panel concluded that O'Neil's conduct in the Larson Estate, the Vietz Bankruptcy, and the Hurst Bankruptcy matters each constitutes a violation of the Code of Professional Responsibility, Canon 1, DR 1-102(A)(1); ¹ Canon 6, DR 6-101(A)(3); ² Canon 7, DR 7-101(A)(1), (2) and (3), ³ and of Sec. 27-14-02(7), NDCC. ⁴

Page 881

The panel concluded that O'Neil's conduct in the matter of the Unpaid Court Reporter and the Heck Divorce did not constitute a violation of the Code of Professional Responsibility, nor of any law of this State.

The hearing panel recommended that O'Neil's certificate of admission to the North Dakota Bar be suspended for at least one year and that he pay the costs of the disciplinary proceeding.

Staff counsel for the disciplinary board, apparently without specific direction of the disciplinary board, filed exceptions to the conclusions of the panel that O'Neil's conduct in the matter of the Unpaid Court Reporter did not constitute a violation of the Code of Professional Responsibility. Staff counsel asserts that O'Neil's failure to pay for the court reporting services constituted professional misconduct in violation of Canon 1, DR 1-102(A)(1), (4) and (6) ⁵ of the Code of Professional Responsibility.

In his brief, staff counsel also excepted to the panel's conclusion that O'Neil's conduct in the Heck divorce matter did not violate the Code of Professional Conduct. Instead, staff counsel urged this court to find that O'Neil violated Canon 6, DR 6-101(A)(3) ⁶ and Canon 7, DR 7-101(A)(1), (2) and (3) ⁷ when he failed to complete this divorce action.

Finally, staff counsel excepts to the panel recommendation of suspension and asks that O'Neil be disbarred.

O'Neil filed a brief urging this court to affirm the recommendation of the hearing panel and to dismiss staff counsel's exceptions. O'Neil asserted that the North Dakota Rules of Disciplinary Procedure permit only a respondent to file exceptions to recommendations of a hearing body. O'Neil also asserts in his brief that he no longer intends to practice law and would willingly resign. He has not, however, proceeded pursuant to Rule 12, North Dakota Rules of Disciplinary Procedure, to consent to suspension or disbarment.

Rule 10(l) and (m) of the North Dakota Rules of Disciplinary Procedure provide that:

"(l) Unless the hearing body dismisses or the matter is concluded by private reprimand, the hearing body, within 60 days after the conclusion of its hearing, shall submit to the Supreme Court a report containing its findings and...