Disciplinary Bd. of the Supreme Court v. Hann (In re Application for Hann), s. 20110246

• Court: United States State Supreme Court of North Dakota
• Citation: 819 N.W.2d 498,2012 ND 160
• Docket Number: 20110247,Nos. 20110246,20110248.,s. 20110246
• Parties: In the Matter of the APPLICATION FOR DISCIPLINARY ACTION AGAINST Camille O'Kara HANN, A Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court, Petitioner, v. Camille O'Kara Hann, Respondent.
• Decision Date: 26 July 2012

819 N.W.2d 498
2012 ND 160

In the Matter of the APPLICATION FOR DISCIPLINARY ACTION AGAINST Camille O'Kara HANN, A Member of the Bar of the State of North Dakota.
Disciplinary Board of the Supreme Court, Petitioner,
v.
Camille O'Kara Hann, Respondent.

Nos. 20110246, 20110247, 20110248.

Supreme Court of North Dakota.

July 26, 2012.

[819 N.W.2d 499]

Paul W. Jacobson, Disciplinary Counsel, Bismarck, N.D., for petitioner.

Michael Ray Hoffman, Bismarck, N.D., for respondent.

PER CURIAM.

[¶ 1] Attorney Camille O'Kara Hann objected to a report of a hearing panel of the Disciplinary Board recommending Hann be suspended from the practice of law and pay the costs of the disciplinary proceedings. We conclude there is clear and convincing evidence Hann violated N.D.R. Prof. Conduct 1.5(a), fees; 1.15(a) and (c), safekeeping property; 1.16(e), declining or terminating representation; 3.3(a)(1) and (3), candor toward the tribunal; and 8.4(c), misconduct. We order Hann be suspended from the practice of law for six months and one day and pay the costs of the disciplinary proceeding in the amount of $7,010.76.

I

[¶ 2] Hann was admitted to practice law in North Dakota on May 5, 2005, and was practicing law during the time relevant to this case. Hann was served with a petition for discipline and notice of appointment of a hearing panel. Disciplinary Counsel alleged Hann violated the disciplinary rules in three separate matters. The first matter involved Heidi Zastoupil's retention of Hann to represent her regarding a petition for a protection order and divorce. The second matter involved Hann's representation of Donald Phillip Munro in legal matters related to the custody of his children. The third matter involved Hann's representation of Roxanne Kuntz in a divorce. A hearing was held before the hearing panel in June 2011. Based on the pleadings, evidence, and

[819 N.W.2d 500]

post-hearing written arguments, the hearing panel filed findings of fact, conclusions of law, and recommendations with the Secretary of the Disciplinary Board. Hann thereafter filed her objections to the report.

A. Zastoupil Matter, Supreme Court No. 20110246

[¶ 3] In July 2008, Zastoupil retained Hann to represent her regarding a petition for protection order and divorce. On July 17, 2008, Zastoupil and Hann signed a retainer agreement providing for payment of $1,280 by Zastoupil “as retainer before services can begin.” The retainer agreement stated that legal fees would be $140 per hour for Hann's time and lesser amounts for her legal assistant, paralegal, and secretary's time. Zastoupil paid $1,280 to Hann; however, Zastoupil later returned to her husband and the divorce action was terminated. The hearing panel found Hann did not place the money received from Zastoupil in a client trust account until earned by her, although ultimately earned by her.

[¶ 4] In July 2009, Zastoupil again retained Hann to represent her in a divorce. On July 28, 2009, Zastoupil and Hann signed a second retainer agreement providing for the payment of $4,000 by Zastoupil, as a “retainer before services can begin.” This retainer agreement provided that legal fees would be $160 per hour for Hann's time and lesser amounts for her legal assistant, paralegal, and secretary's time. Zastoupil paid $4,000 to Hann. Zastoupil called Hann's office within a few days of signing the second retainer agreement and informed her she was returning to her husband. The hearing panel found Zastoupil also inquired about returning the unused portion of the $4,000 she had paid to Hann for a retainer. The panel found Hann told Zastoupil she would have to speak with her accountant, she did not have the money there, and she would contact Zastoupil. The panel also found that Zastoupil asked Hann in August 2009 for a refund of the retainer and that Hann told Zastoupil the $4,000 was a nonrefundable retainer and there would be no refund. Hann subsequently prepared a letter to Zastoupil stating the retainer was not refundable.

[¶ 5] In response to Disciplinary Counsel's information request, Hann provided a “Hann Law PLLC Individualized Client Account” for Zastoupil from July 2008 through September 20, 2009, and a “Hann Law PLLC invoice” for Zastoupil dated September 20, 2009, reflecting that Hann claimed she had earned a fee of $1,792 between July 15 and August 26, 2009, and that there was a balance of $2,208. The hearing panel found Hann had not placed the $4,000 received from Zastoupil in a client trust account. Hann did not return any of the $4,000 to Zastoupil.

[¶ 6] At the hearing, Hann testified a balance of $2,208 remained in this account “from an accounting standpoint.” Although the account document contained the words “trust ledger,” Hann testified the wording was in her computer program and the money was not placed in a trust account. Hann indicated that if Zastoupil retained her again, this balance might have been used to “knock some off of her new bill.” Zastoupil also testified she was under the impression this was a credit for future services. The hearing panel found Hann provided no explanation why this amount remained on her books if Zastoupil's payment was a nonrefundable retainer. The hearing panel found Hann's testimony that this was a nonrefundable fee was inconsistent with her testimony this “earned fee” simply remained on her books. The panel found Zastoupil's testimony believable that she was told Hann was consulting

[819 N.W.2d 501]

her accountant regarding the return of this fee.

[¶ 7] The hearing panel concluded Hann violated N.D.R. Prof. Conduct 1.5(a), concluding the agreement was unclear and deficient and did not state it was a nonrefundable fee agreement. The panel concluded because the work was not completed and this was not a nonrefundable fee agreement, the fees charged and collected and retained were unreasonable. The hearing panel concluded Hann violated N.D.R. Prof. Conduct 1.15(a) and (c), because this was not a nonrefundable retainer fee, the fee should have been deposited in Hann's trust account, but was not. The panel also concluded Hann violated N.D.R. Prof. Conduct 1.16(e) because this was not a nonrefundable fee agreement, because Hann did not complete the work for which she was retained, and because she did not refund any of the remaining money to Zastoupil.

B. Munro Matter, Supreme Court No. 20110247

[¶ 8] Hann represented Donald Phillip Munro in legal matters related to the custody of his children. In an action relating to the custody of the parties' minor son in Donald Phillip Munro v. Beth Ann Synder, Adams County Case No. 09C–58, Hann filed an affidavit of her client Munro with a petition for a warrant and alternative motion for an ex parte interim order. The affidavit asserted Munro was the defendant in Adams County Case No. 07C–12, an earlier action regarding custody of the parties' minor daughter, and asserted the May 2007 judgment entered in Case No. 07C–12 granted the defendant custody of the parties' minor child. Specifically, Munro's affidavit stated:

A Judgment was entered in Adams County Case No. 07–C–12 on May 7, 2007 providing “Defendant” at provision XIII on page 4 with custody of the parties' minor daughter. I am the defendant in that action. There is no custody order regarding our minor son; therefore, I am filing this action regarding our minor son requesting the Court provide me with temporary responsibility for our children pending the final relief for placement of the children.

Munro's affidavit also stated: “A copy of the Judgment in Adams County Case No. 07–C–12 dated May 7, 2007 was faxed to Cheryl Dix on September 9, 2009 showing that ‘Defendant’ had custody of the parties' minor daughter. Again, I am the Defendant in that action.” Hann also filed an affidavit of her client Munro, which contained the same statements, in the Adams County Case No. 07C–12, supporting a motion to amend the judgment and petition for the issuance of a warrant or an ex parte interim order.

[¶ 9] Munro, however, was not the defendant in Adams County Case No. 07C–12, but was actually the plaintiff. Although the May 2007 judgment in Case No. 07C–12 incorrectly designated Munro as defendant in the caption, the judgment itself correctly named Munro as the plaintiff in numerous paragraphs. The language of the judgment also named Beth Ann Snyder as defendant, as the party who actually received physical care, custody, and control of the parties' minor daughter. The hearing panel found that even a brief review of the judgment shows Munro was not the defendant and did not have custody of the parties' minor child. The findings of fact, conclusions of law, and order for judgment in Case No. 07C–12 correctly designated the parties, and the court subsequently corrected the caption of the May 2007 judgment. However, the hearing panel found the assertions in Munro's affidavits were untrue and misleading to the court and found the assertions

[819 N.W.2d 502]

“could only have been knowingly made.”

[¶ 10] The hearing panel concluded Hann violated N.D.R. Prof. Conduct 3.3(a)(1) and (3), because the affidavit Hann filed for Munro represented he was the defendant with custody. The panel concluded that although the May 2007 judgment caption had incorrectly identified the parties, the judgment's substantive language repeatedly correctly identified Munro as the plaintiff who could not have had custody of the child.

C. Kuntz Matter, Supreme Court No. 20110248

[¶ 11] The hearing panel found Hann began representing Roxanne Kuntz in a divorce in September 2009. The hearing panel found Kuntz and a friend, Lori Wahl, met with Hann during which Kuntz advised Hann that she had $36,000 in an individually held savings account. The panel found Hann did not include this initial conference in her billing, and Hann's legal assistant was not present during the first office conference. The hearing panel found Hann advised Kuntz to get rid of the money, or hide it, so that it would not be considered in...