Disciplinary Bd. of the Supreme Court of State v. Kellington (In re Kellington)

• Citation: 2011 ND 241,809 N.W.2d 298
• Decision Date: 20 December 2011
• Docket Number: No. 20110261.,20110261.
• Parties: In the Matter of the Application for DISCIPLINARY ACTION AGAINST Theresa L. KELLINGTON, 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. Theresa L. Kellington, Respondent.
• Court: United States State Supreme Court of North Dakota

2011 ND 241

809 N.W.2d 298

In the Matter of the Application for DISCIPLINARY ACTION AGAINST Theresa L. KELLINGTON, 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.Theresa L. Kellington, Respondent.

No. 20110261.

Supreme Court of North Dakota.

Dec. 20, 2011.

PER CURIAM.

[¶ 1] The Supreme Court has before it a Stipulation, Consent to Discipline, and Recommendation by the Hearing Panel from a Hearing Panel of the Disciplinary Board recommending Theresa L. Kellington be suspended from the practice of law for ninety days for violating N.D.R. Prof. Conduct 5.3, 1.15, and 1.16 with the suspension stayed and Kellington placed on probation for one year and she pay $500 in costs of the disciplinary proceeding. We conclude there is clear and convincing evidence Kellington violated N.D.R. Prof. Conduct 5.3, 1.15, and 1.16, and Kellington is suspended from the practice of law for ninety days with the suspension stayed and Kellington placed on probation for one year and order her to pay costs of the disciplinary proceeding.

[¶ 2] Kellington was admitted to practice law in North Dakota on November 22, 1995. On February 27, 2011, Kellington admitted service of a Summons and Petition for Discipline. The Petition asserts that Kellington failed to make reasonable efforts to ensure her firm had measures in place to give reasonable assurance her staff's conduct was compatible with her professional obligations; deposited or transferred unearned advance payments into a non-trust account and commingled the proceeds with her law firm's funds in the non-trust account; withdrew unearned advance payments from her law firm's trust account; failed to make timely refunds of unearned advance payments; and failed to refund unearned advance payments upon termination of representation.

[¶ 3] The Petition alleges Kellington's conduct in this matter violates N.D.R. Prof. Conduct 5.3, which provides that with respect to a nonlawyer employed by or associated with a lawyer, a partner and a lawyer who has comparable management authority in a law firm shall make reasonable efforts to ensure that the law firm has in effect measures giving reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer; the lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the nonlawyer's conduct is compatible with the professional obligations of the lawyer; and a lawyer shall be responsible for conduct of the nonlawyer that would be a violation of the Rules of Professional Conduct if the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct; or the lawyer has management or supervisory authority and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable action; N.D.R. Prof. Conduct 1.15, Fees, which provides that a lawyer shall promptly deliver to the client any funds or other property that the client is entitled to receive and, upon request by the client, shall promptly render a full accounting regarding such property; and N.D.R.P. Conduct 1.16, which provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as refunding any advance payment of fee or expenses that has not been earned or incurred.

[¶ 4] The Hearing Panel accepted the Stipulation, Consent to Discipline, and Recommendation. In recommending a sanction, the Hearing Panel considered N.D. Stds. Imposing Lawyer Sanctions 9.22(a) which recognizes prior disciplinary offenses as an aggravating factor and N.D. Stds. Imposing Lawyer Sanctions 9.32 recognizing a timely good faith effort to make restitution or rectify consequences of misconduct; a full and free disclosure to disciplinary board or cooperative attitude toward proceedings; and remorse as mitigating factors. The Hearing Panel also considered as a mitigating factor Kellington's participation in the Lawyer Assistance Program (LAP) and the development of an Individualized Assistance Plan (IAP), in which, among other things, Kellington agrees to the following:

1. Participation and cooperation in mentoring oversight of her law practice and other terms and conditions of the IAP, and work with an attorney mentor or mentors assigned by the LAP committee.

2. Participation in continuing education classes or self study materials focused on sole practitioners including law practice management.

3. Having direct and primary responsibility for handling of client funds and following a specific trust account management plan developed with the assistance of an attorney mentor or mentors.

4. Implementing procedures, including self audit checklists, if necessary and appropriate, for being more selective with potential new clients.

[¶ 5] The Stipulation, Consent to Discipline, and Recommendation was served on September 12, 2011, and forwarded to the Supreme Court. Objections to the Stipulation were due within 20 days of service of the report. No objections were received, and the matter was submitted to the Court for consideration.

[¶ 6] ORDERED, that the Stipulation, Consent to Discipline, and Recommendation of the Hearing Panel is adopted and Kellington is suspended from the practice of law for ninety days, with the suspension stayed and Kellington placed on probation for one year. The conditions of probation shall be the following:

1. Kellington must have no further disciplinary complaints during the period of probation found to be meritorious.

2. Kellington must comply with all terms and conditions specified for her participation in the LAP, including the terms and conditions of the IAP and any attorney mentor agreements (as the same may from time to time be amended with the concurrence of LAP and the Office of Disciplinary Counsel).

If the conditions of probation are violated, Kellington will be subject to revocation of probation, lifting of the stay, and active suspension from the practice of law for ninety days, without credit for any probationary period served.

[¶ 7] IT IS FURTHER ORDERED, Kellington shall, within thirty days of service of the Supreme Court's order or within such other time as the Supreme Court shall specify, provide an accounting of fees and expenses to Cynthia Cantwell and Joe Wolf and refund any amounts collected for fees that have not been earned or expenses that have not been incurred. If Kellington cannot locate Cantwell or Wolf, such that either client's refund constitutes unclaimed property under Chapter 47–30.1, N.D.C.C., Kellington agrees that...