Disciplinary Bd. of the Supreme Court of N.D. v. Summers (In re Summers), 20120061.

Decision Date07 June 2012
Docket NumberNo. 20120061.,20120061.
Citation2012 ND 116,817 N.W.2d 363
PartiesIn the Matter of the Application for DISCIPLINARY ACTION AGAINST Anne E. SUMMERS, 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. Anne E. Summers, Respondent.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

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

Gregory I. Runge (submitted on brief), Bismarck, ND, for respondent.

PER CURIAM.

[¶ 1] Anne E. Summers and Disciplinary Counsel filed objections to the report of the hearing panel of the Disciplinary Board of the Supreme Court, which concluded Summers violated N.D.R. Prof. Conduct 1.3 and 1.4(a)(3) and (4). The hearing panel recommended Summers pay the costs of the disciplinary proceeding and be suspended from the practice of law for six months and one day with the suspension stayed for a probationary period of one year. We adopt the hearing panel's recommendation and order Summers to pay the costs of the disciplinary proceeding in the amount of $4,648.36 within sixty days of this decision; we further order that Summers be suspended from the practice of law for six months and one day with the suspension conditionally stayed for a one-year probationary period to commence on August 1, 2012.

I

[¶ 2] On September 8, 2010, Erik Doll contacted Summers' office by telephone and spoke with Summers' legal assistant regarding modification of a child support order. Doll was informed Summers would handle the matter for $850. Following the phone call, Doll drafted a letter summarizing his legal matter. Doll mailed the letter with a check for $850 to Summers' office, and the check was negotiated by Summers. Receiving no response to his letter, Doll emailed Summers on September 22, 2010, inquiring as to the status of his child support modification, but he received no response. On September 30, 2010, Doll emailed Summers' legal assistant regarding the status of his matter; the legal assistant responded, We are working on the paperwork. We will be in touch shortly.” Doll sent additional emails on October 15, October 26, and November 2, 2010, but received no response. On November 9, 2010, Doll called Summers' office and left a message, but his call was not returned. On November 10, 2010, Doll emailed Summers, informing her that if he did not receive a response by November 12, 2010, he would contact the State Bar Association of North Dakota. Doll again received no response, and he filed a complaint with the Disciplinary Board.

[¶ 3] On November 22, 2010, after Doll filed a complaint with the Disciplinary Board, Summers emailed Doll several attachments of her work on the matter. Doll responded to the email, noting he was able to open only one of the attachments in Summers' email. Doll informed Summers of changes that needed to be made to the document he was able to open. In his response, Doll also asked how much of the $850 had been earned, how long it would take to make the changes he suggested, the time frame for filing the paperwork, and whether Summers needed additional information from him. On November 23, 2010, Summers replied to Doll's email and closed by stating that she would return his entire retainer if he did not wish to proceed with the matter. Doll responded the same day, informing Summers he no longer wished to pursue modification of his child support order, and Summers returned the $850 to Doll.

[¶ 4] A petition for discipline was brought against Summers, alleging she had violated N.D.R. Prof. Conduct 1.3 by failing to act with reasonable diligence and promptness in representing Doll. The petition also alleged Summers violated N.D.R. Prof. Conduct 1.4(a)(3) and (4) by failing to make reasonable efforts to keep Doll reasonably informed about the status of his matter and by not promptly complying with Doll's reasonable requests for information. A hearing panel was appointed, and a hearing was held. Disciplinary Counsel called Doll to testify and introduced evidence of prior disciplinary actions against Summers, which resulted in admonitions on October 27, 2009, and October 25, 2010. Summers also testified, stating she suffers from depression. Summers testified her depression became worse after discovering a former employee embezzled money from Summers' firm, and Summers stated she was depressed during her representation of Doll. Summers also submitted medical records pertaining to her mental health, but did not call an expert to testify regarding her depression and any impact it may have had on her professional conduct.

[¶ 5] Following the hearing, the hearing panel found Summers violated N.D.R. Prof. Conduct 1.3 and 1.4(a)(3) and (4). The hearing panel recommended Summers pay the costs of the disciplinary proceeding in the amount of $4,648.36 and be suspended from the practice of law for six months and one day with the suspension stayed for a probationary period of one year, subject to the following conditions:

A. Summers shall pay the costs of the disciplinary proceeding within sixty (60) days of service of the Supreme Court's order or within such time as the Supreme Court shall specify;

B. While the suspension is stayed, Summers shall have no disciplinary complaints occurring within the time of the stay that are found to be meritorious by the relevant Inquiry Committee or Disciplinary Board of the Supreme Court;

C. Summers shall enroll in the Lawyer Assistance Program and must comply with all terms and conditions specified by the Lawyer Assistance Committee, including terms and conditions of the [L]AP and any attorney mentor agreements (as the same may be from time to time amended with the concurrence of LAP and the Office of Disciplinary Counsel);

D. Summers shall be responsible for all costs associated with her participation in the Lawyer Assistance Program, including all costs associated with her own treatment, if recommended by the LAP or Lawyer Assistance Committee;

E. If any of the above conditions are violated, the Office of Disciplinary Counsel may file Petition to revoke the stay with the Supreme Court and Summers will be subject to active suspension from the practice of law for six months and one day, without credit for any period of the stay; and

F. At the end of the stay, Summers will file with the Clerk of the Supreme Court and serve upon the Office of Disciplinary Counsel an affidavit stating that she has fully complied with the requirements of the Supreme Court's order and has paid all required fees, costs, and expenses. If no objection is filed from the Office of Disciplinary Counsel within twenty (20) days, the suspension provided herein shall be considered to have occurred and a proceeding for reinstatement to the practice of law shall not be necessary.

[¶ 6] Disciplinary Counsel objected to the hearing panel's recommendation that Summers' suspension be stayed for a probationary period of one year. Summers objected to “the proposed order to pay costs in the amount [of] $4,648.36” and “to paragraph A of the Recommendation for Suspension.”

II

[¶ 7] We review the record in a disciplinary proceeding de novo. In re Disciplinary Action Against Edin, 2005 ND 109, ¶ 9, 697 N.W.2d 727. Although due weight is accorded to the hearing panel's findings, conclusions, and recommendations, we do not automatically accept the hearing panel's decision. Id. Disciplinary Counsel must prove, by clear and convincing evidence, each alleged violation of the disciplinary rules. Id. In determining what discipline, if any, is warranted, each disciplinary case must be considered upon its own facts. Id.

A

[¶ 8] Disciplinary Counsel objects to the recommendation that Summers' suspension be stayed, arguing Summers should be suspended for six months and one day or more. When determining appropriate sanctions for violations of the North Dakota Rules of Professional Conduct, we are guided by the North Dakota Standards for Imposing Lawyer Sanctions. Edin, 2005 ND 109, ¶ 11, 697 N.W.2d 727. Aggravating and mitigating circumstances may be considered in deciding the appropriate sanction. N.D. Stds. Imposing Lawyer Sanctions 9.1. Listed among the mitigating factors for consideration are personal or emotional problems and physical or mental disability or impairment. Id. at 9.32(c), (h).

[¶ 9] Summers testified she struggles with depression and submitted medical records showing her history of depression, but Summers did not present expert testimony to demonstrate that her depression caused or contributed to her professional misconduct. Disciplinary Counsel asserts Summers' depression should not be considered as a mitigating...

To continue reading

Request your trial
6 cases
  • Disciplinary Bd. of the Supreme Court N.D. v. Feland (In re Feland)
    • United States
    • United States State Supreme Court of North Dakota
    • August 20, 2012
    ...rules. In determining what discipline, if any, is warranted, each disciplinary case must be considered upon its own facts.Disciplinary Board v. Summers, 2012 ND 116, ¶ 7, 817 N.W.2d 363 (citations omitted).III [¶ 11] The petition for discipline alleges Feland's conduct violated N.D.R. Prof.......
  • Disciplinary Bd. of the Supreme Court of State v. Kellington (In re Application for Disciplinary Action Against Theresa L. Kellington)
    • United States
    • United States State Supreme Court of North Dakota
    • August 28, 2014
    ...is relatively new in North Dakota. See Disciplinary Board v. Hardwick, 2013 ND 250, ¶ 14, 841 N.W.2d 427; Disciplinary Board v. Summers, 2012 ND 116, ¶ 14, 817 N.W.2d 363; Disciplinary Board v. Kellington, 2011 ND 241, ¶ 6, 809 N.W.2d 298; Disciplinary Board v. O'Donnell, 2008 ND 76, ¶ 19, ......
  • Disciplinary Bd. of the Supreme Court of N.D. v. Dyer (In re Dyer)
    • United States
    • United States State Supreme Court of North Dakota
    • June 7, 2012
  • Summers v. Summers
    • United States
    • United States State Supreme Court of North Dakota
    • October 1, 2012
    ...with the suspension conditionally stayed for a one-year probationary period to commence on August 1, 2012. Disciplinary Board v. Summers, 2012 ND 116, 817 N.W.2d 363. [¶3] On February 28, 2012, Summers was served a Summons and Petition for Discipline. The Petition alleged that Summers repre......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT