Disciplinary Bd. of the Supreme Court N.D. v. Feland (In re Feland)

Citation820 N.W.2d 672,2012 ND 174
Decision Date20 August 2012
Docket NumberNo. 20110321.,20110321.
PartiesIn the Matter of the Application for DISCIPLINARY ACTION AGAINST Cynthia M. FELAND, 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. Cynthia M. Feland, Respondent.
CourtUnited States State Supreme Court of North Dakota


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

Ronald F. Fischer, Grand Forks, N.D., for respondent.

Aaron G. Birst, Executive Director, North Dakota Association of Counties, Bismarck, N.D., for amicus curiae North Dakota State's Attorneys Association.

Lynn C. Jordheim, First Assistant United States Attorney, Office of United States Attorney, Fargo, N.D., for amicus curiae United States.


[¶ 1] Cynthia Feland and Disciplinary Counsel object to a report of a hearing panel of the Disciplinary Board that concluded Feland had violated N.D.R. Prof. Conduct 3.8(d). The hearing panel recommended Feland be suspended from the practice of law for 60 days and ordered to pay costs of the disciplinary proceeding in the amount of $11,272.21. We conclude there is clear and convincing evidence Feland violated N.D.R. Prof. Conduct 3.8(d), and we order that she be admonished and that she pay partial costs of the disciplinary proceeding in the amount of $5,636.10.


[¶ 2] While employed as a Burleigh County Assistant State's Attorney, Feland prosecuted Charles Blunt, the executive director of North Dakota Workforce Safety and Insurance (“WSI”), for misapplication of entrusted property. See State v. Blunt, 2011 ND 127, 799 N.W.2d 363 (“Blunt III ”); State v. Blunt, 2010 ND 144, 785 N.W.2d 909 (“Blunt II ”); State v. Blunt, 2008 ND 135, 751 N.W.2d 692 (“Blunt I ”). One of the issues presented in the criminal trial was whether Blunt should have sought recoupment of relocation expenses WSI had paid to WSI executive Dave Spencer. Under the terms of Spencer's employment agreement, WSI agreed to pay his relocation expenses when he took the job, but Spencer was required to repay half of the expenses if he voluntarily resigned within the first two years. See Blunt III, at ¶ 3. Spencer left employment with WSI within two years, but Blunt did not seek recoupment of the relocation expenses.

[¶ 3] In 2006, the State Auditor's Office conducted a performance audit of WSI. Id. at ¶ 2. During the course of the audit, the issue of recoupment of Spencer's relocation expenses was raised. Blunt originally told the auditors only that Spencer had resigned and said WSI would not seek reimbursement because the provision in the letter requiring reimbursement should not have been in the letter. When the auditors suggested WSI should pursue recoupment of relocation expenses, Blunt told them Spencer had been forced to resign and his departure was not voluntary. The auditors therefore did not include a recommendation to recoup the relocation expenses in their final report. See id. at ¶ 15.

[¶ 4] During the investigation and prosecution of Blunt's criminal case, Feland requested that Jason Wahl, an auditor from the State Auditor's Office, provide a written memo summarizing the auditors' investigation regarding the Spencer relocation expenses. In a November 8, 2007, memo (“the Wahl memo”), Wahl outlined the various meetings and discussions he had with WSI executives, including Blunt, about Spencer's relocation expenses. See id. at ¶ 13. We summarized the contents of the Wahl memo in Blunt III, at ¶ 15:

The Wahl memo is dated November 8, 2007, and contained information about Spencer's resignation, including why the auditors began questioning whether WSI should seek repayment of Spencer's relocation expenses and why they decided not to make a recommendation about the expenses. The memo states Blunt was not forthcoming with information about Spencer's decision to leave his position at WSI, the auditors were initially informed Spencer “resigned,” and they began to question whether Spencer was required to repay the relocation expenses, but Blunt later provided new information about Spencer's decision to leave and made it appear the decision was not voluntary. The memo states, “Due to the new information provided by Mr. Blunt, we determined, in consultation with a representative of the Attorney General's Office, there was not a voluntary resignation so it was determined to drop the recommendation we had drafted.”

[¶ 5] At Blunt's criminal trial, one of the State's numerous allegations of misapplication of entrusted property was Blunt's failure to seek recoupment of relocation expenses from Spencer. Id. at ¶ 3. Wahl testified at the criminal trial about Blunt's refusal to seek recoupment of the relocation expenses. A jury convicted Blunt on one of two counts of misapplication of entrusted property, and this Court affirmed on direct appeal. See Blunt II, 2010 ND 144, ¶ 40, 785 N.W.2d 909.

[¶ 6] Blunt subsequently moved for a new trial, alleging the State had violated N.D.R.Crim.P. 16 by failing to disclose certain documents, including the Wahl memo, during discovery. Blunt III, 2011 ND 127, ¶ 5, 799 N.W.2d 363. On appeal from a district court order denying Blunt's motion for a new trial, this Court concluded that, [a]lthough for the purposes of this opinion” the State had “likely violated N.D.R.Crim.P. 16 by failing to disclose the requested documents,” Blunt had failed to show he was prejudiced by the violation. Id. at ¶¶ 13–14. Noting that Blunt and his attorney had possession of other documents which contained the same information as the Wahl memo, that Blunt presented other direct evidence that Spencer's termination was not voluntary, and that the State's Attorney had an “open file” policy, this Court concluded the district court had not erred in denying Blunt's motion for a new trial. See id. at ¶¶ 18–21.

[¶ 7] In August 2010, a petition for discipline was brought against Feland alleging she had violated N.D.R. Prof. Conduct 3.8(d) by failing to provide the Wahl memo to Blunt's defense counsel, Michael Hoffman. A hearing panel was appointed, and at the evidentiary hearing the panel heard conflicting evidence regarding whether Feland had provided the Wahl memo to Hoffman in discovery. Feland testified the Wahl memo was included in a stack of documents she gave to her legal assistant, Kim Bless, to copy and send to Hoffman. Bless testified she sent the documents to Hoffman and believed a copy of the Wahl memo was included, but she did not “know for certain” that it was. The Wahl memo was not listed on any of the discovery checklists created by the State's Attorney's Office in the Blunt file, which enumerated items that had been provided to the defense in discovery. Hoffman testified he did not receive the Wahl memo in discovery before trial.

[¶ 8] The hearing panel found Feland had violated N.D.R. Prof. Conduct 3.8(d) by failing to disclose the Wahl memo, which would have assisted in Blunt's defense of the case. The hearing panel recommendedthat Feland be suspended from the practice of law for 60 days and ordered to pay the costs of the disciplinary proceeding in the amount of $11,272.21.

[¶ 9] The hearing panel had jurisdiction under N.D.R. Lawyer Discipl. 3.1(E). Feland and Disciplinary Counsel filed timely objections to the hearing panel's report under N.D.R. Lawyer Discipl. 3.1(F). This Court has jurisdiction under N.D. Const. art. VI, § 3, N.D.C.C. § 27–14–01, and N.D.R. Lawyer Discipl. 3.1(F).


[¶ 10] We recently summarized our standard of review in disciplinary proceedings:

We review the record in a disciplinary proceeding de novo. Although due weight is accorded to the hearing panel's findings, conclusions, and recommendations, we do not automatically accept the hearing panel's decision. Disciplinary Counsel must prove, by clear and convincing evidence, each alleged violation of the disciplinary 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).


[¶ 11] The petition for discipline alleges Feland's conduct violated N.D.R. Prof. Conduct 3.8(d), which provides that a prosecutor in a criminal case shall:

disclose to the defense at the earliest practical time all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal....

Feland raises numerous challenges to the hearing panel's findings and conclusions that her conduct violated Rule 3.8(d).


[¶ 12] Feland contends the result recommended by the hearing panel conflicts with this Court's opinion in Blunt III. Feland argues:

Contrary to this Court's opinion in the underlying case, State v. Blunt, 2011 ND 127, 799 N.W.2d 363 the PANEL choose [sic] to create unworkable confusion with its findings and conclusions. This Court has ruled on the facts of this case and found that Blunt had all pertinent information through the discovery process. Id. In doing so, this Court has upheld the jury verdict and has denied a request for a new trial. Id.

Despite that, the PANEL created a situation where they seek to have a prosecutor suspended under facts the Court has found don't warrant a new trial. More pointedly, apparently the PANEL believes that the state of the law should be such that a criminal defendant is not entitled to a new trial even if the conduct of a prosecutor is so egregious that it warrants suspension. This contradiction makes no sense. Yet, that is the absurd result reached by the PANEL when it chose to read Rule 3.8(d) NDRPC in a wholly separate way from the well established discovery doctrines found in Rule 16 NDCrimP and Brady, and in the Rule 3.8(d) caselaw from...

To continue reading

Request your trial
23 cases
  • Grievance Comm. for the Tenth Judicial Dist. v. Kurtzrock (In re Kurtzrock)
    • United States
    • New York Supreme Court Appellate Division
    • December 30, 2020
    ...In re Kline, 113 A.3d 202 [D.C. 2015] ; Matter of Larsen, 379 P.3d 1209, 1216 [Utah 2016] ; In re Disciplinary Action Against Feland, 820 N.W.2d 672 [N.D. 2012] ; see also Joel Cohen, Disclosure of Information: Is Complying With ‘ Brady ’ Enough?, Ethics and Criminal Practice, NYLJ, June 9,......
  • In re Kline
    • United States
    • Court of Appeals of Columbia District
    • April 9, 2015
    ...to disclose evidence to the defense is broader than the duty under Brady or the criminal discovery rule. See In re Disciplinary Action Against Feland, 820 N.W.2d 672, 678 (N.D.2012). In reaching its conclusion that there is a distinction between compliance with an ethical rule and ensuring ......
  • Disciplinary Bd. of the Supreme Court of State v. Johnston (In re Johnston)
    • United States
    • United States State Supreme Court of North Dakota
    • December 1, 2015
    ...case. [¶ 36] "The assessment of costs is a sanction imposed when a lawyer has engaged in professional misconduct." In re Disciplinary Action Against Feland, 2012 ND 174, ¶ 48, 820 N.W.2d 672. "Under N.D.R. Lawyer Discipl. 1.3(D), costs and expenses of the disciplinary proceeding must be ass......
  • In re Seastrunk
    • United States
    • Supreme Court of Louisiana
    • October 18, 2017
    ...App. Dec. 17, 2015) (concluding that Texas Rule 3.09(d) is "broader than Brady "); In re Disciplinary Action Against Feland , 820 N.W.2d 672 (N.D. 2012) (rejecting argument that North Dakota equivalent to NY Rule 3.8(b) is coextensive with Brady ); see also, e.g., Brooks v. Tenn. , 626 F.3d......
  • Request a trial to view additional results
1 books & journal articles
  • The chronic failure to discipline prosecutors for misconduct: proposals for reform.
    • United States
    • Journal of Criminal Law and Criminology Vol. 105 No. 4, September 2015
    • December 22, 2015
    ...regardless of whether that information would meet the materiality requirements of Bagley, Kyles, and their progeny."); In re Feland, 820 N.W.2d 672, 676 (N.D. 2012) (noting that conviction in disciplinary proceeding's underlying criminal case was affirmed on the basis of harmless error in s......

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