Disciplinary Bd. v. Amundson, 9763

• Decision Date: 06 October 1980
• Docket Number: No. 9763,9763
• Citation: 297 N.W.2d 433
• Parties: In the Matter of the Application for Disciplinary Action Against John A. Amundson, a Member of the Bar of the State of North Dakota. DISCIPLINARY BOARD of the Supreme Court, Petitioner, v. John A. AMUNDSON, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 433

297 N.W.2d 433

In the Matter of the Application for Disciplinary Action Against John A. Amundson, a Member of the Bar of the State of North Dakota DISCIPLINARY BOARD of the Supreme Court, Petitioner, v. John A. AMUNDSON, Respondent.

Civ. No. 9763.

Supreme Court of North Dakota.

Oct. 6, 1980.

Gregory D. Morris, Bismarck, for Disciplinary Bd.

John A. Amundson, Bowman, pro se.

VANDE WALLE, Justice.

This is a disciplinary proceeding brought against John A. Amundson, a sole practitioner engaged in the practice of law in Bowman, North Dakota, for the past thirty years. A letter of informal complaint was filed with the Disciplinary Board of the Supreme Court on or about October 23, 1979. An investigation was conducted by Inquiry Committee West of the State Bar Association of North Dakota in accordance with the provisions of Rule 8 of the North Dakota Rules of Disciplinary Procedure. The committee recommended to the Disciplinary Board that a formal disciplinary proceeding be instituted. A summons and complaint was served on Amundson on December 21, 1979. A three-member panel was appointed and a hearing was held on February 14, 1980, at which Amundson was present. After considering the files, records, and evidence presented at that hearing, the panel recommended to the Supreme Court that Amundson be publicly reprimanded for his conduct and violations of the Code of Professional Responsibility, and that he be required to pay for the expense of the disciplinary proceedings. Amundson took exception to some, but not all, of the findings of the Disciplinary Board, and in his brief and at oral argument conceded violations of certain provisions of the Code of Professional Responsibility.

We review disciplinary proceedings against attorneys de novo on the record and the standard of proof is clear and convincing evidence. Matter of Lovell, 292 N.W.2d 76 (N.D.1980); Matter of Maragos, 285 N.W.2d 541 (N.D.1979). A summary of the facts leading to this proceeding is necessary for a discussion of the findings of the Disciplinary Board.

Amundson had a very close personal relationship with Nelius and Margit Nelson that began in his early childhood and continued to the time of their deaths. In the Nelsons' later years Amundson was involved in their personal and legal well-being. In 1963 Amundson was asked to and did prepare wills for Nelius and Margit. Nelius was satisfied with his will and signed it on October 3, 1963. Amundson and his wife, Helen, witnessed his signature to the will. Margit was not satisfied with the first draft of her will and requested Amundson to prepare another will which would include him as a beneficiary. Amundson explained to both Nelius and Margit that it was unusual for a lawyer to draw the will, to be the executor, and to be named as a beneficiary in the will. He further explained to them that the will could be drawn on plain paper, or that another lawyer could draw the will, but that if Margit wanted him to draw the will he would do so in order that people would know he was directly involved. Amundson told them he would draft the will with himself included as beneficiary because it was Margit's wish and he did not want the will drawn indirectly or covertly because the will included him as a beneficiary. The Nelsons continued to insist that Amundson draw the will and include himself as a beneficiary. The will was redrafted with Amundson included as a beneficiary and Margit executed the will on October 7, 1963. Amundson, his wife, Helen, and Bernard Thiegs witnessed the signature of Margit to the will. The will named Amundson as a beneficiary entitled to one-sixth of the entire estate provided Margit died after or nearly simultaneously with Nelius. Other beneficiaries named in the will were Mrs. Torgus Dolo, Norway, Margit's sister; Ernest and Albert Fossum; Vetle and Gilbert Torgerson, Margit's brothers; and Asta Asselstine, Ann Hyde, Leonard Larson, Doris Zehm, and Marie Kinney, children of a deceased brother and sister.

Nelius predeceased Margit. Margit died on July 2, 1973. Amundson notified the relatives of her illness and death. Amundson did not, however, inform the beneficiaries of their inclusion in Margit's will. One of the beneficiaries, Mrs. Fred Zehm, wrote Amundson on February 5, 1974, requesting a copy of the will but Amundson did not furnish her a copy of the will or otherwise respond.

The probate file for Margit's estate was opened on March 20, 1974, and a petition for proof and probate of the will was filed on September 4, 1974. On September 25, 1974, notice of hearing of the petition was filed along with a blank affidavit of service. No service of the notice was obtained nor was a hearing conducted with regard to the petition. On October 2, 1975, an application for informal probate of the will and for appointment of Amundson as personal representative was filed and an order admitting the will to probate and appointing the respondent as the personal representative was entered and letters testamentary were issued. A North Dakota estate tax return was prepared by Amundson and filed with an inventory and appraisement on October 16, 1975, establishing the gross value of the estate at $105,676.06. Estate tax was assessed in the amount of $3,957, and interest of $276.78 was also assessed. The last item filed with the county probate court was a letter dated November 20, 1975, from the office of the North Dakota State Tax Commissioner requesting clarification of the Federal taxes paid. Amundson took no further action to complete the probate of the estate. Most of the assets of the estate consisted of certificates of deposit, checking accounts, and bonds which Amundson converted to cash and deposited in an estate account with the Bank of North Dakota.

Albert Fossum, one of the beneficiaries under Margit's will, discussed the status of the estate with Amundson on two occasions. On the second occasion Amundson gave a date of the first week in October 1979 for completion of the probate of the estate. The Bowman County judge's office also called Amundson's office to urge him to complete the probate of the estate. Amundson took no action, however.

Amundson's wife, Helen, testified as to the severe medical problems suffered by her and their son and daughter, and the deaths of other relatives and close friends during the period following Margit's death.

From its findings, the hearing panel of the Disciplinary Board drew the following conclusions and made the following recommendations:

"1. That the matter of the application for disciplinary action against John A. Amundson, a member of the Bar of the State of North Dakota, is properly before this hearing panel jurisdictionally and procedurally.

"2. The findings and conclusions of this hearing panel are supported by clear and convincing evidence.

"3. The respondent was admitted to practice as an attorney and counselor at law in the courts of the State of North Dakota on April 1, 1950.

"4. The respondent acted improperly in drafting and witnessing a will in which he was named as executor and as a beneficiary. Such conduct violates the provisions of Canon 5, DR 5-102, DR 5-103 and EC 5-6 of the Code of Professional Responsibility as adopted by the State Bar Association of the State of North Dakota and approved by the Supreme Court.

"5. The panel is cognizant of the fact that there was a close personal relationship between the respondent and Margit Nelson. That fact does not excuse the conduct involved, but has been considered by this panel in mitigation.

"6. The respondent, during the course of his representation, failed to communicate with the beneficiaries of the estate as to their status as beneficiaries and as to the status of the estate itself. Such conduct violates the provisions of Canon 6, DR 6-101(A)(3) and Canon 1, DR 1-102(A)(1), (5) and (6).

"7. The respondent was negligent in representing the Margit Nelson estate by his failure to complete the estate tax returns in a timely manner, incurring interest; by his failure to distribute the assets to the beneficiaries, and by his failure to take any significant action toward completion of the estate since 1975. Such conduct violates the provisions of Canon 6, DR 6-101(A)(3); Canon 1, DR 1-102(A)(1), (5) and (6); and Canon 7, DR 7-101(A)(1), (2) and (3).

"WHEREFORE, it is the recommendation of this hearing panel of the Disciplinary Board of the Supreme Court that the respondent be publicly reprimanded for his conduct and violations of the Code of Professional Responsibility and that he be required to pay for the expenses of the formal disciplinary proceeding."

As we have previously indicated, Amundson took exception to some, but not all, of the findings, conclusions, and recommendations of the Disciplinary Board. Amundson's specific exceptions are as follows:

"I.

"This respondent's action in the drafting of decedent's last will and testament was done with the full knowledge and approval of the decedent and her husband.

"II.

"Respondent's action in witnessing the will was done in the same open and fully disclosed manner so that there would be no covert and hidden action of his part in the drafting and execution of the last will and testament.

"III.

"Respondent, in encouraging the decedent to go to another lawyer for the purpose of drafting her last will and testament, would have been guilty of misconduct by circumventing a disciplinary rule through actions of another. If respondent was guilty of misconduct in drafting her last will and testament, he would have been guilty of a greater act of misconduct by encouraging her to go to another lawyer knowing that all of her estate-or a greater portion of it-would be willed to him.

"IV.

"Respondent used no fraud, coercion or undue influence on the decedent. Her wish that respondent have the farm and all of the couple's property was her own original desire, thought and intention."

Amundson's objections to the conclusions...