Ellis, Matter of

• Decision Date: 10 August 1993
• Docket Number: No. 920375,920375
• Citation: 504 N.W.2d 559
• Parties: In the Matter of the Application for Disciplinary Action Against Cheryl L. ELLIS, 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. Cheryl L. ELLIS, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 559

504 N.W.2d 559

In the Matter of the Application for Disciplinary Action Against Cheryl L. ELLIS, 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. Cheryl L. ELLIS, Respondent.

Civ. No. 920375.

Supreme Court of North Dakota.

Aug. 10, 1993.

Vivian Elaine Berg, Disciplinary Counsel, Bismarck, for petitioner.

Cheryl Leslie Ellis, pro se.

PER CURIAM.

This is a disciplinary proceeding against Cheryl L. Ellis, a Fargo attorney, arising out of her representation of Linnea Andreasen, James C. Bakeman and Esther Hartman. We order that Ellis be suspended from the practice of law for a period of six months, that she write and achieve a score of at least 80 on the Multistate Professional Responsibility Examination (MPRE), and that she pay costs of $2,782.15 and attorney fees of $1,482.50.

We review disciplinary proceedings against attorneys de novo on the record, according due weight to the findings, conclusions and recommendations of the hearing panel. Disciplinary Board v. Ellis, 439 N.W.2d 808 (N.D.1989). We do not rubber stamp the findings and recommendations of the Disciplinary Board. Id. The standard of proof is clear and convincing evidence. Id.; Rule 3.5, NDPRLDD. "In determining what discipline is warranted, each case must be decided on its own particular facts." Ellis, supra, 439 N.W.2d at 809.

The hearing panel found that Ellis represented Andreasen in a Clay County, Minnesota, divorce action which was tried in September 1989, with a judgment being entered on November 9, 1989. Ellis met with Andreasen and Bakeman on December 3, 1989, informed Andreasen for the first time that judgment had been entered in the divorce action, and discussed issues for appeal and a motion hearing scheduled for January 29, 1990. At the December 3 meeting, Ellis presented Andreasen with a statement of charges reflecting a balance due of $6,591. Ellis had Andreasen sign an assignment and agreement indicating that Andreasen owed $6,389.80 in legal fees and costs to Ellis, authorizing the First State Bank of Audubon to disburse funds to Ellis in payment of legal fees, and providing that the bank would be repaid out of the proceeds of Andreasen's divorce judgment. When the bank would not provide Ellis all of the funds she sought, Ellis had Andreasen sign a second agreement, which falsely indicated that Andreasen owed Ellis legal fees and costs of $11,489 as of December 6, 1989. The agreement recited that Ellis wished to borrow $4,000 from the bank, with the loan to be secured by an assignment of the proceeds of Andreasen's divorce judgment, and provided that Ellis agreed to discount Andreasen's bill to $9,403. Ellis borrowed the $4,000, the bank was repaid with interest, and Ellis never billed Andreasen for the additional amounts reflected in the second agreement. The panel also found that Ellis misled Andreasen and, apparently, the court about certain hearing dates on motions, and that she failed to respond to messages left on her answering machine and failed to apprise Andreasen of amendments to her divorce decree.

The hearing panel also found:

"VII

"Ellis undertook to represent James C. Bakeman (husband of Linnea Bakeman, formerly Linnea Andreasen) in connection with at least three (3) matters, including a Reciprocal Child Support Enforcement action in Stearns County, Minnesota, and was to file certain motions to vacate or amend an order which had been entered in the Stearns County, Minnesota action. Ms. Ellis undertook the representation knowing that she was not licensed to practice in Minnesota and she did indicate to Mr. Bakeman that payment of a back bill in the amount of approximately four hundred dollars, plus filing fee of $75, was required as a prerequisite to filing the appeal. Mr. Bakeman forwarded the necessary funds in the amount of $475 by Federal Express; however, the appeal or proceeding was not undertaken.

"VIII

"At a meeting of Ellis and Mr. and Mrs. Bakeman on December 3, 1989, at Alexandria, Minnesota, at which time Ellis was representing Mr. Bakeman, he turned over to her a personal file containing records, with the idea in mind that Ellis would make copies and return the files to Bakeman.... Subsequently, through personal telephone contact and messages left on her answering machine, Mr. Bakeman did request on more than one occasion that she return his files. Ellis indicated to him that they had been returned and on another occasion indicated that they had been sent to him from Detroit Lakes. Ellis indicated that she was going to put a tracer through the postal service to check on the package referred to; however, it appears that no tracer had ever been put through.

"IX

"Ellis undertook to represent Esther Hartman (mother of Linnea Bakeman, formerly Linnea Andreasen) in connection with an investment or investments which had proven to be unsound. Ellis obtained Esther Hartman's file containing quarterly reports, copies of promissory notes and matters pertaining to the investment(s). Ellis was requested to return the file by telephone and letter and the files were returned to Mrs. Hartman after about ten or eleven months....

"X

"Ellis has violated one or more of the following provisions of the Rules of Professional Conduct:

"RULE 1.1 COMPETENCE. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

"RULE 1.15 SAFEKEEPING PROPERTY, which requires that a lawyer shall safeguard a client's property and at subparagraph (a) provides that 'other property shall be identified as such and appropriately safeguarded ...' "RULE 1.3. DILIGENCE. A lawyer shall act with reasonable diligence and promptness in representing a client.

"RULE 1.4. COMMUNICATION.

"(a) A lawyer shall make reasonable efforts to keep a client reasonably informed about the status of a matter. A lawyer shall promptly comply with a client's resonable [sic] requests for information.

"(b) A lawyer shall explain matters related to the representation to the extent reasonably necessary to permit the client to make informed decisions.

"RULE 3.3. CANDOR TOWARD THE TRIBUNAL.

"(a) A lawyer shall not:

"(1) Make a statement to a tribunal of fact or law that the lawyer knows to be false.

"RULE 5.5. UNAUTHORIZED PRACTICE OF LAW.

"A lawyer shall not:

"(a) Practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.

"Additionally, it appears that Ellis has violated Rule 1.2(A)(3), NDPRLDD, in that it is stated to be misconduct and grounds for disciplinary sanctions for a lawyer to 'engage in conduct involving dishonesty, fraud, deceit, or misrepresentation'."

The hearing panel recommended that Ellis be reprimanded ¹ and that she be ordered to pay costs of $2,782.15 and attorney fees of $1,482.50. The Disciplinary Board adopted the hearing panel's findings and recommendations, with the exception of the hearing panel's finding of unauthorized practice of law.

Ellis argues that the hearing panel's report was untimely. Rule 3.1(D)(4), NDPRLDD, provides, in part: "The hearing body shall in every case submit to the board within 60 days after the conclusion of its hearing a report containing its finding and recommendations, together with a record of its proceedings." However, Rule 3.5(I), NDPRLDD, provides:

"Except as is otherwise provided in these rules, time is directory and not jurisdictional. Failure to observe prescribed time intervals may result in sanctions against the violator but does not abate any proceeding."

Ellis's argument is without merit.

Ellis points out that the hearing panel's report is signed by only two of the three members of the panel. Our Procedural Rules for Lawyer Disability and Discipline fail to address this point. They do, however, provide that the Disciplinary Board itself may act with the concurrence of a majority, Rule 2.1(E), NDPRLDD, and they do not set forth any greater requirement for the Board's hearing bodies, nor do they require that all members of a hearing panel sign a report. We therefore determine that a report signed by two of the three panel members is sufficient. ²

Ellis was not served with a subpoena or notice before an Inquiry Committee East hearing was held. That hearing was followed by formal proceedings and a hearing by the three-member panel involved here. Ellis asserts that she was denied her due process right to appear. An attorney subjected to disbarment proceedings is "entitled to procedural due process, which includes fair notice of the charge." In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117, 122 (1968). In State v. Rome, 235 Kan. 642, 685 P.2d 290 (1984), a disciplined attorney alleged a due process violation when he was not questioned and allowed to provide an explanation in a preliminary investigation before proceedings were filed. Citing Hannah v. Larche, 363 U.S. 420, 446, 80 S.Ct. 1502, 1516, 4 L.Ed.2d 1307 (1960), the court held: "Individuals who are investigated by agencies and who will be 'accorded all the traditional judicial safeguards at a subsequent adjudicative proceeding,' cannot successfully complain that they were not given procedural due process." 685 P.2d at 291, Syllabus p 3. Ellis alleges that if she had been at the Inquiry Committee East hearing, "it would have been apparent" that Mrs. Hartman had forgotten about a telephone conversation they had had, and Hartman's "telephone records for the time in question could have then been subpoenaed." Ellis has not suggested how such a subpoena would have improved her position. Ellis's due process argument is without merit.

Ellis alleges that before the hearing began, disciplinary counsel refused to allow an attorney, who had previously represented Andreasen and was a witness at the hearing, to assist Ellis at the hearing....