Ellis, Matter of

• Decision Date: 19 April 1989
• Docket Number: No. 870201,870201
• Citation: 439 N.W.2d 808
• 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 808

439 N.W.2d 808

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. 870201.

Supreme Court of North Dakota.

April 19, 1989.

Vivian Elaine Berg (argued), Disciplinary Counsel, Bismarck, for petitioner.

Robert Vogel Law Office, P.C., Grand Forks, for respondent; argued by Alice R. Senechal, Grand Forks. Appearance by Cheryl L. Ellis, Fargo.

ERICKSTAD, Chief Justice.

This is a disciplinary proceeding brought against Cheryl L. Ellis, an attorney engaged in the practice of law at Fargo. Following formal proceedings, a hearing panel of the Disciplinary Board of the Supreme Court recommended that Ellis' certification of admission to the bar be revoked and that she be disbarred from the practice of law in this state.

We review disciplinary proceedings against attorneys de novo on the record with the standard of proof being by clear and convincing evidence. Disciplinary Board of the Supreme Court v. McKennett, 349 N.W.2d 29 (N.D.1984). In reviewing the record, we accord due weight to the findings, conclusions, and recommendations of the hearing panel. Matter of Disciplinary Action Against Garcia, 366 N.W.2d 482 (N.D.1985). However, this court does not act as a mere "rubber stamp" approving the findings and recommendations of the Disciplinary Board after a perfunctory review. Disciplinary Board of the Supreme Court v. O'Neil, 326 N.W.2d 879 (N.D.1982). In determining what discipline is warranted, each case must be decided on its own particular facts. Disciplinary Board of the Supreme Court v. O'Neil, 326 N.W.2d 879 (N.D.1982).

Milbank representation

Ellis received six files from Milbank Insurance Company (Milbank) concerning subrogation claims. After providing Milbank with an initial status report regarding each of the six files, Ellis was requested by Milbank to proceed with the case file entitled Holznagel v. Koesterman. Thereafter, Ellis failed to respond to correspondence from Milbank requesting status reports on the file. Ultimately, Milbank retained other counsel to represent it on this matter. Milbank was successful in obtaining the return of the file from Ellis only after "extraordinary efforts" to do so.

Sliper representation

Ellis received a $500 retainer to represent David Sliper in a claim against Northrup King Company. Ellis failed to act diligently in preparing and submitting answers to interrogatories in that case and failed to comply with a discovery order of the court to do so. Ellis failed to communicate the status of the case with her client, who ultimately retained other counsel to represent him. Ellis misrepresented to her client that her failure to file timely answers to the interrogatories resulted because a consultant retained by the client to provide expert technical advice failed to review the interrogatories in a timely manner. The consultant denied ever receiving the interrogatories from Ellis for review. Ultimately, Sliper's case was conditionally dismissed with prejudice, subject to being reopened if Sliper agreed to pay the defendant's attorneys fees.

Job representation

Ellis agreed to represent Richard A. Job regarding a claim Job had filed with the Workers Compensation Bureau (Bureau). Ellis failed to respond to correspondence from the Bureau and also failed to present evidence to the Bureau in support of her client's claim. Job ultimately retained another attorney to represent him.

The hearing panel found that Ellis violated the following provisions of the Code of Professional Responsibility:

"Canon 1, DR 1-102(A)(4), (5), and (6)

"(A) A lawyer shall not:

"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

"(5) Engage in conduct that is prejudicial to the administration of justice.

"(6) Engage in any other conduct that adversely reflects on his fitness to practice law.

"Canon 6, DR 6-101(A)(3)

"(A) A lawyer shall not:

"(3) Neglect a legal matter entrusted to him.

"Canon 7, DR 7-101(A)(1), (2), and (3)

"(A) A lawyer shall not intentionally:

"(1) Fail to seek the lawful objectives of his client through reasonable available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B)....

"(2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.

"(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B)."

Having carefully reviewed the record, we conclude that there is clear and convincing evidence to support the panel's findings that Ellis violated the foregoing provisions of the Code of Professional Responsibility representations which we have briefly summarized. The record contains clear and convincing evidence that Ellis is guilty of misrepresentation, neglect, and failure to provide diligent and professional representation for these clients. In each case Ellis' client suffered potential or actual harm from her inadequate representation.

Ellis does not openly concede that she failed to adequately represent her clients in these cases. While, not having directly acknowledged wrongdoing, Ellis has, however, implicitly recognized the impropriety of her representation in these cases by requesting that disciplinary sanctions be mitigated because she was suffering from major depression for a substantial portion of the time that she was representing these clients.

Dr. David Sharbo, a physician practicing psychiatry at the Fargo Clinic, treated Ellis for her depression. Dr. Sharbo testified that for periods of time between 1984 and 1986 Ellis suffered from major depression, and that Ellis, characteristic of a person afflicted by major depression, found it difficult to adequately function during that time. Dr. Sharbo further testified that with early detection and intervention many episodes of depression can be avoided or, if they occur, can be treated to allow the afflicted person to function normally.

We believe that Ellis has demonstrated that during the relevant time period she was suffering from a major depression for which she sought and received medical treatment. Based upon Dr. Sharbo's testimony, it is our understanding that in 1987 Ellis had responded to the treatment and was able to begin functioning normally.

An attorney's habitual failure to attend to matters entrusted to her by a client or to communicate with the client constitute grounds for discipline. Matter of Garcia, 243 N.W.2d 383 (N.D.1976). Under paragraph 4.4 of the North Dakota Standards for Imposing Lawyer Sanctions, ¹ disbarment is appropriate when an attorney engages in a pattern of negligence which causes serious or potential injury to a client and suspension is appropriate when a lawyer engages in a pattern of negligence which causes injury or potential injury to the client which is not denominated as "serious" injury. Under paragraph 4.62 suspension is appropriate when an attorney knowingly deceives a client and causes injury or potential injury.

Personal problems do not justify an attorney's failure to attend to matters entrusted to the attorney. Disciplinary Board of the Supreme Court v. O'Neil, 326 N.W.2d 879 (N.D.1982). However, pursuant to paragraph 9.32(c) and (h) of the Standards, "personal or emotional problems" and "physical or mental disability or impairment" are mitigating factors which may justify a reduction in the degree of discipline imposed.

Having carefully considered all of the evidence in this record, including evidence of Ellis having been afflicted with major depression, we believe that the panel's recommendation of disbarment is unduly harsh. The primary purpose of disciplinary proceedings is not to punish the attorney, but rather to determine if the attorney should be permitted, in the public interest, to continue to practice law. Matter of Maragos, 285 N.W.2d 541 (N.D.1979). In similar factual circumstances involving attorney neglect and mishandling of client representation we have often imposed discipline less severe than disbarment, such as reprimand, suspension, or suspension stayed with probationary supervision. See Matter of Disciplinary Action Against Britton, 406 N.W.2d 364 (N.D.1987); Matter of Disciplinary Action Against Garcia, 366 N.W.2d 482 (N.D.1985); Disciplinary Board of the Supreme Court v. O'Neil, 326 N.W.2d 879 (N.D.1982); Matter of Maragos, 285 N.W.2d 541 (N.D.1979). After due consideration, we believe the following disciplinary action is appropriate in this case.

We hereby impose upon Ellis a two-year suspension from the practice of law, but we stay imposition of all but the first 90 days of the...