In re Application for Disciplinary Action Against Hoffman, No. 20030141

• Decision Date: 23 October 2003
• Docket Number: No. 20030142., No. 20030141
• Citation: 2003 ND 161,670 N.W.2d 500
• Parties: In the Matter of APPLICATION FOR DISCIPLINARY ACTION AGAINST Randall L. HOFFMAN, 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. Randall L. Hoffman, Respondent.
• Court: North Dakota Supreme Court

670 N.W.2d 500

2003 ND 161

In the Matter of APPLICATION FOR DISCIPLINARY ACTION AGAINST Randall L. HOFFMAN, 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. Randall L. Hoffman, Respondent.

Nos. 20030141, 20030142.

Supreme Court of North Dakota.

October 23, 2003.

Rehearing Denied November 13, 2003.

Paul W. Jacobson, Disciplinary Counsel, Bismarck, ND, for petitioner.

Randall L. Hoffman, pro se, Elgin, ND, for respondent.

PER CURIAM.

[¶ 1] This is a disciplinary action against Randall L. Hoffman. Hoffman petitioned this Court for review of a hearing panel's report, which found he violated N.D.R. Prof. Conduct 1.12(a), 3.4(d), 4.2, and 4.4. The hearing panel also considered aggravating factors under North Dakota Standards for Imposing Lawyer Sanctions. The hearing panel recommended Hoffman be suspended from the practice of law for one year and pay costs of $4,553.71. We conclude there is clear and convincing evidence Hoffman violated those rules, and we adopt the hearing panel's recommendations.

[¶ 2] Hoffman was admitted to practice law in North Dakota on November 10, 1991. This case involves three allegations of misconduct. The first incident started in February 1998, when Hoffman sat as district judge in a divorce action, Toltzman v. Toltzman. The divorce ultimately ended in a default judgment in favor of Michele Toltzman and Hoffman issued findings of fact, conclusions of law, and an order for judgment. Hoffman resigned as district judge January 7, 1999. His resignation became effective April 30, 1999. [¶ 3] On February 5, 1999, Bruce Toltzman filed a motion to amend the judgment. On March 1, 1999, Hoffman filed a request for reassignment in the Toltzman case. On September 14, 2001, Hoffman notified Michele he was representing Bruce. On November 9, 2001, Hoffman filed a motion to amend judgment in the Toltzman matter as the attorney for Bruce. Michele did not consent to the representation and was distressed at the knowledge that the judge in the divorce case was now representing her former husband.

[¶ 4] The second incident occurred on October 29, 2000. Hoffman went to the home of Ray Remmick, an individual with whom Hoffman's fiancée, Gwen Simmers, had a visitation dispute. Hoffman informed Remmick he was a lawyer, and he wanted to settle the visitation schedule before he married Simmers the next day. Hoffman produced a document which sought Remmick's consent to the discussion outside of his lawyer's presence. Remmick declined to sign the document or to speak about the visitation schedule without the advice of his lawyer, Joseph Larson. Remmick attempted to contact his attorney by telephone, but the attorney was out of the office. Remmick explained to his lawyer's secretary, Alice Kooker, that Hoffman was at his house and asking him to sign a paper. Kooker explained Remmick's attorney was out of town. Hoffman then spoke with Kooker, stating that Remmick's proposed visitation schedule was "unacceptable." The testimony of both Kooker and Remmick indicate Hoffman became very upset and hostile during the encounter.

[¶ 5] After the telephone conversation with Kooker, Hoffman told Remmick that if he did not sign the document and discuss visitation without his attorney, Remmick would not receive visitation with his child that night. Remmick did not comply with Hoffman's apparent threat, and Remmick was later denied visitation.

[¶ 6] The incident giving rise to the third allegation occurred on December 6, 2000. Hoffman served discovery requests on Remmick in a visitation proceeding concerning the child of Remmick and Simmers. The requests for admissions numbered 112 and interrogatories numbered 58. Several of the questions asked Remmick to disclose facts intimate to his sexual relationship with Simmers, including times and locations of sexual encounters. The trial court sustained objections to all but 23 of the requests for admissions and all but eight of the interrogatories.

[¶ 7] Disciplinary counsel filed a petition for discipline against Hoffman, alleging he violated N.D.R. Prof. Conduct 1.12(a), 3.4(d), 4.2, and 4.4.

[¶ 8] This Court reviews disciplinary proceedings de novo on the record. In re Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 126; In re Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. Disciplinary counsel bears the burden to prove by clear and convincing evidence the accused attorney violated the rules of conduct. Edwardson, at ¶ 9; In re Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240. This Court will give due weight to the findings of the hearing panel, but does not act as a mere "rubber stamp." Edwardson,at ¶ 9. Each case for discipline must be individually considered on its own specific facts. In re Giese, 2003 ND 82, ¶ 7, 662 N.W.2d 250.

[¶ 9] Hoffman made several objections to the hearing panel's report. Hoffman argues the hearing panel made several factual errors and erroneous conclusions of law.

I.

[¶ 10] Hoffman objected that the hearing panel report failed to prove he personally and substantially participated as a judge in the Toltzman matter. Hoffman argues conducting a default divorce proceeding does not constitute personal and substantial involvement for purposes of the rules of conduct. We disagree.

[¶ 11] The applicable rule states:

Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after consultation.

N.D.R. Prof. Conduct 1.12(a).

[¶ 12] As a matter of law, presiding as judge in a divorce proceeding, whether by default or trial, constitutes personal and substantial involvement. See Gen. Counsel of the Ala. State Bar, Op. 93-04 (1993) (stating that a former judge may not represent a party on a motion related to a divorce decree the former judge signed even "where the decree was based upon an answer, waiver and agreement and thus required minimal participation from the judge"); see also Cho v. Superior Court, 39 Cal.App.4th 113, 45 Cal.Rptr.2d 863, 863-64 (1995)

(disqualifying an attorney's firm from representing a party in an action where the lawyer sat as judge in settlement conferences). Without more, considering and granting a default divorce constitutes personal and substantial involvement. However, in this instance Hoffman did more. The record indicates Hoffman questioned Michele Toltzman and conducted an examination of the record before issuing a ruling.

II.

[¶ 13] Hoffman argues the hearing panel erred in finding Hoffman had an attorney-client relationship with Simmers at the time he communicated with Ray Remmick. In relation to this violation, Hoffman also argues the hearing panel erred when it denied his motion in limine and allowed third parties to testify as to whether Hoffman and Simmers had an attorney-client relationship. Hoffman further argues the hearing panel erred when it denied Hoffman's motion to strike and motion to dismiss. Both motions asserted disciplinary counsel had to prove Hoffman and Simmers had an actual attorney-client relationship. We conclude the hearing panel was correct in its conclusion that Hoffman inappropriately communicated with a represented individual, and he had an apparent attorney-client relationship with Simmers at the time of the communication.

[¶ 14] The hearing panel concluded Hoffman violated N.D.R. Prof. Conduct 4.2 which provides, "[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." Hoffman argues he did not violate Rule 4.2 because no actual attorney-client relationship existed between himself and Simmers at the time of the prohibited communication. We decline to accept such a narrow interpretation of the rule.

[¶ 15] The presence of an attorney-client relationship is a question of fact and may be implied from the conduct of the parties. See Moen v. Thomas, 2001 ND 110, ¶ 13, 628 N.W.2d 325

(citing Stormon v. Weiss, 65 N.W.2d 475, 520 (N.D. 1954)). No formal agreement is necessary to establish an attorney-client relationship. In re McKechnie, 2003 ND 22, ¶ 19, 656 N.W.2d 661. The hearing panel correctly identified an attorney-client relationship implied from Hoffman's conduct.

[¶ 16] An attorney-client relationship can be presumed in situations where a person has a reasonable belief a lawyer is protecting someone's interest. Restatement (Third) of the Law Governing Lawyers § 14 cmt. a (2000). The Restatement provides, "the various duties of lawyers and clients do not always rise simultaneously." Id. Even if no formal professional relationship exists between the client and the attorney, the attorney may still owe a duty to the prospective client, or third parties. Id.

[¶ 17] Hoffman asserts that the hearing panel must prove three elements derived from agency law in order to establish an attorney-client relationship. Hoffman misunderstands the nature of the violation in reference to the attorney-client relationship. The cases cited by Hoffman examine an attorney-client relationship from the client's perspective, a standard used to determine an attorney-client relationship in malpractice situations. However, this case is distinguishable, because under Rule 4.2, the relationship must be viewed from the perspective of a reasonable third party applying an objective standard. Hoffman's conduct allowed third parties to infer Hoffman was at Remmick's residence to represent Simmers' interests. Under Hoffman's interpretation of Rule 4.2, an attorney could claim to represent a client and make statements on that client's behalf or to their detriment to third parties, but suffer no consequences because the...