In re Disciplinary Action against Stensland

• Decision Date: 30 April 2009
• Docket Number: No. 20080213.,20080213.
• Citation: 764 N.W.2d 438,2009 ND 77
• Parties: In the Matter of the Application for DISCIPLINARY ACTION AGAINST Monty J. STENSLAND, 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. Monty J. Stensland, Respondent.
• Court: North Dakota Supreme Court

764 N.W.2d 438

2009 ND 77

In the Matter of the Application for DISCIPLINARY ACTION AGAINST Monty J. STENSLAND, 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. Monty J. Stensland, Respondent.

No. 20080213.

Supreme Court of North Dakota.

April 30, 2009.

Brent J. Edison, Assistant Disciplinary Counsel, Bismarck, for petitioner; submitted on brief.

Monty J. Stensland, Grand Forks, pro se.

PER CURIAM.

[¶ 1] Monty Stensland objects to the Disciplinary Board hearing panel's findings he violated N.D.R. Prof. Conduct 1.4, 3.3, 5.5(a) and N.D.R. Lawyer Discipl. 4.5 and 6.3. Stensland also objects to the hearing panel's recommendations that he be suspended from the practice of law for sixty days and that he be ordered to pay $3,880.40 in costs for the disciplinary proceedings. We conclude clear and convincing evidence exists establishing Stensland violated N.D.R. Prof. Conduct 1.4, 3.3 and 5.5 and N.D.R. Lawyer Discipl. 4.5 and 6.3. We suspend Stensland from the practice of law for sixty days and order him to pay $3,880.40 in costs for the disciplinary proceedings.

I

[¶ 2] Monty Stensland was admitted to practice as an attorney at law in the courts of North Dakota on October 10, 1991. In October 2006, Stensland received a copy of a hearing panel's report, recommending his license be suspended. On December 12, 2006, this Court suspended Stensland's license to practice law for sixty days, effective January 15, 2007. Disciplinary Bd. v. Stensland, 2006 ND 251, ¶ 12, 725 N.W.2d 191.

[¶ 3] In early December 2006, Karlene McLaurin contacted Stensland asking him to represent her daughter, Elisha McLaurin, in a custody dispute over her granddaughter. During their initial telephone conversation, Stensland did not inform Karlene McLaurin the disciplinary board had recommended he be suspended from the practice of law. Stensland agreed to take the case for a flat fee of $3000. After their initial telephone conversation, Stensland drafted a Summons, Complaint, Interrogatories, Proposed Findings of Fact and Conclusions of Law, and Order for Judgment. On December 15, 2006, Stensland sent the Summons and Complaint to a process server for service. Service was not achieved until June 2007.

[¶ 4] Stensland testified he received the North Dakota Supreme Court's December 12, 2006 Suspension Order, on December 16, 2006. After receiving the Order, Stensland stated that on December 29, 2006, he sent letters to his clients informing them of his suspension. Neither Karlene McLaurin nor Elisha McLaurin received a letter informing them Stensland had been suspended from the practice of law. Stensland admits he did not send a "suspension letter" to either Karlene McLaurin or Elisha McLaurin. Stensland stated he did not send the McLaurins a letter informing them of his suspension because service of the Summons and Complaint had not been achieved. Stensland said the McLaurins were not entitled to notice of his suspension because N.D.R. Lawyer Discipl. 6.3 only requires notice to be given to clients with "pending matters." Stensland claims the McLaurins' case did not constitute a pending matter because service of process had not been achieved.

[¶ 5] Karlene McLaurin said she sent a check to Stensland for $2800 on January 2, 2007 and Stensland cashed the check on January 10, 2007. Karlene McLaurin stated she became concerned about choosing Stensland for her attorney because she continually tried to contact him and no one answered his phone. Shortly thereafter, Karlene McLaurin testified she heard Stensland was disbarred. Karlene McLaurin said she wrote Stensland a letter, specifically asking him if he had been disbarred. Stensland replied to Karlene McLaurin, denying he was disbarred, but he failed to inform Karlene McLaurin he was suspended from the practice of law. Karlene McLaurin did not become aware of Stensland's suspension until she filed a complaint with the disciplinary board and the disciplinary board sent her a letter informing her Stensland had been suspended from the practice of law from January 15, 2007 until March 16, 2007.

[¶ 6] On February 1, 2007, Stensland filed an Affidavit of Compliance with the Court stating he complied with N.D.R. Lawyer Discipl. 6.3 by providing notice of his suspension to all of his clients with pending matters. Stensland filed another Affidavit of Compliance on March 28, 2007, affirming he had complied with N.D.R. Lawyer Discipl. 4.5 and 6.3, had paid the costs of the disciplinary proceeding and had completed the necessary continuing legal education credits, making him eligible for reinstatement.

[¶ 7] In February 2008, disciplinary counsel petitioned for discipline against Stensland, alleging Stensland (1) failed to give Karlene McLaurin notice of his suspension in violation of N.D.R. Lawyer Discipl. 6.3, (2) filed a false Affidavit of Compliance stating he complied with the requirements of his suspension order in violation of N.D.R. Lawyer Discipl. 4.5, (3) failed to advise the McLaurins of his suspension and failed to communicate with them during his suspension in violation of N.D.R. Prof. Conduct 1.4, (4) made a false statement to a tribunal in violation of N.D.R. Prof. Conduct 3.3, (5) knowingly disobeyed an obligation under the rules of a tribunal in violation of N.D.R. Prof. Conduct 3.4 and (6) engaged in the unauthorized practice of law in violation of N.D.R. Prof. Conduct 5.5.

[¶ 8] On June 10, 2008, a hearing was held on the petition. The hearing panel found Stensland violated N.D.R. Prof. Conduct 1.4, 3.3 and 5.5 and N.D.R. Lawyer Discipl. 4.5 and 6.3. The hearing panel recommended Stensland be suspended from the practice of law for sixty days and pay $3,880.40 in costs for the disciplinary proceedings.

II

[¶ 9] "Disciplinary proceedings are reviewed by this Court de novo on the record." Disciplinary Bd. v. McCray, 2008 ND 162, ¶ 12, 755 N.W.2d 835 (quoting Disciplinary Bd. v. Buresh, 2007 ND 8, ¶ 6, 726 N.W.2d 210). "Although we give due weight to the findings, conclusions, and recommendations of the hearing panel, we do not act as a mere rubber stamp." McCray, at ¶ 12. "We give special deference to the hearing panel's findings on matters of conflicting evidence because the hearing panel had the opportunity to hear the witnesses and observe their demeanor." Disciplinary Bd. v. Johnson, 2007 ND 203, ¶ 17, 743 N.W.2d 117. "Disciplinary counsel must prove each alleged violation of the disciplinary rules by clear and convincing evidence." Disciplinary Bd. v. Giese, 2006 ND 13, ¶ 7, 709 N.W.2d 717. "[C]lear and convincing evidence means evidence which leads to a firm belief or conviction that the allegations are true." Judicial Conduct Com'n v. McGuire, 2004 ND 171, ¶ 8, 685 N.W.2d 748. "Each disciplinary case must be considered upon its own facts to decide what discipline, if any, is warranted." McCray, at ¶ 12.

III

A

[¶ 10] Stensland objects to the hearing panel's finding he violated N.D.R. Lawyer Discipl. 6.3 because of his failure to provide the McLaurins with notice of his suspension. "Rule 6.3(A), N.D.R. Lawyer Discipl., requires a lawyer, within ten days after the date of the order of suspension, to give notice by registered or certified mail to all clients represented in pending matters." Giese, 2006 ND 13, ¶ 17, 709 N.W.2d 717. The notice must state the client's and the lawyer's place of residence, include the court's order and "state that the lawyer cannot act as a lawyer after the effective date of the order." N.D.R. Lawyer Discipl. 6.3(A).

[¶ 11] Stensland argues the term "all clients being represented in pending matters" in N.D.R. Lawyer Discipl. 6.3 is ambiguous because it can be interpreted in more than one way. Stensland claims "pending matters," "pending cases" and "pending actions" are synonymous terms. Stensland contends he did not violate N.D.R. Lawyer Discipl. 6.3 because the McLaurins were not entitled to notice of his suspension since their case was not filed with the court nor was service of process achieved.

[¶ 12] Stensland's argument that "pending matters" includes only those actions that are filed or that have been commenced by service of the summons is unduly restrictive. His argument ignores that N.D.R. Lawyer Discipl. 6.3(A) must be construed and applied with equal meaning to lawyers with litigation and non-litigation practices. We adopt the hearing panel's determination that Stensland's narrow interpretation of the phrase "pending matters" was not credible and that Stensland was required to provide the McLaurins with notice of his suspension because their case constituted a "pending matter."

[¶ 13] The evidence established Karlene McLaurin hired Stensland to represent her daughter in a custody dispute, paid Stensland a retainer fee of $2800, disclosed confidential information to him expecting that information to be privileged and fired him. This evidence establishes the McLaurins' case was a "pending matter," requiring Stensland to provide them notice of his suspension under N.D.R. Lawyer Discipl. 6.3. We conclude the evidence clearly and convincingly establishes Stensland failed to comply with the requirement of N.D.R. Lawyer Discipl. 6.3, by failing to provide notice of his suspension to the McLaurins.

B

[¶ 14] Stensland argues he should not be disciplined because "he complied in good faith with his interpretation of Rule 6.3 in providing notices, and in filing affidavit of such." In finding Stensland's interpretation of N.D.R. Lawyer Discipl. 6.3 was not credible, the hearing panel stated, "Stensland's testimony at the hearing that it cost '$6.30' per client to provide notice and that he knew he was `going into a limited income period of time' suggests to the Panel that the true motive for Stensland's overly narrow construction of Rule 6.3 was financial in nature." "We give special deference to the hearing panel's findings on matters of conflicting evidence...