In re Disciplinary Action Against Edwardson, 20020068.

CourtUnited States State Supreme Court of North Dakota
Citation2002 ND 106,647 N.W.2d 126
Docket NumberNo. 20020068.,20020068.
PartiesIn the Matter of the Application for DISCIPLINARY ACTION AGAINST Debra K. EDWARDSON, 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. Debra K. Edwardson, Respondent.
Decision Date11 July 2002

Loralyn Kay Hegland (argued), Assistant Disciplinary Counsel, Bismarck, ND, for petitioner.

Debra K. Edwardson, pro se, Edwardson Law Office, Union Annex Building, Minot, ND, (no brief or argument).

PER CURIAM.

[¶ 1] Disciplinary counsel filed a petition for discipline against Debra K. Edwardson. Edwardson contested the allegations of misconduct and was granted a hearing before a hearing panel. Although Edwardson filed an answer to the petition she did not appear at the hearing. The hearing panel found professional misconduct by Edwardson and recommended she be suspended from the practice of law for 60 days and be required to pay the costs of the disciplinary proceedings. Edwardson filed objections to the hearing panel's report, but she did not file a brief or appear at the oral argument before this Court.

[¶ 2] We conclude Edwardson violated N.D.R. Prof. Conduct 3.2, by failing to make reasonable efforts to expedite litigation consistent with the interests of her client; violated N.D.R. Lawyer Discipl. 1.2(A)(8), by engaging in conduct prejudicial to the administration of justice; violated N.D.R. Prof. Conduct 3.3(a)(1), by making false statement to the court; and violated N.D.R. Prof. Conduct 1.16(a)(1), by failing to withdraw from representation when she should have reasonably known her representation would result in violation of the rules of professional conduct. For this professional misconduct we order Edwardson be suspended from the practice of law for 60 days, commencing September 1, 2002. We further order that Edwardson pay the costs of these disciplinary proceedings in the amount of $2,169.24, as certified in an affidavit of costs and expenses by disciplinary counsel, and that she also pay the costs of this review, to be determined and certified to this Court by the Disciplinary Board.

I

[¶ 3] Edwardson was admitted to practice law in North Dakota on September 22, 1995. During the period relevant to this case, Edwardson was practicing law in Minot.

[¶ 4] Donald Fraser is a former sales representative of Maintenance Engineering ("M.E.") He describes himself as an independent contractor, who stopped selling products for M.E. and was later sued by M.E. in 1996 for allegedly violating agreements regarding the use of customer lists. Fraser retained an attorney and filed an answer and a counterclaim against M.E. About a year later, Fraser's attorney advised Fraser that due to illness he was no longer able to represent him, and the attorney suggested Fraser retain Edwardson. Although Edwardson contended she informed Fraser she would not represent him in defense of the M.E. lawsuit, but would only represent him and others similarly situated in a class action, Edwardson in her written response did not deny an attorney-client relationship existed and that she received fees of $3,000 from Fraser.

[¶ 5] On September 9, 1999, M.E. served a request for production of documents. Edwardson failed to respond, and on November 2, 1999, M.E.'s attorney wrote to Edwardson stating the responses were delinquent and requesting production of the documents no later than November 4, 1999. Edwardson immediately responded that she had been preoccupied by family matters and the documents would be submitted no later than November 10, 1999. Edwardson failed to produce the documents as promised.

[¶ 6] On December 23, 1999, M.E. filed a motion to compel discovery and requested the court to impose sanctions against Fraser. Edwardson did not advise Fraser of M.E.'s motion or that it had been set for hearing on January 10, 2000. Edwardson did not appear at the hearing or file a response to the motion. The court entered an order directing Fraser to respond to the discovery request within ten days and ordering Fraser to pay sanctions in the amount of $500. Edwardson did not advise Fraser of the court's order and did not respond to it. On January 20, 2000 M.E. moved to strike Fraser's answer and counterclaim in the underlying lawsuit, as a sanction for failure to comply with the court's discovery order. Edwardson did not inform Fraser about the motion or the hearing date, but she responded by facsimile and appeared telephonically at the hearing. Upon conclusion of the hearing, the district court entered an order dismissing Fraser's counterclaim with prejudice. Edwardson did not notify Fraser of the court's action.

[¶ 7] In explanation of her conduct, Edwardson argues that, prior to her representation of Fraser, he responded to a request for document production by providing limited information and he knowingly failed to produce documents which were in his possession. She argues that if she had asked Fraser to produce all of the documents in his possession in response to the later discovery request, Fraser would have, thereby, revealed he had committed perjury or fraudulent conduct in his earlier responses. Edwardson claims, therefore, she was forced to not respond to the motion for production of documents, was forced to have her client accept sanctions for not responding, and was forced to allow her client's case to be dismissed with prejudice. She further asserts that, as a matter of trial tactics, having the case dismissed was advantageous to Fraser because it resulted in M.E. also dismissing its claim against him.

[¶ 8] Fraser testified at the disciplinary hearing that Edwardson had told him she needed to get his case dismissed so he could join the class action lawsuit against M.E. After Fraser's counterclaim was dismissed he sought to join as a plaintiff in a class action lawsuit against M.E., but counsel advised Fraser that the dismissal with prejudice of his counterclaim against M.E. precluded him from joining the class action lawsuit. Fraser then filed a complaint with disciplinary counsel alleging misconduct by Edwardson in her representation of him.

II
A.

[¶ 9] We review disciplinary proceedings de novo on the record. In re Disciplinary Action Against Howe, 2001 ND 86, ¶ 6, 626 N.W.2d 650. We accord due weight to the findings, conclusions, and recommendations of the hearing panel, but we do not act as a mere "rubber stamp." In re Disciplinary Action Against McDonald, 2000 ND 87, ¶ 13, 609 N.W.2d 418. Disciplinary counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. In re Disciplinary Action Against Seaworth, 1999 ND 229, ¶ 24, 603 N.W.2d 176. Each disciplinary case must be considered upon its own facts to decide what discipline is warranted. In re Disciplinary Action Against Howe, 2001 ND 7, ¶ 4, 621 N.W.2d 361.

B.

[¶ 10] On the morning scheduled for the disciplinary hearing, Edwardson sent an e-mail to the panel asserting possible bias against her by the panel chairman and requesting he disqualify himself from the case. In support of her request, Edwardson asserted that she had previously sued the chairman's law firm on behalf of a client, alleging members of the firm committed fraud, fraudulent inducement, and breach of fiduciary duty. Upon receiving the e-mail communication, the panel recessed and met off the record about the issue of disqualification. Following that off-record discussion the chairman stated on the record:

[I]t is the conclusion of the panel that there exists no conflict of interest and that the hearing panel can be fair and impartial in evaluating the evidence and reaching a decision on this matter.

[¶ 11] Rule 2.3(c), N.D.R. Lawyer Discipl., provides that a hearing panel member "shall refrain from taking part in any proceedings in which a judge, similarly situated, would be required to disqualify." Under N.D.Code Jud. Conduct Canon 3(E)(1), a judge "shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." In her e-mail transmission, Edwardson made factual allegations which might reasonably place into question the panel chairman's impartiality. We need not, however, decide whether Edwardson presented sufficient evidence to require disqualification, because our review in disciplinary proceedings is de novo. See Reems v. St. Joseph's Hospital, 536 N.W.2d 666, 671 (N.D.1995)

(code of judicial conduct does not specify reversal as a remedy for a canon violation as such remedy is not required where this Court can review the record for instances of actual bias). While we can accord weight to the findings and recommendations of a hearing panel, on disciplinary matters we make the determination of wrongdoing and of warranted sanctions, if any. Furthermore, we find on this record that the professional misconduct violations are unmistakable and are supported by clear and convincing evidence. It is unnecessary for us to place significant weight upon the findings of the panel to conclude violations were committed. Consequently, it is not necessary to resolve the allegation of disqualifying circumstances regarding the panel chairman to resolve the disciplinary issues.

III
A.

[¶ 12] Disciplinary counsel alleged Edwardson violated N.D.R. Prof. Conduct 3.2, which provides:

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

The hearing panel found that Edwardson violated this rule:

The Hearing Panel finds, by clear and convincing evidence, that Edwardson violated this rule. Edwardson failed to assert any reasonable steps to promote the interests of her client's claim. She failed to respond to discovery requests. She failed to respond to orders of a District Judge. As a result, her client's case was ultimately dismissed. Furthermore, she failed to inform the client of the status of his
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