IN RE DISCIPLINARY ACTION AGAINST HOFFMAN

• Decision Date: 23 August 2005
• Docket Number: No. 20040379.,20040379.
• Parties: In the Matter of the Application for DISCIPLINARY ACTION AGAINST Michael R. HOFFMAN, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of North Dakota, Petitioner v. Michael R. Hoffman, Respondent.
• Court: North Dakota Supreme Court

703 N.W.2d 345

2005 ND 153

In the Matter of the Application for DISCIPLINARY ACTION AGAINST Michael R. HOFFMAN, a Member of the Bar of the State of North Dakota.

Disciplinary Board of the Supreme Court of North Dakota, Petitioner v. Michael R. Hoffman, Respondent.

No. 20040379.

Supreme Court of North Dakota.

August 23, 2005.

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

Irvin B. Nodland, PC, Bismarck, ND, for respondent.

DISMISSED

PER CURIAM.

[¶1] Michael R. Hoffman filed objections to the hearing panel's recommendation that he be reprimanded and required to pay costs of the disciplinary proceeding for violation of N.D.R. Prof. Conduct 1.1, competence, and N.D.R. Prof. Conduct 1.3, diligence. We conclude there is not clear and convincing evidence of a violation and decline to adopt the hearing panel's recommendation. We dismiss.

I.

[¶2] Hoffman was retained by Mark Steinbach in October 1997 to represent Steinbach in the appeal of his murder conviction. The appellate brief had already been filed by Steinbach's previous attorney. Hoffman moved this Court for an opportunity to supplement the brief. This Court denied his motion. Steinbach's conviction was affirmed on January 21, 1998. State v. Steinbach, 1998 ND 18, 575 N.W.2d 193. The mandate was issued on February 12, 1998.

[¶3] Hoffman filed for post-conviction relief in state court in May 1999 to raise issues not addressed in Steinbach's appeal to this Court. Filing a post-conviction relief petition in state court tolls the time to file for federal habeas corpus relief if the state court filing is made within one year and ninety days of the order affirming the state court conviction. Hoffman thought the date to commence the limitations period was the date this Court issued its mandate to the district court, giving him until May 13, 1999, to file for post-conviction relief. The United States District Court found the commencement date is the date the opinion of this Court is filed, meaning Hoffman needed to file the petition before April 21, 1999.

[¶4] There is no question Hoffman incorrectly calculated the filing date that would toll the time to file for federal habeas corpus relief. A case becomes final when "the judgment of conviction [has been] rendered, the availability of appeal exhausted, and the time for petition for certiorari ha[s] elapsed." Teague v. Lane, 489 U.S. 288, 295, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (quoting Linkletter v. Walker, 381 U.S. 618, 622 n. 5, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)). Rule 13 of the Supreme Court Rules states:

The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice). But if a petition for rehearing is timely filed in the lower court by any party, or if the lower court appropriately entertains an untimely petition for rehearing or sua sponte considers rehearing, the time to file the petition for a writ of certiorari for all parties (whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.

[¶5] Another attorney was representing Steinbach when the application for state post-conviction relief was dismissed without prejudice in April 2002. A second application was also dismissed later that year. This Court affirmed the second dismissal in Steinbach v. State, 2003 ND 46, 658 N.W.2d 355. Steinbach filed for federal habeas corpus relief with the United States District Court for the District of North Dakota in April 2003. The petition was dismissed with prejudice because it had not been timely filed. The Eighth Circuit Court of Appeals affirmed the dismissal, and there is currently no action pending in federal court.

[¶6] After a hearing, the hearing panel found Hoffman violated N.D.R. Prof. Conduct 1.1, which states "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation," and N.D.R. Prof. Conduct 1.3, which states "[a] lawyer shall act with reasonable diligence and promptness in representing a client." Hoffman had been privately admonished by the Inquiry Committee West for violating N.D.R. Prof. Conduct 1.15 and N.D.R. Prof. Conduct 1.4(A) in the same representation of Steinbach, and the hearing panel considered this and Hoffman's "substantial experience in the practice of law" as aggravating factors that, when combined with his acts of negligence, warranted discipline. The panel also considered mitigating factors, including: Hoffman had a good reputation within the legal community and no record of prior discipline, he did not act with selfish intent, he cooperated with the disciplinary board, and he appeared remorseful. The panel recommended Hoffman be reprimanded and required to pay the costs of the disciplinary proceedings. Hoffman filed objections with this Court.

II.

[¶7] This Court reviews disciplinary proceedings "de novo on the record." Disciplinary Board v. McKechnie, 2003 ND 170, ¶ 7, 670 N.W.2d 864. Due weight is given to "the findings, conclusions, and recommendations of the hearing panel," but this Court does not act as a "rubber stamp." Id. Disciplinary counsel must prove each alleged violation by clear and convincing evidence. Id. A disciplinary case is considered on its own facts to determine what discipline is needed. Id.

[¶8] "Disciplinary proceedings differ significantly, both procedurally and substantively, from civil legal malpractice actions." Disciplinary Board v. McKechnie, 2003 ND 22, ¶ 16, 656 N.W.2d 661. "[T]he rules of professional conduct set a minimum level of conduct with the consequence of disciplinary action." Id. (citing Matter of Disciplinary Action Against Jaynes, 267 N.W.2d 782, 784 (N.D.1978) ("stating the `fact that an injured party may recover from a lawyer in a malpractice action is in itself not sufficient to maintain the necessary high standard'" to demonstrate a disciplinary offense)).

[¶9] This Court has previously expressed concern over disciplining an attorney for a single occasion of negligence. McKechnie, 2003 ND 22, ¶ 23, 656 N.W.2d 661. In McKechnie, we stated:

We note the California Supreme Court's concern over "the problems inherent in using disciplinary proceedings to punish attorneys for negligence, mistakes in judgment, or lack of experience or legal knowledge." Lewis v. State Bar of California, 28 Cal.3d 683, 170 Cal.Rptr. 634, 621 P.2d 258, 261 (1981). We share that concern. In C. Wolfram, Modern Legal Ethics § 5.1, at p. 190 (1986) (footnotes omitted), the author states:

To date, the enforcement of competence standards has been generally limited to relatively exotic, blatant, or repeated cases of lawyer bungling. Lawyers who make some showing of effort, and who do nothing other than perform badly, rarely appear in the appellate reports in discipline cases. The lawyers who are disciplined for incompetence have usually aggravated their situation. For example, several cases involve lawyers who, after their incompetent work, concocted elaborate schemes or lies to deceive a client whose case was mishandled. Most decisions and official ABA policy insist that a single instance of "ordinary negligence" is usually not a disciplinary violation, although some decisions hold a lawyer to a standard of ordinary care that is similar to that required in malpractice cases. . . or discipline a lawyer for a single instance of neglect. Consistent with that position, courts will discipline lawyers when the neglect is accompanied by some other violation, as an impermissible conflict of interest, or when the acts of negligence are repeated.

We agree with the observation of the Arizona Supreme Court in Matter of Curtis, 184 Ariz. 256, 908 P.2d 472, 477-78 (1995) (footnote omitted):

Neither failure to achieve a successful result nor mere negligence in the handling of a case will necessarily constitute an ER 1.1 violation. We recognize the important distinction between conduct by an attorney that is simply negligent and conduct that rises to the level of an ethical violation. Clearly, the Bar must be vigilant in guarding the rights of clients, "but care should be taken to avoid the use of disciplinary action . . . as a substitute for what is essentially a malpractice action." See In re Myers, 164 Ariz. 558, 561 n. 3, 795 P.2d 201, 204 n. 3 (1990)

(citations and internal quotations omitted); see also In re Mulhall, 159 Ariz. 528, 531, 768 P.2d 1173, 1176 (1989) (noting that negligently allowing a statute of limitations to run does not constitute an ethical violation). Thus, although not every negligent act violates an ethical rule, neglect in investigating the facts and law necessary to present a client's claim crosses the fine line between simple neglect and conduct warranting discipline.

See also The Florida Bar v. Neale, 384 So.2d 1264, 1265 (Fla.1980)

(stating the "rights of clients should be zealously guarded by the bar, but care should be taken to avoid the use of disciplinary action . . . as a substitute for what is essentially a malpractice action"); In re Complaint as to Conduct of Gygi, 273 Or. 443, 541 P.2d 1392, 1396 (1975) (stating "we are not prepared to hold that isolated instances of ordinary negligence are alone sufficient to warrant disciplinary action"); Committee on Legal Ethics v. Mullins, 159 W.Va. 647, 226 S.E.2d 427, 430 (1976) (stating "[c]harges of isolated errors of judgment or malpractice in the ordinary sense of negligence would normally not justify the intervention of the ethics committee"), overruled on other grounds, Committee on Legal Ethics v. Cometti, 189 W.Va. 262, 430 S.E.2d 320, 330 (1993); 1 R. Mallen and J. Smith, Legal Malpractice § 1.9, at p. 45(5th ed.2000) (stating "[o]...