In re Disciplinary Action Against Dvorak

• Decision Date: 18 May 2000
• Docket Number: No. 990384.,990384.
• Citation: 2000 ND 98,611 N.W.2d 147
• Parties: In the Matter of the Application for DISCIPLINARY ACTION AGAINST Shirley A. DVORAK, a Member of the Bar of the State of North Dakota
• Court: North Dakota Supreme Court

611 N.W.2d 147

2000 ND 98

In the Matter of the Application for DISCIPLINARY ACTION AGAINST Shirley A. DVORAK, a Member of the Bar of the State of North Dakota

No. 990384.

Supreme Court of North Dakota.

May 18, 2000.

Order Staying Suspension July 13, 2000.

Paul W. Jacobson, Disciplinary Counsel, Bismarck.

Kermit E. Bye (argued) and Tami L. Norgard, Vogel, Weir, Bye, Hunke & McCormick, Ltd., Fargo, for Shirley A. Dvorak.

PER CURIAM.

[¶ 1] Disciplinary Counsel objects to the Disciplinary Board's dismissal of a formal complaint against Shirley A. Dvorak. We reverse the decision of the Disciplinary Board. Exercising our inherent power to discipline lawyers, we suspend Dvorak from the practice of law for a period of one year.

I.

[¶ 2] In 1997 and 1998, Dvorak represented Weston Berg in a divorce action against his wife, Brenda Berg, part of which involved an extensive and bitter child custody dispute. The trial court appointed a guardian ad litem, Carma Christensen, who then asked each of the parties for the names of persons who could provide helpful information about the children's circumstances. Brenda gave Christensen the name of her cousin, Deb Jacobs. Christensen sent Jacobs a questionnaire, to which Jacobs responded, using her computer at work to type her responses. Dvorak obtained a copy of Jacobs' responses to the questionnaire and, when Dvorak deposed Jacobs on February 5, 1998, she asked Jacobs numerous questions pertaining to the responses. During the deposition, it became clear some of Jacobs' answers were not based on personal knowledge, but on statements Brenda made to her in the past. Further, some of the information in Jacobs' responses was inaccurate.

[¶ 3] On February 28, 1998, Dvorak sent Jacobs a letter in which she claimed Jacobs had defamed Weston by making false and malicious statements. The letter was sent "PURSUANT TO NDCC 32-43-01 THROUGH 10," which contain the legal requirements for maintaining a defamation action in this state. Dvorak attached a copy of Jacobs' responses to the questionnaire, on which she had redacted statements "acceptable" to Weston, and indicated all other statements were to be corrected. Dvorak further stated, if Jacobs failed to correct those statements, Weston would "pursue all remedies available to him."

[¶ 4] On March 12, 1998, Dvorak sent a letter to Jacobs' employer, the North Dakota Department of Human Services ("DHS"). In that letter, Dvorak stated Jacobs had stored documents relevant to the Berg divorce action on her computer at work and that she wished to secure all writings relevant to the pending case. Further, Dvorak stated Jacobs had admitted in her deposition that the information contained in these documents was "untrue." In another sentence, Dvorak again referred to the materials as "untrue documents."

[¶ 5] Jacobs, with the help of an attorney she contacted after receiving Dvorak's letter, filed a complaint with the Disciplinary Board. A hearing was held on June 29, 1999, at which Disciplinary Counsel contended Dvorak's letter to Jacobs violated N.D.R. Prof. Conduct 3.4 and that her letter to DHS violated N.D.R. Prof. Conduct 4.4. The hearing body determined the violations had not been proven by clear and convincing evidence and recommended the petition for discipline be dismissed. The Disciplinary Board adopted the hearing body's recommendation on November 22, 1999.

II.

[¶ 6] As an initial matter, Dvorak notes that the Disciplinary Board filed no report of its findings and recommendations under N.D.R. Lawyer Discipl. 3.1(G) (1999). Dvorak contends, in the absence of such a report, this Court's jurisdiction was not invoked by Disciplinary Counsel's objection to the Disciplinary Board's dismissal of the petition for discipline. We need not address her argument because we conclude this case calls for the exercise of our inherent disciplinary power.

[¶ 7] We have recognized that our Court has a "duty to maintain the integrity of the legal profession by disciplining lawyers." Matter of Disciplinary Action Against Anseth, 1997 ND 66, ¶ 18, 562 N.W.2d 385. Thus, we have reserved authority under N.D.R. Lawyer Discipl. 3.1(H) (1999) to institute disciplinary proceedings on our own initiative. We conclude the circumstances presented by this case are serious enough to warrant the exercise of this inherent authority.¹

III.

[¶ 8] On appeal, this Court reviews disciplinary proceedings de novo on the record. Disciplinary Bd. v. Leier, 1997 ND 79, ¶ 3, 562 N.W.2d 741. Disciplinary counsel must prove each alleged violation of the disciplinary rules by clear and convincing evidence. Disciplinary Bd. v. Dooley, 1999 ND 184, ¶ 28, 599 N.W.2d 619. We consider each disciplinary case upon its own facts to decide what discipline is warranted. Leier, at ¶ 3.

A.

[¶ 9] Disciplinary Counsel contends Dvorak's letter to Jacobs violated N.D.R. Prof. Conduct 3.4(a), in that it was an attempt to "unlawfully obstruct another party's access to evidence." He asserts Jacobs' responses to Christensen's questionnaire were privileged, and so could not have served as the basis for a defamation suit. Thus, he argues Dvorak's threat was an unlawful attempt to intimidate Jacobs into changing her responses. We agree.

[¶ 10] There can be no liability for defamatory statements that are privileged. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 78 (N.D.1991). "Privilege is based on the sound public policy that some communications are so socially important that the full and unrestricted exchange of information requires some latitude for mistake." Id. Under N.D.C.C. § 14-02-05(2), a communication is privileged when it is made "[i]n any legislative or judicial proceeding or in any other proceeding authorized by law." Such a statement is protected by absolute privilege; thus, even if the statement was made with actual malice, the speaker is protected from liability. Rykowsky v. Dickinson Pub. Sch. Dist. No. 1, 508 N.W.2d 348, 351 (N.D.1993).

[¶ 11] Answers given in response to a guardian ad litem's questionnaire are statements made in a judicial proceeding. Guardian ad litem appointments and custodial investigations and reports are initiated by court order. See N.D.C.C. §§ 14-09-06.4 and 14-09-06.3. Under N.D.C.C. § 14-09-06.3(2), a guardian ad litem investigating a child's circumstances "may consult any person who may have information about the child...." Even after a guardian ad litem completes her report and presents it to the trial court, she may be called as a witness and cross-examined regarding her findings and recommendation. N.D.C.C. § 14-09-06.3(3); Green v. Green, 1999 ND 86, ¶ 9, 593 N.W.2d 398. Thus, Christensen performed her duties as a guardian ad litem under the authority of the judicial system, and responses to her questionnaire were protected by absolute privilege.

[¶ 12] If "all persons are presumed to know the law," Tooley v. Alm, 515 N.W.2d 137, 141 (N.D.1994), then certainly Dvorak, as a seasoned attorney, knew or should have known of the legal principles explained above. Despite that, Dvorak sent a letter to Jacobs threatening a defamation lawsuit based on privileged communications. Under N.D.C.C. § 32-43-03(1), Dvorak's letter was a predicate requirement to maintaining that action; it served no other purpose.

[¶ 13] Dvorak argues her conduct did not violate Rule 3.4 because it did not obstruct Brenda's access to Jacobs as a witness; Brenda was still free to call Jacobs at trial. Dvorak misunderstands the rule. A lawyer violates Rule 3.4 not only when she denies access to a witness completely, but also when she unlawfully attempts to dissuade a witness from providing particular information to the court. Dvorak's letter requesting that Jacobs "correct" her privileged statements was just such an attempt. Jacobs testified at the disciplinary hearing that when she received the letter she feared she would be sued and her first thought was to protect herself and her family. Initially, Jacobs believed she should change the answers she provided on the questionnaire. Jacobs retained an attorney, who advised her not to change her responses, but to file a disciplinary complaint instead. It is irrelevant that Dvorak's attempt to intimidate Jacobs into changing her responses failed; the attempt itself violated the rule. We find Disciplinary Counsel has proven by clear and convincing evidence that Dvorak violated Rule 3.4 when she threatened Jacobs with a defamation action based on Jacobs' privileged statements.

B.

[¶ 14] Disciplinary Counsel next argues Dvorak's letter to Jacobs' employer violated N.D.R. Prof. Conduct 4.4. The hearing body found Disciplinary Counsel had not proven by clear and convincing evidence that the letter had no purpose other than Jacobs' embarrassment. We agree that the letter served a purpose other than to embarrass Jacobs. Dvorak's letter sought preservation of any documents relevant to the divorce and also requested that these documents be removed from the public domain, both of which are legitimate purposes. However, we conclude Dvorak's statement to Jacobs' employer that Jacobs admitted she provided false information was a separate and independent act which violated Rule 4.4.

[¶ 15] Rule 4.4 states that a "lawyer shall not use means that have no substantial purpose other than to embarrass or burden a third person...." The comment to that rule states:

[r]esponsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer has no obligation to respect the rights of third persons.... [A] lawyer shall not ... act on a client's behalf only to harass or maliciously injure another....

[¶ 16] Blaine Nordwall, the director of DHS's Legal Advisory Unit, testified in a deposition which was admitted as an exhibit at the disciplinary hearing, that Dvorak's characterization of the documents as untrue made no difference in the manner in which...