In re Disciplinary Action Against Hawkins
| Decision Date | 20 March 2001 |
| Docket Number | No. 20000233.,20000233. |
| Citation | 2001 ND 55,623 N.W.2d 431 |
| Parties | In the Matter of the Application for DISCIPLINARY ACTION AGAINST Allan R. HAWKINS, a Person Admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Allan R. Hawkins, Respondent. |
| Court | North Dakota Supreme Court |
Loralyn K. Hegland, Assistant Disciplinary Counsel, Bismarck, ND, for petitioner.
Allan R. Hawkins, pro se, Scottsdale, AZ, for respondent.
[¶ 1] On Petition for Reciprocal Discipline, Allan R. Hawkins filed objections to the report of the hearing panel before the Disciplinary Board of the North Dakota Supreme Court which recommended identical discipline to that imposed by the District Court of Midland County, Texas. Assistant disciplinary counsel also filed objections to the hearing panel's report. We impose identical concurrent discipline, suspending Hawkins from the practice of law for one year and placing him on probation for three years.
[¶ 2] In the mid-1970s, Hawkins was licensed to practice law in North Dakota and admitted to the North Dakota bar, serving as an Assistant State's Attorney where he handled some criminal defense matters. Hawkins currently is not licensed to practice law in North Dakota and does not intend to seek re-licensure in North Dakota. Hawkins was also licensed to practice law in Texas and admitted to the Texas bar, specializing in estate planning and taxation but also had handled some appointed criminal matters with co-counsel. In 1994, a Texas court order appointed Hawkins to represent a criminal defendant on a misdemeanor charge for possession of marijuana. Hawkins filed a Motion for Appointment of an Effective and Competent Attorney, contending he was not competent to practice criminal law and could not represent the defendant without violating Texas Disciplinary Rules of Professional Conduct. Nevertheless, on behalf of the defendant, Hawkins filed motions for a speedy trial, jury trial, production of evidence, appointment of experts, and a motion to suppress evidence. Hawkins also filed a request for a court reporter and statement of facts, as well as attending a docket call and appearing for a scheduled trial date, which was continued. When the defendant was offered a plea agreement, Hawkins sent the offer to the defendant but refused to discuss the merits of the offer or advise whether to accept the plea agreement. Hawkins then filed a second motion regarding his alleged incompetence to represent the defendant in the plea negotiations. At a hearing on the motion, the district court found Hawkins competent to represent the defendant and ordered him to continue as appointed counsel. Hawkins sent a copy of the district court order to the defendant with a letter telling the defendant:
When the defendant called Hawkins for an explanation, Hawkins stated he was no longer the defendant's attorney and the defendant should look for another lawyer. Hawkins received notice of the docket call, but he did not attend or notify the defendant, and subsequently neither one appeared for trial. Because of the defendant's failure to appear for trial, a warrant was issued for his arrest and a proceeding was initiated to forfeit his bond. When the defendant received notice the court intended to revoke his bond, he came to the courthouse crying and in a very highly disturbed state. The defendant then represented himself at a hearing, and his bond was reinstated. The trial court appointed new counsel for the defendant.
[¶ 3] The Texas Commission for Lawyer Discipline initiated disciplinary proceedings against Hawkins, and the District Court of Midland County found Hawkins violated Texas Rules of Professional Conduct 1.01(b)(1) and 1.15(c),(d). The court suspended Hawkins from law practice for four years: one year of active suspension, from September 1997 to September 1998, followed by a three-year probated suspension.2 Hawkins appealed, and the Court of Appeals for the Eighth District of Texas affirmed, with one minor modification of the judgment. Subsequently, the Supreme Court of Texas denied Hawkins' petition for review, concluding no error of law required correction or reversal of the judgment of the Texas Court of Appeals.
[¶ 4] The matter was then presented to the North Dakota Disciplinary Board, upon Petition for Reciprocal Discipline, which recommended identical discipline to that imposed by Texas to be served concurrently with the Texas suspension. The hearing panel recommended not assessing costs against Hawkins for the proceeding. On appeal to this Court, both Hawkins and the assistant disciplinary counsel filed objections to the hearing panel's report.
[¶ 5] Hawkins argues we lack jurisdiction and authority to discipline him because he is not licensed to practice law in North Dakota and the actions for which he was disciplined in Texas were unrelated to North Dakota. Hawkins is mistaken.
[¶ 6] Under the North Dakota Rules of Lawyer Discipline, this Court has power to prescribe appropriate standards of professional conduct and to establish procedures for lawyer discipline. N.D.R. Lawyer Discipl. 1.1A. Any attorney admitted to practice law in North Dakota is subject to this Court's disciplinary jurisdiction under these rules. N.D.R. Lawyer Discipl. 1.1C.
[¶ 7] Thus, regardless of whether Hawkins is currently licensed to practice law in North Dakota, he is subject to our disciplinary jurisdiction because he was admitted to practice law in North Dakota. See, e.g., In re Disciplinary Action Against Robb, 2000 ND 146, ¶¶ 5, 18, 615 N.W.2d 125
().
[¶ 8] Furthermore, N.D.R. Lawyer Discipl. 4.4 provides clear instructions governing this Court's duty concerning reciprocal discipline when a lawyer, who is admitted to practice in North Dakota, has been disciplined in another jurisdiction:
A. Discipline Elsewhere. Upon being disciplined in another jurisdiction, a lawyer admitted to practice in North Dakota shall promptly inform counsel of such action. Upon notification that a lawyer within the jurisdiction of the court has been disciplined in other jurisdiction, counsel shall obtain a certified copy of the disciplinary order and file it with the board.
....
D. Discipline. Upon the expiration of 30 days ..., and upon recommendation of the board, the court shall impose the identical discipline unless the lawyer demonstrates and the court finds that upon the fact of the record from which the discipline is predicated, it clearly appears that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice; or
(4) The misconduct established warrants substantially different discipline in this state.
If the court determines that any of those elements exists, the court shall enter such other order as it deems appropriate. In all other aspects, a final determination in another jurisdiction that a lawyer has been guilty of misconduct establishes conclusively the misconduct for purposes of a disciplinary proceeding in this state.
[¶ 9] We review disciplinary proceedings against attorneys de novo on the record under a clear and convincing standard of proof. In re Disciplinary Action Against Dvorak, 1998 ND 134, ¶ 15, 580 N.W.2d 586. The burden of demonstrating that identical reciprocal discipline should not be imposed is on the lawyer who has been disciplined in another jurisdiction. Id. at ¶ 6.
[¶ 10] Hawkins claims the Texas disciplinary proceedings were so lacking in adequate notice and a fair opportunity to be heard that he was deprived of his due process rights.
[¶ 11] Hawkins argues he had no notice of allegations because new allegations were added at every stage of the proceedings in Texas. Hawkins contends new allegations were made in the District Court of Midland County, then again in the Texas Court of Appeals, and after he testified. Hawkins does not explicitly indicate the substance of these new allegations, except that he claims no violation of Texas Rule of Professional Conduct 6.01 was alleged in the Texas proceedings, yet the North Dakota hearing panel recommends imposing reciprocal discipline based on such violation.
[¶ 12] The Texas District Court found Hawkins violated Texas Rules of Professional Conduct 1.01(b)(1) and 1.15(c),(d). The pertinent provisions of these rules are as follows:
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