In re Disciplinary Action Against Giese, No. 20020315.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: PER CURIAM.
• Citation: 2003 ND 82,662 N.W.2d 250
• Parties: In the Matter of DISCIPLINARY ACTION AGAINST Bryan L. GIESE, 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. Bryan L. Giese, Respondent.
• Decision Date: 03 June 2003
• Docket Number: No. 20020315.

662 N.W.2d 250
2003 ND 82

In the Matter of DISCIPLINARY ACTION AGAINST Bryan L. GIESE, 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.
Bryan L. Giese, Respondent

No. 20020315.

Supreme Court of North Dakota.

June 3, 2003.

662 N.W.2d 252

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

John M. Olson (argued), Olson Cichy, Bismarck, ND, and Bryan L. Giese (on brief), Mandan, ND, for respondent.

PER CURIAM.

[¶ 1] Brian Giese petitioned for review of a hearing panel's report, which found he violated N.D.R. Prof. Conduct 1.8, 3.1, 3.2, and 8.4(e) and N.D.R. Lawyer Discipl. 1.2(A)(3) and recommended he be suspended from the practice of law for ninety days and pay costs of $2,714.68 and restitution of $1,824.24. We conclude there is clear and convincing evidence Giese violated those rules, and we adopt the hearing panel's recommendations.

I

[¶ 2] Giese was admitted to practice law in North Dakota on October 6, 1980. In 1989, Giese, his wife, and his parents entered into a contract for deed to purchase land from Wilmer and Alma Conitz. Giese was then representing Wilmer and Alma Conitz in a separate dispute regarding the land. See Conitz v. Conitz, 467 N.W.2d 93 (N.D.1991). In April 1989, Giese advised Wilmer and Alma Conitz in writing that he could not represent them in a legal capacity in the sale of the land and recommended they seek independent counsel regarding the transaction. In May 1989, Wilmer and Alma Conitz executed a contract for deed to sell the land to the Gieses. The contract for deed required the Gieses to make monthly payments to Wilmer and Alma Conitz for eighteen years, and the Gieses have never defaulted on any payments due under the contract for deed.

[¶ 3] Wilmer Conitz died after the contract for deed was executed. In September 2000, and with about seven years remaining under the terms of the contract for deed, Giese contacted Alma Conitz and asked her to execute and deliver to Giese

662 N.W.2d 253

and his wife a warranty deed for the land. According to Giese, he promised to continue to make all the payments due under the contract for deed, and he asked Alma Conitz to sign the warranty deed because he did not want to have to deal with her daughter-in-law and her granddaughters in the future. Giese did not then advise Alma Conitz to seek independent counsel. Alma Conitz executed a warranty deed to the Gieses, which recited "[f]ull payment of [the] Contract for Deed" had been made when, in fact, it had not been paid in full. Giese recorded the warranty deed with the register of deeds

[¶ 4] In November 2000, Alma Conitz retained an attorney to resolve issues about the warranty deed. Her attorney wrote to Giese in November 2000, demanding the Gieses reconvey the land to her pending payment under the terms of the contract for deed. Giese offered to immediately pay off the contract for deed, or to have appropriate deeds delivered to an escrow agent. Alma Conitz refused to accept immediate payment, and Giese then claimed her refusal was not "reasonable" under language in the contract for deed that precluded her from "unreasonably" withholding consent to prepayment. Giese again sought to have appropriate deeds delivered to an escrow agent. In December 2000, Alma Conitz sued the Gieses, seeking reconveyance of the land. Alma Conitz and the Gieses ultimately settled that action in October 2001, with the Gieses executing a quit claim deed to Alma Conitz.

[¶ 5] Disciplinary counsel filed a petition for discipline against Giese, alleging he violated N.D.R. Prof. Conduct 1.8, Conflict of Interest: Prohibited Transactions; N.D.R. Prof. Conduct 3.1, Meritorious Claims and Contentions; N.D.R. Prof. Conduct, 3.2, Expediting Litigation; N.D.R. Prof. Conduct 8.4(e), Misconduct; and N.D.R. Lawyer Discipl. 1.2(A)(3). A hearing panel found Giese violated those rules and recommended suspending him from the practice of law for ninety days, imposing $2,714.68 in costs against him, and ordering him to pay $1,824.24 in restitution to the estate of Alma Conitz. Giese objected to the hearing panel's report.

[¶ 6] The hearing panel had jurisdiction under N.D.R. Lawyer Discipl. 3.1(E). Giese filed a timely petition for review under N.D.R. Lawyer Discipl. 3.1(F). This Court has jurisdiction under N.D. Const. art. VI, § 3, N.D.C.C. § 27-14-01, and N.D.R. Lawyer Discipl. 3.1(F).

II

[¶ 7] We review disciplinary proceedings de novo on the record. In re Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 126; In re Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. We accord due weight to the hearing panel's findings and conclusions, but we do not act as a mere rubber stamp of the hearing panel's decision. Edwardson, at ¶ 9; In re Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240. 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, if any, is warranted. Edwardson, at ¶ 9.

III

[¶ 8] Giese argues the hearing panel's report fails to recognize several of his procedural objections at the hearing and fails to state several facts.

A

[¶ 9] Giese argues the hearing panel's report fails to state the hearing panel granted his motion to supplement the record

662 N.W.2d 254

with a supplemental affidavit and exhibits. Before the hearing panel issued its final report, it granted Giese's motion to supplement the record. Therefore, Giese's supplemental materials are part of the record before this Court, and Giese's argument about the hearing panel's failure to state its action in its report is meritless

B

[¶ 10] Giese argues the hearing panel's report fails to state he objected to the introduction into evidence of his answers to interrogatories and requests for admission. Giese argues the hearing panel should have excluded his answers to the requests for admission and his answers to the interrogatories because he was present and available to answer the same questions under oath and the written answers should have been used only to impeach or rebut his sworn testimony.

[¶ 11] Under N.D.R. Lawyer Discipl. 3.5(B), the North Dakota Rules of Civil Procedure and Rules of Evidence apply to disciplinary proceedings. See Hegland v. McKechnie, 2003 ND 37, ¶ 7, 657 N.W.2d 287. Under N.D.R.Civ.P. 33(c), answers to interrogatories are admissible into evidence in a civil action to the extent permitted by the rules of evidence, and Giese's answers to the requests for admission and to interrogatories are non-hearsay admissions by a party opponent and are admissible into evidence. See N.D.R.Civ. P. 36; N.D.R.Ev 801(d)(2).

[¶ 12] Giese broadly claims all the testimony of the attorney for Alma Conitz and her daughter-in-law should not have been admitted into evidence and should not be considered by this Court. Giese claims, because Alma Conitz died in 2002 and was not available to testify at the disciplinary hearing, he was denied the opportunity to "face and examine his accuser/s, not parties whose potential testimony was clearly objectionable." Giese has not identified any specific objectionable testimony in his brief to this Court, and his generalized claims that all of the testimony of the two witnesses should be stricken is overly broad. In the absence of a specific citation to objectionable testimony by the two witnesses and because the underlying facts in this case are largely undisputed, we reject Giese's claims about the admissibility of the testimony of the two witnesses.

IV

[¶ 13] Giese argues the hearing panel's report fails to state certain findings, the hearing panel's findings do not support its conclusions and recommendation, and the disciplinary proceeding against him should be dismissed.

[¶ 14] The hearing panel found Giese did not advise Alma...