In re Disciplinary Action Against McKechnie

• Decision Date: 19 February 2003
• Docket Number: No. 20020194.,20020194.
• Citation: 656 N.W.2d 661,2003 ND 22
• Parties: In the Matter of the Application for DISCIPLINARY ACTION AGAINST William E. McKECHNIE, 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. William E. McKechnie, Respondent.
• Court: North Dakota Supreme Court

656 N.W.2d 661

2003 ND 22

In the Matter of the Application for DISCIPLINARY ACTION AGAINST William E. McKECHNIE, 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. William E. McKechnie, Respondent.

No. 20020194.

Supreme Court of North Dakota.

February 19, 2003.

Loralyn K. Hegland, Assistant Disciplinary Counsel, Bismarck, ND, for petitioner.

James S. Hill, Zuger Kirmis & Smith, Bismarck, ND, for respondent.

PER CURIAM.

[¶ 1] William E. McKechnie and Disciplinary Counsel have filed objections to a hearing panel's report and order of discipline suspending McKechnie from the practice of law for 30 days and ordering he pay costs of the disciplinary proceedings for his violation of N.D.R. Prof. Conduct 1.1 and 1.4(b). We conclude there is clear and convincing evidence McKechnie violated N.D.R. Prof. Conduct 1.4(b), and we order that he be publicly reprimanded and pay the costs of the disciplinary proceedings in the amount of $5,375.59.

I

[¶ 2] McKechnie was admitted to practice law in North Dakota on October 5, 1981. On January 5, 1996, Dennis Follman retained McKechnie to investigate a possible discrimination or sexual harassment lawsuit he might have against his former employer, Upper Valley Special Education Unit ("Upper Valley"). McKechnie told Follman the statute of limitations on his claim would be three years from the date of Follman's June 2, 1995 resignation from Upper Valley. McKechnie had Follman sign an authorization so McKechnie could obtain Follman's personnel file from Upper Valley. At that time, Follman paid McKechnie $1,500, which McKechnie categorized in his records as $500 for costs and $1,000 for a retainer. No written fee agreement between McKechnie and Follman was executed.

[¶ 3] McKechnie met with Follman in February 1996 and again told him he had three years from the date of his resignation to commence the lawsuit. Follman told McKechnie he was not ready to file the lawsuit at that time because "I wanted to take a look at some medical concerns... and I didn't want to have a conflict between the sexual harassment claim and the medical one at the time."

[¶ 4] On October 10, 1996, McKechnie sent Follman a $500 check noted "retainer refund," but the check was unaccompanied by an explanatory letter. On January 17, 1997, Follman sent a letter to McKechnie requesting an itemized billing for the $1,000 he had paid in 1996. Follman also informed McKechnie he anticipated that McKechnie could still represent him in his lawsuit against his former employer and that he had not hired another attorney. Following the April 1997 Grand Forks flood, McKechnie wrote Follman a letter on June 16, 1997, stating:

It has been several months since we heard from you and I would like to touch base with you with regard to representation of your claim. We have now reach [sic] a sense of normalcy in Grand Forks and I am ready to proceed on your behalf. Please contact me at your earliest convenience to discuss.

In May 1998, Follman wrote a letter to McKechnie advising him that he wanted to resume his case against Upper Valley. McKechnie and Follman then entered into a written fee agreement providing for a contingent fee if a recovery was obtained in the sexual harassment case.

[¶ 5] In late May 1998, Follman sued Upper Valley. The trial court dismissed the lawsuit, concluding Follman's claims were barred by the three-year statute of limitations because Follman discovered the facts which formed the basis of his claim in January 1995. This Court affirmed in Follman v. Upper Valley Special Educ. Unit, 2000 ND 72, 609 N.W.2d 90.

[¶ 6] A petition for discipline was filed against McKechnie in June 2001. Following a hearing, the hearing panel found McKechnie violated N.D.R. Prof. Conduct 1.1, which states that a lawyer shall provide competent representation, and N.D.R. Prof. Conduct 1.4(b), which states that a lawyer shall explain matters related to the representation to the extent reasonably necessary to permit the client to make informed decisions. The panel recommended that McKechnie be suspended from the practice of law for 30 days and that he pay the costs of the disciplinary proceedings. McKechnie and Disciplinary Counsel filed objections with this Court.

II

[¶ 7] 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, if any, is warranted. Disciplinary Board v. Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 126.

A

[¶ 8] Disciplinary Counsel argues the hearing panel erred in granting McKechnie's motion to strike his prior disciplinary history from the petition for discipline. The original petition for discipline listed as "an aggravating factor, under Standard 9.22(a), NDSILS," five prior admonitions McKechnie had received, and the circumstances underlying each violation. McKechnie moved to strike the prior disciplinary offenses because they were "presumptively confidential admonitions" and irrelevant and prejudicial during the initial phase of the disciplinary proceedings. The hearing panel agreed and granted the motion. [¶ 9] Admonitions are a form of "non-public" discipline. N.D. Stds. Imposing Lawyer Sanctions 2.5; In re Disciplinary Action Against Boulger, 2001 ND 210, ¶ 16, 637 N.W.2d 710. Disciplinary Counsel agrees admonitions are confidential, but argues the proceedings become public under N.D.R. Lawyer Discipl. 6.1B once a petition for discipline is filed with the board, and because the disciplinary history of the attorney may be considered in deciding the degree of discipline to be imposed under N.D. Stds. Imposing Lawyer Sanctions 9.22, the disciplinary history becomes part of the public record of the case. See Matter of Disciplinary Action Against Garcia, 366 N.W.2d 482, 485 (N.D.1985).

[¶ 10] We recognize the inconsistency created when disputes over a proper sanction in a public disciplinary proceeding result in the disclosure of otherwise nonpublic disciplinary offenses. We agree with McKechnie that the details of prior private discipline should not be alleged in a petition for public discipline. A prior disciplinary history is relevant only in assessing sanctions after the allegations in the petition for discipline have been proven by clear and convincing evidence. Detailing prior admonitions in the petition could prejudice the hearing panel's consideration of the evidence in assessing the validity of the underlying charges. Compare State v. Saul, 434 N.W.2d 572, 575 (N.D.1989) (holding if criminal defendant stipulates to prior DUI convictions when charged under enhancement provisions of N.D.C.C. § 39-08-01, the submission of evidence of the defendant's prior convictions to a jury constitutes prejudicial and reversible error). Although due process requires fair notice as to the precise nature of the disciplinary charges, see Matter of Disciplinary Action Against Hawkins, 2001 ND 55, ¶ 17, 623 N.W.2d 431; McDonald, 2000 ND 87, ¶ 33, 609 N.W.2d 418, we believe fair notice is accomplished in a case such as this with a general allegation in the petition for discipline stating aggravating circumstances under N.D. Stds. Imposing Lawyer Sanctions 9.22(a) will be presented at a later stage of the hearing. Details of the prior nonpublic violation need not and should not be alleged. Consequently, we conclude the hearing panel did not err in striking the detailed allegations of McKechnie's prior disciplinary offenses from the original petition for discipline.

[¶ 11] McKechnie argues that, notwithstanding the hearing panel's attempt to purify the record pending the hearing, references to the prior disciplinary history stemming from their original publication deprived him of a fair hearing. However, the hearing panel granted McKechnie's motion to strike, and we must presume the panel did not consider the details of the disciplinary history in finding McKechnie violated the rules of professional conduct. Although details of the prior admonitions were published by the media, we do not view this as depriving McKechnie of a fair hearing before the panel.

B

[¶ 12] Disciplinary Counsel argues the hearing panel erred in excluding Follman from the proceedings except when he testified. At the beginning of the hearing, McKechnie moved to exclude all witnesses, including Follman, from the proceedings under N.D.R.E 615. Disciplinary Counsel did not object, and the hearing panel granted the motion. Because Disciplinary Counsel did not object at the hearing, we decline to address the matter.

C

[¶ 13] Disciplinary Counsel argues the hearing panel erred in refusing to admit in evidence, for impeachment purposes, a letter McKechnie wrote to Disciplinary Counsel during the early stages of these proceedings. Disciplinary Counsel did not lay a foundation for impeaching McKechnie with prior inconsistent statements, see Sather v. Bigger, 107 N.W.2d 38, 40-41 (N.D.1961), and has not shown how this evidence was critical to the case. We conclude the hearing panel did not err.

D

[¶ 14] McKechnie argues there is no evidence that McKechnie violated any of the ethical rules in this case because Disciplinary Counsel presented no expert evidence of the applicable standard of care to support the charges. McKechnie presented expert testimony of a trial attorney who opined that McKechnie's actions in accepting $1,500 to investigate the claim during the initial...