In re Disciplinary Action Against Garaas, No. 20020103
Decision Date | 15 November 2002 |
Docket Number | No. 20020113., No. 20020103 |
Citation | 652 N.W.2d 918,2002 ND 181 |
Parties | In the Matter of DISCIPLINARY ACTION AGAINST Jonathan T. GARAAS, a Member of the Bar of the State of North Dakota. Paul W. Jacobson, Disciplinary Counsel, Petitioner v. Jonathan T. Garaas, Respondent. Jonathan T. Garaas, Petitioner v. Disciplinary Board of the Supreme Court of the State of North Dakota, Respondent. |
Court | North Dakota Supreme Court |
Paul W. Jacobson, Bismarck, ND, for petitioner.
Ronald H. McLean (argued) and Timothy G. Richard (on brief), Serkland Law Firm, Fargo, ND, for respondent.
[¶ 1] Jonathan T. Garaas and Disciplinary Counsel have both petitioned for review of a hearing panel's report and order of reprimand, which found Garaas had violated the North Dakota Rules of Professional Conduct and ordered that Garaas be publicly reprimanded and pay costs of the disciplinary proceeding. We conclude Garaas has violated N.D.R. Prof. Conduct 3.5(a), 3.5(b), and 8.4(e), and we order that he be publicly reprimanded and pay the costs of the disciplinary proceedings in the amount of $7,312.42.
[¶ 2] Garaas has represented TAG Investments in lengthy and contentious litigation with Matrix Properties Corporation over a disputed option to purchase real estate. That litigation has spawned numerous appeals. See Matrix Properties Corp. v. JCG Investments, L.L.C., 2002 ND 99, 647 N.W.2d 706; Matrix Properties Corp. v. TAG Investments, 2002 ND 86, 644 N.W.2d 601; Matrix Properties Corp. v. TAG Investments, 2001 ND 128, 636 N.W.2d 674; Matrix Properties Corp. v. TAG Investments, 2000 ND 213, 622 N.W.2d 432; Matrix Properties Corp. v. TAG Investments, 2000 ND 88, 609 N.W.2d 737. This disciplinary proceeding arose out of Garaas's conduct at post-judgment proceedings in the Matrix litigation occurring in November 2000 and January 2001.
[¶ 3] At a November 7, 2000, hearing on Matrix's motion to compel transfer of the real estate, Garaas made repeated assertions that opposing counsel was making false representations of fact and had lied to the court. Garaas at one point stated:
Your Honor, I cannot let it go by one more time because Mr. Spaeth just lied to you one more time.... That representation by Mr. Spaeth is an absolute falsehood and he can't get away with it anymore.... And we will never accept Mr. Spaeth's false representation in violation of the Canons and in violation of every concept of due process that I know.
[¶ 4] At status conference on January 2, 2001, Garaas argued the court lacked jurisdiction in the matter because there was an appeal pending in this Court. The trial judge asked Garaas if his client would sign deeds conveying the disputed property if ordered to do so by the court at a court-supervised closing scheduled for January 5, 2001. In responding to the court's question, Garaas suggested that the trial judge was placing himself "at risk":
[¶ 5] On January 5, 2001, the court held a "Court Overseen Closing" to convey the disputed property. At the outset of that proceeding, the trial court stated it was acting pursuant to this Court's December 12, 2000, opinion in Matrix Properties, 2000 ND 213, 622 N.W.2d 432, in which we summarily affirmed an earlier post-judgment order and directed the trial court "to order specific performance requiring TAG and Grettum to convey the subject property upon tender by Matrix of the purchase price set in the 1996 option agreement." Garaas again argued the trial court lacked jurisdiction to order conveyance of the property, and asserted this Court had falsely represented the issues in the prior appeal:
The first issue was that the North Dakota Supreme Court has wrongfully identified the issue on appeal. Actually they made a false representation of what the issue was being appealed.
[¶ 6] At the January 5 hearing Garaas was allowed to argue at length, challenging jurisdiction of the trial court and whether Matrix had complied with the terms of the option. The court ultimately determined Matrix was prepared to tender payment of the purchase price and indicated it was TAG's "last chance" to execute deeds conveying the property or it would be judicially conveyed. The court then asked Garaas and his client, "Do you wish to comply with the order of the Court to convey this property?" After Garaas again reiterated his argument that Matrix had failed to comply with the option and the option had expired, the following colloquy occurred between Garaas and the court:
[¶ 7] The court ultimately ordered judicial conveyance of the property. At the conclusion of the January 5 hearing, the trial court stated:
[¶ 8] At the disciplinary hearing, the trial judge characterized Garaas's behavior as "threatening," "defiant," and "obstructionist," and stated "I didn't view him as attempting to help the Court resolve the matter on a legal basis." When asked about Garaas's comment that the judge might be putting himself "at risk," the judge testified he perceived it "as a threat to sue me personally" and "viewed it as an attempt to stop or delay the process of the Court's attempt to enforce the judgment."
[¶ 9] A petition for discipline was served charging Garaas with violations of N.D.R. Prof. Conduct 3.5(a), 3.5(b), 4.4, and 8.4(e), and N.D.R. Lawyer Discipl. 1.2(A)(8). The hearing panel concluded Garaas's "at risk" comments and the lengthy colloquy with the trial court during the January 5 hearing violated the disciplinary rules. The hearing panel further concluded Garaas's statement that Mr. Spaeth had lied did not constitute a breach of N.D.R. Prof. Conduct 4.4, and that Garaas's statement that this Court had made a false representation, while improper, had not...
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