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

652 N.W.2d 918

2002 ND 181

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.

Nos. 20020103, 20020113.

Supreme Court of North Dakota.

November 15, 2002.

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

Ronald H. McLean (argued) and Timothy G. Richard (on brief), Serkland Law Firm, Fargo, ND, for respondent.

PER CURIAM.

[¶ 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.

I

[¶ 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":

There is a lot of things that are going to have to be resolved, and I guess frankly I have a question in my mind as to whether or not the Court wants to enter into a course of action that places the trial court judge and the State of North Dakota at risk....

So when you ask me a question as to whether or not we are going to sign a deed, there are so many things that still have yet to be resolved that why would the Court want to put this Court and the State of North Dakota at risk when we are guaranteed to have another lawsuit, guaranteed to have another trial to determine whether or not there has been damages or a quiet title action and establish what the record is for this property.

[¶ 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:

THE COURT: The Defendant—the Defendant's counsel [Garaas] in the presence of the Court has informed the Court that they'll not comply with the Court's order. Proceed.

MR. GARAAS: Which Court order are you talking about, Your Honor?

THE COURT: The order to convey it's [sic] property.

MR. GARAAS: Which one was that, Your Honor?

THE COURT: The one they just made.

MR. GARAAS: At this point in time?

THE COURT: Yes.

MR GARAAS: On what legal basis, Your Honor?

THE COURT: Enough. Sit. Enough.

MR. GARAAS: On what legal basis? I only ask that this Court identify on what legal basis it acts, because my client has a right to know. My client has a right to due process of law, Your Honor.

THE COURT: Proceed.

MR. GARAAS: You will not answer my question, Your Honor?

THE COURT: Mr. Garaas, I've already put on the record that we're proceeding pursuant to the Supreme Court's directive of December 12th.

MR. GARAAS: And how does the court get around the fact that it isn't a final Supreme Court order and the mandate has not been returned to you and jurisdiction still is at the Supreme Court, Your Honor? How can this Court act in derogation of it's [sic] duties to honor the fact that jurisdiction is now at the Supreme Court level not back here. This Court can't act, Your Honor, on the basis of the December 12, 19—of the year 2000 decision of the Supreme Court. How can the Court act when it doesn't have jurisdiction based upon that order, Your Honor? My client would like to know.

THE COURT: The Court's been directed by the Supreme Court to proceed. The Supreme Court directs the District Court what to do. I am proceeding under that directive.

MR. GARAAS: Is there a directive that's different than the December 12, 2000, order, Your Honor? Has there been direct communication between the Supreme Court and this Court that is not of record and not reported on December 12th. Because there is no such directive other than the December 12th and that's not a final order. Is there a directive from the Supreme Court to this Court to proceed today that is not placed of record, Your Honor? Have you had telephone conversations with any member of the Supreme Court?

THE COURT: Mr. Garaas, of course not. But this now is getting to be ridiculous. You've tried these arguments now in front of eight different judges, five in the Supreme Court, Judge Erickson, this Court, Judge Webb. It's over now so we're gonna proceed. Go ahead.

MR. GARAAS: Has there been communications with any representative of the Supreme Court of North Dakota?

THE COURT: Sit down now, Mr. Garaas. Proceed.

MR. GARAAS: May I—my client and I would like to know, Your Honor.

THE COURT: Mr. Garaas, this is the last time now before I ask you to be removed from the Court. We're gonna proceed with the hearing. Your partner will have to sit in your place. But this is beyond any appropriate measure of conduct for an attorney.

MR. GARAAS: I merely wanted to know what jurisdiction the Court was exercising, Your Honor.

THE COURT: Proceed.

[¶ 7] The court ultimately ordered judicial conveyance of the property. At the conclusion of the January 5 hearing, the trial court stated:

The Court's repeatedly heard arguments as to deficiencies in the Plaintiff's attempt to close this matter but these matters have been adjudicated or have no merit. The Defendants' arguments from the Court's perspective are for the purposes of delay....

....

This has been a case that's involved a lot of patience I guess on all parties involved. The Court's been disappointed in some of the conduct exhibited here with the way other officers of the Court have been treated, the way this Court and the Supreme Court has been referred to in these proceedings as doing or considering anything inappropriate.

[¶ 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...