In re Disciplinary Action against Chinquist

• Decision Date: 16 May 2006
• Docket Number: No. 20050359.,20050359.
• Citation: 2006 ND 107,714 N.W.2d 469
• Parties: In the Matter of the APPLICATION FOR DISCIPLINARY ACTION AGAINST C. Charles CHINQUIST, 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. C. Charles Chinquist, Respondent.
• Court: North Dakota Supreme Court

Page 469

714 N.W.2d 469

2006 ND 107

In the Matter of the APPLICATION FOR DISCIPLINARY ACTION AGAINST C. Charles CHINQUIST, 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. C. Charles Chinquist, Respondent.

No. 20050359.

Supreme Court of North Dakota.

May 16, 2006.

Brent J. Edison, Assistant Disciplinary Counsel, Bismarck, N.D., for petitioner.

C. Charles Chinquist (pro se), Fargo, N.D., respondent.

PER CURIAM.

[¶ 1] C. Charles Chinquist and counsel for the Disciplinary Board object to a hearing panel report finding that Chinquist violated N.D.R. Prof. Conduct 1.5(a) and (b), 1.8(a), and 1.15(a) and (f), and recommending that Chinquist be suspended from the practice of law for 30 days and that he pay $5,289.45 for the costs and expenses of the disciplinary proceeding. We conclude there is clear and convincing evidence Chinquist violated N.D.R. Prof. Conduct 1.5(a) and (b), 1.7(a), 1.8(a), and 1.15(a) and (f). We suspend Chinquist from the practice of law for six months and one day and order that he pay the costs and expenses of the disciplinary proceeding.

I

[¶ 2] Chinquist was admitted to practice as an attorney in North Dakota on July 19, 1972. In 1996, Chinquist, who has a law office in Fargo, began representing a woman in connection with legal matters relating to custody of her minor child. The child had been placed in the custody of the father after the woman was incarcerated on criminal charges, and Chinquist had represented her in the past as court appointed counsel in criminal matters. He had also represented the woman's mother in her divorce case.

[¶ 3] Chinquist did not have a written fee agreement with the woman and did not send her statements of attorney fees and costs incurred during the course of the representation. The woman paid Chinquist between $13,500 and $15,000 in the form of money orders and cash delivered to Chinquist's home and office in a manila envelope, a Cracker Jack box, and an Altoids tin. The woman also gave Chinquist $5,000 to be applied to the account of another of Chinquist's clients in an unrelated criminal matter. Chinquist did not provide the woman with billing statements for any of the money she gave him during the course of the representation and did not place the funds in a trust account. Although Chinquist accounted for some amounts paid by the woman early in the representation, he quit documenting his time spent on her case and he shredded the existing records after he was suspended from the practice of law for 90 days in 2004. See In re Reciprocal Discipline of Chinquist, 2004 ND 87, 679 N.W.2d 257.

[¶ 4] During the course of the representation, Chinquist reviewed the woman's medical, psychological, and psychiatric records which indicated that she had an emotional disorder. The woman told Chinquist she was classified as disabled by the Social Security Administration for emotional problems and that she also had drug and alcohol problems. Beginning in the spring or early summer of 2000, while still representing her in the custody proceedings, Chinquist engaged in a sexual relationship with the woman. According to the woman, their sexual relationship lasted until early 2003, several months before custody of her son was restored to her. At some point before the woman received custody of her son, Chinquist told her he could no longer assist her with custody matters and she retained a new attorney.

[¶ 5] In April 2005, disciplinary counsel petitioned for discipline against Chinquist. The petition alleged Chinquist had violated N.D.R. Prof. Conduct 1.5(a) and (b) relating to fees, N.D.R. Prof. Conduct 1.7(a) and (c) and 1.8(a) and (f) relating to conflict of interest, N.D.R. Prof. Conduct 1.15(a), (b) and (f) relating to safekeeping property, N.D.R. Prof. Conduct 1.16(e) relating to declining or terminating representation, and N.D.R. Prof. Conduct 8.4(d) relating to misconduct.

[¶ 6] Following a hearing, the hearing panel concluded Chinquist had violated N.D.R. Prof. Conduct 1.5(a) and (b) "by accepting large, suspicious cash payments" from the woman "that were excessive and bore no apparent relationship to the work being performed," and "by not communicating to his client before or within a reasonable time after commencing representation the rate or amount of the fees to be charged." The panel concluded Chinquist had violated N.D.R. Prof. Conduct 1.15(a) and (f) by accepting the large cash payments from the woman "without providing accounting or billing statements and without determining what portion of the funds received were for fees not yet earned," and by failing to maintain records of the cash payments and to deposit the payments into a trust account. The panel also concluded Chinquist violated N.D.R. Prof. Conduct 1.8(a) by accepting money from the woman to represent another person without advising her to seek independent counsel before consenting to the transaction. However, the panel further found that, although the sexual relationship between Chinquist and the woman "was not appropriate, the relationship did not arise to a conflict of interest since it did not affect Chinquist's ability to consider, recommend, or carry out a course of action on behalf of his client nor did it have the potential of adversely affecting Chinquist's responsibility with respect to his representation" of the woman. The panel further found that the woman's "motives in becoming involved in this sexual relationship are unclear in light of a sexual relationship that she engaged in with another professional and a disciplinary complaint filed against that professional." The panel recommended that Chinquist be suspended from the practice of law for 30 days and that he pay $5,289.45 for the costs and expenses of the disciplinary proceeding.

II

[¶ 7] We review disciplinary proceedings de novo on the record. Disciplinary Bd. v. Giese, 2006 ND 13, ¶ 7, 709 N.W.2d 717. We accord due weight to the findings, conclusions, and recommendations of the hearing panel, but we do not act as a mere rubber stamp. Disciplinary Bd. v. Ward, 2005 ND 144, ¶ 6, 701 N.W.2d 873. Disciplinary counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. Disciplinary Bd. v. Edin, 2005 ND 109, ¶ 9, 697 N.W.2d 727. Each disciplinary case must be considered upon its own facts to decide what discipline, if any, is warranted. Disciplinary Bd. v. McKechnie, 2003 ND 170, ¶ 7, 670 N.W.2d 864.

A

[¶ 8] The hearing panel found Chinquist violated N.D.R. Prof. Conduct 1.15(a) and (f), which provide:

(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be deposited in one or more identifiable interest bearing trust accounts in accordance with the provisions of paragraph (d). Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer in the manner prescribed in paragraph (f).

. . . .

(f) A lawyer shall maintain or cause to be maintained on a current basis records sufficient to demonstrate compliance with the provisions of this rule. Such records shall be preserved for at least six years after termination of the representation.

[¶ 9] The record reflects Chinquist accepted large cash payments from the woman without providing accounting or billing statements and without determining what portion of the funds received were for fees not yet earned. Chinquist also failed to maintain records of the cash payments from the woman and did not deposit the payments into a trust account. We conclude there is clear and convincing evidence that Chinquist violated N.D.R. Prof. Conduct 1.15(a) and (f).

B

[¶ 10] Chinquist argues the hearing panel erred in determining that he violated N.D.R. Prof. Conduct 1.5(a) and (b), which provide:

(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) The fee customarily charged in the locality for similar legal services;

(4) The amount involved and the results obtained;

(5) The time limitations imposed by the client or by the circumstances;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) Whether the fee is fixed or contingent.

(b)When the lawyer has not regularly represented the client, the basis, rate, or amount of the fee shall be communicated to the client before or within a reasonable time after commencing the representation.

[¶ 11] There was no written fee agreement, fee statements, or correspondence detailing the terms of Chinquist's representation of the woman. Chinquist accepted large sums of cash from the woman but did not give her receipts, account for the funds, or refund any amounts that were unearned. After Chinquist's law license was suspended in 2004, he shredded his records making it impossible to determine how much money Chinquist received from the woman for legal services and the reasonableness of the fee.

[¶ 12] Chinquist claims the funds the woman paid to him were for work he had completed on her custody case, and he attempted to reconstruct a record of the time he spent on the case. Chinquist also claimed that he informed the woman of the rate or amount of fees to be charged. This evidence, however, conflicts with the woman's testimony that she loaned him amounts of money because of his office cash...