In re Disciplinary Action Against McDonald

• Decision Date: 25 April 2000
• Docket Number: No. 990359-990361.
• Citation: 609 N.W.2d 418,2000 ND 87
• Parties: In the Matter of Application for DISCIPLINARY ACTION AGAINST Scott J. McDONALD, 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. Scott J. McDonald, Respondent.
• Court: North Dakota Supreme Court

609 N.W.2d 418

2000 ND 87

In the Matter of Application for DISCIPLINARY ACTION AGAINST Scott J. McDONALD, 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. Scott J. McDonald, Respondent.

Nos. 990359-990361.

Supreme Court of North Dakota.

April 25, 2000.

Paul W. Jacobson, Disciplinary Counsel, Bismarck, N.D., for petitioner.

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

PER CURIAM.

[¶ 1] The Disciplinary Board petitions for disciplinary action against Scott J. McDonald for making a statement of fact and offering evidence to a court which he knew was false. We conclude there is clear and convincing evidence McDonald violated N.D.R. Prof. Conduct 3.3(a), and we order McDonald be suspended from the practice of law for six months and one day, successfully complete the Multistate Professional Responsibility Examination, and pay the full costs of the disciplinary proceedings.

I

[¶ 2] McDonald was admitted to practice law in North Dakota on May 29, 1987. During the period relevant to this case, McDonald was a sole practitioner in Bowman. In June 1993, McDonald represented Howard Brooks in making a claim for abandoned mineral interests in Slope County. At the time, McDonald had one full-time secretary, Becky Hodell, on his staff. A part-time secretary, Carolyn Russell, worked occasionally when additional assistance was needed. With Russell's help, McDonald prepared a notice of lapse of mineral interest under N.D.C.C. ch. 38-18.1. He directed Russell to have the notice published in the official county newspaper; mail the notice to Mabel E. and J.L. Albright, the owners of the mineral interests, at their last known post office address within 10 days of the final publication; and file the notice and an affidavit of service with the Slope County Register of Deeds.

[¶ 3] In July 1993, the notice was published in the Slope County Messenger. In August or September 1993, Russell told McDonald everything had been completed for the termination of the mineral interests, and McDonald had the Brooks file placed with his inactive files. Russell no longer worked for McDonald after June 1995.

[¶ 4] In April 1996, client Brooks asked McDonald whether the Albrights' mineral interests were terminated, because Brooks had discovered the notice had not been filed with the Slope County Register of Deeds. McDonald reviewed the file and found the notice and an affidavit of service had not been recorded with the Register of Deeds, and no affidavit of service of the notice had been prepared. According to McDonald, there was an envelope in the file which appeared to have the notice addressed to the Albrights and which had been returned by the United States Postal Service as being undeliverable. In May 1996, McDonald recorded the notice of lapse of mineral interest and an affidavit of publication with the Slope County Register of Deeds, but did not record an affidavit of service of the notice.

[¶ 5] In November 1996, the Albright heirs brought a quiet title action against members of the Brooks family, seeking to eliminate the notice of lapse of mineral interest from the title of the property and to have the Brookses declared as having no interest in the mineral acres. In December 1996, McDonald answered the quiet title action on behalf of the Brookses. In January 1997, the Albright heirs moved for summary judgment. McDonald opposed the summary judgment motion and made a counter-motion for summary judgment, arguing the mineral interests of the Albright heirs had terminated under the provisions of N.D.C.C. ch. 38-18.1. With his response, McDonald filed an affidavit in which he claimed:

3. That on the 20th day of July, 1993, my office did cause to be placed in the United States Mails, a photocopy of Brooks' Notice of Lapse of Mineral Interest, addressed to J.L. Albright and Mabel Albright at 6922 South Halstead Street, Chicago, Illinois; and

4. That on August 3, 1993, the United States Post Office returned the said envelope containing Brooks' Notice of Lapse of Mineral Interest addressed to J.L. Albright and Mabel Albright, to my law office, and that the envelope was marked by the United States Post Office as being "Undeliverable", at which time the said envelope was placed into my file.

[¶ 6] McDonald argued in his brief to the trial court that title vested in the surface owner, Brooks, because the procedural requirements under N.D.C.C. ch. 38-18.1 were satisfied:

In this action, there is no question that publication was made once each week in the official county newspaper in the county in which these minerals are located. Additionally, as the attached Affidavits and copies of the return delivery of the certified mailings show, the Notice was not only properly published, but was also sent to the last known mailing address of the alleged mineral interest owners, J.L. Albright and Mabel Albright. This Notice was mailed within 10 days of the date after the last publication date of the Notice of Lapse of Mineral Interest on July 15, 1993. See Exhibit "3". It is also clear that a copy of the Notice and the Affidavit of the Service of the Notice by publication was recorded in the office of the Register of Deeds in the County in which the mineral interests are located. Pursuant to North Dakota Century Code § 38-18.1-06, this is prima facie evidence in these legal proceedings that such notice has been given.

[¶ 7] Along with these materials, McDonald also filed a photocopy of the envelope which was purportedly mailed to the Albrights on July 20, 1993, and a photocopy of the Postal Service's "Domestic Return Receipt," "PS Form 3811." The attorney for the Albright heirs noticed discrepancies on the envelope and the Form 3811. The postmark date on the envelope was "JUL 20," but no year was indicated. The Form 3811 had a publication date of "December 1994."

[¶ 8] The attorney for the Albright heirs filed an affidavit from the Dickinson Postmaster, who said the "Form 3811 was not available for use by the United States Post Office or its patrons until sometime late in 1994, or perhaps even early 1995." The Albrights' attorney also served a subpoena duces tecum on McDonald requiring him to bring the envelope and the mailing receipts to the summary judgment hearing. McDonald withdrew his reliance on the alleged July 20, 1993 mailing, and turned to an older notice of abandonment of mineral interests which had been recorded in 1988 to support Brooks' legal position. The trial court ruled in favor of the Albright heirs, and McDonald personally paid the costs of judgment. These disciplinary proceedings were instituted.

[¶ 9] When the envelope, which was purportedly mailed on July 20, 1993 to the Albrights, was opened at the disciplinary hearing for the first time since it was filed in the quiet title action, it contained a copy of the notice of lapse of mineral interest dated June 21, 1993, and a copy of the affidavit of publication. The affidavit of publication was sworn and subscribed to on August 6, 1993, 17 days after McDonald said the envelope was mailed. McDonald claimed Russell mailed the envelope. Russell did not testify at the hearing and her whereabouts are unknown.¹

[¶ 10] The hearing body found the envelope was not mailed on July 20, 1993, "but the circumstances make it clear the envelope was placed in the mail after [McDonald] reviewed his file in April, 1996 on or about July 20, 1996." The hearing body also found not all of the markings on the envelope were made by Postal Service personnel:

McDonald testified Russell told him in August or September, 1993 that she had completed everything which needed to be done to terminate the mineral interests for Brooks. She was not employed by McDonald after June 2, 1995. The envelope placed in the mail to Mabel E. Albright and J.L. Albright on or about July 20, 1996 and which was found undeliverable by the Postal Service and placed in McDonald's file, was not placed there by Carolyn Russell. Someone in McDonald's office created a forgery of an envelope to evidence mailing of a Notice of Lapse of Mineral Interest to Mabel E. Albright and J.L. Albright, M.D. Only Russell and McDonald had motive to do so, and only McDonald had the opportunity to do so.

Reasonable inferences drawn from the circumstantial evidence and other evidence provide testimony of clear and convincing proof that when McDonald discovered the statutory requirements had not been met for the termination of a mineral interest during his review of the file for Brooks in April, 1996, that he acted on or about July 20, 1996 to create a forgery of an envelope to falsely suggest mailing of a Notice of Lapse of Mineral Interest to Mabel E. Albright and J.L. Albright, M.D. on July 20, 1993. The forgery was prepared in order to give the appearance of compliance with statutory requirements for the termination of the Albright mineral interest.

[¶ 11] The hearing body concluded that when McDonald filed his affidavit in the quiet title action, the forged envelope he created evidenced a mailing of the notice in compliance with the statutory requirements for terminating mineral interests, and in the affidavit McDonald "made a statement of fact to the Court and offered evidence to the Court which he knew to be false in violation of N.D.R. Prof. Conduct 3.3(a)." As a sanction, the hearing body recommended McDonald's license to practice law be suspended for 60 days and he be ordered to pay the costs of the disciplinary proceeding.

[¶ 12] The Disciplinary Board adopted the report of the hearing body, but recommended McDonald pay one-half of the costs of the proceedings and submitted its report to this Court. McDonald timely filed objections to the report and both parties presented briefs and oral argument. We consider the Board's report under N.D.R. Lawyer Discipl. 3.1(F).

II

[¶ 13] We review disciplinary proceedings against attorneys de...