In re Haderlie, 20160133.

• Decision Date: 20 September 2016
• Docket Number: No. 20160133.,20160133.
• Citation: 885 N.W.2d 78
• Parties: In the Matter of Reciprocal DISCIPLINE OF Nicholas T. HADERLIE, a Member of the Bar of the State of North Dakota.
• Court: North Dakota Supreme Court

885 N.W.2d 78

In the Matter of Reciprocal DISCIPLINE OF Nicholas T. HADERLIE, a Member of the Bar of the State of North Dakota.

No. 20160133.

Supreme Court of North Dakota.

Sept. 20, 2016.

PER CURIAM.

Recommendation for Reciprocal Discipline.

[¶ 1] On January 20, 2015, the Disciplinary Board notified the Supreme Court under N.D.R. Lawyer Discipl. 4.4(D)

that it was recommending dismissal of this reciprocal discipline matter against Nicholas T. Haderlie, a member of the bar of North Dakota.

[¶ 2] Haderlie was admitted to practice in North Dakota in 2012 and has been licensed since that time. He is also licensed in Colorado, Montana, Utah, and Wyoming. Haderlie was arrested on October 19, 2014, and later plead guilty to misdemeanor violations of Wyoming Statutes § 31–5–233

, driving or having control of a vehicle while under the influence of intoxicating liquor or controlled substances and § 6–5–204(a), interference with a peace officer. The record reflects that on July 2, 2015, the Wyoming Supreme Court publicly censured Haderlie after he acknowledged his conduct violated Rule 8.4(b) and Rule 8.4(d) of the Wyoming Rules of Professional Conduct for Attorneys at Law.

[¶ 3] Haderlie has no prior discipline in North Dakota, and no prior discipline in Colorado, Montana, or Utah before this matter. As a result of Haderlie's conduct, Haderlie stipulated to reciprocal discipline in Colorado and Utah. The matter was dismissed by the Montana Office of Disciplinary Counsel as a matter of law because the underlying convictions are not the type of conduct that normally give rise to discipline in Montana.

[¶ 4] The record reflects Disciplinary Counsel served Haderlie notice under N.D.R. Lawyer Discipl. 4.4(B)

that a certified copy of the Supreme Court of Wyoming order of public censure was received. The notice informed Haderlie that he had 30 days to file any claim that imposition of the identical discipline in North Dakota would be unwarranted and the reasons for the claim. On September 2, 2015, Haderlie filed a response to the notice stating that his conduct does not give rise to a lawyer disciplinary action in North Dakota, or alternatively, that his conduct warrants substantially different discipline based on North Dakota precedent and considering mitigating factors.

[¶ 5] On April 12, 2016, the Disciplinary Board filed its recommendation to dismiss this reciprocal discipline matter against Haderlie. After consideration of the recommendation, this Court requested the parties file briefs on whether interference with a peace officer is an offense for which discipline might be imposed in North Dakota. On June 30, 2016, Haderlie and Disciplinary Counsel filed their briefs, both arguing discipline should not be imposed in North Dakota.

[¶ 6] Disciplinary Counsel argued that neither of Haderlie's convictions constitute a serious crime under N.D.R. Lawyer Discipl. 4.1

and that neither crime is contemplated by N.D.R. Prof. Conduct 8.4(b) or 8.4(f) for purposes of discipline. Disciplinary Counsel argued discipline would not have been imposed upon a North Dakota practicing lawyer for Haderlie's convictions. Haderlie argued interference with a peace office does not give rise to discipline in North Dakota under N.D.R. Prof. Conduct 8.4(b) or 8.4(f). Haderlie argued, alternatively, that if this Court concludes interference with a peace officer is an offense for which discipline might be imposed, the absence of precedent disciplining a lawyer for similar conduct suggests a lesser sanction is warranted in North Dakota. He argued mitigating factors are present in his case that should weigh in favor of reduction of a sanction.

[¶ 7] The Court considered the matter, and

[¶ 8] ORDERED, that this reciprocal discipline matter against Nicholas T. Haderlie, is DISMISSED.

[¶ 9] CAROL RONNING KAPSNER

, LISA FAIR McEVERS, and DANIEL J. CROTHERS, JJ., concur.

CROTHERS

, Justice, specially concurring.

[¶ 10] I have signed the Court's decision and offer this separate writing to explain why I want to, but cannot, agree with the dissent.

[¶ 11] I have high confidence that I speak for all of my colleagues in stating we do not condone Attorney Haderlie's conduct leading to his criminal charge of interfering with a peace officer. However, our application of law requires precision and the result here turns on the distinction between criminal activity and unethical conduct warranting lawyer discipline.

[¶ 12] The North Dakota Rules of Professional Conduct specifically provides for discipline when a lawyer commits a crime. The Rule states “[i]t is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.” N.D.R. Prof. Conduct 8.4(b)

. Even though Haderlie's lawyer discipline was for commission of a crime, Wyoming did not find a violation of this subsection. In the North Dakota case the parties agree subsection 8.4(b) does not apply to this case. No member of the Court suggests otherwise.

[¶ 13] Not imposing lawyer discipline on Haderlie for committing the crime of interfering with a police officer fits with both the words of Rule 8.4(b)

and the rationale behind the rule. The rule's rationale is explained as follows:

“Not all illegal conduct is disciplinable. The Model Code forbade only those crimes that involved ‘moral turpitude.’ The problem with the test of ‘moral turpitude’ is that it is vague and ill-defined. It is not at all evident that the drafters of the Model Code intended to make disciplinable those crimes that are not functionally related to fitness to practice law, particularly because other provisions in the Code imply that such a functional relationship is necessary. Nonetheless, the uncertainness and ambiguity of the ‘moral turpitude’ standard allows, or even invites, a court to discipline attorneys for acts that may be crimes in some states, although the crime is not connected or even relevant to the client-attorney relationship.”

Ronald D. Rotunda and John S. Dzienkowski, Legal Ethics: The Lawyer's Deskbook on Professional Responsibility, § 8.4–2, 1351 (2015–2016 ed.2015).

[¶ 14] In contrast to the specific provision regarding criminal activity, the North Dakota Rules of Professional Conduct more generally provides, “It is professional misconduct for a lawyer to: (f) engage in conduct that is prejudicial to the administration of justice....” N.D.R. Prof. Conduct 8.4(f)

.¹

[¶ 15] Professor Rotunda's Deskbook describes the history of this provision as follows:

“The final version of the Rules (but not the Proposed Final Draft of May 30, 1981) announces that it is disciplinable for a lawyer to ‘engage in conduct that is prejudicial to the administration of justice.’ Opponents of this language argued unsuccessfully that this standard—which came from the Model Code—was too vague and loose to be a criterion in a legal code. They argued that there is a basic unfairness in asserting the power to take away one's livelihood, one's ability to practice law, based on a standard so undefined, vague, and amorphous that it varies with the eyes of the beholder.”

Ronald D. Rotunda and John S. Dzienkowski, Legal Ethics: The Lawyer's Deskbook on Professional Responsibility, § 8.4–2, 1357 (2015–2016 ed.2015). The “undefined,” “vague,” “loose” and “amorphous” language in rules like North Dakota's 8.4(f) has withstood constitutional challenges for vagueness and overbreadth “because the standard is considered in light of the traditions of the legal profession and its established practices.” Comm. on Legal Ethics v. Douglas, 179 W.Va. 490, 370 S.E.2d 325, 328 (1988)

. This ethical provision also has withstood constitutional challenge because lawyers are professionals who “have the benefit of guidance provided by case law, court rules and the ‘lore of the profession.’ ” Howell v. State Bar of Texas, 843 F.2d 205, 208 (5th Cir.1988).

[¶ 16] Here, the constitutionally necessary notice, standards and guidance are provided in part by the commentary this Court adopted along with the substantive rules regulating lawyer conduct. A comment to Rule 8.4

clarifies that every moral or legal misstep will not subject a lawyer to professional discipline:

“Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving ‘moral turpitude.’ The concept of ‘moral turpitude’ may be construed to include offenses concerning matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice fall within that category.”

Id. cmt. 2.

[¶ 17] The constitutionally necessary notice, standards and guidance also come from judicial application. North Dakota has not directly defined the term “prejudicial to the administration of justice” as used in Rule 8.4(f)

. But we have numerous cases applying 8.4(f) to court proceedings and the representation of clients. See e.g.,

In re Disciplinary Action Against Howe, 2014 ND 17, ¶ 3, 842 N.W.2d 646 (interim suspension ordered because criminal charge of conspiracy to murder trial witness was conduct prejudicial to administration of justice); In re Disciplinary Action Against Summers, 2014 ND 19, ¶ 9, 842 N.W.2d 842 (willful violation of court order constituted conduct prejudicial to the administration of justice); In re Kenny, 2010 ND 142, ¶ 2, 785 N.W.2d 929 (representation of a client had no substantial purpose other than to burden another lawyer...