In re Howe, 20000341.

• Decision Date: 03 May 2001
• Docket Number: No. 20000341.,20000341.
• Parties: In The Matter of The Application For Disciplinary Action Against Henry H. HOWE, 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. Henry H. Howe, Respondent.
• Court: North Dakota Supreme Court

626 N.W.2d 650

2001 ND 86

In The Matter of The Application For Disciplinary Action Against Henry H. HOWE, 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. Henry H. Howe, Respondent.

No. 20000341.

Supreme Court of North Dakota.

May 3, 2001.

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

Chad C. Nodland, Chad C. Nodland, P.C., Bismarck, for respondent.

PER CURIAM.

[¶ 1] Henry H. Howe filed objections to the report of the hearing panel before the Disciplinary Board, which concluded Howe violated N.D.R. Prof. Conduct 1.3, 1.4, and 3.2. We conclude there is clear and convincing evidence of Howe's violations, and we suspend him from the practice of law for 120 days and order him to pay costs in the amount of $4,953.39.

I

[¶ 2] Howe was admitted to practice law in North Dakota on July 27, 1973; he has remained a member of the Bar, except for a 90-day suspension in 1977. In December 1996, Deborah L. Johnson entered into a retainer agreement with Howe for legal services involving modification of her divorce judgment to increase child support, reallocation of past medical costs and insurance, and a set-off against an equity payment due her former husband following the sale of marital property awarded to Johnson. Howe initiated a motion; a hearing was held; and in February 1997, the court awarded Johnson $3,487 as reimbursement for insurance. Howe failed to reduce this award to judgment over the next two years, although Johnson contacted Howe in an effort to have him complete the matter.

[¶ 3] In January 1999, Johnson discussed with Howe her intention to refinance her home, and she requested Howe to reduce her $3,487 award to judgment. Howe promised to complete the matter in a timely manner so the loan refinancing could take place as scheduled. Johnson applied for refinancing, and her loan officer, Michael Benson, locked in an interest rate of 6-3/8 percent. Johnson and Benson discussed the money award owed to Johnson from her former husband, and Johnson informed Benson that Howe was working on that matter. Benson called Howe, while Johnson was in his office, and explained what they needed Howe to do and that the loan rate was locked in through March 23, 1999. Howe assured Benson the matter would be resolved no later than the end of February. In a letter to Johnson, dated February 26, 1999, Howe confirmed that he had spoken with the judge and would submit a judgment form to the court. The day before the expiration of the interest rate lock-in date, Howe faxed two letters to the abstract company and suggested closing the loan without the post-divorce matters completed. However, nothing was resolved before the March 23rd deadline when the 6-3/8 percent interest rate expired. Subsequently, Johnson hired another attorney who secured an order for judgment for the post-divorce award on April 30, 1999. Johnson then sought refinancing in June or July of 1999, but by that time the interest rate had increased to 7-½ percent. The difference in the interest payments over the 15-year loan was $5,670; Johnson also incurred an additional appraisal fee of $75.

[¶ 4] When Johnson retained Howe, she paid him $200 and paid an additional $500 through March 1997. The retainer agreement stated Howe's law firm would send "itemized bills from time to time." The only bill Johnson ever received was dated February 14, 1999, more than two years after Johnson hired Howe as her attorney. When Johnson came to Howe's office to talk about the bill, Howe made no mention of fees needing to be paid at that time.

[¶ 5] A Petition for Discipline was served on Howe in November 1999. The matter was heard by a hearing panel of the Disciplinary Board. The panel concluded Howe violated Rule 1.3, N.D.R. Prof. Conduct, for failing to diligently and promptly reduce to judgment Johnson's $3,487 post-divorce award; Rule 1.4, N.D.R. Prof. Conduct, for failing to make reasonable efforts to keep Johnson reasonably informed about the status of the matter and for failing to communicate the costs of his representation; and Rule 3.2, N.D.R. Prof. Conduct, for failing to reasonably expedite reduction of the $3,487 award to judgment. The panel also concluded Howe's misconduct was aggravated by his prior disciplinary history and further aggravated by similar misconduct for which he was previously disciplined in 1998, 1995, and 1991. The panel recommended suspending Howe from the practice of law for 60 days and requiring Howe to pay costs of $4,010.24, plus costs of the transcript of the hearing. Howe filed objections to the panel's recommendations, and disciplinary counsel filed a supplemental affidavit of costs and expenses listing the amount of $943.15 for the hearing transcript expense.

II

[¶ 6] We review disciplinary proceedings de novo on the record. In re Disciplinary Action Against Keller, 2000 ND 221, ¶ 8, 620 N.W.2d 156. In the context of disciplinary proceedings, de novo means we accord due weight to the findings, conclusions, and recommendations of the hearing panel, but we do not act as a mere "rubber stamp." Id. Because the hearing panel has heard the witnesses and observed their demeanor, we give special deference to its findings on matters of conflicting evidence, and we consider each disciplinary case on its own facts to decide what discipline is warranted. In re Disciplinary Action Against McDonald, 2000 ND 87, ¶ 13, 609 N.W.2d 418. Disciplinary counsel must prove each alleged violation of the disciplinary rules by clear and convincing evidence. N.D.R. Lawyer Discipl. 3.5(C),(D); see also In re Disciplinary Action Against Dvorak, 2000 ND 98, ¶ 8, 611 N.W.2d 147

.

III

[¶ 7] Howe raises several objections to the hearing panel's findings and conclusions. Howe insists he "did everything he could" to represent Johnson and to keep her apprised of the case status. We are unpersuaded by Howe's arguments supporting each of his objections.

A

[¶ 8] Howe argues the hearing panel findings, contained in Paragraphs 3, 4, 5, and 6 of their report, fail to accurately and completely set out the factual record of the case, as presented at the hearing and through argument. Howe also contends the factual basis presented at the hearing fails to meet the required burden of proof in establishing his misconduct by clear and convincing evidence.

[¶ 9] Paragraphs 3, 4, 5, and 6 in the report of the hearing panel state:

3. How[e] initiated a motion with the court in Grand Forks County. A hearing was held on February 20, 1997, at which Howe appeared with Johnson and her ex-husband appeared with his attorney. On February 24, 1997, the court issued a memorandum decision. Part of the memorandum found that Johnson would be awarded a money judgment against her ex-husband in the amount of $3,487, as reimbursement for supplemental insurance. The award of the $3,487 to Johnson was not reduced to judgment by Howe. Johnson attempted to contact Howe over the next two years in an effort to complete the matter.

4. In January, 1999, Johnson contacted [Howe] in regard to refinancing the home. [Howe] promised to complete the matter concerning the award of the $3,487 and the other issues in a timely manner so that the loan refinancing could take place at the scheduled time in March, 1999. [Howe] did not do so. As a result, Johnson incurred an additional $5,670 in interest costs over the life of the fifteen year loan and an additional $75 in appraisal fee.

5. Howe failed to diligently expedite reduction to judgment of the $3,487 awarded to Johnson in the February 24, 1997, memorandum decision of the court. That lack of diligence occurred between January 1998 and March 23, 1999. The lack of diligence and failure to expedite the litigation was particularly evident between January, 1999, and March 23, 1999. During that time, Howe gave assurance to Johnson that the award from the memorandum decision could be reduced to judgment and the matter resolved so that Johnson could obtain refinancing for her home by the closing date of March 23, 1999. However, Howe failed to diligently work on the matter, as he had promised.

6. Howe failed to make reasonable efforts to keep his client reasonably informed about the status of the matter between January 1998, and March 23, 1999. The lack of communication was particularly evident between January, 1999, and March 23, 1999. During that time Howe gave assurance to Johnson that the award from the memorandum decision could be reduced to judgment and the matter resolved so that Johnson could obtain refinancing for her home. However, Howe failed to communicate to his client that he was not diligently working on the matter, as he had promised. The lack of communication is also reflected by Howe's failure to communicate the costs of his representation, in that he did not present a bill for legal services to Johnson until February 14, 1999.

[¶ 10] Howe claims these findings are erroneous, incomplete, inaccurate, unfair, and "leave[ ] a huge gap" in the evidence because the hearing panel does not address additional facts. Specifically, Johnson's former husband filed a motion to reconsider the trial court's award of $3,487, as it appeared to be in error since Johnson had testified the back insurance amount she was entitled to was only $1,120. Howe was concerned about responding to the motion because Johnson could not support the $3,487 amount. Howe claims Johnson was "very ambivalent" about pursuing the matter because she could not justify the award, and Howe and Johnson "seemed to be in agreement that they should take no action." Howe alleges the $3,487 award was ineligible for reduction to judgment because it was not a final decision since there was a pending motion.

[¶ 11] In addition, the 1997 flood hit Grand Forks, inundating Howe's office, and one month later, Howe and his wife suffered injuries in a car accident. Johnson called Howe in December 1997...