In re Petition for Disciplinary Action Against Overboe

Decision Date29 July 2015
Docket NumberNo. A14–1607.,A14–1607.
Citation867 N.W.2d 482
PartiesIn re Petition for DISCIPLINARY ACTION AGAINST David A. OVERBOE, a Minnesota Attorney, Registration No. 83318.
CourtMinnesota Supreme Court

Martin A. Cole, Director of the Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

David A. Overboe, Fargo, North Dakota, pro se.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action seeking reciprocal discipline against respondent David A. Overboe pursuant to Rule 12(d) of the Rules on Lawyers Professional Responsibility (RLPR). Overboe was disbarred by the North Dakota Supreme Court on April 3, 2014. Because we conclude that the North Dakota disciplinary proceedings were fundamentally fair and consistent with due process, and disbarment is not substantially different from the discipline warranted in Minnesota for the same misconduct, we disbar Overboe from the practice of law in Minnesota.

Overboe was admitted to practice law in North Dakota in 1972, and in Minnesota in 1980. During the relevant time period, Overboe's law practice was located in North Dakota. In March 2008 we suspended Overboe from the practice of law for unrelated misconduct, subject to his right to seek reinstatement after 1 year. In re Overboe (Overboe I), 745 N.W.2d 852, 869 (Minn.2008).1 Overboe did not seek reinstatement, and is currently suspended in Minnesota.

In October 2006 an application was filed with the North Dakota Supreme Court requesting Overboe's interim suspension on the ground that Overboe had been charged with sexual assault and two counts of hiring an individual to engage in sexual activity, a violation of the North Dakota criminal code. The court concluded there was sufficient evidence to demonstrate misconduct and a threat of harm to the public, and suspended Overboe's license effective December 4, 2006, pending final disposition of disciplinary proceedings.

Subsequently, four petitions for discipline were filed with the North Dakota Supreme Court between January 2007 and September 2009 alleging various instances of misconduct. Overboe moved for dismissal of the charges on the basis that the delay in the prosecution of the disciplinary actions violated his due process rights, and requested that he be placed on disability inactive status due to his incapacity to practice law because he suffers from post-traumatic stress disorder

(PTSD). The panel denied the motion and request, and the matter proceeded to a hearing on the petitions. Ultimately, the panel concluded Overboe committed the misconduct alleged in the four petitions and that several aggravating factors were present. The panel recommended that Overboe be disbarred.

Overboe appealed to the North Dakota Supreme Court, arguing that (1) he was denied due process because of the delay in the prosecution of the disciplinary actions; (2) there was not clear and convincing evidence he engaged in the alleged misconduct; and (3) the panel erred in denying his request to be transferred to disability inactive status, and therefore disbarment was not warranted. In re Overboe (Overboe II), 844 N.W.2d 851, 855–63 (N.D.2014).

The North Dakota Supreme Court affirmed all but one of the panel's findings and conclusions and ordered that Overboe be disbarred. Id. at 865. The court concluded that the delay in the commencement of the attorney disciplinary proceedings did not violate Overboe's due process rights, id. at 857, that Overboe failed to present sufficient evidence to support his application to be transferred to disability inactive status, id. at 864–65, and that there was clear and convincing evidence both that Overboe committed the alleged misconduct in violation of the rules of professional conduct and to support the aggravating factors.2 Id. at 865.

Specifically, the court concluded there was clear and convincing evidence that Overboe had unwelcome sexual contact with multiple clients, including groping and exposing himself to them, and had offered to reduce his legal fees in exchange for sexual favors. Id. at 857–58. The evidence presented established that Overboe entered an Alford plea and was convicted of one count of misdemeanor disorderly conduct for sexual conduct that occurred in February 2006 involving a client. Id. at 857. Overboe also pleaded guilty to two counts of disorderly conduct for sexual conduct that occurred in October 2006 involving another client. Id. at 858. Evidence was also presented regarding unwelcome sexual incidents involving four additional clients, which occurred on various dates between 1995 and 1999. Id. Overboe's actions violated the rules regarding conflicts of interest and criminal acts by an attorney, and the rule prohibiting sexual relations with a client. Id. at 859.

The court also concluded there was clear and convincing evidence that Overboe prepared a durable power of attorney for D.G., who was then 92 years of age. Id. The power of attorney was signed by D.G. and named Overboe's wife, Debra, as D.G.'s attorney-in-fact. Id. Debra and Overboe then went to a bank, and Debra used the power of attorney to transfer $190,000 from D.G.'s financial accounts into a certificate of deposit payable to D.G. or to Debra, or alternatively to D.G. and upon his death to Debra.3 Id. Additionally, Debra used the power of attorney and acted as attorney-in-fact to convey to herself 640 acres of real estate owned by D.G. Id. Overboe drafted the quit claim deed used in the transaction. Id. Both the transfer of $190,000 from D.G.'s financial accounts and the conveyance of D.G.'s real estate were done without consideration and without D.G.'s knowledge or consent. Id. at 860. The court concluded Overboe's actions violated the rules regarding conflicts of interest and the rules prohibiting dishonesty, fraud, deceit, or misrepresentation.4 Id. at 861.

Finally, the court concluded there was clear and convincing evidence that Overboe practiced law in North Dakota during the time that his license was suspended. Id. at 863. Specifically, after his license was suspended in December 2006, Overboe served a garnishment summons, interrogatories, and garnishment disclosure form upon a corporation to garnish the employee's wages, and served upon the employee a notice of garnishment of wages. Id. at 861. Overboe's secretary prepared all of these documents. Id. at 862. Upon receiving notice of the garnishment action, the attorney for the corporation was unable to find a judgment to substantiate the issuance of the garnishment summons, and sent Overboe a letter requesting withdrawal and release of the garnishment summons.Id. Thereafter, Overboe complied with the request and withdrew the summons. Id. The court concluded Overboe's actions violated the rules regarding the unauthorized practice of law, requiring an attorney to properly supervise a non-lawyer assistant, and prohibiting dishonesty, fraud, deceit, or misrepresentation. Id. at 863.

In September 2014 the Director filed a petition for disciplinary action with this court seeking reciprocal discipline against Overboe pursuant to Rule 12(d), RLPR, based on his North Dakota disbarment. We ordered the parties to show cause why reciprocal discipline should not be imposed. Overboe did not respond to our order, nor did he appear at oral argument.

I.

When the Director learns that a lawyer licensed to practice in Minnesota has been publicly disciplined in another jurisdiction, the Director may investigate and, without further proceedings, file a petition for disciplinary action. Rule 12(d), RLPR. Thereafter, the Court may “impose the identical discipline unless it appears that discipline procedures in the other jurisdiction were unfair, or the imposition of the same discipline would be unjust or substantially different from discipline warranted in Minnesota.” Id. Consequently, we examine whether the discipline procedures in North Dakota were fair, and whether the imposition of disbarment would be unjust or substantially different from the discipline warranted in Minnesota for the same misconduct.

A.

The disciplinary proceedings in another jurisdiction are fair if they are “consistent with [the principles of] fundamental fairness and due process.” In re Wolff, 810 N.W.2d 312, 316 (Minn.2012) (alteration in original). To determine the fairness of the disciplinary proceedings in North Dakota, we review the underlying record to see if the attorney received notice of the proceedings and the allegations against him, and had the opportunity to respond to those allegations and offer evidence of mitigating circumstances. In re Schmidt, 586 N.W.2d 774, 775–76 (Minn.1998) ; In re Koss, 572 N.W.2d 276, 277 (Minn.1997). We have consistently held that when the attorney is given notice of the hearing and an opportunity to respond to the allegations, the proceedings are fair. Wolff, 810 N.W.2d at 316 ; Schmidt, 586 N.W.2d at 776. But if the attorney is not afforded a hearing with the opportunity to respond to the allegations against him, the proceedings are unfair. Koss, 572 N.W.2d at 277–78.

Overboe was given notice of, and an opportunity to respond to, the application for an interim suspension and the four petitions for discipline filed against him in North Dakota. A hearing panel was appointed on the four petitions, and Overboe participated in the proceedings by presenting evidence and making arguments on his own behalf. Overboe also took the opportunity to appeal the findings of the panel to the North Dakota Supreme Court.

There was a substantial delay between the filing of the North Dakota petitions for disciplinary action and the disciplinary hearing in Overboe's case. See Overboe II, 844 N.W.2d at 856. The North Dakota Supreme Court acknowledged that a delay of more than 6 years between the first petition for discipline and the hearing was troubling, but that such a delay did not destroy the fundamental fairness of the entire process. Id. Our law is consistent...

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    • 15 Mayo 2019
    ...against him, and had the opportunity to respond to those allegations and offer evidence of mitigating circumstances." In re Overboe , 867 N.W.2d 482, 486 (Minn. 2015). We have repeatedly held that, when "an attorney receives notice and an opportunity to respond to the charges, the proceedin......
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    ...against him, and had the opportunity to respond to those allegations and offer evidence of mitigating circumstances." In re Overboe , 867 N.W.2d 482, 486 (Minn. 2015). "We have consistently held that when the attorney is given notice of the hearing and an opportunity to respond to the alleg......
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