In the Matter of The Application For Disciplinary Action v. Stensland

• Decision Date: 21 June 2011
• Docket Number: No. 20100304.,20100304.
• Citation: 799 N.W.2d 341,2011 ND 110
• Parties: In the Matter of the Application for DISCIPLINARY ACTION AGAINST Monty J. STENSLAND, A Member of the Bar of the State of North Dakota.Disciplinary Board of the Supreme Court of the State of North Dakota, Petitionerv.Monty J. Stensland, Respondent.
• Court: North Dakota Supreme Court

799 N.W.2d 341

2011 ND 110

In the Matter of the Application for DISCIPLINARY ACTION AGAINST Monty J. STENSLAND, 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.Monty J. Stensland, Respondent.

No. 20100304.

Supreme Court of North Dakota.

June 21, 2011.

Brent J. Edison, Assistant Disciplinary Counsel, Bismarck, N.D., for petitioner.Monty J. Stensland, self-represented, Grand Forks, N.D.

SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] Monty J. Stensland objects to the report of a hearing panel of the Disciplinary Board recommending suspension of his license to practice law, payment of restitution, and payment of costs of the disciplinary proceeding. We conclude there is clear and convincing evidence Stensland violated N.D.R. Prof. Conduct 1.4, 1.5, 1.15, 1.16, and 8.4, and N.D.R. Lawyer Discipl. 1.2(A). We order that Stensland be suspended from the practice of law for one year, pay restitution in the amount of $2,700, and pay costs and expenses of the disciplinary proceeding in the amount of $8,653.95.

I

[¶ 2] In April 2008 Stensland was hired to represent Jeffrey Schmeets on pending criminal matters in Sheridan County and Wells County. Stensland picked up Schmeets's file and a $9,200 retainer refund check made payable to Schmeets from another attorney who had reviewed the cases and declined representation. Stensland admits that he scanned Schmeets's signature from another document onto the back of the check and deposited it into his trust account, but claims Schmeets authorized him to do so. Schmeets denied authorizing Stensland to scan the signature onto the check. Stensland did not provide a written fee agreement or retainer agreement when the check was deposited.

[¶ 3] On May 12, 2008, Stensland represented Schmeets at the jury trial in Sheridan County. Schmeets was acquitted on one charge but convicted on others. See State v. Schmeets, 2009 ND 163, 772 N.W.2d 623. On June 3, 2008, Stensland appeared before this Court and argued Schmeets's appeal from an order revoking Schmeets's probation from an earlier conviction. The appeal had been filed and briefed by another attorney. See State v. Schmeets, 2008 ND 119, 756 N.W.2d 344.

[¶ 4] On June 23, 2008, a written plea agreement and waiver of appearance in the Wells County matter was filed with the district court. The document was dated June 20, 2008, and bore signatures of Schmeets, Stensland, and the state's attorney. After a judgment of conviction was entered upon the plea agreement, Schmeets petitioned for post-conviction relief, alleging he had not signed the plea agreement. The State and Schmeets ultimately stipulated to entry of an amended criminal judgment lessening the penalties imposed upon Schmeets.

[¶ 5] Schmeets claims he never signed the original plea agreement and was incarcerated at the state penitentiary at that time. Stensland denies affixing Schmeets's signature and testified he did not recall or have an explanation for how the document got signed, but remembered discussions about having a Schmeets family member take the document to Schmeets for his signature. A handwriting expert testified, “There are good indications that the questioned signature was not authored by Jeffrey Schmeets or was not a genuine signature as authored by Jeffrey Schmeets.”

[¶ 6] On August 18, 2008, Stensland represented Schmeets at the sentencing hearing on the Sheridan County convictions and at a corresponding civil forfeiture hearing. At the conclusion of the hearings Stensland and Schmeets had a short conference, and Schmeets requested a refund of unearned fees from the $9,200 Stensland had received. In response, Stensland composed a handwritten document stating:

Retainer Agreement for Appeal of Convictions in Sheridan County

Previously deposited $9,200.00 in Trust Account, $5,000.00 was retainer agreement on Wells County and Sheridan County matters. $1,500.00 was used on Supreme Court Appeal. Balance to be applied toward new appeal on Sheridan County Conviction.

8/18/08 /s/ Monty J. Stensland

Although Stensland did not formally withdraw as Schmeets's counsel, he did not speak to Schmeets again or perfect an appeal from the Sheridan County conviction. Schmeets filed his own notice of appeal and a different attorney represented him on the appeal. See Schmeets, 2009 ND 163, 772 N.W.2d 623.

[¶ 7] Disciplinary counsel petitioned for discipline, alleging Stensland had violated various disciplinary rules in his representation of Schmeets. The matter was referred to a hearing panel, which found that Stensland violated N.D.R. Lawyer Discipl. 1.2(A)(3) and N.D.R. Prof. Conduct 8.4(c) by affixing Schmeets's signature on a plea agreement by deceptive means; violated N.D.R. Prof. Conduct 1.15(a), (c), and (d) by mishandling and failing to refund unearned portions of an advance payment; violated N.D.R. Prof. Conduct 1.4(a) and (b) by failing to properly communicate with Schmeets; violated N.D.R. Prof. Conduct 1.5(a) and (b) by failing to properly communicate the basis, rate, or amount of his fees and by charging an unreasonable fee; and violated N.D.R. Prof. Conduct 1.16(e) by failing to take appropriate steps upon withdrawal from representation, including refunding unearned advance fee payments. The hearing panel concluded there was not clear and convincing evidence that Stensland had affixed Schmeets's signature on the check without authorization.

[¶ 8] The hearing panel recommended that Stensland be suspended from the practice of law for one year, that he pay $2,700 in restitution to Schmeets, and that he pay costs and expenses of the disciplinary proceeding in the amount of $8,653.95. Stensland has objected to the hearing panel's report, arguing: (1) the hearing panel erred in finding that he either affixed or had someone else affix Schmeets's signature on the plea agreement; (2) the hearing panel erred in finding he did not earn the balance of the $9,200 retainer; and (3) assistant disciplinary counsel violated an agreement to sequester witnesses at the disciplinary hearing.

[¶ 9] The hearing panel had jurisdiction under N.D.R. Lawyer Discipl. 3.1(E). Stensland filed objections to the hearing panel's report after the time for objections had expired under N.D.R. Lawyer Discipl. 3.1(F), but subsequently submitted an affidavit alleging good cause for the untimely filing. This Court agreed to accept the untimely filing and consider Stensland's objections. This Court has jurisdiction under N.D. Const. art. VI, § 3, N.D.C.C. § 27–14–01, and N.D.R. Lawyer Discipl. 3.1(F).

II

[¶ 10] We recently summarized our standard of review in disciplinary proceedings:

This Court reviews disciplinary proceedings de novo on the record. Disciplinary counsel must prove each alleged violation by clear and convincing evidence, which means the trier of fact must be reasonably satisfied with the facts the evidence tends to prove and thus be led to a firm belief or conviction. The evidence need not be undisputed to be clear and convincing. We give due weight to the findings, conclusions, and recommendations of the Disciplinary Board, but we do not act as a mere rubber stamp for the Board. To decide which sanction, if any, is appropriate, each disciplinary matter must be considered on its own facts.

Because the hearing panel has the opportunity to hear witnesses and observe their demeanor, we accord special deference to the panel's findings on matters of conflicting evidence. Similarly, we defer to the hearing panel's findings on the credibility of a witness, because the hearing panel has the opportunity to observe the witness's demeanor and hear the witness testify.

In re Askew, 2010 ND 7, ¶¶ 8–9, 776 N.W.2d 816 (citations omitted).

III

[¶ 11] Stensland first challenges the hearing panel's finding that he affixed, or caused someone else to affix, Schmeets's signature on the written plea agreement. Stensland denied affixing the signature on the written plea and testified he does not remember how the signature got on the document, but speculated he must have sent the document to one of Schmeets's family members to secure Schmeets's signature while he was incarcerated at the state penitentiary. Schmeets denied that the signature on the written plea agreement was his, and a handwriting expert confirmed that the signature did not match known samples of Schmeets's signature. The hearing panel addressed this credibility issue in detail and found that Stensland's explanation was not credible and that he had either affixed the signature or caused someone else to affix it without Schmeets's authorization. The hearing panel noted Stensland could produce no copies of correspondence indicating the written plea agreement had been forwarded to Schmeets or his family members, and the document was received by the clerk of court from Stensland.

[¶ 12] On matters of conflicting evidence, we will defer to the hearing panel's findings on the credibility of witnesses because the hearing panel had the opportunity to observe the witnesses' demeanor and hear the witnesses testify. Askew, 2010 ND 7, ¶ 9, 776 N.W.2d 816. Giving the hearing panel's findings deference, there is clear and convincing evidence in this record to support the finding that Stensland's testimony was not credible and that he was responsible for affixing Schmeets's signature to the written plea agreement without Schmeets's authorization. Schmeets testified the signature was not his, the handwriting expert testified the signature did not appear to be genuine, there is no evidence of written or mailed correspondence forwarding the written plea agreement from Stensland to Schmeets or his family members, logs kept at the prison demonstrated the absence of any contact by Stensland with Schmeets during his incarceration, and an e-mail from the clerk of court indicated that the clerk had received the signed plea agreement from Stensland. Stensland's conduct violated...