Lovell, Matter of, 9717

• Decision Date: 21 April 1980
• Docket Number: No. 9717,9717
• Citation: 292 N.W.2d 76
• Parties: In the Matter of the Application for Disciplinary Action against Orrin B. LOVELL, a member of the Bar of the State of North Dakota. DISCIPLINARY BOARD OF the SUPREME COURT, Petitioner, v. Orrin B. LOVELL, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 76

292 N.W.2d 76

21 A.L.R.4th 61

In the Matter of the Application for Disciplinary Action

against Orrin B. LOVELL, a member of the Bar of

the State of North Dakota.

DISCIPLINARY BOARD OF the SUPREME COURT, Petitioner, v. Orrin B. LOVELL, Respondent.

Civ. No. 9717.

Supreme Court of North Dakota.

April 21, 1980.

Gregory Morris, Staff Counsel, Disciplinary Board, Bismarck, for petitioner; argued by Mr. Morris.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for respondent; argued by Ward M. Kirby, Dickinson.

ERICKSTAD, Chief Justice.

This is a disciplinary proceeding brought against Orrin B. Lovell, a sole practitioner engaged in the practice of law in Beach, North Dakota. A letter of informal complaint was filed with the Disciplinary Board of the Supreme Court on October 6, 1978, wherein professional grievances were alleged against Lovell. An investigation was conducted by the Inquiry Committee East of the State Bar Association of North Dakota pursuant to Rule 8 of the North Dakota Rules of Disciplinary Procedure. The committee recommended to the Disciplinary Board that Lovell be issued a private reprimand, but in lieu thereof the Disciplinary Board determined that formal disciplinary proceedings should be undertaken. A three-member panel was appointed and a formal hearing was held on October 9, 1979, at which Lovell was represented by counsel. Based upon the files, records, and evidence presented at that hearing, the panel recommended to the Supreme Court that Lovell be publicly reprimanded for his conduct and violations of the Code of Professional Responsibility, and that he be required to pay for the expense of the formal disciplinary proceedings.

Our scope and standard of review in disciplinary proceedings against attorneys is de novo on the record. Matter of Maragos, 285 N.W.2d 541 (N.D.1979). Therefore, a chronological summary of the facts in the instant case is necessary and will be helpful in understanding the basis for the complaint which gave rise to these proceedings.

Lovell has been engaged in the practice of law in North Dakota since 1950, practicing primarily in the small town of Beach, North Dakota. The basis for the complaint to the Disciplinary Board was Lovell's failure to act expeditiously in handling two ancillary probates in North Dakota in the estates of Archie Bernatz and Bertha Bernatz. Lovell had handled various legal matters for the Bernatz family over a period of years.

The problems all began on September 28, 1974, when Archie Bernatz passed away while living in California and left a will which named his sister Bertha as personal representative of his estate. Lovell was asked to handle the ancillary probate of Archie's estate in North Dakota, which consisted entirely of three tracts (quarter sections) of land.

At the time of Archie's death, Bertha was residing in the home of Earl and Evelyn Jennings in California. Evelyn Jennings was a cousin of the Bernatzes. Bertha was in her nineties and suffering from poor health. The record indicates that the real property in the estate of Archie Bernatz was never transferred to Bertha because, according to Lovell, she was adamant in her desire not to sell the land. Virtually no action was taken to close the estate until after Bertha passed away on April 16, 1975. Lovell's attorney conceded at the oral argument before this court that the estate of Archie Bernatz could have, and probably should have, been closed and the necessary taxes paid prior to Bertha's death, but argued that this failure in itself was not a sufficient basis for attorney discipline.

Bertha died testate on April 16, 1975, naming Evelyn Jennings, Marjorie Cammack, and Marjorie Effron as beneficiaries under her will. These three women had also been named as beneficiaries under the will of Archie Bernatz had Bertha not survived his death.

On June 10, 1975, the beneficiaries named in Bertha's will traveled to Beach, North Dakota, to meet with Lovell and discuss the disposition of the two estates. What took place at that meeting is unclear as there is virtually no written documentation of what transpired at that meeting. It should be noted that the entire record in this case is practically devoid of any written correspondence or documentation of conversations which transpired between Lovell and the complainants. Neither Lovell nor the complainants maintained records which are of any assistance to this court in attempting to determine what was said and done in the handling of these two estates. Virtually all communication between the parties was verbal. Nevertheless, we are certain that a meeting did indeed take place at Lovell's office in June of 1975. Present at that meeting were the three previously named beneficiaries as well as Earl Jennings and Ernest Cammack. It was determined at that meeting that Lovell would continue as the attorney handling the estates of both Archie Bernatz and Bertha Bernatz. Evelyn Jennings and Earl Jennings were subsequently appointed personal representatives of Archie's and Bertha's estates, respectively.

As previously stated, there were three tracts of land in the estate of Archie Bernatz which were owned by Archie Bernatz at the time of his death. According to the affidavit of Earl Jennings, the original complainant, it was determined at the June 1975 meeting that two tracts of land were to be sold immediately and that Lovell was to handle the sale. However, Lovell contends that such an agreement had not been made, but, instead, that he recommended the sale of the two tracts of land be conducted after January 1, 1976, as the land had already been seeded for the 1975 crop season. Lovell informed those at the meeting that he would advertise the land for sale and obtain bids on the property. The third tract of land was under lease through 1978 and it was determined that this tract would be sold upon termination of the lease.

In January of 1976, Lovell delivered the abstracts relating to the two tracts of land to be sold to the Abstract and Title Company of Beach, North Dakota, for continuation. Suffice it to say that the abstract company had a history of being slow in completing its work. Lovell was apparently aware of the abstract company's slow service.

Notice of the sale of the two tracts of land was published during two successive weeks in April of 1976, and the bids were closed on April 20. The terms of the sale made no provisions for any earnest money or for a downpayment. The bids were for a cash purchase price payable within 90 days after acceptance and upon delivery of the abstracts showing merchantable title. According to an affidavit of Earl Jennings of August 15, 1979, a letter was sent on April 21, 1976, to Evelyn Jennings from a William G. Heth, an attorney from Dickinson, North Dakota, informing her of the amount of the highest bids and requesting that he be notified of an acceptance or rejection of the bids.

Earl Jennings said that this letter from Heth was the first indication that another attorney was involved in the handling of the estates. Lovell, however, contends that Evelyn Jennings was well aware of Heth's involvement in the handling of the estates.

Lovell testified at the hearing before the Disciplinary Board panel that Evelyn Jennings had been suffering from phlebitis and was very irritable prior to July 22, 1976, when the abstracts were finally returned to Lovell from the abstract company in Beach. He said that she was quite upset about the abstract company's delay in returning the abstracts which, according to Lovell, was the primary reason for the delay in closing the sales. In explaining Heth's involvement, Lovell said that Evelyn called him (Lovell) about once every two weeks concerning the delay, and indicated that she wanted to sue the abstract company. Lovell testified that he did not want to file suit against the local abstract company, so he suggested that the files be transferred to another attorney; namely, William G. Heth in Dickinson, with whom Lovell had previously dealt on other matters. According to Lovell, it was at Evelyn Jennings' request that the files were sent to Heth, and this was done sometime around June of 1976.

Heth's involvement with the two estates is unclear from the record. From the record in our court, neither Heth nor Lovell have any records which indicate when the files were transferred, for what reason(s) they were transferred, whether or not Heth was to be substituted as attorney-of-record for Lovell, what work Heth was to perform on the files, or when the files were returned to Lovell. The problem is further complicated by the fact that there was virtually no written correspondence between Heth, Lovell, and Evelyn Jennings other than two letters from Heth to Lovell which indicate that Heth was unsure of how to proceed in probating the estates, and seemed to desire Lovell's advice on how to proceed. What is clear is that there was little progress made in closing the estates while the files were in Heth's hands; partially, perhaps, because Lovell did not respond to Heth's inquiries.

The record shows that the abstracts were finally returned to Lovell on July 22, 1976. The files were thereafter sent back from Heth to Lovell sometime in late September or early October of 1976. The exact date is again unclear due to a lack of documentation.

On November 5, 1976 Lovell wrote to Evelyn Jennings enclosing a report of the land sales and deeds. He requested her to sign the deeds and the report of sales and return them to him. In that letter, Lovell also stated that he was preparing a final estate tax return to be filed with the Tax Commissioner within two weeks which would expedite the closing of both the estates of Archie and Bertha Bernatz.

The purchase price for the two tracts of land was received on December 9, 1976, and an order authorizing and confirming the sales was entered on December 13, 1976. Lovell forwarded two checks to Jennings for the full purchase price...