Maragos, Matter of, 9595

• Decision Date: 11 October 1979
• Docket Number: No. 9595,9595
• Citation: 285 N.W.2d 541
• Parties: In the Matter of the Disciplinary Action against Ted MARAGOS, a Member of the Bar of the State of North Dakota. DISCIPLINARY BOARD OF the SUPREME COURT, Petitioner, v. Ted MARAGOS, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 541

285 N.W.2d 541

In the Matter of the Disciplinary Action against Ted

MARAGOS, a Member of the Bar of the State of North

Dakota.

DISCIPLINARY BOARD OF the SUPREME COURT, Petitioner, v. Ted MARAGOS, Respondent.

Civ. No. 9595.

Supreme Court of North Dakota.

Oct. 11, 1979.

Gregory D. Morris, Bismarck, for petitioner.

Ted Maragos, Grand Forks, pro se.

SAND, Justice.

This is a disciplinary proceeding against Ted Maragos, a sole practitioner, who was admitted to practice on 19 July 1972, and has been a member of the Bar of the State of North Dakota since then. Four letters of informal complaint were filed with the disciplinary board of the Supreme Court between 12 August 1977 and 16 May 1978, each alleging professional grievances against Maragos. After initial investigations and inquiry proceedings it was determined that formal disciplinary proceedings were appropriate, and a three-member hearing panel was appointed. A hearing on the four complaints was held on 27 November 1978, at which Maragos appeared pro se.

The hearing panel filed its findings of fact, conclusions of law, and recommendations with the Supreme Court on 24 January 1979, and served a copy upon Maragos. Our summary of the panel's relevant findings of fact will be helpful in understanding the issues.

On 11 July 1977, Maragos accepted a $275 retainer fee from Mrs. George Hunt to supervise Mr. George Hunt during a period of provisional release to be obtained for Mr. Hunt from the North Dakota State Penitentiary. Maragos prepared and presented a motion for provisional release to the county court with increased jurisdiction for Stutsman County. The motion was denied.

After Maragos failed to make repayment, Mrs. Hunt filed a complaint with the disciplinary board on 12 August 1977. The $275 retainer was not returned until October of 1978, approximately two months after Mrs. Hunt had made a written demand to the respondent. Maragos stated he did not return the funds earlier because he did not have the money to do so.

On 5 January 1977 Mrs. Irene Geisler retained Maragos to institute a dram shop action on her behalf. She gave Maragos a $250 retainer and an additional $27 to serve and file the papers in the dram shop matter. After a limited amount of investigation on the part of Maragos, he never prepared or filed any pleadings, documents or papers, nor did he obtain service on any individual with regard to the matter. Maragos did not believe the dram shop case had any merit but he did not inform Mrs. Geisler that he would not proceed with the case. Instead, on 14 October 1977, he wrote a letter to Mrs. Geisler informing her that the matter would either be settled or be "prepared for trial no later than 20 January 1978."

Maragos returned the $250 retainer and the $27 service and filing fees, with interest, in October of 1978. He indicated the money was not refunded sooner because he did not have the funds with which to do so.

On or about 3 December 1976, through his former father-in-law, Mr. Harry Berg, Maragos was retained to represent Mr. Gilbert Bourgois in an action by the Jennings Lumber Company for a debt allegedly owed by Mr. Bourgois, and a related cross-claim based upon an allegation of improper garnishment by the Jennings Lumber Company. Mr. Bourgois had formerly been represented in the action by Mr. Robert Lundberg, a Bismarck attorney, who interposed a pleading in the case, but withdrew as counsel for Mr. Bourgois because of conflict-of-interest reasons. Maragos received a retainer of $300 on 3 December 1976, and an additional $500 on 13 December 1976.

The garnishment against Mr. Bourgois was dissolved after a hearing, and on 30 September 1977 a trial was held in the matter of Jennings Lumber Co. v. Gilbert Bourgois. Maragos testified before the hearing panel that the defense for Mr. Bourgois was premised on an accord and satisfaction which Mr. Bourgois failed to produce for him prior to the trial, as well as at trial. The answer, filed by Mr. Lundberg for and on behalf of Mr. Bourgois, admitted liability on the debt to Jennings Lumber Co., did not assert any affirmative defense in the nature of an accord and satisfaction, but did contain a cross-claim seeking exemplary damages for the garnishment. No amended answer was prepared by Maragos prior to the hearing, and no evidence was offered in support of the cross-claim. The ultimate result was a judgment for the amount of the debt in favor of Jennings Lumber Co. Immediately after the trial, Mr. Bourgois paid Maragos an additional $200.

Mr. Bourgois claimed that Maragos led him to believe that Maragos would pursue the matter, even if it required an appeal to the Supreme Court, but no appeal was taken by him, nor did he inform Mr. Bourgois of the outcome of the trial. There was no further communication between Maragos and Mr. Bourgois until Bourgois received a check dated November 1978 from Maragos in the amount of $220 payable to "Gilbert Bourgois and Harry Berg." According to Maragos the check was issued in that manner in order to permit a collection on an alleged indebtedness running from Mr Bourgois to Mr. Berg. Maragos stated the check represented a return of the retainer of $200 and $20 interest.

The $300 retainer was for handling the garnishment. The $500 retainer, according to Maragos, was to represent Mr. Bourgois on the main action on the debt. According to Mr. Bourgois, it was also for the purpose of pursuing a malicious prosecution action against the Jennings Lumber Co. The $200 retainer paid by Mr. Bourgois to Maragos was to pursue the case to completion, even if an appeal were required.

On 16 November 1977, Mrs. Patti Pfaff retained the services of Maragos for the purpose of obtaining an increase in support payments for her children through the North Dakota courts. A cash retainer of $50 was paid to Maragos on that date. The testimony of Mrs. Pfaff indicated that no further communications were received from Maragos until he returned her retainer, with $5 interest, a year later. Maragos, however, indicated there were additional contacts with Mrs. Pfaff and with her attorney in Nebraska, where Mrs. Pfaff's husband was obtaining a divorce from her by stipulated default. Maragos maintained that he had asked Mrs. Pfaff for a copy of the Nebraska decree, but she did not recall the request. No further action was taken by Maragos on behalf of Mrs. Pfaff.

Based upon the above findings of fact, the three-member hearing panel concluded that the conduct of the respondent violated § 27-13-05 of the North Dakota Century Code, ¹ Canon 9, DR 9-102(B)(4) of the Code of Professional Responsibility, ² Canon 1, DR 1-102(A)(1), (3), (4) and (6) of the Code of Professional Responsibility, ³ Canon 6, DR 6-101(A)(2), and (3) of the Code of Professional Responsibility, ⁴ and Canon 7, DR 7-101(A)(1) and (2) of the Code of Professional Responsibility. ⁵

The hearing panel then recommended that Maragos' certificate of admission to the North Dakota Bar be suspended for at least one year and that he pay the costs of the disciplinary proceeding.

Pursuant to Rule 10(1) of the North Dakota Rules of Disciplinary Procedure, Maragos filed exceptions, both generally and specifically, to the conclusions and recommendations of the panel with regard to the Code of Professional Responsibility violations. Further, Maragos took exception to the conclusion regarding § 27-13-05, NDCC, arguing that the statute was not intended to apply in matters of this nature, and to the recommendation that he pay the costs of the disciplinary proceedings, arguing that § 27-14-10, ⁶ NDCC, mandates expenses be paid out of the State Bar fund.

Finally, Maragos excepted to the nature of the panel's conclusions and recommendations in that he was unable to defend himself properly without knowledge of the specific alleged disciplinary violations which corresponded to each complaint brought against him. This was not followed up in his brief or argument. We deem it as abandoned.

On 27 April 1979, Maragos filed a brief with this Court accepting without dispute the findings of fact of the hearing panel as summarized above. Maragos also conceded in his brief that the conclusions of the panel enumerating disciplinary violations based upon misuse of his clients' funds ⁷ "were not totally without merit and that all statements he made alleging the same are . . . withdrawn."

The authority to promulgate rules and regulations for the admission to practice, conduct, discipline, and disbarment of attorneys at law is based upon Section 87 ⁸ of the present North Dakota Constitution and § 27-14-01, NDCC. This Court, unless the legislature otherwise provides by law, is vested with the duty of maintaining the integrity of the legal profession by imposing disciplinary measures, including disbarment or suspension of lawyers who indulge in conduct which will bring the court or the legal profession into disrepute. In re Peterson, 178 N.W.2d 738 (N.D.1970).

The initial determination we must make concerns the scope or standard of review used by this Court in attorney disciplinary proceedings. The three-member disciplinary hearing panel may either dismiss the complaint, issue a private reprimand, or recommend public reprimand, suspension, or disbarment, in which case it shall submit to this Court its findings, recommendations, and the entire record of its proceedings. Rule 5(C)(3), NDRDP.

The scope of our review in a disciplinary action against a judge in which exceptions were filed was established in Matter of Cieminski, 270 N.W.2d 321 (N.D.1978). There, the Judicial Qualifications Committee, like the three-member hearing panel in attorney disciplinary proceedings, was required to make the investigation, conduct the hearing, and make its findings and recommendations to this Court. We held that because the duty, authority, burden, and responsibility of determining and making the actual judgment and appropriate penalties rested with the...