Montgomery, Matter of
Decision Date | 21 July 1997 |
Docket Number | No. 960391,960391 |
Citation | 566 N.W.2d 426 |
Parties | In the Matter of the Application for Reinstatement to the Bar of North Dakota of Bruce R. MONTGOMERY. Bruce R. MONTGOMERY, Petitioner, v. DISCIPLINARY BOARD OF THE SUPREME COURT OF THE STATE OF NORTH DAKOTA, Respondent. Civil |
Court | North Dakota Supreme Court |
Carl O. Flagstad, Jr., Minot, for Petitioner.
Paul W. Jacobson, Assistant Disciplinary Counsel, Bismarck, for Respondent.
¶1 Bruce R. Montgomery has filed a petition for reinstatement to the bar. We conclude the hearing panel and Disciplinary Board failed to adequately consider Montgomery's pre-disbarment conduct when they recommended reinstatement, and we remand to the Board for further proceedings.
¶2 Montgomery was disbarred on February 10, 1988, for misconduct occurring while he was a partner in the Minot law firm Teevens, Johnson & Montgomery, P.C. 1 See In re Montgomery, 418 N.W.2d 789 (N.D.1988). Montgomery consented to disbarment, stipulating he and William Teevens had improperly commingled funds from settlement proceeds payable to client Cynthia Bossert, and borrowed funds from Bossert which the firm was unable to repay. Montgomery also stipulated:
¶3 Later in 1988, disciplinary counsel filed a disciplinary complaint against Montgomery based upon four additional claims of misconduct. The Board dismissed the complaint without prejudice on July 15, 1992, stating:
Further disciplinary proceedings were initiated against Montgomery in 1994, and again the Board dismissed without prejudice because Montgomery had already been disbarred.
¶4 In February 1995, Montgomery filed a petition seeking reinstatement. The Board referred the matter to a hearing panel under Rule 4.5(F), N.D.R.L.D., and a hearing was held on September 29, 1995. The hearing panel issued findings and recommended Montgomery be reinstated. The Board adopted the findings and recommendation of the hearing panel and submitted its report to this Court. We have jurisdiction under N.D. Const. Art. VI, § 3, and Rule 4.5, N.D.R.L.D.
¶5 We review disciplinary proceedings against attorneys de novo on the record under a clear and convincing standard of proof. In re LaQua, 548 N.W.2d 372, 373 (N.D.1996). We accord due weight to the findings, conclusions, and recommendations of the hearing panel as adopted by the Board. In re Nassif, 547 N.W.2d 541, 542 (N.D.1996). Each disciplinary case must be judged on its own facts and merits. LaQua at 373.
¶6 A disbarred attorney petitioning for reinstatement bears a heavy burden of proof:
Application of Christianson, 215 N.W.2d 920, 923 (N.D.1974); see also Rule 4.5(F), N.D.R.L.D.
¶7 Disciplinary counsel asserts the hearing panel and the Board erred in failing to give adequate consideration to the serious nature of Montgomery's pre-disbarment misconduct. We agree.
¶8 Rule 4.5(F), N.D.R.L.D., lists numerous factors to be considered when determining whether to reinstate a disbarred or suspended attorney. The Rule says, in part:
¶9 At the hearing on the petition for reinstatement, Montgomery objected to introduction of evidence regarding pre-disbarment conduct. Montgomery asserted the sole issue on reinstatement was rehabilitation, and matters occurring prior to disbarment were irrelevant. The following colloquy occurred:
After further discussion on the issue with counsel, the hearing panel chair concluded:
¶10 The hearing panel and the Board have misconstrued Rule 4.5(F), N.D.R.L.D., and have ignored our precedent regarding the proper scope of inquiry on a petition for reinstatement of a disbarred attorney. The language "Notwithstanding the conduct for which the petitioner was disciplined" in Rule 4.5(F) does not mean pre-disbarment conduct is irrelevant to the issue of reinstatement. Rather, it requires the petitioner to prove by clear and convincing evidence he currently has the requisite honesty and integrity to practice law, in spite of the misconduct committed in the past. The rule envisions a balancing of the evidence of the petitioner's current good character with the seriousness of the prior misconduct.
¶11 Our caselaw supports this interpretation. For example, in Application of Christianson, 202 N.W.2d 756, 759 (N.D.1972), the Court quoted the relevant standard:
The Court concluded allegations of additional misconduct occurring before the attorney's suspension should be considered in determining whether to reinstate:
¶12 The need to consider all relevant...
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