Runge v. Disciplinary Bd. of the N.D. Supreme Court (In re Runge)

• Decision Date: 12 February 2015
• Docket Number: No. 20140135.,20140135.
• Parties: In the Matter of the Petition for Leave to Appeal of Gregory Ian RUNGE Gregory Ian Runge, Petitioner v. Disciplinary Board of the North Dakota Supreme Court, Respondent.
• Court: North Dakota Supreme Court

858 N.W.2d 901

In the Matter of the Petition for Leave to Appeal of Gregory Ian RUNGE

Gregory Ian Runge, Petitioner

v.Disciplinary Board of the North Dakota Supreme Court, Respondent.

No. 20140135.

Supreme Court of North Dakota.

Feb. 12, 2015.

Thomas A. Dickson, Bismarck, N.D., for petitioner.

Kara J. Johnson, Disciplinary Counsel, Bismarck, N.D., for respondent.

COMPLAINT DISMISSED.

PER CURIAM.

[¶ 1] Attorney Gregory Ian Runge appeals from a Disciplinary Board decision affirming the Inquiry Committee West determination to admonish him for violating N.D.R. Prof. Conduct 1.14 relating to representation of a client with limited capacity. The record does not clearly and convincingly establish Runge violated N.D.R. Prof. Conduct 1.14, and we dismiss the complaint.

I

[¶ 2] On September 17, 2009, Norman Franz executed a “durable unlimited power of attorney” authorizing his daughter, Rose Pfeifer, to act as his attorney-in-fact for decisions about his finances and property and explicitly precluding anyone from making medical or health care decisions for him. The power of attorney appointed another daughter, Susan Ternes, as successor attorney-in-fact if Pfeifer refused to act, and both daughters accepted their appointments. The printed power of attorney form notified Franz:

“By signing this document, you are not giving up any powers or rights to control your finances and property yourself. In addition to your own powers and rights, you are giving another person, your attorney-in-fact, broad powers to handle your finances and property, which may include powers to encumber, sell or otherwise dispose of any real or personal property without advance notice to you or approval by you.”

The form also advised, “You have the right to revoke the designation of the attorney-in-fact and the right to revoke this entire document at any time and in any manner.”

[¶ 3] In September 2012, shortly after his 79th birthday, Franz suffered a heart attack, and he began living at the Missouri Slope Lutheran Care Center on October 30, 2012. On October 31, 2012, medical personnel at Missouri Slope executed an “emergency care statement” form for Franz, which was included in his records. The form had checked boxes indicating Franz was “incapable of making medical decisions” and his “code status” was “Level 2 ... No defibrillation

, no chest compression, no artificial respiration... transfer to the hospital.” The emergency care statement was signed by Pfeifer on a line designating her as a “responsible party.”

[¶ 4] Franz lived at Missouri Slope until April 2013, when Runge prepared a document to revoke the September 17, 2009 power of attorney. According to Runge, he received a telephone call from Franz's friend, Ida Giesinger, on March 30, 2013, stating Franz wanted to leave the nursing home and asking Runge for legal advice. Runge said he asked Giesinger several questions to determine the nature of the matter, including why Franz was in the nursing home and whether a guardianship or conservatorship for him existed. Giesinger told Runge about Franz's heart attack and that there was not a guardianship or conservatorship, but Franz had executed a power of attorney naming his daughter as his attorney-in-fact. Runge asserted he told Giesinger that because no guardianship or conservatorship existed, all Franz needed to do to leave the nursing home was revoke the power of attorney. Runge said Giesinger asked him about his fee for preparing a revocation of a power of attorney but he was not then retained as an attorney for Franz. Runge stated that after his telephone conversation with Giesinger, he conducted an online record inquiry and discovered there was no guardianship or conservatorship for Franz, but that Pfeifer had filed a January 2013 petition on behalf of Franz, seeking a disorderly conduct restraining order against Giesinger.

[¶ 5] According to Runge, he received another telephone call from Giesinger on April 2, 2013, asking him to prepare a revocation of the power of attorney for Franz and to bring the document to the nursing home for Franz to sign. Runge stated he talked to Franz on the telephone to discuss his desire to leave the nursing home and Franz informed Runge his daughter was forcing him to stay in the nursing home and he wanted to leave. Runge drafted a revocation of the power of attorney and went to the nursing home, where he met Franz and Giesinger in Franz's room to discuss the ramifications of the revocation of the power of attorney. Runge said he told Franz he was free to leave the nursing home after he signed the revocation of the power of attorney and Franz indicated he could attend to his own medical needs. Runge stated he read the revocation of the power of attorney to Franz. Franz signed it after receiving an explanation about its effect and indicating he understood the document. Runge claimed a nursing home social worker came into Franz's room while Runge was there and was informed that Runge was Franz's attorney and Franz had signed a revocation of the power of attorney. Runge stated he left the nursing home and later that day received a telephone call from the social worker, stating Franz's daughter was refusing to allow him to leave the nursing home. Runge said he informed the social worker that Franz's daughter had no say in the matter after Franz revoked the power of attorney and Franz left the nursing home later that afternoon to live with Giesinger. Runge stated concerns about Franz's health may have existed when Franz first arrived at the nursing home, but did not exist when Franz revoked the power of attorney. Runge also said the decision to leave the nursing home was made solely by Franz.

[¶ 6] According to Franz's medical progress notes at Missouri Slope, Franz left the nursing home on April 3, 2013, after a nursing home representative, Sharon Klein, told Runge on the telephone that Franz had been determined to be incapacitated and the revocation of the power of attorney likely would not be upheld in court. The progress notes stated Franz was discharged from the nursing home to his friend's home against medical advice and Franz signed an April 3, 2013 document releasing Missouri Slope from liability for the discharge. The progress notes stated a welfare check conducted later that day revealed Franz was “OK” and “did not want to come back to the nursing home.” Franz's medical records at Missouri Slope also included a reference to an “advanced directive” stating, “Code Status: Level 2–No defibrillation

, no chest compression, no artificial respiration. TRANSFER TO HOSPITAL” and “DPOA for Health Care.”

[¶ 7] Pfeifer filed a disciplinary complaint against Runge, alleging he acted improperly in preparing the revocation of the power of attorney for Franz without speaking with his family or the nursing home to ascertain his health condition. Pfeifer's complaint was assigned to the Inquiry Committee West for investigation, and Runge responded, denying the allegations in the complaint. Runge was notified the Inquiry Committee West would consider Pfeifer's complaint at its September 2013 meeting in Bismarck, and Runge and his lawyer appeared at that meeting. In October 2013, the Inquiry Committee West issued a written decision determining Runge violated N.D.R. Prof. Conduct 1.14 and admonishing him:

“The Committee found that Attorney Gregory I. Runge violated N.D.R. Prof. Conduct 1.14, regarding client with limited capacity, by preparing a Revocation of Power of Attorney at the request of a third person and delivering the same to a nursing home, where it was executed by a resident/client whom Mr. Runge had never met, and failing to communicate with the client's appointed representative, a family member who had been appointed in a durable power of attorney. The Committee determined that discipline in the form of an admonition is appropriate. Therefore, Attorney Gregory I. Runge is hereby issued an ADMONITION by the Inquiry Committee West.”

[¶ 8] Runge requested review by the Disciplinary Board, which affirmed the decision at its January 2014 meeting. Runge then petitioned this Court to appeal the Disciplinary Board's decision, and we determined Runge had made a sufficient showing to justify granting him leave to appeal the Disciplinary Board's decision.See Toth v. Disciplinary Bd., 1997 ND 75, ¶ 10, 562 N.W.2d 744.

II

[¶ 9] This Court reviews the substantive evidence and merits of an informal disciplinary disposition de novo on the record. Toth, 1997 ND 75, ¶¶ 10–11, 562 N.W.2d 744. A violation of the rules of professional conduct must be established by clear and convincing evidence. Id. at ¶ 11.

[¶ 10] Runge argues no clear and convincing evidence establishes he violated N.D.R. Prof. Conduct 1.14 and the Disciplinary Board's decision is based on an erroneous interpretation of North Dakota law for a lawyer representing a client with limited capacity. Runge asserts he acted appropriately by independently meeting with Franz to determine whether he was suffering from a disability and reasonably determining Franz was not incapacitated or of limited capacity when the power of attorney was revoked. Runge claims he should not be disciplined for zealously advocating on behalf of his client. Runge also argues the informal procedures of the inquiry process are structurally deficient and denied him due process because there is no record or minutes of September 2013 proceedings before the Inquiry Committee West and the investigator's report was not provided to him for review.

[¶ 11] Disciplinary Counsel responds that Runge violated N.D.R. Prof. Conduct 1.14 in representing a client with limited capacity by failing to contact Franz's appointed representative, Pfeifer, before preparing a revocation of the power of attorney. Disciplinary Counsel argues Runge had an obligation to understand the full extent of the powers conferred upon Franz's appointed representative, including that Pfeifer had “sole” authority to make medical decisions under the ...