A v. Disciplinary Bd. of the Supreme Court of N. Dakota

Citation2015 ND 220
Decision Date25 August 2015
Docket NumberNo. 20150086,20150086
CourtUnited States State Supreme Court of North Dakota
PartiesIn the Matter of the Petition of a Respondent Attorney Sandra K. Kuntz, Petitioner v. Disciplinary Board of the Supreme Court of North Dakota, Respondent

2015 ND 220

In the Matter of the Petition of a
Respondent Attorney Sandra K. Kuntz, Petitioner
v.
Disciplinary Board of the Supreme
Court of North Dakota, Respondent

No. 20150086

SUPREME COURT STATE OF NORTH DAKOTA

August 25, 2015


Application for Disciplinary Action.

COMPLAINT DISMISSED.

Per Curiam.

Ronald H. McLean (argued) and Peter W. Zuger (on brief), P.O. Box 6017, Fargo, N.D. 58108-6017, for petitioner.

Brent J. Edison, P.O. Box 1389, Fargo, N.D. 58107-1389, for respondent.

Kara J. Johnson (on brief), Disciplinary Counsel, P.O. Box 2297, Bismarck, N.D. 58502-2297, for respondent.

Per Curiam.

[¶1] Sandra Kuntz appeals from a Disciplinary Board decision affirming an Inquiry Committee decision to admonish her for violating N.D.R. Prof. Conduct 1.7 and 1.9 relating to conflicts of interest and duties to a former client. We conclude there is not clear and convincing evidence Kuntz violated the applicable rules of professional conduct, and we dismiss the complaint.

I

[¶2] Shaun Bergquist filed a disciplinary complaint against Kuntz, alleging she had a conflict of interest when she agreed in July 2012 to represent him in a proceeding to modify his parenting schedule against his child's mother, Sara Wyrick, after Kuntz had consulted with his child's maternal grandfather, Paul Berger, in May 2011 about appealing the initial primary residential responsibility determination and received a $100 retainer to take the appeal.

[¶3] Kuntz's response to Bergquist's complaint stated she met with him for an initial consultation on June 18, 2012, to review his file for assessment of the merits and the procedure to modify his parenting schedule with Wyrick, also known as Hickey and formerly known as Berger. Kuntz asserted her normal practice for all initial consultations was to run a conflict check and advise the individual that she was meeting in a limited capacity to provide basic information for an informed decision on whether to proceed with retaining a lawyer. According to Kuntz, she clearly advised individuals during initial consultations that she was not their lawyer as a result of the consultation and she did not then agree to be their lawyer. Kuntz stated she was subsequently retained by Bergquist in July 2012 to represent him in his motion to modify his parenting schedule against Wyrick, and she prepared the case for a hearing.

[¶4] Shortly before a scheduled April 2013 hearing on Bergquist's motion, the district court, on motion by Wyrick, disqualified Kuntz from representing him in that proceeding because she had met with Berger in May 2011 about representation after the initial primary residential responsibility determination. The court explained: (1) "the purpose of the consultation [with Berger] was to determine whether Ms. Kuntz would represent the Defendant in an effort to change the custodial decision reached in the course of the first trial;" (2) "Berger paid a $100 consultation fee;" (3) "discussions included a retainer fee that Ms. Kuntz would require;" (4) there were no subsequent contacts and "Defendant apparently decided she could not afford the fee or for other reasons did not respond;" and (5) Kuntz did not recall the consultation with Berger, but agreed that she routinely met with potential clients for consultations and charged an initial fee of $100.

[¶5] A bill from Kuntz's law firm identified a charge of $100 for an "initial consult . . . re: Paul Berger . . . for services rendered through 05/12/2011." Kuntz's handwritten notes from her consultation with Berger included a notation referring to "Berger Sarah/Paul" and "5-12-11 oc w/Paul Berger (Grandfather)." Kuntz's notes also stated "Shawn Bergquist--Been in hospital since May 8th--No idea when expected to get out of hospital"; "Mar-May [child] w/natural father"; and "Natural mom Sara--settling in Baker MT[,] Getting remarried[, and] Has job etc." This record also includes a handwritten note that Disciplinary Counsel asserts is from a telephone conference leading up to Kuntz's initial consultation with Berger. The record does not establish who transcribed the handwritten note, which references Paul Berger, Sara Berger, and Shaun Bergquist, and provides:

re: custody
1 child 19 months [child's name]
-Custody order in Dix
-Child support order in Dix
-Went to court, father got custody of child. Mother got visitation. Wants to fire current Attorney because he/she wont do anything further & mother wants to go back to court and fight for child.
-Does not feel child is in safe environment father lives w/[paternal grandmother] who is an alcoholic & on ventilator & leaves child alone with her.
$100 ic/conflict
TCT: Paul
Scheduled May 9th @ 11:00 a.m.
BA (fill in)

[¶6] Kuntz's response to Bergquist's complaint explained her procedure for determining whether her representation of Bergquist constituted a conflict of interest and her consultation with Berger:

Upon leaving [my former] Law Firm, I duplicated the case management database portion that logs all names for conflict checks including initial consults and transferred the data to an excel spreadsheet that was searchable to continue to check for potential conflicts. . . . As I advised the Court, I ran a conflict check at the initiation of Mr. Bergquist's consultation. That conflict check verified that I have never met with Shaun Bergquist or Sara Wyrick aka Hickey fka Berger. I did not search for conflicts among the names of collateral witnesses that subsequently became a part of the file beginning in November/December 2012 when Sara finally made an appearance and her father Paul Berger provided an affidavit. Through the time of this matter was brought before the Court April 8, 2013, I did not have an independent recollection of the consult with Paul Berger.
Subsequent to my dismissal [as counsel for Bergquist in the proceeding to modify the parenting schedule], I have obtained the notes from that initial consult with Paul Berger. The initial consult occurred May 12, 2011, and I have
...

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