Walton, Matter of, No. 9216

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: VOGEL; ERICKSTAD
• Citation: 251 N.W.2d 762
• Parties: In the Matter of the Application for Disciplinary Action against Ray H. WALTON, a Member of the Bar of the State of North Dakota. GRIEVANCE COMMISSION, Petitioner, v. Ray H. WALTON, Respondent. Civ.
• Decision Date: 11 March 1977
• Docket Number: No. 9216

Page 762

251 N.W.2d 762 In the Matter of the Application for Disciplinary Action
against Ray H. WALTON, a Member of the Bar of the
State of North Dakota.
GRIEVANCE COMMISSION, Petitioner,
v.
Ray H. WALTON, Respondent. Civ. No. 9216. Supreme Court of North Dakota. March 11, 1977. Syllabus by the Court

1. Defalcation of client's funds is one of the least excusable acts for which a lawyer can be disciplined and calls for disciplinary action.

2. Even though danger of repetition of misconduct by lawyer is slight or nonexistent, acts detrimental to public and to Bar, which cause damage to the public image of the Bar, justify suspension from practice.

Gregory D. Morris and Frederick E. Saefke, Bismarck, for petitioner.

Page 763

Frank J. Magill, Fargo, and William C. Kelsch, Mandan, for respondent.

VOGEL, Justice.

This is a disciplinary proceeding against an attorney.

Respondent was admitted to practice in this State in 1954, and practiced in Williston as an individual practitioner or in a partnership or as State's Attorney of Williams County until his appointment as Commerce Counsel of the North Dakota Public Service Commission on June 1, 1972. He has been a competent attorney and had a good record until he defalcated money from the estate of Birger Krogen.

While acting as both executor and administrator (a dual capacity fraught with temptation), he took from estate funds in separate bank accounts in the name of the estate approximately $8,300 in excess of the fees subsequently allowed to him by the probate court. After a delay of several years in the closing of the probate, the beneficiaries of the will filed a complaint with the Grievance Commission of the Supreme Court asserting delay in closing the estate. Upon investigation by a grievance committee of the State Bar Association, it was discovered that a defalcation had taken place. Upon being confronted with the finding, the respondent readily admitted the defalcation and refunded all of the money but $2,100. The referee found that the $2,100 shortage was due to the fact that, because of an accounting error, the respondent thought he had made restitution in full. Once the amount of the shortage was established, he refunded the balance of $2,100 also, with interest.

Since the facts are substantially undisputed, and the misconduct is admitted, the dispute between the parties relates to the disposition to be made of the case and as to matters in mitigation.

As mitigation, respondent points to his prompt restitution, his previous good record, his present employment by a public agency and not...