Hello everyone and welcome to this Ethics Alert blog which will discuss recent North Dakota Supreme Court opinion which imposed a 6 month suspension on a lawyer who failed to notify clients of a previous suspension although he executed an affidavit attesting that he done so. The North Dakota disciplinary case is In re Loren McCray, 2012 ND 249, No. 20120363 (12/3/12). The disciplinary opinion is online at: http://www.ndcourts.gov/court/opinions/20120363.htm.
According to the opinion, the lawyer was suspended from practicing law in North Dakota in October 2008 and, as a condition of the suspension, he was required to send notice of the suspension to all of his clients and execute an affidavit attesting to same and file it with the court. After the suspension was imposed, the lawyer filed an affidavit attesting that he had served 106 notices to clients; however, he had testified at the hearing which resulted in the 2008 suspension, that his law firm “had like 9,450 (clients) or something along those lines” at that time.
In correspondence dated April 30, 2009, the North Dakota disciplinary counsel asked him to explain the apparent discrepancy between the number of clients notified (106) and the number that he claimed in his sworn testimony (“like 9,450”). In a response to disciplinary counsel dated May 20, 2009, the lawyer stated that on May 15, 2008, he “sold Bradley Ross Law and its clients to Facemyer and Associates in Utah.” He also stated that “on or before September 17, 2008, all remaining Bradley Ross Law clients and there (sic) files had been transferred to Facemyer and Associates.”
Not surprisingly (or maybe quite surprisingly), after receiving this response, the North Dakota disciplinary counsel requested that the lawyer provide more information showing that he had complied with notice requirements of the suspension order. In a Stipulation, the attorney admitted that he failed to provide the requested information until September 10, 2012, that he violated North Dakota Bar Rule 8.1(b), which provides that “a lawyer shall not knowingly fail to respond to a lawful demand for information from a disciplinary authority”, and that his failure to provide clients with notice, by certified mail, of the sale of his law firm violated the notice provisions of North Dakota Bar Rule 1.17(c); however, “the actual or potential injury resulting from the violation was substantially alleviated by (his) efforts to provide notice by other means.” The disciplinary hearing panel recommended that the Stipulation be accepted and that the lawyer be suspended for 6 months. The North Dakota Supreme Court opinion adopted the Stipulation and recommendation and suspended the lawyer for 6 months effective December 3, 2012, the date of the order.
Bottom line: This lawyer “planted the seeds” of his own suspension, so to speak, and he may also deserve the “dumbest lawyer” award for 2012. The facts of the case itself are also a bit puzzling: why did it take so long for the case to be concluded (over 3 1/2 years) and why in the world would the lawyer state that he “had like 9,450 (clients) or something along those lines” at the hearing on his previous Bar disciplinary case? Was he just trying to brag? We may never know…
I wish everyone a very happy and safe holiday and a healthy and prosperous 2013…and be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Clearwater, Florida 33759
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