IN THE SUPREME COURT
STATE OF NORTH DAKOTA
IN THE MATTER OF THE APPLICATION
FOR DISCIPLINARY ACTION AGAINST Supreme Court No. 20070107
SAMUEL S. JOHNSON, A MEMBER OF
THE BAR OF THE STATE OF NORTH DAKOTA
BRIEF OF SAMUEL S. JOHNSON
Dated: June 8th, 2007 Ronald H. McLean (#03260)
Joseph A. Wetch, Jr. (#05788)
SERKLAND LAW FIRM
10 Roberts Street
P.O. Box 6017
Fargo, ND 58108-6017
Attorneys for Samuel S. Johnson
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
STATEMENT OF THE ISSUES 1
STATEMENT OF THE CASE 2
A. Nature of the Case 2
B. Course of Proceedings 2
C. Disposition by Hearing Panel 3
STATEMENT OF FACTS 4
A. Introduction to Johnson 4
B. First Contact with Roger Gibbon 4
C. Contacts with Roger Gibbon After the Divorce 5
D. Lisa Gibbon Divorce 5
E. Settlement Meeting 7
F. Stop Payment Check 8
G. Events of February 3, 2003 9
H. February 5, 2003 9
I. Roger Gibbon's First Complaint 9
J. Roger Gibbon's Actions in Public Places 10
K. Monthly Billings 12
L. Johnson Decides to Respond 12
LAW AND ARGUMENT 14
A. No Clear and Convincing Evidence Exists that Mr. Johnson Violated Rule 4.4 of the North Dakota Rules of Professional Conduct 15
i. Mr. Johnson Was Not "Representing a Client" When He Wrote the October 13, 2004 Letter to Mr. Gibbon 15
ii. Mr. Johnson Had a Substantial Purpose for Writing the October 13, 2004 Letter 16
B. No Clear and Convincing Proof Exists that Mr. Johnson Violated Rule 4.1 of the North Dakota Rules of Professional Conduct 20
C. Diversion is the Most Appropriate Remedy 27
D. If Discipline is to be Imposed, a Reprimand is an Appropriate Sanction and In No Case is a Suspension Greater than Sixty (60) Days Warranted 31
TABLE OF AUTHORITIES
|Disciplinary Action Against Garaas, 2002 N.D. 181, 652 N.W.2d 919 (N.D. 2002)||15|
|Disciplinary Action against Howe, 2001 N.D. 7, 626 N.W.2d 6501|
|Disciplinary Board v. Hoffman, 2003 N.D. 161, 670 N.W. 2d 500 (N.D. 2003)|
|Disciplinary Board v. Mertz, 2006 N.D. 85 ¶ 4, 712 N.W.2d 849|
|Gibbon v. Gibbon, 1997 ND 210, 569 N.W.2d 707|
|In Re Chinquist, 2006 ND 107, ¶ 7, 714 N.W.2d 469|
|In Re Dvorak, 1998 N.D. 134, 580 N.W.2d 586|
|Petition of Edison, 2006 N.D. 250, ¶ 9, 724 N.W.2d 579|
|Rule 1.3, N.D. Stds. Imposing Lawyer Sanctions|
|Rule 3.0, N.D. Stds. Imposing Lawyer Sanctions|
|Rule 4.1, N.D.R. Prof. Conduct|
|Rule 4.4, N.D.R.Prof. Conduct|
|Rule 6.6(b)(1), N.D.R. Lawyer Discipl.|
|Rule 6.6(b)(2), N.D.R. Lawyer Discipl.|
|Rule 6.6(b)(3), N.D.R. Lawyer Discipl.|
|Rule 6.6(b), N.D.R. Lawyer Discipl.|
|Rule 6.6(d), N.D.R. Lawyer Discipl.|
|Rule 6.6, N.D.R. Lawyer Discipl.|
|Rule 6.6, N.D.R. Lawyer. Discipl.|
|Standard 5.13, N.D. Stds. Imposing Lawyer Sanctions|
|Standard 5.14, N.D. Stds. Imposing Lawyer Sanctions|
|Standard 9.32, N.D. Stds. Imposing Lawyer Sanctions|
STATEMENT OF THE ISSUES
1) Is there clear and convincing evidence that Mr. Johnson violated Rules 4.1 and 4.4 of the North Dakota Rules of Professional Conduct?
STATEMENT OF THE CASE
A. Nature of the Case
This is a disciplinary proceeding brought against Samuel S. Johnson for alleged violations of the North Dakota Rules of Professional Conduct. The alleged violations arise out of a letter sent by Mr. Johnson on October 13, 2004 to Roger Gibbon. (App. at 298). Mr. Gibbon and his father had been subpoenaed to appear at a deposition regarding his brother's divorce. Depositions did not take place, instead settlement negotiations occurred. Mr. Johnson therefore stopped payment on a check that he had sent to Mr. Gibbon and his father representing the witness and mileage fees. No deposition was ever taken. Mr. Gibbon subsequently began sending Mr. Johnson "invoices" for the witness and mileage fees for himself and his father.
Mr. Johnson wrote Mr. Gibbon on October 13, 2004 and advised him that sending bills, whether styled as "invoices" or not, was not permitted under the Federal Fair Debt Collections Act (FDCPA). Mr. Johnson also stated "Mr. Gibbon, you are entering an area within which you do not want to venture." (App. at 298).
B. Course of Proceedings
Mr. Gibbon filed a complaint with the disciplinary board (Mr. Gibbon's second complaint arising out of the deposition that never did occur). Subsequently, a Petition for Discipline (App. at 3) was served on Mr. Johnson. Mr. Johnson timely answered the Petition denying that he violated any rule of professional conduct. (App. at 6).
C. Disposition by Hearing Panel
Hearings were held before a Hearing Panel of the Disciplinary Board on February 6 and 7, 2007. (App. at 9). On April 18th, the Hearing Panel issued its findings and conclusions. Id. It concluded that Mr. Johnson had violated Rules 4.1 and 4.4, N.D.R. Prof. Conduct in that Mr. Johnson's letter falsely claimed that the FDCPA applied at a time when he knew it did not. (App. at 12-13). The Hearing Panel also concluded that Mr. Johnson's letter "threatened and attempted to intimidate Gibbon in an effort to avoid payment of witness and mileage fees that were due and owing." (App. at 13). The Hearing Panel issued combined findings of fact, conclusions and recommended discipline in this case and in Supreme Court No 20070108 (the Berg matter). (App. at 9). The Hearing Panel did not specify if the recommended discipline (a sixty day suspension) was based on this case or the Berg matter.
Mr. Johnson and Disciplinary Counsel filed timely objections to the report under Rule 3.1F(2), N.D.R.Lawyer Discipl. (App. at 19, 21). As this matter is now going to be reviewed on a de novo basis, Mr. Johnson urges the Court that there was no violation of the Rules of Professional Conduct. If the Court disagrees, Mr. Johnson respectfully urges that he be diverted into the Lawyer Assistance Program, a program he has already applied for on his own and has been accepted into. If the Court finds discipline is appropriate, Mr. Johnson submits that a sanction of a public reprimand is adequate, or if the Court determines a reprimand is not appropriate, that a sixty (60) day suspension (as recommended by the hearing panel) is a sufficient sanction.
STATEMENT OF FACTS
A. Introduction to Johnson
Mr. Johnson was born on July 26, 1963. (App. at 42(T. 73)) (For the Court's convenience, when referring to specific pages of the Hearing Panel transcript, citation has been made to the Appendix page, immediately followed by the specific hearing transcript page found on that specific Appendix page.) He grew up in Hankinson, North Dakota. (App. at 42(T. 73)). He secured both his undergraduate degree (1986) and his law degree (1989) from the University of North Dakota. (App. at 42(T. 74)). Mr. Johnson and his wife Denise live in Wahpeton where he has maintained a busy law practice since 1989. (App. at 42(T. 75)).
Mr. Johnson began his legal career with the Smith & Strege Law Firm in Wahpeton. (App. at 42(T. 75)). He practiced with that firm for five years. (App. at 42(T. 75)). In 1994, Mr. Johnson left that firm and started his own practice. Since 1994 he has been a sole practitioner. (App. at 42(T. 76)). He primarily practices criminal and family law. (App. at 42(T. 76)).
He does not do regular debt collection work. (App. at 42(T. 76)).
B. First Contact with Roger Gibbon
Mr. Johnson represented Nancy Gibbon, as a Plaintiff, in a divorce action against her husband Roger Gibbon from 1994 until 1997. (App. at 43(T. 79)). This divorce was highly contentious. It involved a large amount of assets. In fact, Mr. Gibbon had perhaps one of the largest cow/calf operations in the state. He also raised a number of crops. (App. at 43(T. 78)). He had other businesses, including a trucking, fencing, hog and dairy operation. (App. at 43(T. 78)). He also rented out bulls. (App. at 43(T. 78)).
Mr. Gibbon was represented by John Bullis and Tracey Lindberg in the divorce. (App. at 43(T. 79)). The case was tried and ultimately was appealed to this Court where it was affirmed. Gibbon v. Gibbon, 1997 ND 210, 569 N.W.2d 707. The decision was favorable to Nancy. (App. at 43(T. 79)). The action was very controversial. Issues ranged from motions for contempt to criminal complaints and judgments for physical assault by Roger to Nancy. (App. at 43(T. 80), 138). Denise Johnson described it as very stressful, causing Mr. Johnson to lose sleep. (App. at 69(T. 181)). Mark Giddings, a witness and public accountant, confirmed it was "very contentious." (App. at 36(T. 52)).
C. Contacts with Roger Gibbon After the Divorce
After the divorce Mr. Gibbon continued to farm and ranch in Milnor. On two occasions, at a movie theatre, Mr. Johnson and his wife were approached by Mr. Gibbon. Mr. Gibbon humiliated Mr. Johnson by both times stating "I can't believe they haven't taken your license away." (App. at 44(T. 83)). The impact on Mr. Johnson was fear. "This man is capable of doing anything." (App. at 44(T. 83)). Denise Johnson described the episodes as humiliating and intimidating (App. at 64(T. 181-182)).
D. Lisa Gibbon Divorce
Lisa Gibbon was married to Mr. Gibbon's younger brother Randy. Lisa approached Mr. Johnson about representing her in 2002. Mr. Johnson wanted no part of it because of how ugly and contentious the previous divorce with Roger Gibbon was. (App. at 37(T. 54)). Mr. Johnson had been harassed by Roger Gibbon in the past. He was agitated and anxious over the Gibbon matter. He did not want to be involved again. (App. at 44(T. 84)). Mr. Johnson told her to see Warren Stokes. (App. at 44(T. 84)).
The matter was tried in November 2002. After the trial, Mr. Johnson received a phone call from Mark Giddings. Mr. Giddings informed Mr. Johnson that during the trial various testimony had been given that was false. (App. at 45(T. 87)). Mr. Giddings had assisted Lisa as an expert witness. (App. at 45(T. 87)). Mr. Stokes, for whatever reason, was not interested in re-opening the matter. (App. at 45(T. 88)). Mr. Giddings persisted that Mr. Johnson needed to help. (App. at 37(T. 55)). Mr. Johnson finally relented. (App. at 46(T. 89)). He met with Giddings and Lisa. They determined Jamey Lien and Grace Prante should come to his office. Both of these people had employment positions with the Gibbons farm and would testify that untruthful evidence had been presented to the Court regarding the livestock and its division between the brothers. (App. at 66-67(T. 172-173)). Mr. Johnson obtained sworn statements from them on December 10 and 13, 2002, which confirmed that the livestock had been divided by the brothers so as to harm Lisa. (App. at 43(T. 80), 141, 172).
Jamey Lien described the procedure is his statement. (App. at 147(T. 6)).
I drew for Randy. Each cow was on a little strip of paper with their number and color, and we'd each take turns picking. I'd pick for Randy, and Roger would pick for Roger, and we just we kind of knew the cows and the good ones went to Roger's pile.
Thereafter, Mr. Johnson made a motion to Stay Entry of Judgment. (App. at 205). The hearing was set for February 5, 2003. (App. at 262). Mr. Johnson determined that he needed to take the depositions of Roger Gibbon and his family members that would assist him in offering this additional evidence. (App. at 45(T. 86)). Various deposition notices and subpoenas were sent out. (App. at 265, 267, 269, 272). Checks were sent to the witnesses along with the subpoenas.
E. Settlement Meeting
The depositions were to take place on January 2, 2003 at 1:00 p.m. at Mr. Johnson's office. (App. at 48(T. 100)). Mark Giddings was there to assist Johnson (App. at 49(T. 101)). Instead of the depositions taking place, Kenneth Gibbon, Roger Gibbon and Randy Gibbon came to Wahpeton and met with Roger's lawyer, John Bullis and Randy's lawyer, Bob Schultz. Bullis informed Mr. Johnson that they wanted to negotiate and no depositions would be taking place. (App. at 49(T. 101)). Mr. Johnson expected the Gibbon group to come in the early afternoon. Finally, they showed up at around 2:30 p.m. (App. at 49(T. 104)). It is Mr. Johnson's best memory that their father, Kenneth, showed up only for a few minutes and then left. (App. at 49(T. 103)). Mr. Giddings testified to the Hearing Panel that while Kenneth was there for a short time it was made clear he was not going to be deposed, as the purpose of the meeting was to try and settle the case and his sons were not going to allow him to testify. (App. at 38(T. 58)). Mr. Giddings further stated to a question by Mr. Hall, a member of the Hearing Panel; "The witness appeared only after agreeing that there were not going to be any depositions." (App. at 41(T. 70)). Mr. Gibbon's mother did not appear despite being subpoenaed. (App. at 49(T. 102)). No documents were turned over. (App. at 51(T. 109)). No representation was made to Mr. Johnson that documents were available for inspection. After lengthy negotiations the parties succeeded in what they thought was a settlement. (App. at 50(T. 106)). The court reporter had been asked to stay to make a record of a possible settlement. A record was made. (App. at 50(T. 106)). Mr. Johnson was satisfied that it was a good settlement and had substantially benefited Lisa Gibbons. (App. at 50(T. 106)). The settlement ultimately fell through. (App. at 50(T. 107)).
F. Stop Payment Check
Mr. Johnson determined to stop payment on the checks as the depositions did not take place. Though Johnson recognized he was the attorney, he asked CPA Giddings what he thought should be done with the checks. Giddings didn't think there was any need for the checks to be enforced as they had not appeared for depositions and did not bring documents. Giddings stated, "I don't think there was a deposition. I would stop payment on the check." (App. at 38(T. 60)). It was the Gibbons' who canceled the depositions (App. at 51(T. 110)). Instead, settlement negotiations had taken place. Mr. Johnson thought nothing would come of it and heard nothing about it from Schultz or Bullis until he received a disciplinary complaint several months later. (App. at 51(T. 110-111)). At the hearing Johnson describes his thinking: (App. at 51(T. 110))
We're talking about 60 bucks or something. I mean I had paid them. It wasn't like I it wasn't like I wasn't going to pay these people or demand that they come in. I had written the checks, I had sent them to them, they had been served on them. But we had talked about the fact that I mean they're the ones who canceled the depositions. They're the ones who called and said, "We're going to have a settlement negotiation. We don't want the depositions." John Bullis knew what was going on. He knew that, you know.
G. Events of February 3, 2003
On February 3, 2003, Roger Gibbon broke into the Lisa Gibbon residence. He was ultimately charged with criminal trespassing and was convicted. (App. at 275) Johnson said that this "scared [him] to death". (App. at 52(T. 114)). The Gibbon's were capable of breaking the law. (App. at 52(T. 114)). Johnson testified:
A. They will not stop at anything to get what they want. I mean this scared me to death. These people are entering into locked communities, breaking things, taking things. They had an agreement. I don't know what's next. They're breaking into homes.
A. So I was scared to death.
H. February 5, 2003
A hearing did take place on February 5, 2003. Jamey Lien was called as the first witness, who testified as to wrongdoing by the Gibbon brothers in hiding various assets. (App. at 52(T. 114), 67(T. 175)) After his testimony the Gibbons entered into a resolution. Neither the Gibbons' or their lawyers protested the cancelled checks. Mr. Johnson thought Randy Gibbon and Roger Gibbon were now out of his life. (App. at 52(T. 116)).
I. Roger Gibbon's First Complaint
Roger Gibbon filed a complaint regarding the stop payment orders on May 20, 2003. (App. at 278). Johnson responded. (App. at 279). The Inquiry Committee Northeast issued an admonition. (App. at 10, 299). The committee did not order that Mr. Johnson pay the witness and mileage fees. (App. at 299). On that basis, Mr. Johnson did not make payment. Mr. Gibbon did not appeal the decision. Mr. Johnson thought that his punishment was the admonition. Mr. Johnson stated at the hearing:
I mean when I go the admonition I mean if the admonition would have said: Admonition. Please send a check to Mr. Gibbon for 68 bucks or a hundred or whatever, I'd have paid it. But I thought that's what I got, I got an admonition out of it, and I thought that was the punishment that I was supposed to get. I mean I never put together you got an admonition, now you have to immediately pay him. Maybe I'm you know, just wasn't bright, but that's what I was thinking. I mean my punishment was an admonition and that's what I got.
(App. at 55-56(T. 128-129)). Mr. Gibbon then began sending monthly billings to Mr. Johnson for his and his father's witness fee. (App. at 284, 285, 286, 287).
J. Roger Gibbon's Actions in Public Places
On several occasions Mr. Johnson was again publicly humiliated by Roger Gibbons at a movie theater and twice at basketball games. (App. at 53-54(T. 119-121)). As to the movie theatre, Mr. Johnson described it as follows (App. at 53(T. 119-120)):
A. My wife and I again went to the movie theater, and there was Roger again with the woman that was with him here today. And we were, again, standing in the concession line. He was in front of us this time. And we went to the concession line. We were back probably at least two or three groups behind him. And again he turned around and started making these same comments, you know, "I'm going to get your license. I can't believe you're practicing yet." You know, "I don't know how long you're going to be in Wahpeton. You costed me a lot of money." You know, things like that. And Denise was there. She heard him.
And basically and then what happened was he got his stuff and left; we got our stuff and left. We ended up in the same movie. And we are sitting in the movie several, you know, chairs away, rows away from him, and he continues to do the same thing in the movie theater, saying the same kind of stuff. And there's people around in the movie theater. There's people in the concession stand as well.
Q. Did it finally end as the movie finally started?
A. When the lights went down it finally started, and then when it left when the movie got over, Denise and I left immediately. I mean we ran out of there. Because I told her, "We're getting the hell out of here." That's exactly what I said to her.
Denise Johnson described these actions as demeaning and degrading (App. at 69(T. 184)). The result of this was that Mr. Johnson was fearful of Roger Gibbon, such that he would not even drive through Mr. Gibbon's hometown of Milnor, North Dakota. Even on the date of the disciplinary hearing in this matter, Mr. Gibbon entered the hotel lobby area, pointed his finger at Mr. Johnson and laughed at him. Mr. Johnson correctly described Mr. Gibbon's behavior: "he doesn't care, he won't stop." (App. at 44(T. 83), 54(T. 123)).
Jamey Lien testified both he and Mr. Johnson were fearful of Roger Gibbon (App. at 67(T. 175-176)). The Hearing Panel sustained Disciplinary Counsel's objections on relevance. (App. at 67(T. 176)). The offer of proof disclosed Lien as so fearful at times of Roger Gibbon that he has a rifle in his tractor when near Roger Gibbon's property. (App. at 68(T. 177)). Mr. Johnson described himself as scared to death. (App. at 54(T. 124)). Denise testified that Roger Gibbon is scary and she believed he would run her off the road if he ever saw her. (App. at 70(T. 186)).
K. Monthly Billings
Mr. Gibbon sent bills in the form of "invoices" for the witness and mileage fees for himself and his father, Kenneth to Mr. Johnson on numerous occasions. These billings by Roger Gibbon only brought back memories of all the agitation this litigation had caused Mr. Johnson. Mr. Johnson just wanted it to stop. (App. at 55(T. 126)). He described that on any day that he received a bill the matter would be on his mind for the rest of the day. (App. at 55(T. 126)).
L. Johnson Decides to Respond
Mr. Johnson considered the alternatives that he had in October 2004. He could contact law enforcement or he could seek a restraining order. (App. at 55(T. 127)). He decided that both of these did not make sense because neither law enforcement nor a Judge would comprehend the impact these bills were having on him. (App. at 55(T. 127)).
Mr. Johnson determined he could use the protection of the Fair Debt Collection Practices Act (FDCPA). (App. at 55(T. 128)). Mr. Johnson had taken debtor/creditor law from Professor John Foster in law school. He recalled that a person could write a letter to stop harassment from a creditor. He determined that this is what he would do. (App. at 55(T. 128)). Mr. Johnson testified:
One thing I remembered was that I could write a letter, you know, to stop the harassment. If somebody was attempting to collect a debt, you could write them a letter and it would stop the harassment. And that's exactly what I did and exactly what I meant to do.
He did do certain research to confirm that he did have the protection of the FDCPA: "Yes I did." (App. at 55(T. 129)).
First Mr. Johnson determined Roger Gibbon was a debt collector, as defined under the Act. (App. at 56(T. 129-130)). He knew that Mr. Gibbon was collecting a debt for his father and for himself. (App. at 56(T. 130)). He knew that over the years, Roger Gibbon had collected debts for other people and other businesses. (App. at 56(T. 130)). Mr. Johnson was being billed by "invoices." (App. at 56(T. 131)). Mr. Gibbon described himself as owning a number of businesses and sending many bills to many people. (App. at 33(T. 38)). Mr. Johnson therefore determined that Mr. Gibbon was acting as a debt collector as defined under the FDCPA. Johnson reviewed Fair Debt Collection by the National Consumer Law Center to confirm his opinions. (App. at 288).
Next, Mr. Johnson then had to determine whether it was a personal debt. (App. at 56(T. 132)). He believed that as it came out in the divorce it was covered by the FDCPA as the debt covered personal and family matters. Johnson believed the FDCPA applied on that basis. (App. at 56(T. 132)).
Mr. Johnson next determined that he was a consumer under the FDCPA as it basically covers anyone who is a natural person, which he obviously was. (App. at 57(T. 134)).
By October 2004, Mr. Johnson was exasperated with Roger Gibbon and thought that if the letters did not stop he would have to pursue a lawsuit. (App. at 58(T. 138)). Mr. Johnson wrote a letter to Roger Gibbon on October 13, 2004 requesting that the billings and contact stop and cited the FDCPA as authority. (App. at 298). While Johnson did write "Mr. Gibbon you are entering an area within which you do not want to venture", Johnson only envisioned a lawful remedy should further steps be necessary. (App. at 58(T. 137)). Denise Johnson testified that her husband would never do anything unlawful or violent against Mr. Gibbon or anyone else. (App. at 70(T. 185-186)). Mr. Johnson recognizes now with counseling and mentoring that he should have simply ignored the billings sent by Gibbon and not let them agitate him. (App. at 58(T. 139), 59(T. 142)).
Interestingly, the October 13, 2004 letter had no impact on Mr. Gibbon at all. After getting the letter he continued billing. He described his reaction to the letter as, "It didn't make a lot of sense." (App. at 31(T. 31)). He never directed any of his attorneys to have any contact with Mr. Johnson about this letter or the witness fee issue. (App. at 32(T. 35)). Subsequently, however, Mr. Gibbon filed another complaint with the Disciplinary Board, which eventually resulted in a Petition for Discipline being served on Mr. Johnson. (App. at 3).
A hearing was held on February 6 and 7, 2007. The hearing panel found Mr. Johnson violated Rules 4.1 and 4.4, N.D.R.Prof. Conduct by "knowingly" making a false statement of fact or law to Mr. Gibbon, and that Mr. Johnson's letter had no substantial purpose other than to embarrass or burden Mr. Gibbon. (App. at 12-13).
LAW AND ARGUMENT
No violation of Rule 4.4, N.D.R. Prof. Conduct occurred because Mr. Johnson was not "representing a client" when he wrote Mr. Gibbon on October 13, 2004 (App. at 298). Even if Mr. Johnson was representing a client, Mr. Johnson had a substantial purpose in writing the October 13, 2004 letter. It was not to embarrass or burden Mr. Gibbon. It was for the simple purpose to stop the unwarranted billings, letters, and contact from Mr. Gibbon. No violation of Rule 4.1, N.D.R.Prof. Conduct occurred because Mr. Johnson did not make a statement to Roger Gibbon that he knew to be false. As such, no discipline is warranted.
No violation of Rule 4.1, N.D.R.Prof. Conduct occurred because Mr. Johnson did not make a statement to Roger Gibbon that he knew to be false. As such, no discipline is warranted.A. No Clear and Convincing Evidence Exists that Mr. Johnson Violated Rule 4.4 of the North Dakota Rules of Professional Conduct
The burden is on Disciplinary Counsel to prove each allegation of the Petition for Discipline by clear and convincing evidence. Disciplinary Action Against Garaas, 2002 N.D. 181, 652 N.W.2d 919. No clear and convincing evidence was presented which proves Mr. Johnson violated Rule 4.4 because Mr. Johnson was not "representing a client" when he wrote the October 13, 2004 letter.
This Court reviews disciplinary proceedings against attorneys de novo on the record. In Re Chinquist, 2006 ND 107, ¶ 7, 714 N.W.2d 469. The Court decides each case on its own facts, and although it gives due weight to the findings, conclusions, and recommendations of a hearing panel, it does not act as a rubber stamp. Id.
i. Mr. Johnson Was Not "Representing a Client" When He Wrote the October 13, 2004 Letter to Mr. Gibbon
The threshold question that must be asked when applying Rule 4.4, N.D.R.Prof. Conduct is whether the conduct of the lawyer arose in the context of representing a client. Rule 4.4 begins: "In representing a client . . . ". This is as it must be, since anything else could subject a lawyer to discipline in a situation where the rules were never meant to apply. Disciplinary Counsel will attempt to support application of the Rule here by arguing that Mr. Johnson's obligation to pay the witness fee arose from his issuance of the subpoena in the course of representing a client in a divorce proceeding. The October 13, 2004 letter was written some 20 months after Mr. Gibbon was to appear for a deposition and some 19 months after a court hearing, which was Johnson's last involvement with the matter. (App. at 298). A lawyer's conduct cannot be retroactive to his representation of a client by almost two years. This is not what Rule 4.4 contemplates on its face. Moreover, it is not in the spirit of the rules. Were it any other way, any contact with a witness, even years later, could subject a lawyer to discipline.
In short, Mr. Johnson's representation ended some 19 months before he wrote the October 13, 2004 letter. Mr. Johnson was not representing a client when he wrote the October 13, 2004 letter. Accordingly, Rule 4.4, N.D.R.Prof. Conduct, does not apply.
ii. Mr. Johnson Had a Substantial Purpose for Writing the October 13, 2004 Letter
Rule 4.4, N.D.R.Prof. Conduct states that "[I]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass or burden a third person. . . ." Mr. Johnson's purpose was not to frighten Mr. Gibbon into not seeking payment or "threaten" him as the Hearing Panel found. (App. at 13). If anyone felt fear and was threatened by Mr. Gibbon's conduct, it was and is Mr. Johnson. (App. at 54(T. 123)). Mr. Gibbon even taunted Mr. Johnson at the disciplinary hearing while walking only steps behind disciplinary counsel on his way into the hearing room. (App. at 54(T. 123, 124)). Mr. Gibbon also never stopped his collection efforts, until he was compensated. (App. at 57(T. 134)). Public humiliation of Mr. Johnson by Mr. Gibbon was not an uncommon event. (App. at 54(T. 122)). Mr. Johnson is still afraid of Mr. Gibbon to this day and will not drive through Mr. Gibbon's hometown of Milnor anymore. (App. at 54(T. 122)). All of these events tell the true story: Mr. Gibbon was the one using embarrassing, threatening and burdening tactics, not Mr. Johnson. Mr. Johnson should not be disciplined for taking steps to stop harassing "invoices" simply because he has a law license.
Mr. Johnson's sole purpose was not to threaten Mr. Gibbon. Rather, it was to stop the letter; to stop the billings; to stop the contact, all of which Mr. Johnson believed were unwarranted. Mr. Johnson testified "I just wanted him to stop". (App. at 55(T. 126, 128)).
The present situation is like In Re Dvorak, 1998 N.D. 134, 580 N.W.2d 586. In Dvorak, the court held a letter written by Attorney Dvorak had a substantial purpose. The purpose of her letter was to preserve evidence. That case is similar to the present case as Johnson just wanted the unwarranted billings, letters and contact to stop.
Similarly, in Disciplinary Board v. Mertz, 2006 N.D. 85 ¶ 4, 712 N.W.2d 849, the this Court held that Attorney Mertz had a substantial purpose in writing a letter:
Monty Mertz subsequently sent Hanson a letter informing Hanson that Mertz was representing his daughter. The letter accused Hanson of lying under oath when he signed the vicious animal at large complaint and included a draft of a defamation complaint that Mertz said he planned to file against Hanson depending upon "how reasonable or unreasonable" Hanson chose to be. The draft of the defamation complaint alleged Hanson "intentionally and maliciously made false and defamatory statements, orally and in writing, about Meagan N. Mertz, stating falsely, among other things, that she committed the public offense of owning a 'vicious dog,' which is defamation per se." The defamation complaint accused Hanson of making defamatory statements to the news media, law enforcement, and the West Fargo Municipal Court. Mertz's letter stated, "If you wish to minimize the consequences to you for your dishonesty, then you will agree to the dismissal of the charge you signed."
The Court held that this language had the substantial purpose of attempting to compromise a criminal infraction. Id. at ¶ 17:
We agree with Mertz that those are all valid purposes for the letter. An attorney can encourage a third party not to lie and remind them they are required to testify truthfully. Likewise, an attorney can attempt to compromise an infraction under N.D.C.C. §§ 29-01-16 and 29-01-17.
Mr. Johnson's letter contained much less inflammatory language, yet also served the substantial purpose of attempting to persuade Mr. Gibbon to stop the billings, to stop the letters, and to stop the contact. This was held to be permissible in Mertz.
In Disciplinary Board v. Hoffman, 2003 N.D. 161, 670 N.W. 2d 500, the court determined that a violation of Rule 4.4 only occurs when an attorney's behavior has no substantial purpose other than to harass or injure another. Id. at ¶ 26, 670 N.W. 2d at 506. In Hoffman, the attorney approached the father of his fiancé's child regarding resolution of a visitation dispute. Knowing that the father, Remmick, was represented by counsel, Hoffman continued to press Remmick to sign a document resolving the custody dispute and threatening that Remmick would not get visitation that night if he did not sign. The Court determined that Hoffman not only threatened Remmick, Hoffman carried out his threat in that Remmick was denied visitation. Id.. Mr. Johnson testified that he would pursue only legal remedies against Mr. Gibbon if the billings did not stop. This is in contrast to the Hoffman case, which can properly be considered unethical and immoral behavior.
In Disciplinary Board v. Garaas, Rule 4.4 was considered in the case of one lawyer accusing opposing counsel of lying to the Court. Disciplinary Board v. Garaas, 2002 N.D. 181, 652 N.W. 2d 918. Again, a "third party," opposing counsel, was involved, not the actual litigants. In Garaas, there was a substantial purpose in questioning the credibility of the opposite sides case. Though the means used to test that credibility were offensive, no violation of Rule 4.4 occurred. The Court concluded that Gaaras' conduct in accusing opposing counsel of lying was reprehensible but viewing the conduct in light of the totality of the circumstances, it concluded there was no violation of Rule 4.4. Id. at ¶ 31-33, 652 N.W. 2d at 926. Like Dvorak, Mertz, and Garaas, no discipline is warranted in this case.
Finally, Mr. Johnson testified that had he understood that he was to pay Mr. Gibbon, he would have done so immediately. (App. at 55(T. 128), 56(T. 129)).
Q: Now, you know, these bills, you had gotten the admonition about canceling them that Mr. Jacobson when into. Why didn't you just pay it?
A: I mean when I got the admonition - I mean if the admonition would have said: Admonition. Please send a check to Mr. Gibbon for $68 or $100 or whatever, I would have paid it. But I thought that's what I got, I got an admonition out of it, and I thought that was the punishment that I was suppose to get. I mean I never put together you've got an admonition, now you have to immediately pay him. Maybe I'm you know, just wasn't bright, but that's what I was thinking. I mean my punishment was an admonition and that's what I got.
Clearly, this was not an attempt to embarrass or burden Mr. Gibbon. The only one who was burdened or embarrassed and lost in this matter was Mr. Johnson, not Mr. Gibbon. The evidence does not support the imposition of discipline under Rule 4.4 of the North Dakota Rules of Professional Conduct.
B. No Clear and Convincing Proof Exists that Mr. Johnson Violated Rule 4.1 of the North Dakota Rules of Professional Conduct
Rule 4.1, N.D.R. Prof. Conduct states: "In the course of representing a client a lawyer shall not make a statement to a third person of fact or law that the lawyer knows to be false." Johnson did not "know" that the FDCPA did or does not apply at the time he wrote Mr. Gibbon. The FDCPA is anything but a model of clarity. John Foster testified that "It's one of the most horrendous pieces of legislation that has ever been created. . .". (App. at 75(T. 206)). Mr. Foster's testimony was undisputed. Mr. Foster testified that his law students wrongly apply the FDCPA on a regular basis. (App. at 74(T. 204)). Bankers wrongly apply the FDCPA. (App. at 74(T. 204)). Attorneys sometimes also get it wrong. (App. at 75(T. 205)).
Mr. Johnson's rational as to why the FDCPA applied in this case was characterized by Mr. Foster as a "pretty good argument." (App. at 76(T. 210)). Mr. Foster also stated that a "good-faith argument can be made" that the FDCPA applied. (App. at 78(T. 218, 220)). Mr. Foster also testified:
Q: You say lawyers regularly claim more protection under the Fair Debt Collection Practices Act than there probably is?
A: Yeah. This thing somewhat opened my eyes because, I like I told you, I always have to give the debtors that I collect from that's what I do for a living, I collect debts. I give the debtors the benefit of the doubt. If there is any chance that the debt is going to be a consumer debt rather than a business debt, I start putting the Miranda warnings on my documents.
I'm suddenly thinking I'm looking at Mr. Johnson and I'm thinking, he's sitting in a disciplinary proceeding because he thought the Act applied. Am I going to get nailed here because I forgot the Miranda warning on what turned out to be a business debt that doesn't apply? Is somebody going to complain that John Foster put the Miranda warning, trying to make a good-faith attempt to cover myself just in case the Act applies? Am I going to get nailed for disciplinary proceedings because I thought it applied?
(App. at 79(T. 221-222)). It is quite clear from Mr. Foster's testimony that Mr. Johnson had a good-faith basis for making the argument that the FDCPA applied. Under these circumstances, Mr. Johnson did not know that the FDCPA did not apply when he wrote Mr. Gibbon. Until a court of law determines that the FDCPA does not apply to this set of facts, it is respectfully questioned how discipline could be imposed in this circumstance where John Foster says the issue is debatable. The Hearing Panel chose to recommend discipline while never expressly stating the FDCPA does not apply.
The Rules of Professional Conduct define "knows" to mean "actual knowledge of the fact in question." North Dakota Rule of Professional Conduct, Terms; Petition of Edison, 2006 N.D. 250, ¶ 9, 724 N.W.2d 579. In Petition of Edison, Attorney William P. Harrie was disciplined under Rule 4.1, N.D.R. Prof. Conduct, by failing to immediately disclose the death of a defendant that he had been retained to represent by an insurance company. Attorney Harrie served an amended answer on behalf of the decedent, which falsely suggested the decedent was still alive.
Contrast the conduct committed by Attorney Harrie with that of Mr. Johnson. Attorney Harrie clearly knew that the defendant he had been retained to represent was dead, yet, he served an answer which mislead opposing counsel into believing that the defendant was still alive. Mr. Johnson testified on numerous occasions at the hearing that he was making assertions consistent with the law pertaining to the FDCPA. He did not have "actual knowledge" that the FDCPA did not apply. The evidence from Mr. Foster was uncontradicted in this regard. A good faith argument can be made that Mr. Johnson's position, consistent with his research, that the Fair Debt Collection Practices Act applied.
Consistent with the definition of "knows" in the Rules of Professional Conduct, Johnson did not "know" that the law pertaining to the Fair Debt Collection Practices Act, as written in his letter to Mr. Gibbon, was inconsistent with the assertions made in his letter.
In Disciplinary Action against Howe, 2001 N.D. 7, 626 N.W.2d 6501, Attorney Howe was suspended for six months for a violation of Rule 4.1. However, in Howe, that attorney engaged in statements and representations to third persons of fact and law that he knew to be false.
In contrast to the present case, Mr. Johnson fully believed that the information contained in his letter to Mr. Gibbon about the FDCPA was accurate; he took a course in law school from John Foster, who taught the FDCPA, (App. at 55(T. 128)), and he remembered from that class that a letter to a debt collector could stop harassment under the FDCPA. (App. at 55(T. 128)). Furthermore, Mr. Johnson did review legal authority to determine whether an argument could be made that the FDCPA applied. (App. at 56(T. 129)). The legal authority that he reviewed was a textbook which interprets the FDCPA. (App. at 56(T. 130)). Mr. Johnson unequivocally believed that Mr. Gibbon was attempting to collect the debt of another. (App. at 56(T. 130)) This is true, in part, because Mr. Johnson had knowledge that Mr. Gibbon had been collecting debts from a "multitude of parties" in the past. (App. at 56(T. 130)). The billings sent to Mr. Johnson came on "invoices" which indicated to Mr. Johnson that Mr. Gibbon was a sophisticated debt collector. (App. at 56(T. 131)). Mr. Johnson unequivocally believed at the time that Mr. Gibbon was a debt collector covered by the Fair Debt Collection Practices Act. (App. at 56(T. 131), 32(T. 36)). Mr. Johnson also learned in his review of legal authorities that the Fair Debt Collection Practices Act is usually interpreted broadly and expansively. (App. at 56(T. 131)). As such, he concluded that the debt Mr. Gibbon was alleging was owed arose out of a divorce, and was therefore personal, and thus covered by the Fair Debt Collection Practices Act. (App. at 57(T. 134)).
Mr. Johnson specifically addressed the allegation that he "knowingly" made a statement to a third person of law that he knew to be false at the hearing. (App. at 57(T. 135)).
Q: And were you aware from your classes that well we'll move on. How do you react to the claim that you knowingly made a false claim that the Fair Debt Collections Act applied?
A: Well, it's not true. I mean I did not make a false statement. I believed the Fair Debt Collections Act covered this. I believed he was a debt collector. I believed that I was a consumer. I believed that this arose out of the divorce. I mean I believed this covered you got to remember, I'm doing this for the purpose of getting somebody to stop harassing me. I'm trying to get protection. You know, this isn't like I'm harassing somebody. This is, stop harassing me. And I know about all the harassment that he's done to me so I'm telling him, Stop.
Mr. John Foster's testimony about the FDCPA was undisputed. Mr. Foster graduated from the UND School of Law in 1976. (App. at 70(T. 188)). He has been a full-time lawyer with the Vaaler Law Firm since 1976. (App. at 71(T. 189)). His law practice focus is on commercial law, primarily debtor-creditor law. (App. at 71(T. 189)). He has taught at the UND School of Law since 1981. (App. at 71(T. 189)). His primary courses of instruction at the law school include debtor-creditor law, bankruptcy, commercial paper and payment systems. (App. at 71(T. 190)). Mr. Foster testified that he teaches his students about the FDCPA. (App. at 71(T. 190)). He testified that the FDCPA was first passed in the mid 1970's. (App. at 71(T. 190)). In his classes at the law school, he spends approximately 3-4 days on the act. (App. at 71(T. 190)). In addition, Mr. Foster gives between 6-12 seminars a year on commercial law, including, at least in part, portions of the FDCPA. (App. at 71(T. 191)). Mr. Foster testified that the goal of the FDCPA was to stop or minimize abusive debt collection practices being conducted primarily by collection agencies across the United States. (App. at 71(T. 192)). Mr. Foster testified that ceasing communication from a debt collector is one of the single most important provisions that his students recall. (App. at 72(T. 196)). Mr. Foster rejected the proposition that the FDCPA is a model of clarity and that the application of the Act is fairly straightforward. (App. at 73(T. 199)). Mr. Foster testified extensively as to the dichotomy between those who collect their own debts and those who collect debts of another. (See e.g., App. at 73(T. 199-201)). He also testified that the tendency of courts is to over-interpret the Fair Debt Collection Practices Act and overextend it's protection. (App. at 74(T. 202)). Mr. Foster also testified that his students often misinterpret the rules under the Fair Debt Collection Practices Act. (App. at 74(T. 203-204)).
He also testified, importantly, that bankers and lawyers also misinterpret the requirements under the FDCPA. (App. at 74(T. 204)). Even Mr. Foster testified that his initial opinions and sometimes initial research on whether the FDCPA applies to a certain case are wrong. (App. at 75(T. 206)).
Mr. Foster also testified that it appears to him that Mr. Johnson believed that the FDCPA applied when he wrote his letter to Mr. Gibbon. Moreover, Mr. Foster testified that a good faith argument could be made that Mr. Johnson is a consumer, as defined by the Fair Debt Collection Practices Act. (App. at 77(T. 215)). Mr. Foster testified a good faith argument could be made that the Gibbon debt arose from a personal or family purpose. (App. at 77-78(T. 216-218)).
Mr. Foster testified it could be reasonably argued that Roger Gibbon was a debt collector under the act. (App. at 78(T. 220)). Mr. Foster believes that the argument that Mr. Gibbon was covered by the FDCPA was made by Mr. Johnson in good faith. (App. at 78-79(T. 220-221)). Furthermore, Mr. Foster testified that his conclusion after reviewing the documents in this case is that Mr. Johnson did not knowingly falsely claim that the Fair Debt Collection Practices Act applied in this case. (App. at 79(T. 222)).
Contrary to the findings by the Hearing Panel, Mr. Johnson's good faith basis for making the argument was not developed after the hearing. Thus, the Hearing Panel's finding that Johnson's good faith basis for application of the FDCPA was not developed until after the October 13, 2004 letter is in error. (App. at 11).
Mr. Johnson testified that he never intended to do anything other than use a lawful remedy that might be available to him to stop Mr. Gibbon's billings. (App. at 56(T. 56)). Mr. Johnson contemplated a retraining order, or even a protection order, or any other legal means that he could use to stop Mr. Gibbon from billing him. (App. at 58(T. 138)). Accordingly, when examining the purpose for Mr. Johnson's conduct, it is quite clear that his intentions were not to embarrass or burden Mr. Gibbon. Rather, they were to stop the billings and letters from Mr. Gibbon.
Mr. Johnson particularly explained his purpose in response to a question from Mr. Hall:
Q: Now whether I'm an attorney or a lay person, if I receive a letter with a third paragraph that's in your October 13, 2004, letter, that is threatening to me. Why am I wrong?
A: The reason is because you don't know the history. Because of that particular time Roger Gibbon, as he laughed at me when he left here today, knows exactly why we're here today. It's because he wasn't threatened in any possible way by this letter. He's the perpetrator. I know that; he knows that. I'm just trying to get him off my back. He knows that he's the one at every theater where he sees me, he knows he's the one at the basketball games, he's the one who's doing these types of things that he did to me when he came in here. This isn't threatening at all to Roger Gibbon. This is a complete joke to Roger Gibbon. And I'm not putting Roger Gibbon-you know what I mean that is he's done things that you can't imagine.
(App. at 63(T. 157-160)). Mr. Johnson further testified:
I thought-in my mind when I wrote it, Mr. Hall, I thought that this was civil remedies, whether it be a protection order, a restraining order, you know, hiring an attorney, somehow getting him to stop continuing to harass me. I mean if you isolate this in a vacuum, I can see where you are coming from, but it's not a vacuum; it's the totality of circumstances.
This testimony clearly demonstrates the purpose for Mr. Johnson's conduct. It wasn't to threaten, embarrass or burden Mr. Gibbon. Mr. Johnson was clear that language of this type wouldn't embarrass, burden or threaten Mr. Gibbon. The purpose of the conduct was to stop Mr. Gibbon's billings to Mr. Johnson.
The Hearing Panel found that Mr. Johnson "had no basis for denying that the debt was owed." (App. at 12). Mr. Foster testified Mr. Johnson's rational as to why the FDCPA applied in this case was a "pretty good argument." (App. at 76(T. 210)). Mr. Foster also stated that a "good-faith argument can be made" that the FDCPA applied. (App. at 78(T. 218, 220)). In short, the evidence has not risen to a level that discipline should be imposed and the Hearing Panel's finding was in error.
C. Diversion is the Most Appropriate Remedy
Diversion from discipline pursuant to Rule 6.6, N.D.R. Lawyer Discipl. is a recent remedy available in the lawyer discipline process. It is urged that the Court divert Mr. Johnson into that program should it find a violation of the rules of professional conduct. Through counseling, Mr. Johnson has identified a problem that exists in his law practice: he "over-identifies" with his clients cause. (App. at 132(T. 433)). He also seeks validation through his clients' cause. Mr. Johnson now recognizes that he has acted impulsively in the past and has to change that behavior. Mr. Johnson has worked with two psychologists on these issues. George O'Neil (App. at 55(T. 126)) and Dr. Ascano (App. at 132(T. 434)). (App. at 59(T. 141-142)). The assessment can be summarized as follows:
Mr. Johnson feels a perpetual need to satisfy or obtain the approval of his clients and cannot give clients bad news. (App. at 133(T. 439)).
Mr. Johnson over-identifies with his clients and needs to create psychological space between clients and himself. (App. at 132(T.435), 134(T. 444)).
This problem effects his physical wellbeing. (App. at 131(T. 431), 58(T. 140)).
Not only has Mr. Johnson been involved with psychological consulting to change his behavior, he has also retained the services of Dwain Fagerlund (a consultant to lawyers on practice issues) to identify problem behaviors and to implement changes. (App. at 130(T. 426)). Mr. Fagerlund has noted various problems that Mr. Johnson had to work with:
Learning to delegate. (App. at 132(T. 434)).
Over identifying with clients. (App. at 132(T. 433)).
Slowing down, thinking legally. (App. at 133(T. 439)).
Adding staff. (App. at 133(T. 440)).
Didn't appear to be any boundary between Johnson's personal life and Johnson's professional life. (App. at 132(T. 433-434)).
Too involved with his client's cases. (App. at 132(T. 433)).
Mr. Fagerlund has been working with Mr. Johnson to change these behaviors. Mr. Johnson has been receptive to the changes. (App. at 133(T. 438-439)). Mr. Fagerlund also provides mentoring services and has additionally put Mr. Johnson in contact with a mentoring service available through the Minnesota Trial Lawyers Association and the Minnesota Bar Association. (App. at 132(T. 436)). Mr. Johnson recognizes his past behavior patterns have negatively affected his health negatively and he must make changes.
In addition to working with a psychologist and Mr. Fagerlund, Mr. Johnson has been open to his associates and friends about the behavior changes that he has to make. His former assistant, Jeanette Novotny, is aware of the behaviors that need to be changed. (App. at 123(T. 398)). Mr. Meyer, who has an office in Mr. Johnson's building, is working as a mentor and is helping with behavior changes that Mr. Johnson is making. (App. at 132(T. 436-437)).
Mr. Johnson has been making behavior changes. He's been working with Mr. Fagerlund since January 2005. (App. at 131(T. 430-431). Mr. Johnson does suffer from over identification and personal-professional boundary issues that are being addressed. If discipline is warranted, these can be best addressed through diversion not through typical discipline.
Mr. Johnson has been accepted into the diversion program. The language of Rule 6.6, N.D.R. Lawyer. Discipl., itself supports Mr. Johnson's diversion. Diversion under Rule 6.6 is to offer a remedy to those situations where questions about a lawyer's moral fitness or integrity are not in question. Rule 6.6(b)(1), N.D.R. Lawyer Discipl. The rule states that the purpose of diversion from discipline is to provide "remedial and rehabilitative" programs to members of the association. Rule 6.6(b), N.D.R. Lawyer Discipl. The rule recognizes that diversion from lawyer discipline often times is the best remedy for "the prevention of similar ethical violations by identified lawyers by altering the circumstances which caused the violation." Rule 6.6(b)(2), N.D.R. Lawyer Discipl. The rule is meant to cover cases involving "poor practice skills" or other deficiencies in professional capabilities. Rule 6.6(b)(3), N.D.R. Lawyer Discipl. The rule is also intended to cover those situations where "diversion from discipline can reasonably be expected to treat, educate or alter the respondent's behavior or otherwise address the underlying problem so as to minimize the risks that the respondent will commit the same or similar acts of misconduct in the future." Rule 6.6(b)(3), N.D.R. Lawyer Discipl. Factors that are to be considered for lawyer diversion include the weighing of the nature of the violation, the duty involved, whether the respondent was involved in self dealing, dishonest conduct or breach fiduciary duty, whether harm resulted, and the absence or presence of aggravating or mitigating factors. Id. A review of these factors all support diversion in this matter. Mr. Johnson has been interviewed and accepted into the program. Rule 6.6(d), N.D.R. Lawyer Discipl., establishes the creation of an Individual Assistance Plan. Mr. Johnson has already self referred himself to the Lawyer Assistance Program and will continue with it as long as required. (App. at 59(T. 143-144)).
Mr. Johnson respectfully requests that if discipline is warranted, this Court accept his participation in the Lawyer Assistance Plan and monitor his compliance with the Individual Assistance Plan. Mr. Johnson is agreeable to paying all costs of the individualized assistance program. It is Mr. Johnson's request under Rule 6.6(e), N.D.R. Lawyer Discipl., that his participation in the Lawyer Assistance Program be a condition of diversion from the discipline system.
D. If Discipline is to be Imposed, a Reprimand is an Appropriate Sanction and In No Case is a Suspension Greater than Sixty (60) Days Warranted
In general, the "standards are designed for use in imposing a sanction or sanctions following a determination by clear and convincing evidence that a member of the legal profession has violated a provision of the North Dakota Rules of Professional Conduct." Rule 1.3, N.D. Stds. Imposing Lawyer Sanctions. The Standards are designed to promote consideration of factors relevant in imposing an appropriate level of sanction in an individual case and consideration of the appropriate weight of such facts in light of the stated goals of lawyer discipline. Finally, the Standards provide for consistency in disciplinary sanctions for the same or similar offenses within and among jurisdictions.
Rule 3.0, N.D. Stds. Imposing Lawyer Sanctions, provides that in imposing a sanction after a finding of lawyer misconduct, a Court should consider the following factors: A) The duty violated; B) The lawyer's mental state; C) The potential or actual injury caused by the lawyer's misconduct; and, D) The existence of aggravating or mitigating factors.
Standard 5.13, N.D. Stds. Imposing Lawyer Sanctions, provides that a reprimand is generally appropriate when a lawyer knowingly engages in any conduct that involves dishonesty, fraud, deceit, misrepresentation, and that adversely affects on a lawyers fitness to practice.
In this case, the evidence has clearly failed to show on a clear and convincing basis that Mr. Johnson knowingly engaged in dishonesty, fraud, deceit or misrepresentation when he wrote his October 13, 2004 letter to Mr. Gibbon. Accordingly, Standard 5.13 of the Standards for Lawyer Sanctions does not apply.
Standard 5.14, N.D. Stds. Imposing Lawyer Sanctions, provides that an admonition is generally appropriate when a lawyer engages in any other conduct that affects adversely on the lawyer's fitness to practice law. Viewing the evidence presented by Disciplinary Counsel in a favorable light, it still does not clearly and convincingly prove that Johnson violated any Rule of Professional Conduct.
The Standards for Imposing Lawyer Sanctions do not support the imposition of discipline here. However, should the Court agree with the Hearing Panel that the standards do support the imposition of discipline, Mr. Johnson submits that under Standard 9.0, there are several mitigating factors.
Under Standard 9.32, N.D. Stds. Imposing Lawyer Sanctions, Mr. Johnson urges that the following be considered: He has an absence of dishonest or selfish motive in connection with this matter; that he has experienced personal and emotional problems; that he made a full and free disclosure to the Disciplinary Board with regard to this matter; that his high character (as described to by Dan Nordick (Police Officer) (App. at 301), Robert Thompson (App. at 307), Cherie Clark (Attorney) (App. at 317, Dustin Hill (Narcotics Officer) (App. at 326), Russ Myhre (Attorney) (App at. 332), and Mary Jo Schneider (App. at 337)) and his good reputation mitigate any discipline imposed; and that he has been rehabilitated as evidenced by his participation in the Lawyer Diversion Program. Moreover, all of Mr. Johnson's prior disciplinary actions, which were all limited to admonitions, were remote in time.
For these reasons, should the Court find that discipline is warranted in this matter, it is respectfully urged that under Standard 9.32, Standards for Imposing Lawyer Sanctions, that these factors be considered in mitigation.
Mr. Johnson did not violate Rule 4.1 or 4.4 of the North Dakota Rules of Professional Conduct. At all times, he believed the information he was conveying to Mr. Gibbon in his letter about the Fair Debt Collection Practices Act was accurate. He had a substantial purpose for his letter in that he was attempting to stop unwarranted billing letters from Mr. Gibbon. Accordingly, no discipline should arise under these circumstances. If the Court does find discipline is warranted, Mr. Johnson requests that he be diverted from discipline into the lawyer assistance program. If discipline is to be imposed, a reprimand would be appropriate. In no case would a suspension greater than that recommended by the Hearing Panel (sixty days) be appropriate.
Respectfully submitted this 8th day of June, 2007.
|Ronald H. McLean (#03260)|
|Joseph A. Wetch, Jr. (#05788)|
|SERKLAND LAW FIRM|
10 Roberts Street
P.O. Box 6017
Fargo, North Dakota 58108-6017
Attorneys for Samuel S. Johnson