IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|IN THE MATTER OF THE APPLICATION FOR||) DISCIPLINARY COUNSEL'S|
|DISCIPLINARY ACTION AGAINST JOHN||) BRIEF|
|T. KORSMO, A MEMBER OF THE BAR OF||)|
|THE STATE OF NORTH DAKOTA||) Supreme Court No. 20060054|
|Paul W. Jacobson (ID 03631)|
|Disciplinary Board of the Supreme Court|
|P. O. Box 2297|
|Bismarck, ND 58502|
|TABLE OF CONTENTS|
|TABLE OF AUTHORITIES .||ii|
|STATEMENT OF CASE .||1|
|STATEMENT OF FACTS ....||3|
|JOHN T. KORSMO'S OBJECTIONS TO REPORT OF HEARING PANEL||5|
TABLE OF AUTHORITIES
|Disciplinary Action Against Robb, 2000 ND 146, ¶19, 615 NW2d 125 ... 10|
|Disciplinary Board v. Howe, 2001 ND 86, ¶35, 626 N.W.2d 650 11|
|Disciplinary Board v. Kaiser, 484 N.W.2d 102 (N.D. 1992) ... 10|
|Disciplinary Board v. Vela, 2005 ND 119, 699 N.W.2d 839 ... 10|
|In re Disciplinary Action Against Boughey, 1999 ND 205, ¶ 13, 602 N.W.2d 268 .... 11|
|In re Disciplinary Action Against Howe, 2001 ND 7, ¶¶ 16-17, 621 N.W.2d 361 . 10|
|Matter of Maragos, 285 N.W.2d 541, 546 (N.D. 1979) ... 9|
|State v. Haugen, 449 N.W.2d 784 (N.D. 1989) . 8|
|State v. Rasmussen, 365 N.W.2d 481, 485 (N.D. 1985) ... 8|
|Rules and Statutes|
|Rule 1.2A(2), N.D.R. Lawyer Discipl. .... 4|
|Rule 1.3D, N.D.R. Lawyer Discipl. .. 11|
|Rule 4.1C, N.D.R. Lawyer Discipl. ... 6|
|Rule 4.1D, N.D.R. Lawyer Discipl. . 1, 4, 6|
|Standard 5.11, N.D. Stds. Imposing Lawyer Sanctions . 6, 7, 9|
|Standard 5.21, N.D. Stds. Imposing Lawyer Sanctions .. 5, 6, 7, 9|
|Standard 9.32(a), N.D. Stds. Imposing Lawyer Sanctions 9|
|Standard 9.32(e), N.D. Stds. Imposing Lawyer Sanctions 9|
|Standard 9.32(g),N.D. Stds. Imposing Lawyer Sanctions . 4|
|Standard 9.32(l), N.D. Stds. Imposing Lawyer Sanctions ... 10|
|5 USC 7321-7326 . 4|
|18 USC 1001(a)(2) ... 3, 4, 5, 6|
|Section 734.208, CFR 4|
STATEMENT OF THE CASE
This is a disciplinary proceeding against John T. Korsmo for violation of the North Dakota Rules of Professional Conduct. This disciplinary matter is under the North Dakota Rules For Lawyer Discipline. On July 27, 2005, an Application for the Interim Suspension of John T. Korsmo, a member of the Bar of North Dakota, and a certified copy of the Judgment in a Criminal Case in United State of America v. John T. Korsmo, United States District Court, District of Columbia, Case No. CR05-104-01, was filed under N.D.R. Lawyer Discipl. 4.1(D) (A-2 ). On August 3, 2005, interim suspension was ordered (A-7). A Petition for Discipline and Notice of Appointment of Hearing Panel was served on Korsmo on September 1, 2005 (A-9-11). The hearing panel consisted of Ronald F. Fischer, Chair; Richard H. McGee; and Rev. Laurie A. Natwick. Korsmo served an Answer to the Petition dated September 15, 2005 (A-12) and a second Answer on October 14, 2005 (A-16). Korsmo and Disciplinary Counsel entered in to a Stipulation of Facts on October 28 and 3, 2005, respectively (A-39).
The Hearing Panel entered its Order Accepting Stipulation of Facts and Scheduling Filing of Written Arguments on September 15, 2005 (A-52). Disciplinary Counsel filed an Affidavit of Costs and Expenses of $435, dated December 19, 2006. The Hearing Panel filed its Report of Hearing Panel, dated February 13, 14, and 16, 2006 (A-54). It recommended that Korsmo be suspended from the practice of law for two years, from the time he seeks re-licensure to the bar and that he pay the costs of the proceeding in the amount of $435.
Korsmo filed an Objection to Report of Hearing Panel, dated March 20, 2006 (A-65). By letter dated March 15, 2006, the parties were informed by the Clerk that briefs limited to the objections raised by the respondent are simultaneously due on April 15, 2006. Disciplinary Counsel now files this brief.
STATEMENT OF FACTS
The facts of this matter are contained in the Stipulation of Facts, accepted by the Hearing Panel (A-39). They are that Respondent was convicted of a felony in the United States District Court for the District of Columbia, in the case of United States of America v. John T. Korsmo, Case Number CR05-104-01, as follows: 18 USC 1001(a)(2), False and Fictitious Statements, for which he received a sentence of unsupervised probation for a term of 18 months, an assessment of $400 and a fine of $5,000.
The false statement to which Respondent pled guilty was in response to two letters he received from Senator Paul Sarbanes (D - MD) in October of 2002, while Respondent was serving as chairman of the Federal Housing Finance Board, a Presidential-appointed, Senate confirmed position. Among other questions, Respondent was asked by Senator Sarbanes: "Did you or any member of the FHFB staff know or have any reason to believe that officials of any Home Loan Banks or its member institutions would be solicited using the invitations on which your name appeared as a 'special guest?" and "Did you or FHFB staff provide any contact information for Home Loan Bank executives or its members to the Clayburgh campaign or any of its representatives?" In a letter to Senator Sarbanes dated October 30, 2002, Respondent falsely stated: "I do not know how the (Clayburgh) campaign or the event's hosts obtained contact information for the Home Loan Bank executives who were invited." On April 1, 2003, Respondent was interviewed by an agent from the FHFB Office of the Inspector General and an agent with the Federal Bureau of Investigation. In his interview, Respondent falsely stated that he had no knowledge until December 2002, that his spouse forwarded the lists to anyone.
The false statements regarded an action that is permitted by the Hatch Act, 5 USC 7321-7326, the statute governing political participation by federal government employees. Section 734.208 of the Code of Federal Regulations, implementing the Hatch Act, includes an Example 9 that reads: "An employee may help organize a fundraiser including supplying names for the invitation list as long as he or she does not personally solicit, accept, or receive contributions." The Hatch Act is not a criminal statute. Penalties for violation of its provisions are limited to suspension without pay or removal from government service.
The conviction for violation of 18 USC 1001(a)(2), False and Fictitious Statements, was based on Respondent's plea of guilty to a serious crime, within the meaning of Rule 4.1, North Dakota Rules for Lawyer Discipline, and is a criminal act that Rule 1.2A(2), North Dakota Rules for Lawyer Discipline, regards as "reflect(ing) adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer."
While Respondent was admitted to practice as an attorney and counselor at law in the courts of North Dakota since October 10, 1979, he has not been licensed in the state since December 31, 2001. For many years prior to that date, he had not actively practiced nor provided legal services to clients for compensation. Respondent is not likely to seek reinstatement of his license in the future.
The Hearing Panel considered letters, in support of Respondent submitted to the United States District Court for the District of Columbia for its consideration in imposing a sentence upon Respondent's plea of guilty to the crime for which he was convicted, as mitigation in accordance with Standard 9.32(g), North Dakota Standards for Imposing Lawyer Sanctions. Respondent has no prior disciplinary history. JOHN T. KORSMO'S OBJECTIONS TO REPORT OF HEARING PANEL
Korsmo Asserts that the Hearing Panel erred in considering Standard 5.21, North Dakota Standards for Imposing Lawyer Sanctions, as that Standard provides that disbarment is generally appropriate when a lawyer in an official or governmental position knowingly misuses the position with the intent to obtain a significant benefit or advantage for himself or another, whereas he asserts the Hearing Panel improperly concluded that his intent in lying (in violation of 18 USC 1001(a)(2), False and Fictitious Statements) was to protect the Respondent or others from unwanted public criticism or publicity.
Korsmo asserts that the Hearing Panel's recommendation that he be suspended from the practice of law for two years, from the time he seeks re-licensure to the bar, is inappropriate, as he asserts he should be suspended from the practice of law during the period of the unsupervised probation under his criminal conviction, which runs until January 11, 2007.
The Hearing Panel's consideration of Standard 5.21, North Dakota Standards for Imposing Lawyer Sanctions, and its Conclusion at page 9 of its report (A-62), that Korsmo misused his position as a public official to protect himself or others from unwanted public criticism or publicity, was appropriate.
Respondent, on his plea of guilty, was convicted of a violation of 18 USC 1001(a)(2), which carries a maximum sentence to include five years imprisonment. He was sentenced, inter alia, to eighteen months probation. Following conviction for a felony, a serious crime within the meaning of Rule 4.1C, North Dakota Rules for Lawyer Discipline, his certificate of admission to the Bar of the State of North Dakota was suspended, pending final disposition of a disciplinary proceeding predicated upon the conviction, under Rule 4.1D, North Dakota Rules for Lawyer Discipline. In formal proceedings after conviction for a serious crime, the sole issue is the extent of the final discipline to be imposed. Rule 4.1D, North Dakota Rules for Lawyer Discipline.
Before discussing the appropriateness of the Hearing Panel considering Standard 5.21, North Dakota Standards for Imposing Lawyer Sanctions, and the resulting discussion by the Hearing Panel of the intent it discerned for Respondent lying, it must first be pointed out that the Hearing Panel also considered Standard 5.11, North Dakota Standards for Imposing Lawyer Discipline, which provides that disbarment is generally appropriate when:
(a) a lawyer engages in serious conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.
The Hearing Panel's reasoning for consideration of Standard 5.11, is clearly set out with analysis and citation to authority in its "Analysis and Conclusions" at pages 6 through 8 of the Report of Hearing Panel (A-59-61). Further discussion in this brief would be merely redundant. However, even without reference to Standard 5.21, the Hearing Panel's conclusion that the beginning point for determining an appropriate discipline in this case is disbarment would not change. See page 8, Report of Hearing Panel, (A-61).
Standard 5.21, North Dakota Standards for Imposing Lawyer Sanctions , provides
Disbarment is generally appropriate when a lawyer in an official or governmental position knowingly misuses the position with the intent to obtain a significant benefit or advantage for himself or another, or with the intent to cause serious or potentially serious injury to a party or to the integrity of the legal process.
The tenor of Respondent's objection to the Report of the Hearing Panel seems to be that he does not believe the Hearing Panel inferred the correct intent in his deceiving the Senator and the FBI about whether he knew how a congressional campaign obtained contact information for the Home Loan Bank executives who were invited to an event. The Hearing Panel's analysis of the applicability of Standard 5.21, to Respondent's case is set out a pages 8 and 9 of the Report of Hearing Panel (A-61-62) and need not be restated again here. However, it is pointed out that the Hearing Panel concluded that Standard 5.21 is generally appropriate in cases involving public officials who engage in conduct that is prejudicial to the administration of justice. In addition, the Hearing Panel discussed, and inferred, the reason Respondent lied. Page 9, Report of Hearing Panel (A-62). It concluded that he did so to avoid public criticism or adverse publicity. Id.
The Stipulation of Facts (A-39) upon which the Hearing Panel based its findings and conclusions does not contain a recitation of the reason Respondent lied. However, it is not inappropriate for the Hearing Panel to draw some inference from the facts in this regard. An inference is a process of reasoning by which a permissible fact is logically and reasonably drawn by the factfinder from facts already proved or admitted. State v. Haugen, 449 N.W.2d 784 (N.D. 1989), citing, State v. Rasmussen, 365 N.W.2d 481, 485 (N.D. 1985) (Levine, J., specially concurring). In this case the facts are that Respondent was involved to some extent in fund raising for a candidate of one party, a Senator of another party sought information about how the names of certain individuals were obtained, there was no criminal act involved in supplying names for fund raising, however Respondent lied about his knowledge. It does not appear that Respondent lied to cover up any criminal act. It is reasonable to infer that he did so to avoid criticism or adverse publicity. If the Hearing Panel erred in this inference, Respondent could have revealed his reason for lying in his Objection to Report of Hearing Panel (A-65). He did not do so, but rather made reference to what he apparently believes is a more appropriate inquiry, i.e., why he pled guilty to the criminal charge (page 2, Objection to Report of Hearing Panel (A-66 )).
Having raised the issue of why he pled guilty, Respondent does not answer the question, but rather leaves it to the Court to infer the reason. In this regard, it must also be pointed out that Respondent appeals to his personal relationship with the members of the Court (page 2, Objection to Report of Hearing Panel (A-66)), in support of his assertion that he is not motivated by concern of unwanted public criticism or publicity. The inappropriateness of this appeal needs no citation to authority.
In summary, The Hearing Panel did not err in considering Standard 5.21, North Dakota Standards for Imposing Lawyer Sanctions, nor in inferring the reason Respondent lied. However, even if it did, there is no reason in that for disregarding the recommended discipline made by the Hearing Panel.
The Recommendation of the Hearing Panel that Korsmo be suspended from the practice of law for two years, from the time he seeks relicensure to the bar is appropriate.
The Report of the Hearing Panel discusses in detail the reason it has recommended discipline which includes Korsmo's suspension from the practice of law for two years from the time he seeks relicensure to the bar (Page 9 through 11, Report of Hearing Panel (A-62-64)). On the other hand Korsmo is arguing that his discipline should merely be suspension from the practice of law coinciding with the probation period under his felony conviction, i.e., until January 11, 2007.
As mentioned by the Hearing Panel in its Report, each disciplinary action must be "judged on its own merits and facts." Matter of Maragos, 285 N.W.2d 541, 546 (N.D. 1979). In this case, the Hearing Panel began from the proposition that generally the appropriate discipline for the facts of this case would include disbarment, see the discussion above considering Standards 5.11 and 5.21, North Dakota Standards for Imposing Lawyer Sanctions. However, the Hearing Panel also considered matters in mitigation. It considered Standard 9.32(a), North Dakota Standards for Imposing Lawyer Sanctions, lack of prior disciplinary offenses; Standard 9.32(e), North Dakota Standards for Imposing Lawyer Sanctions, full and free disclosure to disciplinary board or cooperative attitude toward proceedings; Standard 9.32(g), North Dakota Standards for Imposing Lawyer Sanctions, character or reputation; and Standard 9.32(l), North Dakota Standards for Imposing Lawyer Sanctions, remorse.
In considering these mitigating factors, as well as some guidance from the prior decision in Disciplinary Board v. Kaiser, 484 N.W.2d 102 (N.D. 1992), the Hearing Panel has recommended two years suspension from the time Korsmo seeks relicensure. The Hearing Panel noted that although the circumstances of the Kaiser case and respondent's are somewhat different in that Kaiser lied under oath in a trial setting, for the purpose of enriching himself and his compatriots, there is a similarity in the fact that both lied in the context of criminal felonies (Kaiser's was discovered to late to be prosecuted).
Should Korsmo's suggestion of suspension corresponding to the time of his criminal probation be adopted, it would not be a sufficient reproach in light of the serious nature of the misconduct. As the Hearing Panel pointed out, although respondent is not currently licensed, this Court has on other occasions imposed a period of suspension that begins to run from the time that the unlicensed lawyer should again apply for licensing. See Disciplinary Board v. Vela, 2005 ND 119, 699 N.W.2d 839; Disciplinary Action Against Robb, 2000 ND 146, ¶19, 615 NW2d 125. The Hearing Panel's recommendation strikes the right balance reflecting the serious nature of the misconduct and yet recognizing the mitigating factors present.
In the course of his Objection to Report of Hearing Panel, Respondent refers to not understanding why, what he says are, significant costs are recommended for imposition (Page 3, Objection to Report of Hearing Panel (A-67)). The costs recommended for payment in this matter are $435. In Disciplinary Board v. Howe, 2001 ND 86, ¶35, 626 N.W.2d 650 this Court noted that unless otherwise ordered by the court or hearing panel, costs and expenses of disciplinary proceedings must be assessed against the lawyer if discipline is imposed, citing 1.3(D), North Dakota Rules for Lawyer Discipline, In re Disciplinary Action Against Boughey, 1999 ND 205, ¶ 13, 602 N.W.2d 268 and In re Disciplinary Action Against Howe, 2001 ND 7, ¶¶ 16-17, 621 N.W.2d 361. There is no apparent reason to deviate from the assessment of costs in this matter.
This Honorable Court should suspend John T. Korsmo from the practice of law for two years, from the time he seeks relicensure to the bar, and order that he pay the costs of the proceeding in the amount of $435, for conviction of a felony.
Dated this 13th day of April, 2006.
|Paul W. Jacobson (ID 03631)|
|Disciplinary Board of the Supreme Court|
|P. O. Box 2297|
|Bismarck, ND 58502|