IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|IN THE MATTER OF THE APPLICATION|
|FOR DISCIPLINARY ACTION||Supreme Court Nos.|
|AGAINST LOREN C. MCCRAY,||20070376 and 20070377|
|A MEMBER OF THE BAR|
|OF THE STATE OF NORTH DAKOTA|
* * * *
BRIEF OF RESPONDENT
* * * *
Review following Report of Hearing Panel
Disciplinary Board File Nos.
4101-W-0408 and 4413-W-0605
* * * *
|MICHAEL R. HOFFMAN|
|Attorney for Respondent|
|P.O. Box 1056|
|Bismarck, ND 58502-1056|
|Bar ID 04366|
TABLE OF CONTENTS
|Table of Authorities . . . . .||ii|
|Statement of the Case . . . . . . . . . . .||1|
|Statement of the Standard of Review . . . . . . .||26|
|Argument . . . . . . . . . . . .||27|
|Conclusion . . . . . . . . . . . .||37|
|Certificate of Service . . . .||37|
TABLE OF AUTHORITIES
|Disciplinary Board v. Giese, 2003 ND 82, 662 N.W.2d 250 . . . . . . . .||26|
|In re Crary, 2002 ND 9, 638 N.W.2d 23 . . . . . . .||26|
|In re Disciplinary Action Against Seaworth, 1999 ND 229,|
|603 N.W.2d 176 . . . . . . . . .||26|
|In re Edwardson, 2002 ND 106, 647 N.W.2d 126 . . . . . . .||26|
|In re National Credit Management Group L.L.C.,|
|21 F.Supp.2nd 424, 460 (D.N.J.1998) . . . . . . . .||29|
|In re Swanson, 2002 ND 6, 638 N.W.2d 240 . . .||26|
STATEMENT OF THE CASE
On December 26, 2007, the Report of Hearing Panel in these two cases was filed with the Disciplinary Board recommending that Loren C. McCray be suspended from the practice of law for 120 days and that he be required to pay the costs and expenses of these proceedings in the amount of $7,808.66 (App. 325-338). McCray timely filed objections to the report with this Court under Rule 3.1(F)(2), North Dakota Rules for Lawyer Discipline (App. 339-342), and Disciplinary Counsel also timely filed objections to the report under that rule (App. 343).
The first of these two cases alleges various violations of the Rules of Professional Conduct by McCray, first as an employee of Bradley Ross Law, and later while acting as Bradley Ross Law (App. 4-9). The second case against McCray alleges various violations of the Rules of Professional Conduct, more particularly with respect to Dr. Michaela McKenzie, a client of McCray and Bradley Ross Law, and by repeating some of the more general allegations in the first case (App. 10-13). McCray denied all of the alleged violations (App. 14-17), and on September 26, 2007, a hearing was had before the Hearing Panel (App. 18-81).
McCray graduated from Jamestown College in 1990, and from UND Law School in 1993 (Tr. 88). He immediately got a job with the Larson Law Firm in Jamestown, and practiced there for approximately three years (Tr. 88-89). He then went to the Solem Law Office in Beulah in 1996 (Tr. 89).
In March or April, 2004, McCray responded to an ad on the SBAND website which was asking for a consumer law attorney by emailing his resume to John McManus, an attorney licensed in California and Indiana and practicing law in Indiana (Tr. 90-91). Discussions then were had between McCray and McManus about McCray becoming an employee of Bradley Ross Law, acting as a professional corporation in North Dakota through a certificate of a foreign corporation (Tr. 91). Bradley Ross Law was a California corporation (Tr. 91).
McManus was practicing law in Indiana under the trade name, Bradley Ross Law, doing credit repair (Tr. 93). "[I]n a lot of jurisdictions trade names can't be used for law firms, and that includes Indiana, and there had been a complaint filed against McManus in Indiana for using the trade name Bradley Ross Law." (Tr. 93, lines 19-23). The ad had been placed on the SBAND website because it had been determined that North Dakota was a state that allowed trade names for law firms, and North Dakota did not have a state Credit Repair Organizations Act (CROA) (Tr. 93-94).
McCray went to Indiana to visit McManus (Tr. 92). McCray also met with Dale Mohlenhoff, corporate counsel for Bellwether, Inc., a service provider to Bradley Ross Law. Bellwether provided computer services, marketing services, a facility for the processing center, and leased employees to Bradley Ross Law. (Tr. 92). Bellwether, Inc., is primarily owned by one Stephen Snyder and his family (Tr. 110, 228).
The facility and the employees of Bradley Ross Law are located in Fishers, Indiana. At the time McCray went to first visit with McManus, Bradley Ross Law had about 30 leased employees, legal assistants, data entry people and some additional employees. (Tr. 102-104). These employees worked for Bradley Ross Law under McManus, "disputing inaccurate items on people's credit reports, making requests directly to creditors with respect to inaccurate items, making requests to creditors with respect to accurate items but asking them if they could delete them anyway, and also responding to clients' specific inquiries concerning items on their credit reports." (Tr. 92-93).
McCray started as an employee of Bradley Ross Law in the beginning of August, 2004, and found office space for Bradley Ross Law and his own office as Loren McCray, Attorney at Law, at 419 East Broadway in Bismarck. Bradley Ross Law, P.C., was a Foreign Professional Corporation (California) incorporated in the State of North Dakota. (Tr. 95-96; App. 195, 197; see also letterhead at App. 273).
McCray's initial agreement with McManus provided that McCray work 20 hours per week at a salary of $26,000 per year (Tr. 99). "It wasn't a set 20 hours a week. Some weeks it could be up to 40 hours a week because I might go out to Indiana for a week at a time. Some weeks it might be ten hours a week . . ." (Tr. 100-101).
McCray's "primary work would be to review client files and speak with clients over the phone, do disputes on clients' behalf because there's more than just disputing to the credit reporting agency. There's other types of disputing and other types of letters that go out . . ." (Tr. 91-92; see also 99, lines 7-8).
McCray and Bradley Ross Law in North Dakota "was at all times linked with McManus and the processing center electronically, videoconference with a T1 line and had access to all the client files, which I was supposed to review and answer client inquiries." (Tr. 94, lines 19-24).
McCray had moved from Beulah to Bismarck, was also starting his own practice in Bismarck, and was also helping the Solem Law Office in Beulah, technically ending that relationship on December 31, 2004 (Tr. 89-90). McCray's own practice involves primarily bankruptcy work (70% or more), and occasionally family law cases and criminal law cases. (Tr. 101; 161, lines 21-24). McCray had no other Bradley Ross Law employees in Bismarck. At the time of the hearing, McCray had on average one employee per month for Loren McCray, Attorney at Law, and did 10 to 12 bankruptcies per month. (Tr. 102, 154).
In 2003, Bradley Ross Law had gross receipts in the sum of $8,498,098.00, with an income loss of $888.00 (App. 83-88; see Tr. 108). In August, 2004, Bradley Ross Law had approximately 18,000 clients (Tr. 164).
On August 20, 2004, Bradley Ross Law, P.C., a professional corporation, with its principal place of business at 419 East Broadway Avenue, Bismarck, North Dakota, with John McManus as President, owner and signatory, entered into a series of contracts with Bellwether, Inc., or its affiliates (App. 89-191). The first contract was a Services and Infrastructure Agreement. The contract was with an affiliate corporation of Bellwether, incorporated in Indiana, and the contract was signed by Dale Mohlenhoff, secretary of the affiliate corporation. (App. 89-99). This contract "was for leasing employees, human resource services, payroll services, handling the employee benefits, seminar services, consulting services and miscellaneous services. As far as the seminar services, my recollection of this agreement, that would be for the persons that would be at the seminar." (Tr. 215-216). The seminars were seminars put on by Stephen Snyder more fully described below.
The next contract was a Software License and Consulting Services Agreement, with Bellwether, Inc., an Indiana corporation, signed by Dale Mohlenhoff as secretary (App. 100-115). This contract "provided for the use of . . . a complex computer program and database that's used to manage all this stuff . . . The software was actually developed by Bellwether, Inc. . . In order to be able to handle this number of clients and the way it's handled, this software system is used." (Tr. 217, lines 13-21).
The next contract was a Service Mark License Agreement with an affiliate, a Wyoming limited liability corporation, signed by Dale Mohlenhoff as secretary of the affiliate corporation (App. 116-122). This contract "dealt with the use of Bradley Ross Law." (Tr. 219, lines 10-11). Under the contract, Bradley Ross Law paid the affiliate "a certain number of cents per client" for the use of the name, Bradley Ross Law (Tr. 219, lines 12-19). "Bradley Ross Law was a name associated with assisting people after bankruptcy and had numerous clients, and the name has value to it, and there was an agreement paid for to use that name, and I believe that's 15 cents per client . . ." (Tr. 107, lines 13-18).
The next contract was an Equipment Lease Agreement with Bellwether, Inc., signed by Mohlenhoff as secretary (App. 123-129). This contract "was for leasing the equipment, including all the computer equipment, copiers, scanners, other types of office equipment, which is actually on a really big scale for what we do." (Tr. 220, lines 1-4).
The next contract was a Service Contract with an affiliate, Consumer Disclosure, Inc., an Indiana corporation, signed by Stephen Snyder as President (App. 130-133). "This was an agreement with an entity that would provide credit reports, merge credit reports for use with the services provided by Bradley Ross Law." (Tr. 221, lines 1-4). Consumer Disclosure, Inc., received from Bradley Ross Law "$29 per credit report obtained." (Tr. 221-222). Bradley Ross Law charged clients the $29 (Tr. 222-223). Although clients could obtain their credit reports themselves for free, this would take a week to ten days. When the client paid the $29, Bradley Ross Law obtained the reports "right away, and the other benefit to them is they got . . . their FICO scores from the three credit reporting bureaus. Now if you go online to like myfico.com and . . . do that, they're going to charge you 45 bucks, and you get it here for a cheaper price, and then BRL would be able to start work right away." (Tr. 223). New clients were advised of these differences, and that they did not have to order their credit reports through Consumer Disclosure, Inc. Approximately 50 percent of clients did. (Tr. 223-224; see Tr. 111, lines 2-7).
The next contract was a Master Software License and Services Agreement with Bellwether, Inc., signed by Mohlenhoff as secretary (App. 134-156). This contract was for the "software manuals, the software that was later developed or ordered by work order, business system manuals, software engineering services, support services, training services concerning the software." (Tr. 224, lines 20-24). Compensation was a usage fee for each account (Tr. 225, lines 3-10).
The next contract was a Marketing Agreement with Bellwether, signed by Mohlenhoff (App. 157-167). "This agreement concerns any promotional materials for Bradley Ross Law, including the website, brochures, and sponsorship of seminars." (Tr. 225, lines 16-18). An example of the brochures was introduced as Disciplinary Counsel's Exhibit 3, a brochure from 2004 or early 2005 (App. 221-248; Tr. 21-22). Also, Stephen Snyder has an After Bankruptcy Foundation and conducts seminars through the foundation (Tr. 201-202). Bradley Ross Law would sponsor some of these seminars and pay for the sponsorship through this agreement (Tr. 201, lines 11-12; 212-213). The agreement provided that Bradley Ross Law pay Bellwether $10,833 per month for all marketing services (Tr. 226-227).
The final contract was a Master Advertising Licensing and Services Agreement with Bellwether, signed by Mohlenhoff (App. 168-191). This contract is "a secondary advertising agreement rather than the marketing agreement." (Tr. 227, lines 9-12). The compensation was $45 "for each account for which activities are provided in the first month and $11.25 for each account that recorded activities in an ongoing activity month." (Tr. 227, lines 16-20).
Disciplinary Counsel's Exhibit 3, the brochure from 2004 or early 2005, described the process Bradley Ross Law performed for clients (App. 221-248). The brochure first listed "6 easy steps to a more accurate credit report and higher FICO credit scores" (App. 225). The first step was to sign up for the services of Bradley Ross Law. The second and third steps were to purchase your three credit reports from the three credit reporting agencies and to mail them to Bradley Ross Law upon receipt, unless Bradley Ross Law purchased the reports for you. Bradley Ross Law would then begin the dispute process. Step four was to mail to Bradley Ross Law all resulting correspondence from each credit reporting agency upon receipt. "In response to our dispute letters, you will begin to receive correspondence from each of the credit reporting agencies within 60 days. . . . Mailing labels with our address are provided in the front pocket of this folder for your convenience. . . ." Step five was to repeat the process, and step six was to check your FICO credit scores every six months to determine any improvements in your scores.
The brochure goes on to state, "Visualize the process of improving your credit reports as a continuous circle between you, Bradley Ross Law, and the three national credit reporting agencies." (App. 226). The brochure then describes the repetition of the dispute process.
The brochure specifically states there are no guarantees (App. 226). FICO credit scores are explained (App. 227). The brochure states that the client can email or call to obtain the status of the case (App. 227). The brochure explains, "Once we've received your credit reports, we will construct and sign letters of dispute in your name. These letters communicate your dispute in such a way that the credit reporting agencies will most likely accept the dispute and conduct an investigation." (App. 228).
The brochure informs the reader of the federal Credit Repair Organizations Act (CROA) (App. 228). The brochure also informs the reader, "Investigation results will arrive in the mail at your home from each credit reporting agency. Therefore, when changes occur, you will see them in the investigation results section of each updated credit report . . ." (App. 228). The brochure also attempts to answer the question of how long the process will take: "Each case is unique. It would be improper for us to promise you a particular result within a specific time frame. We suggest utilizing our service for at least 12 months or until you are completely satisfied with your results." (App. 229).
The brochure states a client can cancel services at any time, in writing, by email, or by telephone, with no penalty (App. 229).
The brochure explains that "[d]isputing negative inaccurate, outdated and unverifiable information on your credit reports is your right under Section 611 of the Fair Credit Reporting Act. Credit restoration is as legal as pleading 'not guilty' in a court of law. Anything inaccurate, outdated or unverifiable on your credit reports must be deleted." (App. 230). The brochure also explains it is possible to fix or restore your own credit report (App. 230). The brochure contained an application form (App. 245-246).
At the hearing in these matters, disciplinary counsel asked McCray what he did for clients of Bradley Ross Law (Tr. 120, lines 6-8). McCray responded and expounded on the brochure (Tr. 120-125). Included in his response, McCray indicated that the brochure and application form has in fact been updated numerous times since Exhibit 3 (Tr. 120). A quality CD is now provided to clients to assist them in rebuilding their credit (Tr. 120-121). Bradley Ross Law also began an online service called CaseValet. Once a client's credit reports are obtained, the client can go online and specifically indicate what they want to dispute and why, or they can state they do not want to dispute a certain item. (Tr. 121).
Once dispute letters are sent out, the credit reporting agencies have 30 days to verify whether or not information on a credit report is accurate. They can take another 15 days under certain circumstances. (Tr. 122) (See also Tr. 233, line 18, through 235, line 11).
"The problem is if you dispute too many things at the same time or if you do it in certain fashions, then the credit reporting agencies will declare the dispute to be frivolous or they'll send out what . . . we call negative stall letters. So people trying to do this process on their own run into all sorts of difficulties because the letters they get from the credit reporting agencies can be really intimidating. . . . [E]ven if . . . you run your credit report and there's ten wrong items in there. If you dispute all ten, the credit reporting agency is going to come back and say you made a frivolous dispute, so . . . there's little tricks along those lines." (App. 122-123).
In late 2004, as an employee of Bradley Ross Law in the capacity already described above, McCray had communications with Dale Mohlenhoff, the corporate counsel for Bellwether, about the Stephen Snyder seminars and Bradley Ross Law having people there to sign up clients (Tr. 112-113). The communications involved what was appropriate and what was not appropriate (Tr. 112, lines 21-25). McCray had researched ethics opinions, and found one from Utah "that was closest on point that has the same or similar . . . ethical rules as North Dakota" (see Tr. 148-150; App. 306-319). McCray also reviewed a transcript of a seminar to decide what was appropriate and not appropriate (Tr. 113, lines 16-18). McCray also communicated his opinions to Snyder (Tr. 114).
What McCray determined was ethical was as follows: Bradley Ross Law could sponsor the seminars and have a booth, particularly in a separate room. The speaker can introduce the sponsors, but there cannot be a recommendation that people hire the law firm. The law firm can have brochures and other information available for people who want it. The law firm can take applications from people who come up to their booth. (Tr. 155-156; see Tr. 114, lines 15-25). "[T]he idea is to make sure that a person's will is not overborne" (Tr. 151, lines 8-9). "[I]f the person on their own volition goes and asks for services, then it's my understanding that would be within the Rules of Professional Conduct." (Tr. 156, lines 5-8).
Although there are no other law firms at his seminars (Tr. 115, lines 17-20), Stephen Snyder never advertised Bradley Ross Law. Snyder did seminars when Bradley Ross Law was not there. Snyder sold books, and did online stuff and "all sorts of other stuff that Bradley Ross Law has nothing to do with." (Tr. 201-202). There was no agreement that Bradley Ross Law pay Snyder or Bellwether on a per person basis for any persons signed up (Tr. 213-214).
On January 12, 2005, McCray started Bradley Ross Law, P.C., a North Dakota Professional Corporation, and was a shareholder and employee of that corporation (Tr. 99-100; App. 192-195, 197). At that time, McCray also talked with McManus about purchasing McManus' clients, the clients of Bradley Ross Law, the California corporation, but nothing happened with that sale until October, 2005 (Tr. 100, lines 8-13; 207, lines 12-14). In the meantime, McCray and McManus kept their clients separate. Any new clients who came into Bradley Ross Law came into the North Dakota corporation. Also, McCray "went by the agreements of McManus with respect to payment of expenses to the various entities, including Bellwether, for the North Dakota clients." (Tr. 207, lines 14-21; see also Tr. 106-107). In 2004, or the beginning of 2005, McCray had researched ethics opinions and also sought the opinions of attorneys before adopting these contracts. The ethics opinion he found most on point was one from the Los Angeles County Bar Association. (Tr. 159-160; App. 320-324).
On February 26, 2005, Dr. Michaela McKenzie, a dentist from Georgia, attended a Stephen Snyder credit after bankruptcy seminar at a hotel in Atlanta, Georgia. McKenzie's bankruptcy was completed in December, 2004, and she received an invitation in the mail from Stephen Snyder in January, 2005. The seminar was free. She presented her letter to get in. There were approximately 400-500 people attending the seminar. (Tr. 25-30).
The letter from Stephen Snyder did not mention Bradley Ross Law (Tr. 59-60). Bradley Ross Law, however, was a sponsor of that Atlanta seminar. McCray was not personally present. (Tr. 34, 112). Indeed, McCray has never attended a seminar conducted by Stephen Snyder (Tr. 112), and first met him in person by happenstance at Bellwether, Inc., in April, 2005 (Tr. 109-110).
The Bradley Ross Law people at the seminar would have been legal assistants and data analysts from the processing center in Fishers, Indiana, and two additional coordinators. These people would have been personally instructed on their conduct by Dale Mohlenhoff, after McCray's conversations with him. (Tr. 151-152; 154, lines 13-22).
There were other sponsors at this Atlanta seminar. They included Ford Motor Credit; a credit card company, probably Orchard; a CPA firm which did tax work; and a mortgage company. These other entities would also pay Snyder as a sponsor. (Tr. 155-156, 211-212).
McKenzie testified that the seminar was about an hour and one half to an hour and 45 minutes long. In the seminar, Snyder talked about his own bankruptcy and how he was able to "regain his credit scores by using an attorney to write letters for him to help him improve his credit rating . . ." "He recommended that we . . . copy his experience and his success of using a law firm, and that if we wanted to, we could use the law firm that he recommended, which was Bradley Ross Law." "He invited people to go to the back of the room to a different area and sign up with Bradley Ross Law if they were interested in having them help them improve their credit scores." (Tr. 30-32).
McKenzie described walking down a hallway to another room, which had a bank of tables with about three or four people sitting behind them from Bradley Ross Law. She stated that at least 200 people went to this room and were in lines at the tables. She stated, accurately, that Bradley Ross Law was the only law firm at the seminar. She did not recall any other entities or sponsors at the seminar. (Tr. 33-34). She did recall another room which she never went in (Tr. 63, lines 9-14).
When McKenzie got to the head of the line at a table, she was asked if she would like to sign up. She stated she would, and she was handed an application. She stepped away to the side and filled out and signed the application. She did not discuss the contents of the application with any person from Bradley Ross Law, except that she asked that the date of payment be reflected to be the 15th of each month. She received a copy of the signed application. (Tr. 34-35, 36-37, 79-82; see App. 265-266). She also got something else from Bradley Ross Law, perhaps one of the brochures (Tr. 83-84).
With the application, McKenzie became a client of Bradley Ross Law, the North Dakota corporation (Tr. 210, lines 4-7). The agreement provided that McKenzie would pay $59.00 per month, to be taken directly from the financial account she provided, with her first payment to be on March 15, 2005 (Tr. 37-38, 41; App. 265). The agreement was clear that McKenzie could "cancel at any time" (App. 265), and provided a Notice of Cancellation form, which also stated she could cancel at any time (App. 266). The application gave McKenzie the address and telephone number for Bradley Ross Law, and McCray's email address (App. 256-266).
Bradley Ross Law began work for McKenzie on March 2 and 3, 2005, which included a letter to McKenzie asking her to provide certain information (App. 271, 279). On March 11, 2005, it appears Bradley Ross Law ordered McKenzie's three credit reports through Consumer Disclosure, Inc. (App. 279), and McKenzie's FICO scores and credit reports were entered in their system on March 14-23, 2005 (App. 280). It appear that on March 16, 2005, Bradley Ross Law mailed to McKenzie her credit score summary and FICO scores (App. 280; see 270). On March 23, 2005, dispute letters were sent to the three credit reporting agencies, and McKenzie was updated on the status of her case (App. 281).
McKenzie did not communicate to Bradley Ross Law items on her credit report she did not want disputed, although her application and agreement called for her to do so (see App. 265, item 5; Tr. 83, lines 12-21; Tr. 232-233). However, in response to the communication from Bradley Ross Law that they received her credit report, McKenzie replied in part, "A lot of the late payments that are listed are multiple student loans that were all clumped together under one payment and when one check did not get sent in on time it showed six late payments." (App. 282). McCray testified that McKenzie's student loans were disputed in all three of the letters sent on March 23, 2005 (see Tr. 136-139). McCray also added that McKenzie was also getting her FICO score reduced twice rather than once with respect to her student loan late payments because two different entities were reporting them as late (Tr. 139, lines 9-12).
On March 28, 2005, Bradley Ross Law received from McKenzie the information requested in the March 3, 2005 letter (App. 283). On May 12, 2005, McCray did an attorney review of McKenzie's file, and on May 13, 2005, a letter was sent to McKenzie regarding the attorney review (App. 283; see 270). That letter states, in part, "As a client on retainer you are being charged $59 a month, no matter how much work we do for you." (App. 270). McCray testified this sentence was intended to be a positive communication to the client, not a negative (Tr. 134, lines 16-20).
In McKenzie's application, McKenzie had agreed to forward the original correspondence from the credit reporting agencies to Bradley Ross Law (App. 265, item 1). This would have included the responses of the credit reporting agencies to the dispute letters (App. 274, ¶ 4). McCray testified that McKenzie did not do this (Tr. 135, lines 10-15; see App. 274, ¶ 4). McCray added, "Now, we should have done a better job as far as telling her . . ., making sure she's providing the updated reports and understands, and I believe I do a much better job of that now, but, you know, she wasn't a client that long and . . . when I did my first attorney review, that wasn't the issue at that point in time." (Tr. 135, lines 16-22). McCray referred to this time as having only involved "one round of disputes" (Tr. 135-136).
On June 15, 2005, the second round of dispute letters went out on McKenzie's behalf, and McKenzie was informed by email (App. 284-285). McKenzie responded by email stating, "Thanks for the update." (App. 285).
On September 29, 2005, a third round of dispute letters went out, and McKenzie was again informed by email (App. 286-287). This time there was no response from McKenzie.
On November 29, 2005, the entry in the Client Support Notes for McKenzie states, "Ineligible", with the explanation, "No credit reports within 6 months or inbound communication within the last month." (App. 287).
On December 28, 2005, McKenzie called Bradley Ross Law and requested copies of all the dispute letters sent on her behalf. She was told that McCray would be informed of her request. McKenzie also gave a new address and phone in Tucson, Arizona. (App. 287). McKenzie testified, "I kept seeing that my accounts were in dispute or in progress, and I never saw anything improve." (Tr. 41, lines 17-19). She acknowledged getting the updates from Bradley Ross Law (Tr. 41, lines 22-23).
On December 28, 2005, Bradley Ross Law put out a fourth round of dispute letters, and informed McKenzie of same by email (App. 288-289). On January 4, 2006, McKenzie called again and stated she wanted a quarterly summary and copies of the dispute letters sent on March 23, 2005. She was informed that McCray would be informed of her request for the dispute letters and that a detailed status report would follow. (App. 289-290).
On January 13, 2006, McKenzie called Bradley Ross Law and asked to speak to Loren McCray or Michelle. They were not available, and McKenzie stated she wished to cancel service. (App. 292). On January 13, 2006, McKenzie also sent Bradley Ross Law an email which began, "My email has been down for several weeks and I have been out of town." (App. 294-295).
On January 13, 2006, Bradley Ross Law sent McKenzie copies of the March 23, 2005 dispute letters and a status of her case (App. 292, 294, 296-297; see App. 275).
McKenzie alleged that she called for Loren McCray on December 2, 6 and 14, 2005, and January 16, 2006, and McCray never called her back (Tr. 45-47). McCray denied that McKenzie called him in December (Tr. 115-116; 193, lines 2-4). As seen above, the call on January 16, 2006 was for Loren McCray or Michelle. It was in that call that McKenzie cancelled services.
This action against McCray involves, in part, the contents of the three letters sent on March 23, 2005 (see App. 267-269). McCray testified that these letters, the format of same, was purchased from the Lexington Law Firm in Utah by Bradley Ross Law (Tr. 127-128). The letters are intentionally written as if coming from the client and not a law firm (Tr. 126, lines 16-21). "[I]f the letters come directly from the law firm . . ., then the credit reporting agencies take them differently . . . [T]hey'll put in a two-digit code . . . and it doesn't matter what you say in the letter." (Tr. 126-127). "They red-flag it because they regularly get sued by certain attorneys. Joanne Faulkner, who brought the . . . [first] complaint . . . [against McCray in this action] is one of those that regularly sues the three credit reporting agencies. . . [I]'m talking about having hundreds of complaints at any one time against the credit reporting agencies. . . [T]hey're going to . . . be very careful about it because they get dinged for damages under the Fair Credit Reporting Act and they worry about it." (Tr. 144-145).
As shown above, the brochure at that time specifically stated that Bradley Ross Law "will sign letters of dispute in your name. These letters communicate your dispute in such a way that the credit reporting agencies will most likely accept the dispute and conduct an investigation." (App. 228). At the hearing, McCray testified, "There have been lots of changes to the application and lots of changes to the brochure. For instance, I make sure it's in big letters that we dispute letters on your behalf and in your name at the very beginning to make sure there's no misunderstanding about that ever again. The same thing within the agreement." (Tr. 177, lines 4-10).
McCray also explained that the letters are formatted in a fashion to prevent negative stalls. "Letters that are ineffective have been weeded out over time . . ." (Tr. 140, lines 8-12). The letters are "a method of requesting verification." (Tr. 172-173; 229-233).
McCray also explained that McKenzie "authorized us to dispute anything as inaccurate that she didn't otherwise notify us of, and these are just the form letters that we use." (Tr. 140, lines 12-16; see application, App. 265, item 5; Tr. 231-232). McKenzie first testified: "The accounts were accurate. I supplied them, I provided them directly off of my bankruptcy statement to them. I never denied these accounts as being inaccurate. That's lying. I wouldn't do that." (Tr. 49-50). But, she acknowledged, "I didn't distinguish either way." (see Tr. 83, lines 12-21). Further, there is the matter of the acknowledged problem with the student loans, and McCray's explanation that the problem with the student loans was deeper than McKenzie knew.
McCray also testified that this process has evolved. As described above, Bradley Ross Law developed CaseValet so clients could go online and specifically indicate items to be disputed and items they did not want disputed (Tr. 140, 231-232). In the fall of 2005, they began requiring people to use CaseValet (Tr. 141-142, 144). In 2007, McCray formatted a new letter that proved successful (App. 305), based upon his study of Congressional testimony in 2004 (Tr. 140-141).
McKenzie paid Bradley Ross Law $59 every month for about ten months (Tr. 86). McCray testified at the hearing that McKenzie received full value for the money she paid based upon his review of her file and an internal document of Bradley Ross Law created in 2006 to place values on services provided (Tr. 131-134; App. 304; see Tr. 165-167).
McCray bought out McManus effective January 1, 2006 (Tr. 97, lines 19-22; 103, lines 6-18; 207-208). When asked why, McCray responded, "I put a lot of time into it. I like the type of work. I've been doing this type of thing for bankruptcy clients for a number of years, and I think we help people. It's lucrative. I like supervising lots of employees." (Tr. 98, lines 12-20). At the time of the hearing, McCray testified that he worked 60 to 70 hours per week, putting equal amounts of time between Bradley Ross Law and Loren McCray, Attorney at Law (Tr. 126). At the time of the hearing, Bradley Ross Law had approximately 9,450 clients (Tr. 164).
In 2006, the gross receipts of Bradley Ross Law were approximately 10 million dollars. McCray paid himself $75,000, and the corporation showed a loss of $10,000.00. (Tr. 108-109). "[A] lot of money comes in and a lot of money goes out as expenses." (Tr. 112, lines 3-6; 217-218). Bradley Ross Law was audited by the IRS in 2004 and 2005, with the audits coming out "fine" (Tr. 160-161).
In September, 2007, the employees previously leased from Bellwether, Inc., became the employees of McCray's Bradley Ross Law (Tr. 105). Therefore, Bellwether was no longer involved with employees (Tr. 158-159; 162). McCray's intent is to have his employees and everything in North Dakota (Tr. 162-163). When asked if he sees himself free of Bellwether, Inc., and the contracts, McCray responded, "I don't know who else can do the computer stuff, to be honest with you." (Tr. 163, lines 10-13).
At the time of the hearing in this action, Bradley Ross Law was sponsoring only one more live Snyder seminar. After that, everything was being moved online, with a marketing agreement to be redone. In part, this new process gives McCray complete control of Bradley Ross Law in regard to seminars and advertising. (Tr. 147-148, 150-151, 214).
STATEMENT OF THE STANDARD OF REVIEW
In Disciplinary Board v. Giese, 2003 ND 82, ¶ 7, 662 N.W.2d 250, the Court stated the standard of review as follows:
We review disciplinary proceedings de novo on the record. In re Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 126; In re Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. We accord due weight to the hearing panel's findings and conclusions, but we do not act as a mere rubber stamp of the hearing panel's decision. Edwardson, at ¶ 9; In re Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240. Disciplinary counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. In re Disciplinary Action Against Seaworth, 1999 ND 229, ¶ 24, 603 N.W.2d 176. Each disciplinary case must be considered upon its own facts to decide what discipline, if any, is warranted. Edwardson, at ¶ 9.
McCray contends the objected to findings, conclusions, and recommendations of the hearing panel are not supported by clear and convincing evidence, and the conclusions of the hearing panel are erroneous and not properly supported by law of fact. McCray further contends that disciplinary counsel has failed to meet its burden of proving the alleged violations of the disciplinary rules by clear and convincing evidence. McCray requests that the recommendations of the hearing panel be reversed and the matter dismissed.
McCray will list the objected to findings, conclusions and recommendations, and provide argument following each.
Paragraph 22 (page 8):
"The evidence established that little in the way of meaningful legal work was performed on Dr. McKenzie's behalf. Due to the volume of files handled by McCray while employed by Bradley Ross law and the volume of files handled by McCray when employed by Bradley Ross Law, P.C., he did not have time to adequately represent the firm's clients, including Dr. McKenzie. Until recently, Bradley Ross Law, P.C. did not check to make sure that some work was done for each client for each month that the client was billed."
This finding is contrary to the process of the legal work performed for clients by Bradley Ross Law described in the brochure and in the testimony of Loren McCray. Also, the brochure and the application clearly stated that Bradley Ross Law could not guarantee results. That is also part of the federal CROA law. (Tr. 134-135). This finding also ignores the brochure which urges clients to give the process at least 12 months. Here, this was not done.
McCray testified that McKenzie received the full value of the $590.00 paid based upon the work done and the value of what had been done.
A finding by the hearing panel as to other clients of Bradley Ross Law is inappropriate. No other client has complained, and there exists no factual basis to judge the representation of any other client by Bradley Ross Law.
McKenzie called Bradley Ross Law at the end of the calendar year, 2005, and demanded immediate information. Although McCray may not have had time at that particular time to immediately respond to McKenzie's demands, Bradley Ross Law did in fact timely respond to her requests by January 13, 2006. There exists nothing to suggest that Bradley Ross Law could not have responded with personal attention to McKenzie at that time, and to also properly proceed with adequate representation of McKenzie towards reaching her goals.
Paragraph 1. A. (page 8):
"Dr. McKenzie was charged $59 per month for 10 months for the law firm's services and the services provided did not justify the amount she paid. Further, Bradley Ross Law, P.C. is a credit repair organization and is not operating in accordance with 15 U.S.C. § 1679b.(b) in the manner in which it collected fees from Dr. McKenzie."
In response to this conclusion, McCray repeats his argument under the findings directly above.
In regard to the conclusion that Bradley Ross Law is not operating in accordance with 15 USC § 1679b(b), the hearing panel has failed to give any reasoning or any legal authority for this conclusion. The hearing panel is concluding a violation of federal law without any legal authority to support the conclusion. On the contrary, McCray relied upon authority, In re National Credit Management Group L.L.C., 21 F.Supp.2nd 424, 460 (D.N.J. 1998), in support of his position that he did not violate that statute.
No federal court has made a finding or conclusion that Bradley Ross Law has violated the federal CROA laws. Nor has disciplinary counsel provided any expert testimony in support of any allegation of a violation of federal law.
Paragraph 1. B. (page 9):
"The letters written and sent by Bradley Ross Law, P.C. to credit reporting agencies, purportedly written by Dr. McKenzie, contained false, untrue, and misleading statements. McCray knew the form letters being used by Bradley Ross Law, P.C. were not written or sent by the firm's clients and knew that they contained false, untrue, and misleading statements."
McCray contends the letters contained hyperbole, for example the statements about the dog and the porch light.
The statements in the letters that McKenzie did not recognize certain items were not intended to be false, untrue or misleading. It was intended to obtain verification under the process diligently described by Bradley Ross Law in the brochure and in the testimony of McCray himself.
Clients were informed in the brochure that the letters would be written in the name of the client. McCray described in detail the reason why the letters were not written in the name of a law firm.
Importantly, too, is the fact that there is no evidence that any credit reporting agency considered these form letters to be false, untrue or misleading. There is no federal court finding or conclusion that Bradley Ross Law or McCray engaged in any false, untrue or misleading conduct with the use of these letters.
Paragraph 1. C. (page 9):
"McCray, through Bradley Ross Law, P.C., funded seminars put on by Snyder and Bellwether, Inc. to solicit clients for Bradley Ross Law, P.C. at the Atlanta, Georgia seminar attended by Dr. McKenzie on February 26, 2005 for the pecuniary gain of McCray and Bradley Ross Law, P.C."
The hearing panel concludes that McCray solicited clients at the Atlanta seminar without stating any analysis or reasoning supporting the conclusion of soliciting. McKenzie testified that Snyder recommended Bradley Ross Law, but this is contrary to the testimony of McCray and how he instructed these seminars to be run. Snyder could not recommend Bradley Ross Law, but could indicate that Bradley Ross Law was a sponsor and was in attendance if people wished to see what the firm had available. The process was set up so as not to overbear McKenzie's will. McKenzie had to go down a hall and into another room. She was given a copy of the completed form, with every opportunity to cancel the agreement before any money came out of her account. This process does not constitute solicitation.
Paragraph 1. D. (pages 9-10):
"The letters written by McCray's law firm were dishonest and contained misrepresentations. Further, the conduct of McCray, in the operation of Bradley Ross Law, P.C., including the method in which Dr. McKenzie was solicited as a client and the process of sending dispute letters being written on Dr. McKenzie's behalf that were dishonest and contained misrepresentations, constitutes conduct which is prejudicial to the administration of justice."
McCray repeats his argument under 1. B. and 1. C. above. McCray denies that the operation of Bradley Ross Law constitutes conduct which is prejudicial to the administration of justice. McCray described his experience with bankruptcy law both before and during his relationship with Bradley Ross Law. He testified how he helped bankruptcy clients with these same issues before he became involved with Bradley Ross Law. He described how Bradley Ross Law is a value and benefit to the clients he serves. With all of these clients of Bradley Ross Law, only one client and one rival attorney have complained about McCray's conduct.
The very existence of CROA laws gives credence to credit repair organizations and the lawyers who work in this area. Again, no federal court has made any finding or conclusion that McCray or Bradley Ross Law has operated in violation of those federal laws.
Paragraph 1. E. (page 10):
"McCray brought reproach upon the legal profession by inappropriately soliciting Dr. McKenzie as a client, inappropriately requiring Dr. McKenzie to proclaim by contract that she had sought out the services of Bradley Ross Law, P.C. in North Dakota, inappropriately charging an unreasonable fee, and inappropriately mailing letters to credit agencies, purportedly sent by Dr. McKenzie, which contained false information and misrepresentations."
McCray denies that he has brought reproach upon the legal profession. McCray repeats his arguments under 1. D. directly above.
The hearing panel has given no legal authority to support the conclusions that McCray inappropriately required McKenzie to proclaim by contract that she had sought out the services of Bradley Ross Law, P.C. in North Dakota or that McCray inappropriately charged an unreasonable fee.
Paragraph 2. A. (pages 10-11):
"McCray could not adequately represent 9,450 to 18,000 clients by himself, nor could he adequately supervise 25 to 30 leased employees of the firm located in Fishers, Indiana. McCray was assisting some or all of the 25 to 30 leased employees of Bradley Ross Law, P.C. in the unauthorized practice of law."
There was no evidence that other clients of Bradley Ross Law were not adequately represented.
No evidence is cited in support of the conclusion that McCray failed to adequately supervise his employees in Fishers, Indiana. McCray testified that he traveled to Fishers, Indiana on a number of occasions, and he was always electronically linked with the staff and the files.
No evidence is cited where an employee practiced law. The case analysts and the data analysts were working under the process and procedures set up by the lawyers of Bradley Ross Law. There is no evidence to the contrary.
This is a broad, bold conclusion without any cited facts or evidence in support.
Paragraph 2. B. (page 11):
"McCray, through Bradley Ross Law, P.C., violated this provision by collecting between $59 and $79 per month from 9,450 to 18,000 clients regardless of how much work was done for a client, regardless if any work was done for a client, and with little or not involvement by McCray. Further, this method of billing does not meet the requirements of 15 U.S.C. 1679b.(b)."
"Regardless of how much work was done" was testified to by McCray to be a positive statement for the client, and not a negative statement.
There was absolutely no evidence how any other client of Bradley Ross Law was impacted by the fee structure of $59.00 per month. The evidence simply does not exist, and the hearing panel is pulling this conclusion out of thin air. Again, the hearing panel is finding a violation of federal law without any cited authority and without any analysis of facts. Again, no federal court has made a finding or conclusion that McCray has violated federal law.
Paragraph 5 (page 11):
"The Hearing Panel considered the following aggravating factors under Rule 9.2 of the Standards for Imposing Lawyer Sanctions: a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law."
There is no pattern of misconduct in this case. On the contrary, only one person out of many has complained. Also, the record is filled with instances of McCray continually improving the workings of Bradley Ross Law.
There is no evidence of multiple offenses.
It is McCray's substantial experience in bankruptcy which allows him to competently work under Bradley Ross Law. McCray's testimony reflects how he has thoughtfully and professionally evolved Bradley Ross Law.
"The Hearing Panel recommends that McCray be suspended from the practice of law for 120 days and that he be required to pay the costs and expenses of these proceedings in the amount of $7,808.66 in accordance with the Affidavit of Paul W. Jacobson dated October 26, 2007."
McCray objects to the recommendations of the hearing panel, and requests the Court to find that allegations of the violations against him have not been proven by clear and convincing evidence. McCray requests the Court to dismiss these actions against him.
WHEREFORE, McCray requests the Supreme Court of North Dakota to reverse the decision of the Hearing Panel and dismiss this case.
Respectfully submitted this day of February 2008.
|MICHAEL R. HOFFMAN|
|North Dakota Bar ID 04366|
|P. O. Box 1056|
|120 N. 3rd St., Ste. 100|
|Bismarck, ND 58502-1056|
|Michael R. Hoffman|