Disciplinary Board v. Hoffman

20030141 In the Matter of Application for
Disciplinary Action against
Randall L. Hoffman, a member of
the Bar of the State of North
Dakota
----------------------
Disciplinary Board of the Supreme
Court of the State of North Dakota, Petitioner
v.
Randall L. Hoffman, Respondent

Nature of Action: Disciplinary Proceedings (Civil)
Counsel:
Respondent: Pro se
Petitioner: Paul W. Jacobson
Term: 09/2003   Argument: 09/04/2003  9:30am
ND cite: 2003 ND 161
NW cite: 670 N.W.2d 500

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:


Petitioner's Statement of the Issues:
1. In File No. 3578-SE-0110, the Hearing Panel failed to make a necessary factual finding that Hoffman personally and Substantially participated as a judge in the matter of Toltzman v. Toltzman, Civil No. 97-C-492, in order to draw the conclusion that Rule violation had occurred.
2. In File No. 3578-SE-0110, the Hearing Panel failed to make certain Findings of facts which should occur as a result of the evidence and which are relevant to the issue of Hoffman's personal and substantial participation as a judge.
3. In File No. 3578-SE-0110, the Hearing Panel made a finding of fact that shortly after March 1st, 1999, Hoffman resigned as District Judge. This finding is not supported by the evidence and is erroneously misleading.
4. In File No. 3578-SE-0110, the Hearing Panel failed to make an appropriate finding that the evidence does not clearly and convincingly support a necessary fact that Hoffman participated personally and substantially as a judge in the matter of Toltzman v. Toltzman, Civil No. 97-C-492.
5. In File No. 3578-SE-0110, the Hearing Panel erred in its legal conclusion that Hoffman violated Rule 1.12(a), North Dakota Rules of Professional Conduct in that the appropriate findings of facts do not support the conclusion that a violation of the rule had occurred.
6. In File No. 3617-SE-0202, the Hearing Panel erroneously failed to include the necessary element of "in representing a client" in its legal conclusion that Hoffman violated Rule 4.2, North Dakota Rules of Professional Conduct.
7. In File No. 3617-SE-0202, the Hearing Panel made inappropriate findings of fact that were not supported by clear and convincing evidence and failed to make certain findings of fact which are supported by evidence and which are relevant to the elements: (1) an attorney/client relationship or lack thereof; (2) necessary and sufficient communication or the lack of communication thereof; (3) the existence of a threat or lack thereof; (4) no purpose in discovery or communication and (5) frivolous discovery requests.
8. In File No. 3617-SE-0202, the Hearing Panel made erroneous legal conclusions which were not supported by clear and convincing evidence regarding the issues: (1) in representing a client; (2) communication; (3) no purpose other than to embarrass or burden a third person in discovery or communication; (4) threats; and (5) frivolous discovery requests; and (6) violations of Rules 1.12(a), 4.2, 3.4, and 4.4, NDRPC.
9. The Hearing Panel erroneously denied Hoffman's Motion to Dismiss and Motion to Strike in File No. 3617-SE-0202 which would have required Disciplinary Counsel to plead and prove the necessary element of "in representing a client" as may be found in Rule 1.12(a), NDRPC. (See Clerks Certificate nos 33, 34 and 12.)
10. The Hearing Panel made rulings which erroneously denied Respondent's Motion in Limine and erroneously denied Respondent's continuing objections at the hearing regarding the lawful prohibition of statements by third parties as evidence of an attorney/client relationship between Gwen Simmers and Hoffman. (See 36, 37, 39)


Respondent's Statement of the Issues:
OBJECTION #1: In file no. 3578-SE-0110, the Hearing Panel failed to make a necessary factual finding that Hoffman personally and substantially participated as a judge in the matter of Tolzman v. Tolzman, civil no. 97-C-492, in order to draw the conclusion that a rule violation had occurred.
OBJECTION #2: In file no. 3578-SE-0110, the Hearing Panel failed to make certain findings of facts which should occur as a result of the evidence and which are relevant to the issue of Hoffman's personal andsubstantial participation as a judge.
OBJECTION #3: In file no. 3578-SE-0110, the Hearing Panel made a finding of fact that shortly after March 1st, 1999, Hoffman resigned as District Judge. This finding is not supported by the evidence and is erroneously misleading.
OBJECTION #4: In file no. 3578-SE-0110, the Hearing Panel failed to make an appropriate finding that the evidence does not clearly and convincingly support a necessary fact that Hoffman participated personally and substantially as a judge in the matter of Tolzman v. Tolzman, civil no. 97-C-492.
OBJECTION #5: In file no. 3578-SE-0110, the Hearing Panel erred in its legal conclusion that Hoffman violated Rule 1.12(a), North Dakota Rules of Professional Conduct in that the appropriate findings of facts do not support the conclusion that a violation of the rule had occurred.
OBJECTION #6: In file no. 3617-SE-0202, the Hearing Panel erroneously failed to include the necessary element of "in representing a client" in its legal conclusion that Hoffman violated Rule 4.2, North Dakota Rules of Professional Conduct.
OBJECTION #7: In file no. 3617-SE-0202, the Hearing Panel made inappropriate findings of fact that were not supported by clear and convincing evidence and failed to make certain findings of fact which are supported by evidence and which are relevant to the elements: (1) an attorney/client relationship or lack thereof; (2) necessary and sufficient communication or the lack of communication thereof; (3) the existence of a threat or lack thereof; (4) no purpose in discovery or communication and (5) frivolous discovery requests.
OBJECTION #7: In file no. 3617-SE-0202, the Hearing Panel made erroneous legal conclusions which were not supported by clear and convincing evidence regarding the issues: (1) in representing a client; (2) communication; (3) no purpose other than to embarrass or burden a third person in discovery or communication; (4) threats; and (5) frivolous discovery requests; and (6) violations of Rules 1.12(a), 4.2, 3.4, and 4.4, NDRPC.
OBJECTION #8: The Hearing Panel erroneously denied Hoffman's Motion to Dismiss and Motion to Strike in file no. 3617-SE-0202 which would have required Disciplinary Counsel to plead and prove the necessary element of "in representing a client" as may be found in Rule 1.12(a), NDRPC. (See Clerks Certificate nos 33, 34, and 12.)
OBJECTION #9: The Hearing Panel made rulings which erroneously denied Respondent's Motion in Limine and erroneously denied Respondent's continuing objections at the hearing regarding the lawful prohibition of statements by third parties as evidence of an attorney/client relationship between Gwen Simmers and Hoffman. (See 36, 37, 39)
OBJECTION #10: The Hearing Panel improperly considered aggravating and mitigating circumstances, and Respondent's Objections to the costs of the disciplinary proceeding.

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Docket entries:
105/12/2003 REPORT OF HEARING BODY
205/12/2003 REPORT OF HEARING BODY SERVED ON PARTIES/COUNSEL
305/13/2003 THIS CASE CONSOLIDATED W/ 20030142. MAKE ALL ENTRIES EXCEPT "DIS" IN THIS CASE.
405/21/2003 Certificate of Record on Appeal
505/21/2003 Transcript of Hearing dated March 26, 2003 (Part of ROA - Entry #41 - Original & 1 copy)
605/21/2003 DISK of transcript dated 3-26-03
705/29/2003 Respondent's Objections to the Report of the Hearing Panel w/ Cert./Serv.
805/29/2003 Notice of Mailing Address Change
906/27/2003 Copy of Transcript of Hearing dated 3-26-03 (same as trans. filed 5-21-03)
1006/27/2003 PETITIONER BRIEF (Disciplinary Board)
1106/27/2003 Petitioner's APPENDIX (Disciplinary Board)
1206/27/2003 DISK - PTB
1306/27/2003 RESPONDENT BRIEF
1407/07/2003 Corrected TOA & page 2 for RPB
1507/07/2003 DISK - RPB
1609/02/2003 Request for Radio/TV Coverage - AP (e-mail dated 9-02-03 from Dale Wetzel) (AUTHORIZED)
1709/04/2003 APPEARANCES: Paul W. Jacobson; Randall L. Hoffman
1809/04/2003 ARGUED: Jacobson; Hoffman (Vol. Y; Page 133)
1909/04/2003 ORAL ARGUMENT WEBCAST
2010/23/2003 DISPOSITION: DISCIPLINE IMPOSED
2110/23/2003 UNANIMOUS OPINION: Per Curiam
2210/23/2003 Randall Hoffman is suspended for one year commencing December 1, 2003, for violation of NDRProf
2310/23/2003 Conduct 1.12(a), 3.4(d), 4.2 and 4.4
2410/23/2003 Randall Hoffman is required to comply with N.D.R.LawyerDiscipl. 6.3
2510/23/2003 Randall Hoffman is required to pay costs in the amount of $ 4,553.71
2610/24/2003 Judgment Mailed to Parties
2710/29/2003 Notice of Order sent to SBAND, publishers, clerks, judges and editor
2811/05/2003 PETITION FOR REHEARING
2911/05/2003 Appendix for Petition for Rehearing
3011/05/2003 DISK NONCOMPLIANCE (PER) (Scanned)
3111/13/2003 ACTION BY SUPREME COURT (PER). Denied
3212/22/2003 Affidavit of Identification
3312/22/2003 JUDGMENT TRANSCRIBED TO Stutsman, Burleigh & Grant Counties
3412/24/2003 Notice of Filing Transcript (Burleigh County)
3512/24/2003 Notice of Filing Transcript (Stutsman County)
3601/06/2004 Affidavit Regarding Notice of Status
3701/08/2004 Notice of Filing Transcript (Grant County)
3812/07/2010 EXPUNGED - Nonpermanent record items destroyed
3907/25/2011 Received payment of $4,553.71 from Schock Real Estate, Inc. for judgment against Randall Hoffman
4007/25/2011 (Receipt #20575)
4107/27/2011 Acknowedgment of Satisfaction of Judgment

Generated from Supreme Court Docket on 11/21/2014