Disciplinary Board v. Overboe

20080219 In the Matter of the Application
for Disciplinary Action Against
David A. Overboe, 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.
David A. Overboe, Respondent

Nature of Action: Disciplinary Proceedings (Civil)
Counsel:
Petitioner: Paul W. Jacobson
Respondent: David A. Overboe
Term: 12/2008   Argument: 12/19/2008
ND cite: 2009 ND 40
NW cite: 763 N.W.2d 776

Listen to recording of oral argument in MP3 format

Issues: Respondent's Statement of the Issues:
The issues before the Court are the objections the Respondent made to the Report of the Hearing Panel dated September 3, 2008. Those objections are as follows:
1. Finding of Fact number eleven (11) is objected to in that it is erroneous. The panel finds that the substitution of North Dakota Rules for Minnesota Rules was more a matter of form than substance and such substitution did not detract from the fact that the Referee made his findings under the standard of clear and convincing evidence. This is an error:
a.The Hearing Panel misinterpreted the case of Disciplinary Board of the Supreme Court vs. Dvorak, 1998 ND 134 (Finding number 12);
b.The Hearing Panel failed to recognize that the Minnesota Supreme Court used the wrong standard in reviewing the Referee's findings, which, had they used the proper standard (de novo review) a different result most likely would have been obtained.
3. The Hearing Panel erred in failing to review the evidence presented, relying solely on findings of the Minnesota Referee. The evidence contained no evidence of the following:
a. That Respondent deceptively used a trust account to shield personal funds from judgment creditors;
b. That the Respondent made misrepresentations and failed to cooperate with the Director during the disciplinary investigation; and,
c. That the Respondent co-mingled client funds with personal funds.
4. The Hearing Panel failed to make findings on the Minnesota Disciplinary Counsel's refusal to cooperate with discovery.
5. The fees imposed for Disciplinary Counsel in these proceeding which lasted approximately one hour, with no presentation of evidence by Disciplinary Counsel and a brief that was several pages long are outrageous.
a. The imposition of fees under Rule 1.3 (A)(9) NDRLD is a denial of equal protection of the law because the rule does not permit an equal assessment of fees by the Respondent in the event the Respondent prevails.
b. The proceedings are inherently corrupt because the Disciplinary Board owes in large part its continued existence to finding fault and assessing costs in order to pursue other matters.
6. A recommended punishment of one year suspension constitutes a grave injustice under the circumstances of this case.

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Docket entries:
109/04/2008 REPORT OF HEARING PANEL (Part of Record)
209/05/2008 REPORT OF HEARING BODY SERVED ON PARTIES/COUNSEL
309/09/2008 TRANSCRIPT DATED June 25, 2008 - includes exhibits A - F (A-C are cover pages only)
409/09/2008 DISK of tra dated 6-25-08 (CD)
509/09/2008 Certificate of Record on Appeal - includes Exhibits A-C)
609/10/2008 Condensed copy of Transcript dated 6-25-08
709/24/2008 Respondent's Objections to Report of Hearing Panel
809/25/2008 Affidavit of Service by Mail of Respondent's Objections to Report
910/24/2008 PETITIONER BRIEF
1010/24/2008 Petitioner's Appendix
1110/24/2008 DISK - PTB
1211/03/2008 The Respondent Brief was sent to the wrong e-mail address on 10/24/08. It was resent and filed
1311/03/2008 under Admin. Rule 5 on 11/3/08.
1411/03/2008 ACTION BY CLERK - Respondent Brief (reset due date as RPB was sent to wrong e-mail address). Granted
1511/03/2008 RESPONDENT BRIEF (e-filed)
1611/03/2008 E-FILED BRIEF (RPB)
1711/03/2008 Respondent's APPENDIX (e-filed)
1811/03/2008 E-FILED APPENDIX (Respondent's Appendix)
1911/04/2008 Received $25 surcharge for Respondent's Brief (Receipt #18606)
2011/06/2008 Received 7 copies of RPB from Central Duplicating
2111/06/2008 Receive 6 copies of Respondent's Appendix from Central Duplicating
2212/19/2008 APPEARANCES: Paul W. Jacobson; David A. Overboe
2312/19/2008 ARGUED: Jacobson; Overboe
2412/19/2008 ORAL ARGUMENT WEBCAST
2504/02/2009 DISPOSITION: DISCIPLINE IMPOSED
2604/02/2009 UNANIMOUS OPINION: Per Curiam
2704/02/2009 Overboe is suspensed from the practice of law for one year, commencing April 2, 2009
2804/02/2009 Mr. Overboe is ordered to pay $1,934 in costs,payable to the Secretary of the Disciplinary Board
2904/07/2009 Judgment E-Mailed to Parties
3004/07/2009 Letter from Mr. Overboe regarding 6.3 notice
3105/29/2009 AFFIDAVIT OF IDENTIFICATION
3205/29/2009 JUDGMENT TRANSCRIBED TO Cass County
3306/03/2009 notice of filing transcript and docketing judgment
3402/17/2015 EXPUNGED - Nonpermanent record items destroyed

Generated from Supreme Court Docket on 11/21/2017