Disciplinary Board v. Dvorak

990384 IN THE MATTER OF THE APPLICATION FOR
DISCIPLINARY ACTION AGAINST SHIRLEY A.
DVORAK, A MEMBER OF THE BAR OF THE
STATE OF NORTH DAKOTA
Nature of Action: Disciplinary Proceedings (Civil)
Counsel:
Petitioner: Paul W. Jacobson
Respondent: Vogel Law Firm
Term: 03/2000   Argument: 03/17/2000  10:45am
ND cite: 2000 ND 98
NW cite: 611 N.W.2d 147

Issues: Appellant's Statement of the Issues:
1. That it was not proven by clear and convincing evidence that Shirley A. Dvorak violated Rule 3.4(a), NDRPC, in that she was attempting to use legal means to protect her client's rights and her actions were not an unlawful obstruction of access to evidence.
2. That it was not proven by clear and convincing evidence that Shirley A. Dvorak violated Rule 4.4, NDRPC, in that she did not have as a substantial purpose the embarrassment or the imposition of a burden on the complainant, Debra K. Jacobs.

Appellee's Statement of the Issues:
I. NDRPC Rule 3.4(a) establishes that a lawyer must not obstruct another party's access to evidence. In the deposition of Complainant, Respondent effectively compromised any credibility of Complainant as a witness, by establishing that the Complainant had no personal knowledge of the veracity of "facts" she wrote in a questionnaire in support of Brenda Berg, which could subject the Complainant to liability for defamation of Weston Berg. After the deposition, Respondent sent a letter to Complainant requesting that she amend her defamatory questionnaire or Mr. Berg may pursue other legal remedies. The Court must uphold the Hearing Body's recommendation and the Disciplinary Board's Order for Dismissal of the petition against Shirley A. Dvorak unless it finds a rule violation by clear and convincing evidence, where Respondent merely took the first step to securing her client's rights for a potential defamation suit against the Complainant, and at all times the Complainant remained available as a witness for either party.
II. NDRPC Rule 4.4 requires that a lawyer must not take any action with no substantial purpose other than to embarrass or burden a witness. The Court must uphold the Hearing Body's recommendation and Disciplinary Board's dismissal of the petition unless it finds a rule violation established by clear and convincing evidence, where in the course of the Weston and Brenda Berg divorce proceedings, Respondent sent a letter to Complainant's employer to preserve testimony on the Complainant's state-owned computer and to have false and potentially defamatory material removed from the public domain, and where the Disciplinary Counsel himself admitted that Respondent's actions may have been a "reasonable step toward that goal."

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Docket entries:
112/17/1999 NOTE: See objections to Order of Dismissal below
212/17/1999 Objections to Order of Dismissal
312/17/1999 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
412/21/1999 Prevailing Party's Verified Statement of Costs and Disbursements dtd 12-20-99
501/05/2000 RECORD ON APPEAL
601/06/2000 Response to "Verified Statement of Costs and Disbursements" (to be considered w/merits)
701/21/2000 PETITIONER BRIEF
801/21/2000 APPENDIX (PETITIONER)
901/21/2000 DISK - Petitioner's Brief
1001/21/2000 RESPONDENT BRIEF
1101/21/2000 TRANSCRIPT DATED 6-28-99
1201/21/2000 DISK - TRA dated 6-28-99
1301/24/2000 DISK - Respondent's Brief
1401/24/2000 Respondent's Appendix
1502/25/2000 SITTING WITH THE COURT: Olson, Everett Nels
1603/17/2000 APPEARANCES: Paul W. Jacobson; Kermit E. Bye
1703/17/2000 ARGUED: Jacobson; Bye (Vol. X; page 3)
1805/18/2000 DISPOSITION: DISCIPLINE IMPOSED
1905/18/2000 UNANIMOUS OPINION: , Per Curiam
2005/18/2000 Ms. Dvorak is suspended from the practice of law for one year effective June 30, 2000.
2105/18/2000 Dvorak must apply for reinstatement in accordance with Rule 4.5, NDRLawyer Discipline and she
2205/18/2000 must show successful completion of the Multistate Professional Responsibility Exam.
2305/18/2000 Dvorak must also pay the costs and expenses of the disciplinary proceedings in an amount to
2405/18/2000 to be determined by the Disciplinary Board.
2505/18/2000 Order/Judgment Mailed to Parties
2605/19/2000 Notice of Order Suspending Attorney sent to Sandi Tabor, Grand Forks Herald, Michie, Martindale
2705/19/2000 Hubbell, US Court of Appeals, & US Supreme Court
2805/23/2000 Notice of Order Suspending Attorney sent to District Judges & Clerk, Federal Court Judges & Clerks,
2905/23/2000 & Misc.
3006/01/2000 PETITION FOR REHEARING
3106/01/2000 DISK - PER
3206/13/2000 ACTION BY SUPREME COURT (PER). Denied
3307/11/2000 Faxed Motion for Stay Pending Appeal to U.S. Supreme Court, Brief in Support
3407/11/2000 Faxed letter dated 7-10-00 from Richard W. Goldberg, Judge of U.S. Dist. Court to counsel w/attach.
3507/11/2000 MOTION FOR STAY PENDING APPEAL TO THE UNITED STATES SUPREME COURT, BRIEF IN SUPPORT (Originals)
3607/12/2000 Certificate of Service by Facsimile transmission to Douglas A. Bahr
3707/13/2000 ACTION BY SUPREME COURT (Mot/Stay for 30 days). Granted
3807/13/2000 Order Mailed to Parties, Disc. Bd., Doug Bahr, Dist. Judges & Clerks; Fed Judges & Clerks; Clerk's
3907/13/2000 office misc. which includes publishers; martindale-hubbel; SBAND
4007/14/2000 Disciplinary Counsel's Opposition to Mot. for Stay Pending Appeal to U.S. Supreme Court
4107/14/2000 (NOTE: already acted on, but copies dist. to GWV, WAN, DVS & MMM)
4207/19/2000 Supplemental Certificate of Record on Appeal dated July 19, 2000 (entries 53-61) which
4307/19/2000 contains Order regarding costs of $9,214.21.
4407/25/2000 MOTION FOR STAY EXTENSION WITH SUPPORTING BRIEF AND AFFIDAVIT OF SHIRLEY DVORAK
4507/25/2000 Objection to Order Assessing Costs
4607/26/2000 ACTION BY SUPREME COURT (Ext. of Stay until 9/11/00). Granted
4707/26/2000 ACTION BY SUPREME COURT (Objection to costs) Disc. Bd. Order assessing costs is approved.. Denied
4807/26/2000 Second Supplemental Certificate dated 7-26-00 - Entry Nos. 62 & 63
4907/26/2000 Dvorak is to pay costs and expenses of the Disciplinary Proceeding in the amount of $9214.21
5007/27/2000 Orders re: costs and stay extension mailed to Parties, Chair-D.Bd.
5107/27/2000 Order re: stay extension mailed to Judges & Clerks NECentral Jud. Dt. & East Central Jud. Dt.
5207/27/2000 SBAND; Federal Judges & Clerk; Bill Suter; Michael Gans; Eloise Haaland & Kathleen Narlock
5308/03/2000 MOTION FOR STAY OF PAYMENT OF COSTS (Part No. 1 of "Motion for Requested Relief")
5408/03/2000 MOTION FOR CLARIFICATION OF COURT'S DECISION (PART 2 OF "MOTION FOR REQUESTED RELIEF"
5508/03/2000 MOTION TO GRANT A HEARING ON THE AMOUNT OF COSTS OR RECONSIDERATION (PART 3 OF MOT. FOR REQ. RELIEF
5608/07/2000 DISCIPLINARY COUNSEL'S RESPONSE TO "MOTION FOR REQUESTED RELIEF"
5708/09/2000 ACTION BY SUPREME COURT (Motion staying payment of costs). Granted
5808/09/2000 ACTION BY SUPREME COURT (Motion for Clarification of Court's Decision). Denied
5908/09/2000 ACTION BY SUPREME COURT (Motion to Grant Hearing on Amount of Costs or Reconsideration). Denied
6008/09/2000 Order Mailed to Parties
6109/12/2000 Copy of Petition for Writ of Certiorari to U.S. Supreme Court (mailed 9/11/2000)
6209/18/2000 Letter from US Supreme Court dated 9-14-00 RE: Petition for Writ of Certiorari was filed 9-11-00
6309/18/2000 and placed on the docket on 9-13-00 as No. 00-402.
6410/13/2000 3 copies of the S. Ct. of U.S. - Respondent's Brief in Opposition & Aff./Serv.
6511/06/2000 3 copies of S.Ct. of U.S. - Petitioner's Reply Brief & Certificate of Service
6611/17/2000 Notification from U.S. Supreme Court that Petition for Writ of Cert. is denied
6711/22/2000 Order Mailed to Parties, Dt. Court Judges & Clerks, Federal Judges & Clerks, Surrogate Judges,
6811/22/2000 Sandi Tabor (SBAND), Publishers, Editor-Grand Forks Herald
6911/22/2000 MOTION TO LIFT STAY (Sua Sponte)
7011/22/2000 ACTION BY SUPREME COURT - Stay lifted, Dvorak suspended for 358 days effective January 1, 2001. Granted: 01/01/2001
7112/05/2000 Proof of Compliance Affidavit Pursuant to Rule 6.3(F) of N.D.R. Lawyer Discipl.
7212/11/2000 Payment of costs, $9214.21 - receipt no. 13258
7304/02/2007 EXPUNGED - Nonpermanent record items destroyed

Generated from Supreme Court Docket on 12/04/2008