April 6, 2009
No Second Bite
The North Dakota Supreme Court imposed a one-year suspension as reciprocal discipline for a sanction of the Minnesota Supreme Court. The attorney had improperly used an escrow account to shield assets from creditors. The North Dakota court rejected the suggestion that the matter should be tried de novo. The court held:
The issue in this case is a variation of the issue in Dvorak, because the Minnesota Supreme Court applied North Dakota rules for the two allegations of misconduct relating to Overboe's trust accounts maintained in North Dakota. Nevertheless, as the Minnesota Supreme Court recognized, the relevant rules are "nearly identical," Overboe, 743 N.W.2d at 861, n.4, and Overboe is essentially asking this Court to require the Minnesota Supreme Court to use a de novo review for disciplinary action against Overboe's Minnesota license. We decline Overboe's invitation, and we consider this case in the context of the criteria for reciprocal discipline under N.D.R. Lawyer Discipl. 4.4(D). To the extent Overboe argues the Minnesota procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process under N.D.R. Lawyer Discipl. 4.4(D)(1), he has not claimed a lack of notice or opportunity to be heard and the due process holding in Dvorak is controlling.
The holding is consistent with the overarching principle that an accused attorney gets one fair chance to contest allegations of misconduct. (Mike Frisch)
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