Thursday, January 13, 2011

Nonrefundable Mitigation

The North Dakota Supreme Court has imposed a reprimand, rather than the 30 day suspension proposed by its Disciplinary Board, in a matter involving an attorney who had failed to appear for a hearing after his request for a continuance was denied. 

The underlying case involved termination of parental rights and had been continued previously due to Yom Kipper. The court describes the circumstances of the attorney's failure to appear:

On January 20, 2009, the State, its witnesses, and [the attorney's] clients appeared at the scheduled trial, but [the attorney] did not appear. According to [the attorney], he took his daughter to Mayo Clinic from January 4 through January 8, 2009, and he was with his father in Florida from January 9 through January 23, 2009. According to a social worker, the parents had informed the social worker that [he] would not be present for trial and another lawyer would appear to advise the court about the situation. [The attorney] had contacted attorney Tim McLarnan to attend the first day of trial to renew the request for a continuance, and McLarnan attended the trial as a "professional courtesy" to [him]. A referee denied the renewed motion for a continuance, but thereafter granted a continuance of the termination proceeding on its own motion, recognizing the parents' important interests in the termination proceeding and their lack of representation at the January trial.

The court was somewhat sympathetic:

 Disciplinary counsel also claimed [the attorney's] misconduct constituted an aggravating selfish motive because he visited his father using non-refundable airline tickets after his request for a continuance was denied. However, the hearing panel did not find his misconduct had a selfish motive, which suggests the mitigating factor of the absence of a selfish motive under N.D. Stds. Imposing Lawyer Sanctions 9.32(b). Moreover, [he] is a sole practitioner without an available associate to cover scheduling conflicts on his behalf, and we decline to minimize his family responsibilities for his daughter and for his elderly father. Those family responsibilities clearly and convincingly establish a personal quandary for a father and a son and militate against a selfish motive.

There is also evidence the State had not fully complied with [his] discovery requests at the time of the scheduled January trial, and a referee thereafter compelled the State to provide complete answers to those requests. Those circumstances are not indicative of an adverse affect on [the attorney's] clients, and there is evidence his clients had been informed of his predicament. The record also clearly and convincingly reflects [he] accepted responsibility for the initial scheduling error, made full disclosure during the disciplinary process, and has been cooperative and remorseful throughout these proceedings, which are mitigating factors under N.D. Stds. Imposing Lawyer Sanctions 9.32(e) and (l).

We do not condone [his] misconduct in this case. However, we conclude there are several relevant mitigating factors not cited by the hearing panel, and after considering all the extenuating and mitigating circumstances in this case under our de novo review, we conclude a reprimand is a sufficient sanction for [his] isolated instance of misconduct.

(Mike Frisch)

 

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