Thursday, August 28, 2014

Clear And Convincing Evidence Required For Revocation Of Disciplinary Probation

The standard of proof for a violation of disciplinary probation is clear and convincing evidence, according to a recent decision of the North Dakota Supreme Court.

The court found that the attorney-probationer had charged excessive fees and failed to supervise non-lawyer staff

 the billing records provided by [the attorney] reflect that she double-billed, she billed for overhead items, and she billed at the wrong hourly rate...

[She] argues her fee is reasonable even though it contains minor billing errors because, she claims, a bill containing de minimus billing errors has never resulted in discipline in North Dakota. She also argues she performed a substantial amount of legal work which was not billed and which was substantially greater than the total amount of billing errors. Despite these contentions, [her] improper billing previously discussed is sufficient to establish that her fee is unreasonable...

There is a dissent as to sanction

Upon revocation, we must determine the appropriate length of suspension. The majority does not answer this directly; instead suspending [the attorney] for 30 days in a combination of imposing new discipline and revoking the stayed suspension. I respectfully disagree with the adequacy of that action as it relates to revocation of the stayed suspension. I made plain in the 2011 proceeding that I thought a 90-day suspension was appropriate and that staying the suspension was ill-advised. See Kellington, 2011 ND 241, ¶ 19, 809 N.W.2d 298 (Crothers, J., dissenting). I continue to believe principles of graduated and proportional discipline require revocation of the stay and imposition of suspension for the full original 90 days. That is especially true when viewed in the context of this disciplinary proceeding, which is [her] eighth since 1996. See id. at ¶ 16 (Crothers, J., dissenting).

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2014/08/the-standard-of-proof-for-a-violation-of-disciplinary-probation-is-clear-and-convincing-evidence-according-to-a-recent-decis.html

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