Justia Legal Ethics Opinion Summaries

Articles Posted in North Dakota Supreme Court
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Terrance Fredericks appealed a district court order dismissing his lawsuit against the Vogel Law Firm and its attorneys Monte Rogneby and Maurice McCormick, McCormick Inc., and Northern Improvement Company. In the earlier (2016) lawsuit Northern Improvement and McCormick, individually and on behalf of Native Energy, sued Fredericks for breaching contractual and fiduciary duties. Fredericks counterclaimed, alleging McCormick breached fiduciary duties. The jury found that McCormick and Northern Improvement did not breach duties owed to Native Energy or Fredericks. Vogel represented McCormick and Northern Improvement in the 2016 lawsuit. Fredericks sought to disqualify Vogel after testimony revealed Vogel may have indirectly provided services to Native Energy in 2010 and 2011 when it reviewed certain agreements that were later executed by Native Energy and third-party oil companies. The district court declared a mistrial and disqualified Vogel from representing McCormick. McCormick moved for reconsideration of the court’s decision to disqualify Vogel. After a hearing, the court did not disqualify Vogel, ruling it had not represented Native Energy by reviewing the agreements. In December 2017, Fredericks moved to add Vogel as a third-party defendant, claiming it committed legal malpractice by breaching fiduciary duties owed to Native Energy and Fredericks. Fredericks’ motion also sought to amend his counterclaims against McCormick and Northern Improvement. In April 2018, the district court allowed Fredericks to amend his claims against McCormick and Northern Improvement, but denied his motion to join Vogel as a third-party defendant. In February 2019, Fredericks, individually and derivatively on behalf of Native Energy Construction, filed the instant lawsuit against Vogel, McCormick, and Northern Improvement. Fredericks’ complaint alleged that Vogel had a conflict of interest because it had provided legal services to Native Energy in 2010 and 2011, and its current representation of McCormick was adverse to Native Energy and Fredericks. Fredericks alleged Vogel committed legal malpractice by disclosing Native Energy’s and Fredericks’ confidential information to McCormick. Fredericks also alleged McCormick and Northern Improvement breached fiduciary duties owed to Native Energy and Fredericks. The district court concluded res judicata barred Fredericks’ claims. Finding no reversible error in that decision, the North Dakota Supreme Court affirmed. View "Fredericks, et al. v. Vogel Law Firm, et al." on Justia Law

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Dustin Irwin died in 2014, in the Ward County, North Dakota jail. The circumstances of his death led to an investigation and criminal charges against Ward County Sheriff Steven Kukowski. Initially, Divide County State’s Attorney Seymour Jordan was appointed to handle the criminal proceeding. Jordan determined the circumstances justified a petition for removal of Sheriff Kukowski from office. Governor Jack Dalrymple appointed Jordan as the special prosecutor for the removal. Ultimately, Jordan requested to withdraw and Governor Burgum appointed attorney Daniel Traynor as the special prosecutor. After completion of the removal proceedings, Traynor submitted his bill to the State on May 1, 2017. The State forwarded the bill to Ward County. Ward County refused to pay the bill. Traynor sued the State and Ward County to recover the unpaid fees. The State responded to Traynor’s complaint by filing a motion to dismiss. Ward County answered Traynor’s complaint and cross-claimed against the State. The State moved to dismiss Ward County’s cross-claim. Traynor moved for judgment on the pleadings. The district court entered judgment in Traynor’s favor against the State, and awarded interest at 6% per annum. The State argued Ward County had to pay Traynor’s bill because Chapter 44-11, N.D.C.C., failed to address who should pay for the special prosecutor fees in a county official’s removal proceeding, and therefore the catch-all provision in N.D.C.C. 54-12-03 applied. Ward County argues neither Chapter 44-11, N.D.C.C., nor Chapter 54- 12, N.D.C.C., imposes an obligation upon a county to pay the fees of an attorney appointed by the Governor for proceedings for the removal of a public official. The North Dakota Supreme Court concurred with the district court that Chapter 44-11, N.D.C.C., was silent regarding the payment of special prosecutor fees in a removal proceeding, and it was not necessary or required to import N.D.C.C. 54-12-03 into Chapter 44-11. Based on these facts, the Supreme Court concluded the district court did not err in finding a contract existed for legal services between Traynor and the State. The Court agreed with Traynor that the district court erred by awarding 6% per annum interest instead of the 1.5% monthly interest rate stated on its bill. The Supreme Court therefore affirmed in part, reversed in part and remanded for further proceedings. View "Traynor Law Firm v. North Dakota, et al." on Justia Law

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Roger Feltman and TRRP LLC (Feltman) appeal a district court judgment dismissing their malpractice lawsuit against attorney Daniel Gaustad and the Pearson, Christensen & Clapp law firm (Gaustad). The court concluded summary judgment was appropriate because Feltman failed to establish a factual dispute as to the elements of legal malpractice. Finding no reversible error in that decision, the North Dakota Supreme Court affirmed judgment. View "Feltman, et al. v. Gaustad, et al." on Justia Law

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Ronald Smithberg petitioned the North Dakota Supreme Court for a supervisory writ following the district court’s denial of his demand for a jury trial. Ronald, Gary, and James Smithberg were brothers who were shareholders in Smithberg Brothers, Inc. In July 2016, Ronald filed a “complaint and jury demand,” suing Gary, James and Smithberg Brothers, Inc., seeking damages and to have the corporation and his brothers purchase his shares. After a jury trial was scheduled for October 1, 2018, the parties stipulated to “waive their right to a jury trial and to schedule a court trial.” The stipulation also stated “the Court should schedule a three-day Court trial for February 2018, or as soon as possible thereafter.” In January 2018, the district court granted summary judgment dismissing all of Ronald’s claims for damages. After a bench trial was held on several remaining claims, the court determined the value of Ronald’s interest in the corporation, ordered the corporation to pay Ronald for his interest, and entered judgment. Ronald appealed, and the Supreme Court reversed judgment and remanded for a trial, holding the district court erred by granting summary judgment dismissing Ronald’s claims for damages On remand, Ronald requested a jury trial and defendants opposed his request. The district court ordered a bench trial, noting the stipulation to waive the jury trial did not state that it was contingent on any circumstance. Ronald argued the Supreme Court should exercise its supervisory jurisdiction to rectify the district court’s error of denying his request for a jury trial and to prevent an injustice. The Supreme Court concluded that when a case is reversed and remanded for a trial without limitation, a party who stipulated to waive the right to a jury trial before the original trial may demand a jury trial on remand, unless the parties intended their stipulation to apply to any future trials or the right is otherwise limited by law. Ronald had a right to a jury trial on remand. The district court erred by deciding it had discretion in determining whether to order a jury trial on remand and by denying Ronald’s request. The Court granted Ronald’s petition for a supervisory writ and instructed the district court to schedule a jury trial. Ronald also asked the Supreme Court to remand this case to a different judge, but did not explain why a different judge should have been assigned. “To the extent he is asserting judicial impropriety based on the judge’s misapplication of the law, we have stated that ‘[a]n erroneous opinion as to the merits of the case or the law relating to the proceedings is not evidence of bias.’” View "Smithberg v. Jacobson, et al." on Justia Law

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James Broten appealed the dismissal of his attorney malpractice claim. Broten was appointed to serve as the personal representative of his father’s estate. Broten was sued by his sisters who claimed Broten had breached his fiduciary duties as personal representative by transferring land held in the trust to himself. In 2011, Broten retained attorney Ralph Carter to defend him against his sisters’ claims. During Carter’s representation, Broten showed Carter approximately sixty boxes of records Broten believed documented payments to his parents and provided a defense to his sisters’ claims. Broten repeatedly inquired with Carter about his review of the records. The records were not disclosed to the opposing party during discovery but disclosed after Carter was replaced as Broten’s counsel in March of 2013. In August 2013, the district court entered an order finding Broten had breached his fiduciary duties as personal representative of his father’s estate, ultimately requiring Broten to pay damages to his sisters in an amount of $1,300,054. Broten alleged Carter’s failure to review and disclose the documents prevented all of the records from being introduced as evidence and resulted in the liability to his sisters. Carter moved for summary judgment, arguing the applicable two year statute of limitations barred Broten’s claim. The district court granted summary judgment in favor of Carter and awarded to Carter the recovery of costs and fees, including the costs expended for expert witnesses who were unnecessary for resolution of the statute of limitations issue. Broten argued the district court erred in granting summary judgment after finding his claim was barred by the applicable statute of limitations. He also challenged the inclusion of expert witness fees within the expenses awarded by the district court for experts who were unnecessary for resolution of the statute of limitations issue. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Broten v. Carter, et al." on Justia Law

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The Rodenburg Law Firm appealed a judgment dismissing its action against Kathy Sira, Mikhail Usher, and the Usher Law Group, P.C., for malicious prosecution, abuse of process, and exemplary damages. Sira initiated a Fair Debt Collection Practices Act (“FDCPA”) action against Rodenburg in New Jersey federal court, alleging Rodenburg, a North Dakota law firm, engaged in harassment and abusive debt collection tactics and violated 15 U.S.C. 1692 et. seq. Sira’s action was ultimately dismissed by agreement of the parties. After the dismissal of Sira’s action, Rodenburg sued Sira and her attorney, Usher and the Usher Law Group, in this action, alleging malicious prosecution. Rodenburg subsequently amended its complaint to include claims for abuse of process and exemplary damages. After a bench trial, the district court dismissed Rodenburg’s claims. The court found Sira lived in New Jersey, her allegations in the federal FDCPA action stated a claim for relief, and her allegations were based on reasonable trustworthy information made after a reasonable inquiry under the circumstances. The court found Sira’s lawsuit was not for an improper purpose and was not an abuse of process. The court also found her lawsuit was not a malicious prosecution because there was probable cause for the action and there was no malice. The North Dakota Supreme Court concluded the district court did not clearly err in dismissing Rodenburg’s claims for abuse of process and malicious prosecution. View "Rodenburg Law Firm v. Sira, et al." on Justia Law

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The Johnston Law Office appeals from a judgment dismissing its claims against Jon Brakke and Vogel Law Firm (collectively "Vogel"). Johnston argued the district court erred in granting summary judgment and dismissing its claims. Vogel represented PHI Financial Services, Inc. in an action against Johnston to recover damages for a fraudulent transfer. The district court entered judgment against Johnston in that action. In April 2016 Johnston sued Vogel for tortious interference with a business relationship, tortious interference with attorney-client business relationships, and abuse of process. Johnston alleged Vogel violated state law while attempting to execute on the judgment entered against Johnston. Johnston claimed Vogel improperly attempted to garnish funds from Johnston's lawyer trust account, operating account and fees owed by Johnston's clients, and Vogel's unlawful actions interfered with Johnston's business relationships with its lending bank and clients. In July 2017 Vogel moved for summary judgment, arguing Johnston was unable to prove the required elements of its claims and Vogel was entitled to dismissal of the claims. Vogel also moved to quash a subpoena duces tecum Johnston served on PHI Financial seeking billing information between Vogel and PHI Financial. The district court granted Vogel's motion as to all claims. Finding no reversible error, the North Dakota Supreme Court affirmed dismissal. View "Johnston Law Office, P.C. v. Brakke" on Justia Law

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Bradley and Karol Johnson appealed a judgment granting the law firm Barna, Guzy, & Steffen, Ltd. ("BGS") foreclosure of a real estate mortgage for payment of a $258,769.97 debt, and an order denying their N.D.R.Civ.P. 60(b) motion for relief from judgment. In 2013 the Johnsons retained BGS to represent them in a lawsuit in connection with the probate of the estate of Bradley Johnson's father in Minnesota. The Johnsons resided in, and BGS was located in, the Minneapolis, Minnesota area. BGS extended credit to the Johnsons for costs, fees, and expenses that would be incurred in representing them in the lawsuit through a revolving line of credit agreement and a revolving promissory note. To secure payment, the Johnsons executed a mortgage on land they owned in North Dakota. The mortgage required the Johnsons to pay all of the principal and interest on the indebtedness when due to BGS. The Johnsons failed to make the payments to BGS as required under the loan agreements. In 2015 BGS brought this action against the Johnsons and others in North Dakota to foreclose the mortgage. The Johnsons counterclaimed, alleging its attorneys committed legal malpractice and other torts during the Minnesota legal proceedings. The district court ultimately dismissed the Johnsons' counterclaim without prejudice for lack of subject matter jurisdiction under N.D.R.Civ.P. 12(h)(3). The court granted summary judgment for foreclosure on the North Dakota property in favor of BGS, concluding the Johnsons were indebted to BGS in the amount of $258,769.97 under the loan agreements with interest continuing to accrue. Because the Johnsons did not establish the district court erred in any of its rulings, the North Dakota Supreme Court affirmed the judgment, and the order denying the motion for relief from judgment. View "Barna, Guzy & Steffen, Ltd. v. Johnson" on Justia Law

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Karen Corum appealed the grant of summary judgments in two collection actions brought by American Express Centurion Bank. The North Dakota Supreme Court concluded the district court's summary judgments were proper as a matter of law and the district court did not err by denying Corum's request to allow her husband to be her spokesperson in court. A party who is not represented by a licensed attorney cannot be represented by another person, including their spouse, in any court of record in this state, absent authorization provided by state law or supreme court rule. The right of free speech does not encompass in-court advocacy by a non-lawyer on behalf of another person, including a spouse. View "American Express Centurion Bank v. Corum" on Justia Law

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Judge Richard Hagar of the North Central Judicial District filed exceptions to the Judicial Conduct Commission's recommended findings that he violated provisions of the Code of Judicial Conduct by failing to diligently and promptly decide judicial matters assigned to him and by failing to work with the presiding judge. He also objected to the Commission's recommended sanction. After review, the North Dakota Supreme Court concluded there was clear and convincing evidence Judge Hagar violated N.D. Code Jud. Conduct Rules 2.5 and 2.7. The Court ordered that Judge Hagar be suspended from his position as district court judge for three months without pay and that he be assessed $10,118.67 for the costs and expenses of the disciplinary proceedings. View "Judicial Conduct Commission v. Hagar" on Justia Law