Disciplinary Board v. Lochow

502 N.W.2d 252, 1993 N.D. LEXIS 138
North Dakota Supreme Court·Decided July 1, 1993·No. Civ. No. 920215·Published·Cited by 6 cases

Opinion

PER CURIAM.

The Disciplinary Board petitions for reciprocal discipline under Rule 4.4 of the North Dakota Procedural Rules for Lawyer Disability and Discipline (NDPRLDD), recommending that discipline identical to that imposed by the Supreme Court of Minnesota be imposed on Michael R. Lo-chow. See In re Disciplinary Action Against Lochow, 469 N.W.2d 91 (Minn.1991). We accept the Board’s recommendation and impose the identical discipline.

Lochow was admitted to practice law in this state in July 1974. He stipulated to the facts and rule violations in Minnesota, and they are detailed in that case. Lochow, 469 N.W.2d at 91. We briefly summarize those facts here.

[253]*253Lochow and his partner, William Gray, were retained by Susan Peterson to probate the estate of her late husband, who died in a plane crash. The estate was large, and the representation included complex litigation arising from the plane crash and circumstances of Peterson’s death. At Gray and Lochow’s request, Peterson deposited with them a total of $72,500. That money was placed in a client trust account, but some of the funds were later transferred to another account that did not qualify as a client trust account. Lochow made transfers and withdrawals of funds without Peterson’s knowledge or consent, and he did not provide periodic accounting to Peterson about the use of the funds.

Lochow conceded that the procedures he used in withdrawing and transferring these funds were inappropriate. He also conceded that he charged excessive fees, that he neglected the file and failed .to close the estate promptly, and that he then made misrepresentations and deceptive statements to the court and to the Minnesota director of lawyer discipline. For those acts of misconduct, the Minnesota Supreme Court suspended Lochow from the practice of law in Minnesota for at least six months, required him to pay costs, and subjected him to two years supervised probation after reinstatement to practice law. The Disciplinary Board recommends that we impose the same discipline against Lochow in this state.

The disciplinary rules are clear and specific about this court’s duty when a lawyer, who is admitted to practice in this state, has been disciplined in another jurisdiction:

D. Discipline_ [TJhis court shall impose the identical discipline unless the lawyer demonstrates and this court finds that upon the face of the record from which the discipline is predicated, it clearly appears that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice; or
(4) The misconduct established warrants substantially different discipline in this state.
If this court determines that any of those elements exists, this court shall enter such other order as it deems appropriate. In all other aspects, a final determination in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.

Rule 4.4 NDPRLDD. (Emphasis added). Ordinarily, in a disciplinary proceeding against an attorney, we measure the record with a standard of proof that requires clear and convincing evidence. Matter of Disciplinary Action Against Larson, 450 N.W.2d 771 (N.D.1990). However, a lawyer who has been disciplined in another jurisdiction has the burden under Rule 4.4 NDPRLDD to demonstrate that identical, reciprocal discipline should not be imposed.

Here, Lochow argues that we should not impose reciprocal discipline because to do so “would result in grave injustice” and because his misconduct “warrants substantially different discipline in this state.” Lochow asserts that imposing identical discipline would constitute a grave injustice because: (1) he has already incurred substantial expenses related to the Minnesota disciplinary proceedings; (2) when he was suspended in Minnesota, he lost his North Dakota position as a judicial referee; (3) he stipulated to the facts in the Minnesota disciplinary proceedings, rather than contest the allegations there, because he had only a limited practice in Minnesota; and (4) the Minnesota court, in imposing discipline, relied too heavily on the ground that Lochow charged excessive probate fees.

Lochow concedes the wrongful conduct that was the basis for the Minnesota discipline, but he claims that he stipulated to [254]*254the facts, rather than contest them, because his limited Minnesota practice did not financially justify the expense of litigating. We do not understand how this helps Lo-chow. He concedes committing the wrongful acts, as charged. The truth of the charges is reason enough for stipulating to them; it is not a ground for lessened discipline. When Lochow stipulated to the circumstances of his discipline in Minnesota, he should have been aware of the disciplinary rules in this state and also aware that his wrongful conduct as a lawyer in Minnesota would subject him to reciprocal discipline here.

In imposing discipline against Lochow, the Minnesota Supreme Court did not place much significance on the excessiveness of his probate fees. The Minnesota court clearly emphasized that Lochow’s misrepresentations to the court and to the disciplinary director were the most serious aspects of his misconduct, warranting severe discipline.

The facts that Lochow incurred expenses in the Minnesota disciplinary proceedings and lost his job as a court officer because of his wrongdoing do not, in our opinion, constitute circumstances that should avoid reciprocal discipline. Those are natural consequences of Lochow’s wrongful conduct. Matter of Carter, 262 Ga. 886, 426 S.E.2d 897, 899 (1991) (disciplinary action in one state does not mitigate discipline for the same conduct in another state). We are not convinced that these factors demonstrate that imposing a reciprocal six month suspension from law practice here would constitute a grave injustice to Lochow.

Lochow also argues that his misconduct warrants less discipline here than in Minnesota, because the trust account improprieties, while violating Minnesota’s strict rules on client trust accounts, did not violate North Dakota’s rules on handling client funds. We disagree.

Mainly, Lochow’s misuse of his client’s funds “consisted of failing to advise the client properly when withdrawals of money for attorney fees and costs were being made and to explain, justify and give ac-countings thereof.” Lochow, 469 N.W.2d at 98. Then applicable DR 9-102(B)(3), North Dakota Code of Professional Responsibility, said:

A lawyer shall:

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Disciplinary Board v. Lochow, 502 N.W.2d 252, 1993 N.D. LEXIS 138 (N.D. 1993).

502 N.W.2d 252 (Disciplinary Board v. Lochow) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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