Lashkowitz v. Disciplinary Board of the Supreme Court of the State of North Dakota Ex Rel. Halpern

410 N.W.2d 502, 1987 N.D. LEXIS 369
CourtNorth Dakota Supreme Court
DecidedJuly 28, 1987
DocketCiv. 870013
StatusPublished
Cited by12 cases

This text of 410 N.W.2d 502 (Lashkowitz v. Disciplinary Board of the Supreme Court of the State of North Dakota Ex Rel. Halpern) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lashkowitz v. Disciplinary Board of the Supreme Court of the State of North Dakota Ex Rel. Halpern, 410 N.W.2d 502, 1987 N.D. LEXIS 369 (N.D. 1987).

Opinions

MESCHKE, Justice.

Attorney Shelley Lashkowitz is the respondent in a disciplinary proceeding. He petitions this court to issue a supervisory writ to a Hearing Panel for the Disciplinary Board. Lashkowitz seeks to vacate an order denying him discovery and to compel the Disciplinary Board to respond to his interrogatories and requests for production of documents. We conclude that a supervisory writ is appropriate. We hold that an attorney who is a respondent in a formal disciplinary proceeding can use discovery authorized by the rules of civil procedure.

After investigation and informal disciplinary proceedings before the Inquiry Committee East, the Disciplinary Board filed a formal disciplinary complaint against Lash-kowitz. A Hearing Panel was appointed to consider the complaint and recommend action on it. Lashkowitz directed interrogatories and requests for production of documents to counsel for the Disciplinary Board. He sought to discover the facts, documents, and names of persons with knowledge of facts underlying the allegations of the formal complaint. Counsel for the Disciplinary Board responded:

“In lieu of answering the Interrogatories and Request for Production of Documents served upon me, I am providing you with names of individuals and entities who may be called to testify in the above proceedings in substantiation of [503]*503the allegations in the Formal Complaint and those who I anticipate at this time may be called as rebuttal witnesses; also, I am providing copies of the documents that I have accumulated. I am not including work product, research or impressions or interview notes.
“Except as otherwise provided in the disciplinary procedure rules, the North Dakota Rules of Civil Procedure apply to disciplinary proceedings, which are nevertheless not characterized as either civil or criminal proceedings. It is my position that Interrogatories and Requests for Production of Documents, as they are limited by Rules 33 and 34, NDRCivP, to parties, are inappropriate to disciplinary proceedings.”

Lashkowitz then sought an order from the Hearing Panel to compel the Disciplinary Board to formally respond to the interrogatories and production requests. Counsel for the Disciplinary Board resisted and asked for a protective order from “annoyance, oppression, and undue burden.” After a pre-hearing conference, the Hearing Panel issued an order denying Lash-kowitz’s request, reasoning:

“At issue was the question of whether Rule 10(i) and Rule 21(f) are limited by Rule 11, all said Rules being in the NDRDP.
“In other words, the issue is whether all forms of pre-trial (pre-hearing) discovery are to be permitted or whether there is a limitation thereon.
“... The conclusion of this Panel is that Rule 11 of the NDRDP limits pre-trial (pre-hearing) discovery to those proce-' dures setout in Rule 11, as to rule otherwise, would make Rule 11 superfluous.
“In addition, the Panel would like to point out the following:
“1. Both Rules 11(c) and 21(f) of the NDRDP state ‘except as otherwise provided’ and the Panel feels that Rule 11 qualifies as ‘except as otherwise provided.’
* * * * * *
“Concluding, we deny the motion to compel answers to interrogatories and production of documents requested by the respondent and also deny the motion for protective order, as the denial of respondent’s motion precludes the necessity of the second motion.”

Lashkowitz then asked this court to issue a supervisory writ directing the Hearing Panel to vacate its order denying discovery and to require the Disciplinary Board to fully respond to his discovery requests.

I

Is a supervisory writ appropriate?

Art. VI, § 2, N.D. Const., gives this court “authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction.” On numerous occasions we have emphasized that our power to issue remedial writs is discretionary. It cannot be invoked as a matter of right, but will be employed on a case-by-case basis to prevent possible injustice. E.g., Heartview Foundation v. Glaser, 361 N.W.2d 232 (N.D.1985); Marmon v. Hodny, 287 N.W.2d 470 (N.D.1980); Burlington Northern v. North Dakota District Court, 264 N.W.2d 453 (N.D.1978).

In each of Heartview Foundation, Mar-mon, and Burlington Northern, we exercised our superintending authority to direct a lower court to vacate an order compelling answers to interrogatories. In each instance, we noted that the order requiring answers to the interrogatories was not ap-pealable and that, once answers to interrogatories were made, they could not be “unmade” by later appeal from the judgment.

In contrast, in Spence v. North Dakota District Court, 292 N.W.2d 53 (N.D.1980), the lower court refused to compel answers to interrogatories. We declined to exercise our superintending control, stressing that other discovery devices were available to obtain the information and that the petitioners had an adequate remedy by review on appeal from an unfavorable final judgment.

The differentiation is whether it would be possible to undo the action of the lower court by later appeal. If that were the [504]*504only factor here, we would not exercise our supervisory power since the Hearing Panel’s order denying discovery could be adequately reviewed if, and when, the Disciplinary Board’s recommendation reached this court. However, in this case, there are other important factors.

This is a disciplinary proceeding. Under Art. VI, § 3, N.D. Const., unless otherwise provided by law, this court is empowered “to promulgate rules and regulations for the admission to practice, conduct, disciplining, and disbarment of attorneys at law.” N.D.C.C. § 27-11-02 authorizes us to admit persons to practice as attorneys in this state. N.D.C.C. § 27-14-01 enables us to revoke or suspend the certificate of admission of an attorney. Pursuant to our authority, we have adopted rules for admission to practice, rules of professional responsibility, and rules of disciplinary procedure. Those rules make the Disciplinary Board an arm of this court to receive and investigate complaints, hold hearings, and make recommendations to this court. The purpose of disciplinary proceedings is to enable us to determine, in the public interest, if an attorney should continue to practice law. See Matter of Maragos, 285 N.W.2d 541 (N.D.1979). Thus, our ultimate responsibility in disciplinary proceedings imposes a special obligation on us. We must assure that those proceedings are conducted fairly and consistently with their purpose.

At stake in this case is whether an attorney responding to a formal disciplinary proceeding can use discovery to prepare for his trial by the Hearing Panel.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lamb v. State Board of Law Examiners
2010 ND 11 (North Dakota Supreme Court, 2010)
Gillette v. North Dakota Disciplinary Board Counsel
610 F.3d 1045 (Eighth Circuit, 2010)
Heinle v. Heinle
2010 ND 5 (North Dakota Supreme Court, 2010)
Gillette v. North Dakota Disciplinary Board Counsel, Edison
593 F. Supp. 2d 1063 (D. North Dakota, 2009)
Judicial Conduct Commission v. McGuire
2004 ND 171 (North Dakota Supreme Court, 2004)
In Re Disciplinary Action Against McGuire
2004 ND 171 (North Dakota Supreme Court, 2004)
Toth v. Disciplinary Board of the Supreme Court of North Dakota
1997 ND 75 (North Dakota Supreme Court, 1997)
Polum v. North Dakota District Court
450 N.W.2d 761 (North Dakota Supreme Court, 1990)
Disciplinary Board of Supreme Court of State v. Peterson
446 N.W.2d 254 (North Dakota Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
410 N.W.2d 502, 1987 N.D. LEXIS 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lashkowitz-v-disciplinary-board-of-the-supreme-court-of-the-state-of-north-nd-1987.