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Gillette v. Edison

January 14, 2009

VANCE GILLETTE, PLAINTIFF,
v.
NORTH DAKOTA DISCIPLINARY BOARD COUNSEL, BRENT EDISON, DEFENDANT.



The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court

ORDER GRANTING DEFENDANT'S MOTIONS TO DISMISS AND DENYING PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

This is an action filed against the Assistant Disciplinary Counsel for the Disciplinary Board of the North Dakota Supreme Court, Brent Edison, in his official capacity. See Docket No. 1. On December 12, 2008, the Plaintiff filed a "Motion for Declaratory and Injunctive Relief." See Docket No. 3. On December 22, 2008, the Defendant filed a brief in opposition to the motion. See Docket No. 7. On January 2, 2009, the Plaintiff filed a reply brief. See Docket No. 11.

The Defendant filed a motion to dismiss on December 17, 2008. See Docket No. 5. The Plaintiff filed a brief in opposition on December 30, 2008. See Docket No. 10. A second motion to dismiss for failure to state a claim was filed on January 6, 2009. See Docket No. 12. For the reasons set forth below, the Defendant's motions to dismiss are granted, and the Plaintiff's motion for declaratory judgment and injunctive relief is denied as moot.

I. BACKGROUND

The plaintiff, Vance Gillette, was admitted to practice law in North Dakota on October 5, 1978. See Docket No. 6-3. Gillette is a member of the Three Affiliated Tribes and lives on the Fort Berthold Indian Reservation in New Town, North Dakota. In December 2006, Gillette entered into written contingent fee agreements with clients Richard Hall, Jamie Hall, Delphine Baker, Ardell Jean Baker, and Patti Jo Thomas for the purpose of representing these individuals in a wrongful discharge lawsuit against the Three Affiliated Tribes and its representatives. The fee agreements provided that Gillette would receive a contingent fee in the amount of 10% of all amounts awarded by judgment or negotiation. The contingent fee agreements contained the following provision:

The attorney may pay any bills, including attorney fees associated with the case, whether incurred by the client or attorney directly from the proceeds received or monies deposited. The attorney is authorized to sign the clients (sic) name to any check, draft or release.

See Docket No. 6-3.

By letter dated July 6, 2007, Gillette attempted to unilaterally increase the contingent fee to 30%. The clients never agreed to, nor signed, any amendment to the 10% contingent fee arrangement. In October 2007, the Three Affiliated Tribes settled the case with Gillette's clients for a sum of $35,000 per claim. After his clients had been paid, Gillette filed a lawsuit in Fort Berthold Tribal Court to enforce and collect a 30% contingency fee rather than the agreed-upon 10% fee. On April 25, 2008, the Tribal Court entered judgment in favor of Gillette for the recovery of a 10% contingency fee on the total settlement amounts paid. See Docket No. 3-3.

A grievance against Gillette was filed with the North Dakota Disciplinary Board. The grievance was assigned to Brent Edison, Assistant Disciplinary Counsel for the North Dakota Disciplinary Board. On July 28, 2008, Edison filed a petition for discipline against Gillette for violating Rules 1.2(a), 1.4(a)(1), 1.5(a), 1.5(b), 1.7(b), 3.1, 3.3, 4.1, and 8.4(c) of the North Dakota Rules of Professional Conduct. See Docket No. 6-3.

Gillette then filed an action in federal district court seeking a declaration that North Dakota disciplinary law does not apply on the Fort Berthold Indian Reservation, and that only the Tribal Bar Board has the authority to regulate attorney conduct on the reservation. Gillette also seeks a preliminary injunction to enjoin Edison from administering state disciplinary proceedings against him.

Edison moves to dismiss the complaint on principles of comity and for failure to state a claim.

II. LEGAL DISCUSSION

A. JURISDICTION OF THE NORTH DAKOTA DISCIPLINARY BOARD

Under Article VI, Section 3 of the North Dakota Constitution, the North Dakota Supreme Court is empowered "to promulgate rules and regulations for the admission to practice, conduct, disciplining, and disbarrment of attorneys at law." Section 27-11-02 of the North Dakota Century Code authorizes the North Dakota Supreme Court to admit persons to practice as attorneys in the state. Section 27-14-01 of the North Dakota Century Code enables the North Dakota Supreme Court to revoke or suspend the admission of an attorney.

The North Dakota Supreme Court has stated, "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." Lashkowitz v. Disciplinary Bd. of the Supreme Court of the State of North Dakota, 410 N.W.2d 502, 504 (N.D. 1987). The purpose of disciplinary proceedings is for the North Dakota Supreme Court to determine, in the public interest, whether an attorney should continue to practice law.

The North Dakota Supreme Court has directly answered the question of whether it has jurisdiction to discipline an attorney for professional misconduct not occurring in the State of North Dakota. The Supreme Court has determined that it has jurisdiction and authority to discipline an attorney once admitted to practice law in North Dakota, regardless of licensure. See In re Disciplinary Action Against Hawkins, 623 N.W.2d 431 (N.D. 2001); In re Disciplinary Action Against Robb, 615 N.W.2d 125 (N.D. 2000).

In In re Disciplinary Action Against Hawkins, Allan Hawkins had once been licensed to practice law in the State of North Dakota but was not licensed at the time that North Dakota disciplinary proceedings were commenced against him. The disciplinary proceedings arose out of conduct that occurred in Texas. Hawkins was licensed to practice in the State of Texas and admitted to the Texas bar, specializing in estate planning and taxation. Hawkins was appointed by a Texas court to serve as defense counsel in a criminal proceeding. He argued that he was not competent to practice criminal law and that he could not represent the defendant without violating the Texas Disciplinary Rules of Professional Conduct. Nonetheless, Hawkins filed motions on behalf of the defendant for a speedy trial, a jury trial, production of evidence, appointment of experts, and a motion to suppress evidence. Hawkins also offered advice to the defendant as to whether he should accept a plea agreement. The Texas court found that Hawkins was competent to represent the defendant, and ordered Hawkins to continue as appointed counsel. In response, Hawkins sent the defendant a letter stating,

[Judge] has decided that you are not entitled to a lawyer.

Apparently you are only entitled to a lawyer if a cash pay-off is made. I will not make a cash pay-off to obtain judicial favoritism. I believe it is a crime. Apparently that means that you don't get a lawyer.

In re Disciplinary Action Against Hawkins, 623 N.W.2d at 434.

Hawkins refused to represent the defendant and failed to notify him of the trial date. The Texas Commission for Lawyer Discipline initiated disciplinary proceedings against Hawkins and suspended his Texas license for four years. The matter was then presented to the North Dakota Disciplinary Board as a result of a petition ...


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