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In re Application for Disciplinary Action Against Stensland

April 30, 2009

IN THE MATTER OF THE APPLICATION FOR DISCIPLINARY ACTION AGAINST MONTY J. STENSLAND, A MEMBER OF THE BAR OF THE STATE OF NORTH DAKOTA
DISCIPLINARY BOARD OF THE SUPREME COURT OF THE STATE OF NORTH DAKOTA, PETITIONER
v.
MONTY J. STENSLAND, RESPONDENT



Per curiam.

Application for Disciplinary Action.

SUSPENSION ORDERED.

[¶1] Monty Stensland objects to the Disciplinary Board hearing panel's findings he violated N.D.R. Prof. Conduct 1.4, 3.3, 5.5(a) and N.D.R. Lawyer Discipl. 4.5 and 6.3. Stensland also objects to the hearing panel's recommendations that he be suspended from the practice of law for sixty days and that he be ordered to pay $3,880.40 in costs for the disciplinary proceedings. We conclude clear and convincing evidence exists establishing Stensland violated N.D.R. Prof. Conduct 1.4, 3.3 and 5.5 and N.D.R. Lawyer Discipl. 4.5 and 6.3. We suspend Stensland from the practice of law for sixty days and order him to pay $3,880.40 in costs for the disciplinary proceedings.

I.

[¶2] Monty Stensland was admitted to practice as an attorney at law in the courts of North Dakota on October 10, 1991. In October 2006, Stensland received a copy of a hearing panel's report, recommending his license be suspended. On December 12, 2006, this Court suspended Stensland's license to practice law for sixty days, effective January 15, 2007. Disciplinary Bd. v. Stensland, 2006 ND 251, ¶ 12, 725 N.W.2d 191.

[¶3] In early December 2006, Karlene McLaurin contacted Stensland asking him to represent her daughter, Elisha McLaurin, in a custody dispute over her granddaughter. During their initial telephone conversation, Stensland did not inform Karlene McLaurin the disciplinary board had recommended he be suspended from the practice of law. Stensland agreed to take the case for a flat fee of $3000. After their initial telephone conversation, Stensland drafted a Summons, Complaint, Interrogatories, Proposed Findings of Fact and Conclusions of Law, and Order for Judgment. On December 15, 2006, Stensland sent the Summons and Complaint to a process server for service. Service was not achieved until June 2007.

[¶4] Stensland testified he received the North Dakota Supreme Court's December 12, 2006 Suspension Order, on December 16, 2006. After receiving the Order, Stensland stated that on December 29, 2006, he sent letters to his clients informing them of his suspension. Neither Karlene McLaurin nor Elisha McLaurin received a letter informing them Stensland had been suspended from the practice of law. Stensland admits he did not send a "suspension letter" to either Karlene McLaurin or Elisha McLaurin. Stensland stated he did not send the McLaurins a letter informing them of his suspension because service of the Summons and Complaint had not been achieved. Stensland said the McLaurins were not entitled to notice of his suspension because N.D.R. Lawyer Discipl. 6.3 only requires notice to be given to clients with "pending matters." Stensland claims the McLaurins' case did not constitute a pending matter because service of process had not been achieved.

[¶5] Karlene McLaurin said she sent a check to Stensland for $2800 on January 2, 2007 and Stensland cashed the check on January 10, 2007. Karlene McLaurin stated she became concerned about choosing Stensland for her attorney because she continually tried to contact him and no one answered his phone. Shortly thereafter, Karlene McLaurin testified she heard Stensland was disbarred. Karlene McLaurin said she wrote Stensland a letter, specifically asking him if he had been disbarred. Stensland replied to Karlene McLaurin, denying he was disbarred, but he failed to inform Karlene McLaurin he was suspended from the practice of law. Karlene McLaurin did not become aware of Stensland's suspension until she filed a complaint with the disciplinary board and the disciplinary board sent her a letter informing her Stensland had been suspended from the practice of law from January 15, 2007 until March 16, 2007.

[¶6] On February 1, 2007, Stensland filed an Affidavit of Compliance with the Court stating he complied with N.D.R. Lawyer Discipl. 6.3 by providing notice of his suspension to all of his clients with pending matters. Stensland filed another Affidavit of Compliance on March 28, 2007, affirming he had complied with N.D.R. Lawyer Discipl. 4.5 and 6.3, had paid the costs of the disciplinary proceeding and had completed the necessary continuing legal education credits, making him eligible for reinstatement.

[¶7] In February 2008, disciplinary counsel petitioned for discipline against Stensland, alleging Stensland (1) failed to give Karlene McLaurin notice of his suspension in violation of N.D.R. Lawyer Discipl. 6.3, (2) filed a false Affidavit of Compliance stating he complied with the requirements of his suspension order in violation of N.D.R. Lawyer Discipl. 4.5, (3) failed to advise the McLaurins of his suspension and failed to communicate with them during his suspension in violation of N.D.R. Prof. Conduct 1.4, (4) made a false statement to a tribunal in violation of N.D.R. Prof. Conduct 3.3, (5) knowingly disobeyed an obligation under the rules of a tribunal in violation of N.D.R. Prof. Conduct 3.4 and (6) engaged in the unauthorized practice of law in violation of N.D.R. Prof. Conduct 5.5.

[¶8] On June 10, 2008, a hearing was held on the petition. The hearing panel found Stensland violated N.D.R. Prof. Conduct 1.4, 3.3 and 5.5 and N.D.R. Lawyer Discipl. 4.5 and 6.3. The hearing panel recommended Stensland be suspended from the practice of law for sixty days and pay $3,880.40 in costs for the disciplinary proceedings.

II.

[¶9] "Disciplinary proceedings are reviewed by this Court de novo on the record." Disciplinary Bd. v. McCray, 2008 ND 162, ¶ 12, 755 N.W.2d 835 (quoting Disciplinary Bd. v. Buresh, 2007 ND 8, ¶ 6, 726 N.W.2d 210). "Although we give due weight to the findings, conclusions, and recommendations of the hearing panel, we do not act as a mere rubber stamp." McCray, at ¶ 12. "We give special deference to the hearing panel's findings on matters of conflicting evidence because the hearing panel had the opportunity to hear the witnesses and observe their demeanor." Disciplinary Bd. v. Johnson, 2007 ND 203, ¶ 17, 743 N.W.2d 117. "Disciplinary counsel must prove each alleged violation of the disciplinary rules by clear and convincing evidence." Disciplinary Bd. v. Giese, 2006 ND 13, ¶ 7, 709 N.W.2d 717. "[C]lear and convincing evidence means evidence which leads to a firm belief or conviction ...


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