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In re Application for Disciplinary Action Against Wolff

September 20, 2010

IN THE MATTER OF THE APPLICATION FOR DISCIPLINARY ACTION AGAINST JAMES G. WOLFF, 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.
JAMES G. WOLFF, RESPONDENT



Per curiam.

Application for Discipline.

SUSPENSION AND DISBARRMENT ORDERED.

[¶1] James G. Wolff was admitted to practice law in the state of North Dakota on January 13, 2004. On June 24, 2009, Wolff was placed on interim suspension under N.D.R. Lawyer Discipl. 4.1, Criminal Conduct, N.D.R. Prof. Conduct 1.2(d), which provides that a lawyer shall not counsel a client to engage, or assist a client, in conduct that a lawyer knows is criminal, and N.D.R. Lawyer Discipl. 3.4(B), Threat of Public Harm, based on Wolff being charged with Criminal Conspiracy - Unlawful Possession of a Controlled Substance (Cocaine). See Disciplinary Board v. Wolff, 2009 ND 111, 767 N.W.2d 170.

[¶2] On June 7, 2010, the Supreme Court continued Wolff's interim suspension under N.D.R. Lawyer Discipl. 4.1(C) and (D), Definition of "Serious Crime" and Immediate Suspension, based on Wolff's conviction for issuing a bank check with insufficient funds, a class C felony. See Disciplinary Board v. Wolff, 2010 ND 96. Both the initial interim suspension and the continuation of the interim suspension were imposed until final disposition of the disciplinary proceedings predicated upon the criminal complaints and conviction.

[¶3] Two formal disciplinary proceedings, File No. 4677-W-0711 and File No. 4736-W-0803, were pending at the time of Wolff's interim suspension in 2009. The Supreme Court has before it Findings of Fact, Conclusions of Law, and Recommendations from a Hearing Panel of the Disciplinary Board regarding three complaint files against Wolff.

File No. 4677-W-0711

[¶4] On May 1, 2008, Wolff admitted service of a Summons and Petition for Discipline. The Petition asserts that in 2006 and 2007 Wolff billed hours to the files of four clients, who were represented by another attorney in his firm, for work that was not actually done or was of no value to the clients. When confronted with the suspicion of improperly billing clients, Wolff either refunded the money to the client or intended to credit the payment for the entries on a final bill.

[¶5] The Petition alleges that Wolff's conduct in this matter violates N.D.R. Prof. Conduct 1.5(a), Fees, which provides a lawyer shall not make an agreement for, charge, or collect an unreasonable fee; N.D.R. Prof. Conduct 1.15(a) and (c), Safekeeping Property and Professional Liability Insurance Disclosure, which provide a lawyer shall hold property of clients and third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, and a lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred; N.D.R. Prof. Conduct 3.3(a), Candor Toward the Tribunal, which provides a lawyer shall not knowingly make a false statement of fact to a tribunal; N.D.R. Prof. Conduct 8.4(b) and (c), Misconduct, which provide it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects or engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer's fitness as a lawyer; N.D.R. Lawyer Discipl. 1.2(A)(2) and (3), which provide a lawyer may be disciplined for committing a criminal act that reflects adversely on a lawyer's honesty, trustworthiness, or fitness as a lawyer or engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; N.D.C.C. § 12.1-23-02(2), Theft of property by deception, which provides a person is guilty of theft if he knowingly obtains the property of another by deception with intent to deprive the owner thereof, or intentionally deprives another of his property by deception; and N.D.C.C. § 27-14-02(1) and (7), Causes for suspension or revocation of certificate of admission to the bar, which provide the certificate of admission to the bar of this state of an attorney and counselor at law may be revoked or suspended by the Supreme Court if that attorney has committed an offense determined by the Supreme Court to have a direct bearing upon a person's ability to serve the public as an attorney and counselor at law, or committed any other act which tends to bring reproach upon the legal profession.

[¶6] A Hearing Panel was appointed and the matter was scheduled for a hearing. Following the hearing, the Hearing Panel found that Wolff had billed one client for 9 hours and another for 16.39 hours at a rate of $150 per hour. The Hearing Panel found that the billed work was of no value, and when Wolff was confronted by the other attorney in the firm, Wolff refunded the money he had improperly billed to these clients. The Hearing Panel further found that Wolff had billed work that was of no value for two clients represented by the other attorney, who had been appointed by the U.S. District Court for the District of North Dakota. When confronted regarding bills paid by the Administrative Office of U.S. Courts, which included $5,400.40 for the work Wolff had billed, Wolff indicated he would credit the payment for the entries on a final bill to the government. The Hearing Panel found that while Wolff said he would credit the payment for the entries on a final bill to the government he has not done so; however Wolff continued to work on the two files after the other attorney left the firm and there is a net balance owed to the firm.

[¶7] The Hearing Panel concluded that Wolff's conduct violated N.D.R. Prof. Conduct 1.5(a), Fees, which provides a lawyer shall not make an agreement for, charge, or collect an unreasonable fee; and N.D.R. Prof. Conduct 1.15(a) and (c), Safekeeping Property and Professional Liability Insurance Disclosure, which provide a lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, and a lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.

[¶8] In recommending a sanction, the Hearing Panel considered N.D. Stds. Imposing Lawyer Sanctions 4.12 which provides suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client, and N.D. Stds. Imposing Lawyer Sanctions 5.12 which provides suspension is generally appropriate when a lawyer knowingly engages in conduct which does not contain the elements listed in Standard 5.11 but that seriously adversely reflects on the lawyer's fitness to practice. The Hearing Panel also considered N.D. Stds. Imposing Lawyer Sanctions 9.22(b), dishonest or selfish motive, and (i) substantial experience in the practice of law, as adding to the aggravation of the appropriate discipline; and N.D. Stds. Imposing Lawyer Sanctions 9.32(c) which provides that personal or emotional problems may be a mitigating factor in discipline.

File No. 4736-W-0803

[¶9] On August 7, 2008, Wolff admitted service of another Summons and Petition for Discipline. On March 11, 2009, an Amended Petition and Summons were served on Wolff. Wolff served a Response to the Amended Petition for Discipline on March 25, 2009. The Amended Petition asserts that Wolff undertook the representation of a client regarding the death of her daughter. In connection with this representation, Wolff entered into a fee agreement with the client that provided that Wolff would receive one-third of any recovery as an attorney fee, with the attorney fee calculated prior to the deduction of costs which were to be born by the client, and also provided that in the event there was a dispute between the attorney and client of any type involving the engagement, it would be resolved solely by arbitration, or by applicable rules of the State Bar Association for resolution of fee disputes if applicable. The fee agreement also provided that the prevailing party in any such disputes would be entitled to attorney's fees and costs incurred in the resolution of the dispute. The Amended Petition alleges Wolff did not discuss the dispute clause in the agreement with his client.

[¶10] According to the Amended Petition for Discipline, the lawsuit was settled and Wolff deposited $10,000 in his trust account, and informed the client that an accounting of the recovery left nothing for her after the deduction of the attorney's fee and the costs. The Amended Petition further alleges that during the investigation of the complaint Wolff told the Inquiry Committee West that he had provided his client with copies of statements and a trust ledger and discussed them with her, and that he had not done so. Additionally, the Amended Petition alleges Disciplinary Counsel had requested copies of billings and other documents which reflect the charges and payment of certain expenses in connection with the representation of the client, and the information was not provided.

[¶11] The Amended Petition alleges that Wolff's conduct in this matter violates N.D.R. Prof. Conduct 1.8(h), Conflict of Interest: Prohibited Transactions, which provides a lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; N.D.R. Prof. Conduct 1.15(h), Safekeeping Property and Professional Liability Insurance Disclosure, which provides a lawyer shall maintain or cause to be maintained on a current basis records sufficient to demonstrate compliance with the provisions of this Rule; and N.D.R. Prof. Conduct 8.1, Bar Admission and Disciplinary Matters, which provides a lawyer in connection with a disciplinary matter, shall not knowingly make a false statement of material fact or fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter.

[ΒΆ12] Following the appointment of a Hearing Panel and a hearing, the Hearing Panel found that in regards to the fee agreement between Wolff and his client, Wolff did not discuss the dispute clause with his client. The Panel also found that Wolff did not supply copies of documents reflecting the charge and payment of certain claimed expenses as requested, informally as well as in interrogatories, by the Disciplinary Counsel. However, the Hearing Panel found that there is not clear and convincing evidence that Wolff did not discuss his billing statements and trust ledger with his client. ...


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