Application for Disciplinary Action.
[¶1] A hearing panel of the Disciplinary Board recommends Attorney A. William Lucas be publically reprimanded and pay the costs of the disciplinary proceeding in the amount of $2,240.92 for violating N.D.R. Prof. Conduct 4.2, communicating with a represented party. Counsel for the Disciplinary Board objects to the hearing panel's recommended sanction. Lucas contends the evidence does not support a conclusion that he violated N.D.R. Prof. Conduct 4.2. Clear and convincing evidence establishes Lucas violated N.D.R. Prof. Conduct 4.2, and we direct Lucas be suspended from the practice of law for 30 days and he pay the costs of the disciplinary proceeding in the amount of $2,240.92.
[¶2] A. William Lucas was admitted to practice law in North Dakota in 1963. The Disciplinary Board filed a petition for discipline in April 2009, asserting Lucas violated N.D.R. Prof. Conduct 4.2 by sending letters regarding pending litigation to his Condominium Association's board and to individual members of the Association's board while the Association was represented by counsel. Lucas answered the petition for discipline, denying his letters violated Rule 4.2. A hearing was held on December 8, 2009, and the hearing panel made its findings, conclusions and recommendation on March 31, 2010. The hearing panel concluded Lucas violated Rule 4.2 and recommended he be publically reprimanded.
[¶3] Lucas has been a party in two litigated cases against the Association, Riverside Park Condos. Unit Owners Ass'n v. Lucas, 2005 ND 26, 691 N.W.2d 862 and Lucas v. Riverside Park Condos. Unit Owners Ass'n, 2009 ND 217, 776 N.W.2d 801. In both cases, the Association was represented by counsel and Lucas represented himself. While the second case was pending, Lucas sent two letters to the Condominium Association's board, one letter to a board member and one letter to an officer.
[¶4] The first letter, dated August 21, 2008, was directed to the Association's board criticizing the board's lawyer's performance, questioning the lawyer's motives and suggesting the board consider alternative dispute resolution. Included with the letter was a pamphlet from the State Bar Association of North Dakota about alternative dispute resolution. The second and third letters were addressed to Association president Jack Huseby, and to board member Kristi Preszler. Those letters, dated August 25, 2008, sought information about an interrogatory answer stating Lucas' dog bit Preszler's son. The fourth letter, dated December 9, 2008, was addressed to the Association's board. It discussed various communications Lucas sent to the board and expressed his desire to settle the case. The letter concluded:
"It appears to me that this Board is not informed and does not know the malicious and vindictive actions being taken by the designated agents of the Board and I don't believe that the owners and association know that the Board has delegated their responsibilities to non-board agents.
"If we can't resolve our differences soon I will correspond with our owners to advise them of the actions taken by our Board which are contrary to their best interests and I will start two or three new lawsuits."
[¶5] Prior to this disciplinary proceeding, three complaints were filed based on similar conduct. Two of the complaints were dismissed. On the third complaint, the hearing panel issued Lucas a public reprimand and ordered he pay costs of the disciplinary proceedings based on violations of N.D.R. Prof. Conduct 1.6 (Confidentiality of Information), N.D.R. Prof. Conduct 1.10 (Imputed Disqualification: General Rule), N.D.R. Prof. Conduct 1.9 (Conflict of Interest: Former Client), and N.D.R. Prof. Conduct 4.2 (Communication With Person Represented by Counsel). The hearing panel found by clear and convincing evidence "that Mr. Lucas violated Rule 4.2... by communicating with members of the Association about the ongoing litigation knowing that the Association and its members were represented by counsel." This Court denied Lucas' petition for review of the hearing panel's decision.
[¶6] "This Court reviews disciplinary proceedings de novo on the record." Disciplinary Bd. v. Kuhn, 2010 ND 127, ¶ 12, 785 N.W.2d 195. "Disciplinary counsel must prove each alleged violation by clear and convincing evidence, which means the trier of fact must be reasonably satisfied with the facts the evidence tends to prove and thus be led to a firm belief or conviction." Disciplinary Bd. v. Askew, 2010 ND 7, ¶ 8, 776 N.W.2d 816. "We give due weight to the findings, conclusions, and recommendations of the Disciplinary Board, but we do not act as a mere rubber stamp for the Board." Id. "Each disciplinary matter must be considered on its own facts to decide which sanction, if any, is appropriate." Disciplinary Bd. v. Buresh, 2007 ND 8, ¶ 6, 726 N.W.2d 210.
[¶7] Rule 4.2 of the North Dakota Rules of Professional Conduct states, "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order." The rule does not specify whether it applies to attorneys representing themselves.
[¶8] Here, the Condominium Association is represented by counsel. "In the case of a represented organization, [Rule 4.2] prohibits communications with a constituent of the organization... who has authority to obligate the organization with respect to the matter." N.D.R. Prof. Conduct 4.2 cmt. 6. The Association's officers and board members are within the scope of comment 6 because they have the authority to act on the issues in litigation. See N.D.C.C. § 47-04.1-07(4) (owners required to record list of persons authorized to act for owners). Lucas mailed letters to the ...