N.D. Supreme CourtDisciplinary Board v. Kirschner,
[Go to Documents][Download as WordPerfect]
Application for Disciplinary Action.
Disciplinary Board v. KirschnerNos. 20100250 & 20100251
[¶1] Attorney William Kirschner objects to a report of a hearing panel of the Disciplinary Board recommending he be suspended from the practice of law for thirty days for violating N.D.R. Prof. Conduct 3.4(c) and 3.5(d) and he pay $3,659.36 in costs of the disciplinary proceeding. We conclude there is clear and convincing evidence Kirschner violated N.D.R. Prof. Conduct 3.4(c) and 3.5(d), and we reprimand Kirschner for his misconduct and order him to pay costs of the disciplinary proceeding.
[¶2] Kirschner was admitted to practice law in North Dakota in December 1980. Sometime before June 2008, he began representing both parents in a deprivation action that culminated in a petition to terminate their parental rights. In September 2008, Kirschner requested a continuance of a scheduled October 2008, trial in the termination action, claiming the State had not yet complied with his discovery requests and the trial was scheduled for Yom Kippur, when Kirschner would not be working. The State did not object to Kirschner's request, and a judicial referee rescheduled the trial for January 20 through January 23, 2009. The referee's order includes a September 26, 2008, affidavit of service by mail on Kirschner.
[¶3] Kirschner claimed the rescheduled trial was not placed on his electronic or paper office calendar, and he admitted responsibility for that error. Before learning of the rescheduled trial date, however, Kirschner purchased non-refundable airline tickets to visit and resolve various business and health matters for his elderly father in Florida during the dates of the rescheduled trial, and when he learned of the conflict, he moved on December 4, 2008, for a continuance. Kirschner also maintained his daughter had medical appointments at Mayo Clinic the first week of January 2009, which required his attendance. Kirschner further asserted the State had not responded to his discovery requests until December 22, 2008, and those belated responses were inadequate.
[¶4] At a December 23, 2008, hearing on Kirschner's motion for a continuance, the State noted the matter was significant to the children, but did not "strong[ly] object" to a continuance. A judicial referee denied Kirschner's motion, however, stating there had been one continuance already and scheduling enough days for the trial was problematic. At the conclusion of the hearing, Kirschner stated, "Well, I won't be able to be here, Your Honor. I will be out of the state in the other side of the country." The referee responded:
That will be your choice, Mr. Kirschner, as to how you wish to proceed. But, the Court does not find that the reasons given are particularly compelling. Specifically, it does look like notice was appropriately served on your office, sir. You do have at least a month to prepare for this matter. The Court does find that sufficient time. The Court also finds that you will have some time to spend with you family, and your father as well. And, how you choose to deal with your free time is up to you, sir. But, the Court does deny the request for continuance.
[¶5] Kirschner requested district court review of the referee's decision under N.D. Admin. R. 13, and the district court affirmed and adopted the referee's order on January 8, 2009, which Kirschner claims he learned about while preparing to travel to Florida. The district court explained it was of "the opinion that a reviewing Court would not determine [the referee] acted arbitrarily, unreasonably, or capriciously in denying [Kirschner's] request for a ...