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In the Matter of the Application For Disciplinary Action Against v. Cynthia M. Feland

August 20, 2012

IN THE MATTER OF THE APPLICATION FOR DISCIPLINARY ACTION AGAINST CYNTHIA M. FELAND, 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.
CYNTHIA M. FELAND,
RESPONDENT



Per curiam.

N.D. Supreme Court

Disciplinary Board v. Feland,

2012 ND 174

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Application for Disciplinary Action. ADMONITION ORDERED.

Per Curiam

[¶1] Cynthia Feland and Disciplinary Counsel object to a report of a hearing panel of the Disciplinary Board that concluded Feland had violated N.D.R. Prof. Conduct 3.8(d). The hearing panel recommended Feland be suspended from the practice of law for 60 days and ordered to pay costs of the disciplinary proceeding in the amount of $11,272.21. We conclude there is clear and convincing evidence Feland violated N.D.R. Prof. Conduct 3.8(d), and we order that she be admonished and that she pay partial costs of the disciplinary proceeding in the amount of $5,636.10.

I

[¶2] While employed as a Burleigh County Assistant State's Attorney, Feland prosecuted Charles Blunt, the executive director of North Dakota Workforce Safety and Insurance ("WSI"), for misapplication of entrusted property. See State v. Blunt, 2011 ND 127, 799 N.W.2d 363 ("Blunt III"); State v. Blunt, 2010 ND 144, 785 N.W.2d 909 ("Blunt II"); State v. Blunt, 2008 ND 135, 751 N.W.2d 692 ("Blunt I"). One of the issues presented in the criminal trial was whether Blunt should have sought recoupment of relocation expenses WSI had paid to WSI executive Dave Spencer. Under the terms of Spencer's employment agreement, WSI agreed to pay his relocation expenses when he took the job, but Spencer was required to repay half of the expenses if he voluntarily resigned within the first two years. See Blunt III, at ¶ 3. Spencer left employment with WSI within two years, but Blunt did not seek recoupment of the relocation expenses.

[¶3] In 2006, the State Auditor's Office conducted a performance audit of WSI. Id. at ¶ 2. During the course of the audit, the issue of recoupment of Spencer's relocation expenses was raised. Blunt originally told the auditors only that Spencer had resigned and said WSI would not seek reimbursement because the provision in the letter requiring reimbursement should not have been in the letter. When the auditors suggested WSI should pursue recoupment of relocation expenses, Blunt told them Spencer had been forced to resign and his departure was not voluntary. The auditors therefore did not include a recommendation to recoup the relocation expenses in their final report. See id. at ¶ 15.

[¶4] During the investigation and prosecution of Blunt's criminal case, Feland requested that Jason Wahl, an auditor from the State Auditor's Office, provide a written memo summarizing the auditors' investigation regarding the Spencer relocation expenses. In a November 8, 2007, memo ("the Wahl memo"), Wahl outlined the various meetings and discussions he had with WSI executives, including Blunt, about Spencer's relocation expenses. See id. at ¶ 13. We summarized the contents of the Wahl memo in Blunt III, at ¶ 15:

The Wahl memo is dated November 8, 2007, and contained information about Spencer's resignation, including why the auditors began questioning whether WSI should seek repayment of Spencer's relocation expenses and why they decided not to make a recommendation about the expenses. The memo states Blunt was not forthcoming with information about Spencer's decision to leave his position at WSI, the auditors were initially informed Spencer "resigned," and they began to question whether Spencer was required to repay the relocation expenses, but Blunt later provided new information about Spencer's decision to leave and made it appear the decision was not voluntary. The memo states, "Due to the new information provided by Mr. Blunt, we determined, in consultation with a representative of the Attorney General's Office, there was not a voluntary resignation so it was determined to drop the recommendation we had drafted."

[¶5] At Blunt's criminal trial, one of the State's numerous allegations of misapplication of entrusted property was Blunt's failure to seek recoupment of relocation expenses from Spencer. Id. at ¶ 3. Wahl testified at the criminal trial about Blunt's refusal to seek recoupment of the relocation expenses. A jury convicted Blunt on one of two counts of misapplication of entrusted property, and this Court affirmed on direct appeal. See Blunt II, 2010 ND 144, ¶ 40, 785 N.W.2d 909.

[¶6] Blunt subsequently moved for a new trial, alleging the State had violated N.D.R.Crim.P. 16 by failing to disclose certain documents, including the Wahl memo, during discovery. Blunt III, 2011 ND 127, ¶ 5, 799 N.W.2d 363. On appeal from a district court order denying Blunt's motion for a new trial, this Court concluded that, "[a]lthough for the purposes of this opinion" the State had "likely violated N.D.R.Crim.P. 16 by failing to disclose the requested documents," Blunt had failed to show he was prejudiced by the violation. Id. at ¶¶ 13-14. Noting that Blunt and his attorney had possession of other documents which contained the same information as the Wahl memo, that Blunt presented other direct evidence that Spencer's termination was not voluntary, and that the State's Attorney had an "open file" policy, this Court concluded the district court had not erred in denying Blunt's motion for a new trial. See id. at ¶¶ 18-21.

[¶7] In August 2010, a petition for discipline was brought against Feland alleging she had violated N.D.R. Prof. Conduct 3.8(d) by failing to provide the Wahl memo to Blunt's defense counsel, Michael Hoffman. A hearing panel was appointed, and at the evidentiary hearing the panel heard conflicting evidence regarding whether Feland had provided the Wahl memo to Hoffman in discovery. Feland testified the Wahl memo was included in a stack of documents she gave to her legal assistant, Kim Bless, to copy and send to Hoffman. Bless testified she sent the documents to Hoffman and believed a copy of the Wahl memo was included, but she did not "know for certain" that it was. The Wahl memo was not listed on any of the discovery checklists created by the State's Attorney's Office in the Blunt file, which enumerated items that had been provided to the defense in discovery. Hoffman testified he did not receive the Wahl memo in discovery before trial.

[¶8] The hearing panel found Feland had violated N.D.R. Prof. Conduct 3.8(d) by failing to disclose the Wahl memo, which would have assisted in Blunt's defense of the case. The hearing panel recommended that Feland be suspended from the practice of law for 60 days and ordered to pay the costs of the disciplinary proceeding in the amount of $11,272.21.

[¶9] The hearing panel had jurisdiction under N.D.R. Lawyer Discipl. 3.1(E). Feland and Disciplinary Counsel filed timely objections to the hearing panel's report under N.D.R. Lawyer Discipl. 3.1(F). This Court has jurisdiction under N.D. Const. art. VI, § 3, N.D.C.C. § 27-14-01, and N.D.R. Lawyer Discipl. 3.1(F).

II

[¶10] We recently summarized our standard of review in disciplinary proceedings:

We review the record in a disciplinary proceeding de novo. Although due weight is accorded to the hearing panel's findings, conclusions, and recommendations, we do not automatically accept the hearing panel's decision. Disciplinary Counsel must prove, by clear and convincing evidence, each alleged violation of the disciplinary rules. In determining what discipline, if any, is warranted, each disciplinary case must be considered upon its own facts.Disciplinary Board v. Summers, 2012 ND 116, ¶ 7 (citations omitted).

III

[¶11] The petition for discipline alleges Feland's conduct violated N.D.R. Prof. Conduct 3.8(d), which provides that a prosecutor in a criminal case shall:

disclose to the defense at the earliest practical time all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal . . . .Feland ...


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