CourtDisciplinary Board v. McDonagh, 2013 ND 20
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Application for Discipline. DISCIPLINE ORDERED.
[¶1] The Court has before it a Report of Hearing Panel recommending that Alan M. McDonagh be disbarred from the practice of law for violation of N.D.R. Prof. Conduct 1.3, 1.5(a), 1.15(a), 1.15(c), and 1.15(d). We conclude McDonagh's conduct warrants the sanction of disbarrment. However, because we previously disbarred McDonagh, he is not entitled to apply for reinstatement under N.D.R. Lawyer Discipl. 4.5(D) until at least five years from the entry of judgment in this matter. See Disciplinary Board v. McDonagh, 2012 ND 224, 822 N.W.2d 468 (disbarring McDonagh from the practice of law on October 23, 2012).
[¶2] McDonagh was admitted to the Bar of the State of North Dakota on October 6, 1997. McDonagh was disbarred from the practice of law on October 23, 2012. McDonagh, 2012 ND 224, ¶ 16, 822 N.W.2d 468.
[¶3] On August 1, 2012, McDonagh was served a Petition for Discipline. The Petition alleged that a client retained McDonagh to commence a civil lawsuit and the client paid $3,500 as advance payment. The Petition alleged McDonagh failed to deposit the check into a trust account and instead misapplied the proceeds of the check, failed to complete the work for which he received the advance payment, and failed to account for or refund the unearned portions of the advance payment. The Petition alleged that McDonagh's conduct violated N.D.R. Prof. Conduct 1.3, 1.5(a), 1.15(a), 1.15(c), and 1.15(d), and that N.D. Stds. Imposing Lawyer Sanctions 9.22(a) is an aggravating factor.
[¶4] The matter was submitted to a Hearing Panel of the Disciplinary Board. McDonagh did not file a response to the Petition for Discipline or request to be heard in mitigation. On December 10, 2012, Disciplinary Counsel filed a Motion for Default Findings, Conclusions, and Recommendations. McDonagh did not file a response to the motion.
[¶5] On December 19, 2012, the Hearing Panel filed its Report of Hearing Panel with this Court. The Hearing Panel concluded that McDonagh's actions violated N.D.R. Prof. Conduct 1.3, regarding diligence, providing that a lawyer shall act with reasonable diligence and promptness in representing a client; N.D.R. Prof. Conduct 1.5(a), regarding fees, providing that a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses, in that McDonagh's failure to account for or refund unearned portions of the client's $3,500 advance payment constitutes the collection of an unreasonable fee or an unreasonable amount for expenses; N.D.R. Prof. Conduct 1.15(a), regarding safekeeping property, providing that a lawyer shall hold property of clients that is in the lawyer's possession in connection with a representation separate from the lawyer's own property and further providing that funds are to be deposited in one or more interest bearing trust accounts in accordance with N.D.R. Prof. Conduct 1.15(f); N.D.R. Prof. Conduct l.15(c), regarding safekeeping property, providing that 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; and N.D.R. Prof. Conduct 1.15(d), regarding safekeeping property, providing that a lawyer shall promptly deliver to the client any funds or other property that the client is entitled to receive and, upon request by the client, shall promptly render a full accounting regarding such property. The Hearing Panel considered the following aggravating factors under the North Dakota Standards for Imposing Lawyer Sanctions:
9.22(a), prior disciplinary offenses;
9.22(b), dishonest or selfish motives;
9.22(c), a pattern of ...