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In re Application for Disciplinary Action Against Overboe

Supreme Court of North Dakota

April 3, 2014

In the Matter of the Application for Disciplinary Action Against David A. Overboe, a Person Admitted to the Bar of the State of North Dakota; Disciplinary Board of the Supreme Court of North Dakota, Petitioner
v.
David A. Overboe, Respondent

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[Copyrighted Material Omitted]

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Brent J. Edison, Bismarck, N.D., for petitioner.

Kristin A. Overboe, Fargo, N.D., for respondent.

Gerald W. VandeWalle, C.J., Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Daniel J. Crothers.

OPINION

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Application for disciplinary action.

PER CURIAM.

[¶1] Attorney David A. Overboe objects to a report of a Hearing Panel of the Disciplinary Board of this Court, recommending that he be disbarred and that he pay the costs of the disciplinary proceeding of $4,134.41. We conclude there is clear and convincing evidence Overboe violated N.D.R. Prof. Conduct 1.7(a), 1.8(j), 4.1, 5.3, 5.5, 8.4(b) and (c), and N.D.R. Lawyer Discipl. 1.2(A)(2) and (3), but there is not clear and convincing evidence he violated N.D.R. Prof. Conduct 1.8(a). We order Overboe be disbarred from the practice of law and pay the costs of the disciplinary proceeding of $4,134.41.

I

[¶2] Overboe was admitted to practice law in North Dakota in 1972. On October 27, 2006, an application for Overboe's interim suspension was filed under N.D.R. Lawyer Discipl. 3.4(A), threat of public harm. The application alleged that Overboe was charged with sexual assault in violation of N.D.C.C. § 12.1-20-07(1)(a) and two counts of hiring an individual to engage in sexual activity in violation of N.D.C.C. § 12.1-29-06, relating to allegations Overboe had sexual contact with a female client and sought to exchange sexual favors for the payment of legal fees. This Court concluded sufficient evidence existed to demonstrate misconduct and a substantial threat of irreparable harm to the public, and ordered Overboe's license suspended " until further order of this Court, pending final disposition of a disciplinary proceeding predicated upon the complaint." In re Discipl. Action Against Overboe, 2006 ND 249, ¶ ¶ 13-14, 724 N.W.2d 576. The suspension of Overboe's license to practice law became effective on December 4, 2006.

[¶3] In a petition for discipline dated January 25, 2007, file number 4507-SE-0612, Disciplinary Counsel alleged Overboe had sexual contact with various clients and offered to exchange sexual favors for a reduction in legal fees on multiple occasions between 1992 and 2006. The petition included the allegations that were the bases for Overboe's interim suspension. The petition alleged Overboe's conduct violated N.D.R. Prof. Conduct 1.7(a), conflict of interest; N.D.R. Prof. Conduct 1.8(a) and (j), conflict of interest: prohibited transactions; N.D.R. Prof. Conduct 1.5, fees; N.D.R. Prof. Conduct 8.4(a), (b), (f), misconduct; and N.D.R. Lawyer Discipl. 1.2(A)(2) and (8). A hearing panel was appointed in January 2007, and Overboe filed an answer denying the allegations in March 2007.

[¶4] In a petition for discipline dated November 29, 2007, file number 4608-SE-0706, Disciplinary Counsel alleged Overboe asked a client for sexual favors in exchange for a reduction in her legal fees. The petition alleged Overboe's conduct violated N.D.R. Prof. Conduct 1.7(a), conflict of interest; N.D.R. Prof. Conduct 1.8(a) and (j), conflict of interest: prohibited transactions; N.D.R. Prof. Conduct 1.5, fees; and N.D.R. Prof. Conduct 8.4(a), misconduct. A hearing panel was appointed in November 2007, and Overboe filed a response denying the allegations in January 2008.

[¶5] In a petition for discipline dated August 26, 2008, file number 4542-SE-0702, Disciplinary Counsel alleged Overboe violated professional rules by preparing a durable power of attorney for Dodge Guizzetti, naming Overboe's wife, Debra Overboe,

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as attorney-in-fact for Guizzetti, and by Overboe's involvement in a subsequent property transfer and other financial transactions between Guizzetti and Debra Overboe. The petition alleged Overboe's conduct violated N.D.R. Prof. Conduct 1.7(a), conflict of interest; and N.D.R. Prof. Conduct 1.8, conflict of interest: prohibited transactions; and N.D.R. Lawyer Discipl. 1.2(A)(3). A hearing panel was appointed in September 2008, and Overboe filed an answer denying the allegations in October 2008.

[¶6] In a petition for discipline dated September 3, 2009, file number 4826-SE-0810, Disciplinary Counsel alleged Overboe engaged in the unauthorized practice of law by initiating a garnishment action after his license to practice law was suspended. The petition alleged Overboe's conduct violated N.D.R. Prof. Conduct 5.5, unauthorized practice of law; N.D.R. Prof. Conduct 4.1, truthfulness in statements to others; N.D.R. Prof. Conduct 8.4(c), misconduct; and N.D.R. Prof. Conduct 5.3, responsibilities regarding nonlawyer assistants. A hearing panel was appointed in September 2009, and Overboe filed a response denying the allegations in October 2009.

[¶7] An amended notice of appointment of hearing panel dated October 3, 2012, was filed and a new hearing panel was appointed for all four cases. In a brief dated July 1, 2013, Overboe moved for dismissal of the charges or in the alternative to be placed on disability inactive status. Overboe argued the unreasonable delay in the proceedings violated his due process rights. He requested the Hearing Panel enter a finding of incapacity to practice law and place him on disability inactive status because he suffers from post-traumatic stress disorder.

[¶8] On July 9, 2013, the Hearing Panel held a hearing on the petitions. After the hearing, the Hearing Panel issued it Findings of Fact, Conclusions of Law and Recommendation. The Hearing Panel found Overboe violated N.D.R. Prof. Conduct 1.7(a), 1.8(a) and (j), 4.1, 5.3, 5.5, 8.4(b) and (c), and N.D.R. Lawyer Discipl. 1.2(A)(2) and (3). The Hearing Panel recommended Overboe be disbarred and pay the costs and expenses of the proceedings of $4,134.41.

II

[¶9] This Court reviews disciplinary proceedings de novo on the record. In re Discipl. Action Against McDonald, 2000 ND 87, ¶ 13, 609 N.W.2d 418. Disciplinary counsel has the burden to prove each alleged violation by clear and convincing evidence. In re Discipl. Action Against Lee, 2013 ND 151, ¶ 9, 835 N.W.2d 836. Clear and convincing evidence is evidence that leads to a firm belief or conviction the allegations are true. Id. " We give due weight to the findings, conclusions, and recommendations of the [hearing panel], but we do not act as a 'rubber stamp' for those findings and recommendations." McDonald, at ¶ 13. We give deference to the hearing panel's findings on matters of conflicting evidence when the panel has heard the witnesses and observed their demeanor. Id. We also give deference to the hearing panel's findings on the witnesses' credibility because the hearing panel has the opportunity to hear the witnesses testify and observe their demeanor. Lee, at ¶ 9. We consider each case on its own facts to determine what discipline is warranted. McDonald, at ¶ 13.

III

[¶10] Overboe argues he was denied due process because an unreasonable delay occurred in the prosecution of the disciplinary actions. He contends there was a seven-year lapse in the prosecution, and

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his ability to present a defense to the allegations was prejudiced by the lapse in time. He contends he was unable to properly defend himself against the allegations because his memory had diminished, other witnesses' memories diminished, and some of the witnesses died or were no longer available to testify.

[¶11] An attorney subject to disciplinary proceedings is entitled to procedural due process. In re Discipl. Action Against Dvorak, 1998 ND 134, ¶ 8, 580 N.W.2d 586. This Court has previously considered whether an attorney's due process rights were violated by a lengthy delay between the petition for discipline and the hearing, and we have said that a long delay is troubling but there must be more than a delay alone to result in a dismissal of the petition:

Due process, as applied to disciplinary proceedings involving attorneys, requires notice of the charges and an opportunity to be heard . . . . Beyond these requirements, there is no authority to suggest that the expiration of a time period would establish a constitutional infirmity mandating dismissal of all charges. There may be hypothetical factual situations where this expiration of time destroys the fundamental fairness of the entire disciplinary process; however, there is no evidence in the present case to warrant such determination.

McDonald, 2000 ND 87, ¶ 33, 609 N.W.2d 418 (quoting In re Wireman, 270 Ind. 344, 367 N.E.2d 1368, 1370 (Ind. 1977)); see also Dvorak, at ¶ 24 (considering whether the delay in the proceedings resulted in a " grave injustice" ).

[¶12] In this case, a delay of more than six years occurred between the first petition for discipline being filed and the hearing and almost four years between the filing of the last petition and the hearing. Disciplinary Counsel does not allege that Overboe was responsible for the delay. The delay is troubling; however, the delay alone is not sufficient to violate Overboe's due process rights. The delay must destroy the fundamental fairness of the entire process. McDonald, 2000 ND 87, ¶ 33, 609 N.W.2d 418.

[¶13] Overboe contends he was prejudiced by the delay in file number 4507-SE-0612 because two witnesses, S.K. and A.R., no longer live in North Dakota and were unavailable for cross-examination. However, evidence of Overboe's criminal convictions resulting from S.K. and A.R.'s allegations was admitted into evidence at the hearing. The convictions alone are sufficient to find Overboe violated professional rules of conduct. There was also other evidence of conduct supporting the bases for the petition in that file, including testimony from other witnesses. Overboe has not established that he was prejudiced by the delay in that case.

[¶14] Overboe contends he was prejudiced by the delay in file number 4542-SE-0702 because key witnesses had died or were unavailable. Overboe contends he could not adequately defend against the allegations related to Dodge Guizzetti because Guizzetti died before the hearing and was not available for cross-examination. Guizzetti died on May 8, 2008. The petition for discipline was dated August 26, 2008. Guizzetti died before the petition for discipline was filed and would not have been available as a witness regardless of the delay between the petition and the disciplinary hearing. Overboe was not prejudiced by the delay.

[¶15] Overboe also contends Guizzetti's niece was a critical witness to his defense made unavailable by the delay. He claims she was hospitalized in intensive

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care at the time of the hearing and she later died. However, it is not clear what Guizzetti's niece would have testified to or how the absence of her testimony prejudiced Overboe. Overboe testified about meeting with Guizzetti and discussing the power of attorney and property transfers. He testified that he only met with Guizzetti one time and his wife was with him during the meeting. There was no evidence that Guizzetti's niece was present when Overboe met with him. It is not clear that the absence of her testimony prejudiced Overboe. Overboe has failed to establish he was prejudiced by the inability to question Guizzetti's niece.

[¶16] Overboe also argues he was prejudiced by the delay in file numbers 4608-SE-0706 and 4826-SE-0810, because his former secretary planned to testify but was ill at the time of the hearing and was not present. The witness's unavailability was not related to the delay in the proceedings.

[¶17] Overboe failed to establish that he was prejudiced by the significant delay in the proceedings. The alleged misconduct in this case is serious. Under these circumstances, we conclude the delay in the proceedings did not destroy the fundamental fairness of the entire disciplinary ...


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