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In re Application for Disciplinary Action Against Kellington

Supreme Court of North Dakota

August 28, 2014

In the Matter of the Application for Disciplinary Action Against Theresa L. Kellington, a Member of the Bar of the State of North Dakota; Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner
Theresa L. Kellington, Respondent

Page 396

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

Ronald H. McLean (argued) and Ian McLean (on brief), Fargo, N.D., for respondent.

Dale V. Sandstrom, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Crothers, Justice, concurring in part and dissenting in part.


Page 397

Application for disciplinary action.

Per Curiam.

[¶1] Theresa Kellington objects to the report of a hearing panel of the Disciplinary Board recommending she be suspended from the practice of law for 60 days and pay the costs of the proceedings. We conclude there is clear and convincing evidence Kellington violated N.D.R. Prof. Conduct 1.5(a), fees, and 5.3(a), supervision of non-lawyer assistants. We order that Kellington be suspended from the practice of law for 30 days and pay $4,965.95 in costs of the disciplinary proceedings.


[¶2] In Disciplinary Board v. Kellington, 2011 ND 241, ¶ 6, 809 N.W.2d 298, we suspended Kellington from the practice of law for ninety days but stayed the suspension and placed her on probation for one year, subject to her having no further meritorious disciplinary complaints during the period of probation.

[¶3] In May 2013, the Disciplinary Board filed an amended petition to revoke Kellington's probation and to subject her to additional discipline as a result of a new complaint filed against her. After an evidentiary hearing, the hearing panel made the following findings: In August 2011, Angela Dieterle retained Kellington to represent her in connection with a divorce. Kellington agreed to represent Dieterle on an hourly fee basis at a rate of $150.00 per

Page 398

hour. Between August 31, 2011, and January 31, 2012, Kellington billed Dieterle approximately $20,000.00. Kellington's billing records reflect duplicative and unnecessary charges for cover letters, charges for overhead items, charges at the wrong hourly rate, and duplicative charges for routine correspondence. Her billing records reflect time entries for herself as well as entries for legal assistants Nicole Wek and Sue Rossow. Wek has a two-year accounting degree, and Rossow has a bachelor's degree in accounting. When hired by Kellington, neither Wek nor Rossow had ever worked as a legal secretary or legal assistant, but Wek had experience working as an assistant to the non-attorney bill collectors at a collection law firm. When Wek and Rossow went to work for Kellington, they did not receive any orientation or training beyond a time-keeping system training. When they worked on Dieterle's file, neither met the guidelines set forth in comment 4 of N.D.R. Prof. Conduct 5.3 for evaluating the education, training, or experience of a qualified legal assistant.

[¶4] The hearing panel concluded Kellington violated provisions of the North Dakota Rules of Professional Conduct involving client fees under Rule 1.5(a) and responsibilities for nonlawyer assistants under Rule 5.3(a), (b), & (c) . The panel recommended Kellington be suspended from the practice of law for 60 days and pay costs and expenses of the proceedings in the amount of $4,965.95. The panel's 60-day recommendation combines a new suspension with a suspension for Kellington's violation of her probation imposed for prior misconduct in Kellington, 2011 ND 241, 809 N.W.2d 298.

[¶5] The hearing panel had jurisdiction under N.D.R. Lawyer Discipl. 3.1(E) . Kellington did not file timely objections to the hearing panel's report within 20 days under N.D.R. Lawyer Discipl. 3.1(F), and the Board did not file its findings and recommendation within the 60-day requirement of Rule 3.1(F) . Kellington has raised this as an issue, but these deficiencies are insufficient to warrant dismissal of the case, because the delay did not affect the fundamental fairness of the disciplinary process. See also Disciplinary Board v. Overboe, 2014 ND 62, 844 N.W.2d 851 (a long delay must destroy the fundamental fairness of the entire disciplinary process to warrant dismissal of the disciplinary case). 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) .


[¶6] We review disciplinary proceedings de novo on the record. Disciplinary Board v. McDonald, 2000 ND 87, ¶ 13, 609 N.W.2d 418. Each alleged violation must be proved by clear and convincing evidence. Disciplinary Board v. Lee, 2013 ND 151, ¶ 9, 835 N.W.2d 836. " 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 and credibility of witnesses when the panel has heard the witnesses and observed their demeanor. Id.

[¶7] Although this Court has not previously stated the burden of proof necessary to revoke a lawyer's probation, other courts have explained that in disciplinary proceedings involving professional licenses, probation is revoked when allegations are proved by a preponderance of the evidence:

Sandarg correctly points out that the standard of proof to revoke a professional license is clear and convincing evidence.

Page 399

( Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856, 185 Cal.Rptr. 601.) The administrative law judge and the trial court applied that standard with respect to the board's accusation. But that same standard did not apply to the board's petition to revoke Sandarg's probation.
The courts have addressed a similar issue in criminal cases. The standard of proof in a criminal case is, of course, beyond a reasonable doubt. (Pen. Code, § 1096.) However, once a convicted criminal is placed on probation, the government is not required to prove beyond a reasonable doubt that he or she violated the terms of probation in order [to] revoke probation. Rather, the " standard of proof required for revocation of probation is a preponderance of evidence to support the violation." ( People v. Kelly (2007) 154 Cal.App.4th 961, 965, 66 Cal.Rptr.3d 104.)
The same analysis applies here. While the board is required to prove the allegations in an accusation by clear and convincing evidence, it is only required to prove the allegations in a petition to revoke probation by a preponderance of the evidence.

Sandarg v. Dental Bd. of California, 184 Cal.App.4th 1434, 1441, 109 Cal.Rptr.3d 826 (2010).

[¶8] We adopt the same standard of proof as established in Dental Bd. of California . 184 Cal.App.4th at 1441. In order to revoke a lawyer's probation which has been implemented in a prior disciplinary proceeding, the board must prove a violation by a preponderance of the evidence.



[¶9] Kellington argues the hearing panel erred in determining she violated N.D.R. Prof. Conduct 1.5(a), which precludes lawyers from charging an unreasonable fee and provides: A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

[¶10] Kellington claims the panel erred in determining factors one and four of N.D.R. Prof. Conduct 1.5(a) weigh against the reasonableness of the fee, and also erred in ignoring or ...

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