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In re Application for Disciplinary Action Against Ward

Supreme Court of North Dakota

June 10, 2016

In the Matter of the Application for Disciplinary Action Against Michael Ward, a Member of the Bar of the State of North Dakota; Disciplinary Board of the Supreme Court, Petitioner
v.
Michael Ward, Respondent

          Kara J. Johnson (argued) and Ryan A. Heintz (appeared), Disciplinary Staff, Bismarck, N.D., for petitioner.

         Ronald H. McLean (argued) and Ian McLean (appeared), N.D., for respondent.

         Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, John T. Paulson, S.J. The Honorable John T. Paulson, S.J., sitting in place of Kapsner, J., disqualified.

          OPINION

         Application for disciplinary action.

         Per Curiam.

          [¶1] Attorney Michael Ward objects to a report of a hearing panel of the Disciplinary Board finding he violated professional rules of conduct and recommending he be suspended from the practice of law for four months and pay the costs of the disciplinary proceedings. Ward argues the hearing panel erred in finding he violated N.D.R. Prof. Conduct 1.1 relating to competence and N.D.R. Prof. Conduct 1.3 relating to diligence. We conclude there is not clear and convincing evidence of a violation, and we decline to adopt the hearing panel's recommendation. We dismiss the petition for discipline.

         I

          [¶2] Ward was admitted to practice law in North Dakota in 1966. On April 2, 2012, Margaret Oakland contacted Ward to inquire about representation for contesting her father's will and revocable trust. On April 3, 2012, Oakland emailed Ward copies of documents related to her case. Oakland claims she included a letter dated March 12, 2012, from the trustee of her father's trust, notifying her that she had 120 days to contest the validity of the trust. Ward's office staff later notified Oakland that he was unable to take her case at that time. Oakland hired Chris Kennelly to represent her, and she objected to the will within the probate case.

          [¶3] On May 1, 2012, Ward contacted Oakland by email, requesting she call him. His email also stated that he thought some of the documents she sent him were interesting but it seemed like a complicated matter and he would have a better understanding after speaking to her. Oakland spoke to Ward, but continued to be represented by Kennelly.

          [¶4] On May 17, 2012, Ward contacted Oakland and offered to take her case on a contingent fee basis, and Oakland later decided to have Ward represent her. In a letter dated June 4, 2012, Oakland notified Kennelly she wanted to be represented by a different attorney, she would like the change of counsel to be completed as soon as possible, she did not want him to perform any more billable services, and she wanted to pick up her file. Oakland emailed a copy of this letter to Ward.

          [¶5] On June 14, 2012, Oakland met with Ward in Grand Forks. Oakland testified that she asked Ward whether he was her attorney and he confirmed he would be representing her. Oakland gave Ward additional documents and the file from Kennelly's office, which she claimed contained the March 12, 2012, letter from the trustee informing her she had 120 days to contest the validity of the trust.

          [¶6] In late June and early July, Oakland sent Ward emails about completing the substitution of counsel because Kennelly was still the attorney of record for the case and he continued to receive correspondence related to the case. On July 10, 2012, Ward sent Kennelly a notice of substitution of counsel for Kennelly to sign. Notice of substitution of counsel was filed with the district court on July 11, 2012. In August 2012, Oakland received a contingent fee agreement from Ward.

          [¶7] In September 2012, Ward amended Oakland's objection in the probate case to include an objection to the trust. On October 15, 2012, Ward spoke to the trustee's attorney and was informed that the 120-day statute of limitations to contest the validity of the trust had passed. On October 18, 2012, Ward initiated a civil case contesting the will and the trust. On October 20, 2012, Oakland informed Ward she had included the March 12, 2012, notice letter in the documents she emailed him on April 3, 2012. The next day, Ward informed Oakland he was ending his representation. Oakland represented herself in the probate proceedings, but she was unsuccessful and her objection to the probate of her father's will was dismissed. The district court's decision was affirmed on appeal. In re Estate of Gassmann, 2015 ND 188, 867 N.W.2d 325.

          [¶8] In April 2014, disciplinary counsel filed a petition for discipline against Ward, alleging he violated N.D.R. Prof. Conduct 1.1 related to competence, N.D.R. Prof. Conduct 1.3 related to diligence, and N.D.R. Prof. Conduct 1.4 related to communication. Disciplinary counsel alleged Ward failed to act with reasonable competence and diligence in challenging Oakland's father's will and trust and he failed to adequately communicate with Oakland ...


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