In the Matter of the Application for Disciplinary Action Against Nicole E. Foster, a Person Admitted to the Bar of the State of North Dakota
Nicole E. Foster, Respondent Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner
1] The Court has before it the findings of fact, conclusions
of law and recommendations of the hearing panel recommending
Nicole E. Foster be disbarred from the practice of law for
violation of N.D.R. Prof. Conduct 1.3, 1.4, 1.5, and 1.16. We
disbar Foster, and we order her to pay the costs and expenses
of the disciplinary proceeding in the amount of $250; to
reimburse the North Dakota Client Protection Fund for any
payments made to clients on her behalf; and to pay
restitution to client Michael Kostick.
2] Foster was admitted to practice law in North Dakota on
October 4, 2002. On May 8, 2015, Foster was placed on interim
suspension. See Disciplinary Board v. Foster, 2015
ND 143, 863 N.W.2d 241. She was disbarred in Disciplinary
Board v. Foster, 2017 ND 113, 894 N.W.2d 378. The two
formal matters forming the basis of the petition for
discipline in this matter arise out of the same circumstances
as outlined in Foster, 2017 ND 113, 894 N.W.2d 378.
3] In discipline file number 5946-W-1602, Michael Kostick
paid Foster $2, 500 to represent him in a criminal matter and
in a related administrative matter before the North Dakota
Department of Transportation. Foster was not prepared for
Kostick's administrative hearing. She lacked knowledge of
the facts of the case which contributed to an adverse
decision. Following the administrative hearing, Foster
abandoned her representation of Kostick and ceased all
communication with him. In the criminal matter, Foster failed
to notify the client of a pretrial conference occurring after
the administrative hearing at which he was required to
appear. A bench warrant was issued for the client after both
he and Foster failed to appear at the pretrial conference.
The client was required to re-post bail. Foster failed to
refund unearned fees to Kostick.
4] A petition for discipline was served on Foster. Foster
failed to answer the petition, and she is in default. The
charges in the petition for discipline are deemed admitted
under N.D.R. Lawyer Discipl. 3.1(E)(2).
5] The hearing panel concluded Foster violated N.D.R. Prof.
Conduct 1.3, Diligence, by failing to be diligent in handling
her clients' cases; 1.4, Communication, by failing to
make reasonable efforts to keep the clients reasonable
informed about their respective matters and failing to
adequately communicate with them; 1.5, Fees, by collecting
unreasonable fees compared to the amount of work done for the
clients; 1.16, Declining or Terminating Representation,
because after Foster abandoned Kostick, she did not return
his file or unearned fees.
6] The hearing panel considered the aggravating factors under
N.D. Stds. Imposing Lawyer Sanctions 9.22 of a prior
discipline history, dishonest or selfish motive, a pattern of
misconduct, multiple offenses, and substantial experience in
the practice of law. The hearing panel considered the
mitigating factor under N.D. Stds. Imposing Lawyer Sanctions
9.23 of personal or emotional problems. The hearing panel
recommended Foster be disbarred, that she reimburse the North
Dakota Client Protection Fund for any payments made to
clients on her behalf; that she pay $2, 500 restitution to
Michael Kostick; and that she pay $250 for the costs and
expenses of these disciplinary proceedings.
7] ORDERED, that the findings of fact, conclusions of law,
and recommendations by the hearing panel is accepted.
8] IT IS FURTHER ORDERED, that Nicole E. Foster is DISBARRED
from the practice of law in North Dakota effective
9] IT IS FURTHER ORDERED, that Foster pay restitution to
Michael Kostick in the amount of $2, 500 within 90 days of
entry of judgment.
10] IT IS FURTHER ORDERED, that Foster pay the costs and
expenses of these disciplinary proceedings in the amount of
$250, payable to the Secretary of the Disciplinary Board, 300
East Boulevard Avenue, Bismarck, North Dakota, 58505-0530,
within 90 days of entry of judgment.
11] IT IS FURTHER ORDERED, that Foster make restitution to
the North Dakota Client Protection Fund for any amounts paid
now or in the future on her behalf within 90 days of entry of
the judgment in this matter or the payment made by the Client
Protection Fund, whichever is sooner.
12] IT IS FURTHER ORDERED, that any reinstatement is governed
by N.D.R. Lawyer Discipl. 4.5 and cannot occur until at least
five years from the effective date of disbarment and
compliance with the conditions of this order.
13] IT IS FURTHER ORDERED, that Foster must comply with