Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Application for Disciplinary Action Against Allen

Supreme Court of North Dakota

August 2, 2017

In the Matter of the Application for Disciplinary Action Against Gene W. Allen, a Member of the Bar of the State of North Dakota
v.
Gene W. Allen, Respondent Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner

         Application for disciplinary action.

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

          Ronald H. McLean, Fargo, N.D., for respondent.

         SUSPENSION ORDERED.

          PER CURIAM.

         [¶ 1] Attorney Gene Allen objects to a report of a hearing panel of the Disciplinary Board finding that he violated several rules of professional conduct while serving as his mother's attorney-in-fact and as the personal representative of her estate, and recommending that he be suspended from the practice of law and pay the costs and expenses of the disciplinary proceedings. We conclude there is clear and convincing evidence that Allen violated N.D.R. Prof. Conduct 1.7, 1.9, and 8.4. We order that Allen be suspended from the practice of law for six months and order that he pay $15, 360.77 for the costs and expenses of the proceedings.

         I

         [¶ 2] Allen was admitted to practice law in North Dakota in August 2011, but he began practicing law in Minnesota and has been licensed there since 1990. He is currently a solo-practitioner with Allen Law Office, P.L.L.C., in Beach. Allen was Margaret Allen's only child. Allen's daughter, Ashley Baker, was Margaret Allen's only grandchild until Allen remarried and had a second child in July 2013.

         [¶ 3] In October 2011, Margaret Allen named Allen as her attorney-in-fact. Margaret Allen became ill on December 31, 2011, and was hospitalized in Dickinson. She was transferred to a Bismarck hospital soon afterward, but her condition did not improve while she was hospitalized there. With Margaret Allen's health continuing to decline, Allen located a will she had executed in 2007. Under that will, she bequeathed $1, 000 to a local church, $1, 000 to the local ambulance service, and $2, 000 to a local cemetery. The remainder of her estate was bequeathed to Baker. Allen was named as the alternative beneficiary who took only if Baker died before reaching the age of 23. The will appointed Allen as the personal representative of the estate, but if he was unable or unwilling to serve, the alternative personal representative was identified as R. W. Heineman, the Montana lawyer who drafted Margaret Allen's will. The value of the estate, including land and mineral interests, was approximately $1 million.

         [¶ 4] According to Allen, around January 20, 2012, Margaret Allen told him to name himself as a joint account holder with right of survivorship on her two bank accounts. On January 24, 2012, Allen went to the First State Bank of Golva and, with the 2011 power of attorney, added himself as a joint account holder with the right of survivorship. At the end of January 2012, Margaret was transferred for hospice care to a nursing home in Wibaux, Montana. She died on February 1, 2012.

         [¶ 5] In April 2012, Allen filed an application for informal probate of Margaret Allen's will, and he was appointed personal representative of the estate. All application documents listed Allen as either the attorney for the applicant or the attorney for the personal representative. Over the course of the next year, Allen did little to administer the estate. Some estate matters were handled by Allen's use of a combination of personal and estate funds, but no clear records were kept. No significant estate distributions were made. Baker claimed she tried to talk to Allen about the estate, but Allen was largely unresponsive.

         [¶ 6] In the meantime, Allen remarried and had a son in July 2013. Before the birth, Allen decided his son should be included as a beneficiary of the estate, contrary to the terms of the will. After the birth, Allen sent proposals to Baker, now older than 23, for liquidation of the estate and for his son to share in the inheritance. Allen also attempted to negotiate gifts for himself in excess of $100, 000 from the estate. All proposals for alternate distributions were initiated by Allen, and two of them were submitted through his law firm while Allen continued to serve as personal representative of the estate. Baker did not agree to any of the proposals offered by Allen. Baker retained an attorney, and in January 2014 she requested that Allen be removed as the personal representative. Allen stepped down, and Heineman was appointed successor personal representative. Heineman rejected Allen's suggestion that Allen remain the attorney for the personal representative and hired a different attorney.

         [¶ 7] In May 2014, Allen, again acting as his own attorney, filed a petition for adjudication of intestacy against the estate. The petition alleged that Margaret Allen's will was not "valid, " was "fatally flawed, " and "mistakenly omitted" Allen as a beneficiary. Allen requested the probate court to declare him "the sole heir for intestate distribution" and rule "that any share of the Decedent's intestate estate to which [he] would have inherited by intestate succession would" pass to his son and Baker "as if [he] had disclaimed his intestate share." The court denied Allen's petition, concluding that except for the minor devises to the local community, Baker was the sole beneficiary of the estate. During the same time period, the personal representative filed a request that Allen reimburse the estate because he had "misappropriated funds for his own benefit" while acting as the personal representative. Allen represented himself and responded, and the parties ultimately settled the matter.

         [¶ 8] The petition for discipline against Allen alleged violations of N.D.R. Prof. Conduct 1.7 (conflict of interest); 1.9 (duties to former client); 3.3 (candor toward the tribunal); and 8.4 (misconduct) arising from his actions while serving as Margaret Allen's attorney-in-fact and as the personal representative of her estate. Allen denied any ethical misconduct occurred and requested dismissal of the formal charges. Following a hearing, the panel found clear and convincing evidence that Allen violated each rule. The hearing panel recommended that Allen be suspended from the practice of law for a period of six months and one day and that he pay $15, 360.77 for the costs and expenses of the disciplinary proceedings.

         II

         [¶ 9] Allen argues there is not clear and convincing evidence that he violated any of the rules of professional conduct charged.

         [¶ 10] In Disciplinary Bd. v. Ward, 2016 ND 113, 881 N.W.2d 206, we explained:

This Court reviews disciplinary proceedings de novo on the record. Disciplinary Board v. Light, 2009 ND 83, ¶ 6, 765 N.W.2d 536 (citations omitted). Disciplinary counsel must prove each alleged violation by clear and convincing evidence, which means the trier of fact must be reasonably satisfied with the facts the evidence tends to prove and thus be led to a firm belief or conviction. Id. The evidence need not be undisputed to be clear and convincing. Id. We give due weight to the findings, conclusions, and recommendations of the Disciplinary Board, but we do not act as a mere rubber stamp for the Board. Id. To decide which sanction, if any, is appropriate, each disciplinary matter must be considered on its own facts. Id.
Because the hearing panel has the opportunity to hear witnesses and observe their demeanor, we accord special deference to the panel's findings on matters of conflicting evidence. Disciplinary Board v. Bullis, 2006 ND 228, ¶ 12, 723 N.W.2d 667. Similarly, we defer to the hearing panel's findings on the credibility of a witness, because the hearing panel has the opportunity to observe the witness's demeanor and hear the witness testify. Disciplinary Board v. Johnson, 2007 ND 203, ¶ 22, 743 N.W.2d 117.

Id. at ¶ 7 (quoting Disciplinary Bd. v. Carpenter, 2015 ND 111, ¶ 9, 863 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.