In the Matter of the Application for Disciplinary Action Against Ervin J. Lee, A Person Admitted to the Bar of the State of North Dakota
Ervin J. Lee, Respondent Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner
1] The Court has before it a stipulation, consent to
discipline and recommendations of a hearing panel of the
Disciplinary Board recommending that Ervin J. Lee be
disbarred from the practice of law in North Dakota for
violations of the North Dakota Rules of Professional Conduct.
We accept the stipulation, consent to discipline, and
recommendations. We disbar Lee from the practice of law in
North Dakota effective immediately. We order him to pay
restitution to the client and to the client protection fund,
and we order him to pay costs of the disciplinary proceeding
in the amount of $250.
2] Lee was admitted to practice law in North Dakota on
September 23, 1985. Lee was reprimanded in 1999, he was
suspended for 60 days in 2013, and he was suspended for four
months with one month stayed in 2015. Disciplinary Board
v. Lee, 2013 ND 151, 835 N.W.2d 836; Disciplinary
Board v. Lee, 2015 ND 182, 864 N.W.2d 764.
3] Lee was served a summons and petition for discipline on
May 13, 2016. Disciplinary Counsel and Lee entered into a
stipulation and consent to discipline. A hearing panel of the
Disciplinary Board filed a stipulation, consent to discipline
and recommendations with this Court on September 12, 2016. On
January 18, 2017, we rejected the stipulation, consent to
discipline and recommendations and remanded the matter to the
Disciplinary Board for appropriate further action. On June
27, 2017, the hearing panel filed the stipulation, consent to
discipline and recommendations before us.
4] In the stipulated facts and conclusions, Lee admitted the
following facts. Lee was hired to represent a client in a
family law matter. The client paid Lee $9, 000, $3, 000 of
which was advance payment of fees. One-thousand dollars of
the $9, 000 was a loan given to Lee by the client on February
20, 2013, which Lee used for personal expenses. Lee did not
advise the client to seek independent counsel regarding the
loan. Lee told the client he would repay the loan with
interest in four weeks, but did not do so.
5] Five-thousand dollars of the $9, 000 was an advance
payment for a parenting investigator. Lee deposited the funds
into his operating account rather than a trust account. A
parenting investigator was not used, but Lee did not refund
the money. Lee used the $5, 000 as payment toward legal fees
without informing the client or obtaining the client's
consent. Lee did not provide the client with bills for nearly
two and one-half years after representation began. For two
years, the client attempted to obtain a refund of the $5, 000
used for fees and the $1, 000 loan. Despite assurances by Lee
that he would refund the money, he did not do so.
6] Lee admitted that entering into a loan with his client
without advising the client to seek independent counsel
violated N.D.R. Prof. Conduct 1.8(a), which provides:
Except for standard commercial transactions involving
products or services that the client generally markets to
others, a lawyer shall not enter into a business, financial,
or property transaction with a client unless:
(1) the transaction is fair and reasonable to the client; and
(2) after consultation, including advice to seek independent
counsel, the client consents to the transaction.
admitted that failing to deposit the $5, 000 into a trust
account and using the funds violated N.D.R. Prof. Conduct
1.15(c), which provides that a "lawyer shall deposit
into a client trust account legal fees and expenses that have
been paid in advance, to be withdrawn by the lawyer only as
fees are earned or expenses incurred." Lee admitted that
by not returning the $5, 000 to the client and by applying it
to his fees without the client's consent, he violated
N.D.R. Prof. Conduct 1.16(e), which provides that "upon
termination of representation, a lawyer shall...
"surrender papers and property to which the client is
entitled and refund any advance payment of fee or expense
that has not been earned or incurred."
7] Lee admitted N.D. Stds. Imposing Lawyer Sanctions 4.11
applies, recognizing that disbarment is generally appropriate
when a lawyer knowingly converts client property and causes
injury or potential injury to a client. Aggravating factors
exist of a prior discipline history, a pattern of misconduct,
and substantial experience in the practice of law. N.D. Stds.
Imposing Lawyer Sanctions 9.22. Mitigating factors exist of
full and free disclosure ...