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In re Application for Disciplinary Action Against Bolinske

Supreme Court of North Dakota

August 19, 2019

In the Matter of the Application for Disciplinary Action Against Robert V. Bolinske, a Person Admitted to the Bar of the State of North Dakota
v.
Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner
v.
Robert V. Bolinske, Sr., Respondent

          Application for disciplinary action.

          Kara J. Erickson, Bismarck, ND, for petitioner.

          Robert V. Bolinske, Sr., self-represented, Bismarck, ND.

          PER CURIAM.

         [¶1] Robert Bolinske, Sr., objects to Disciplinary Board Hearing Panel's findings of fact, conclusions of law, and recommendation that he be suspended from the practice of law for 30 days and pay $5, 000 restitution to both Mark Carter and Gary and Teresa Watson. Bolinske argues the hearing panel erred by finding he violated N.D.R. Prof. Conduct 1.5(a), 1.15(e), and 1.16(e) and recommending he be suspended. We conclude clear and convincing evidence does not support finding Bolinske violated N.D.R. Prof. Conduct 1.5(a) and 1.15(e). We conclude clear and convincing evidence established Bolinske violated N.D.R. Prof. Conduct 1.16(e) by failing to return case files to Carter and the Watsons after representation was terminated. We order Bolinske be reprimanded and pay partial costs and expenses of the disciplinary proceeding in the amount of $3, 300. We remand File no. 20190110 to the hearing panel for determination whether Bolinske violated Rule 1.16(e) by failing to refund to the Watsons any unearned portion of the $10, 000 fee they paid Bolinske.

         I

         [¶2] Bolinske was admitted to practice law in North Dakota in 1975, but he is not currently licensed in this state.

         [¶3] In June 2018, disciplinary counsel petitioned to discipline Bolinske, alleging he violated N.D.R. Prof. Conduct 1.5(a) (reasonable fees), 1.15(e) (safekeeping of property), and 1.16(e) (terminating representation) in connection with his representation of Carter and the Watsons. Disciplinary counsel alleged Bolinske agreed to and collected unreasonable fees from Carter and the Watsons, he failed to properly maintain possession of property in which two or more persons claimed an interest until the dispute was resolved, he failed to return Carter's and the Watsons' files after they terminated his representation, and he failed to refund unearned fees. Bolinske denied the alleged misconduct and requested the charges be dismissed.

         [¶4] After receiving testimony from Bolinske and admitting exhibits from both parties, the hearing panel found clear and convincing evidence Bolinske violated all three rules. The hearing panel recommended Bolinske be suspended from the practice of law for 30 days, refund unearned fees to Carter and the Watsons in the amount of $5, 000 each, and pay the costs and expenses of the disciplinary proceedings.

         II

         [¶5] Bolinske argues the hearing panel erred by finding there was clear and convincing evidence he violated N.D.R. Prof. Conduct 1.5(a), 1.15(e), and 1.16(e).

         [¶6] We have summarized our standard in disciplinary proceedings:

"This Court reviews disciplinary proceedings de novo on the record. 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. The evidence need not be undisputed to be clear and convincing. 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. To decide which sanction, if any, is appropriate, each disciplinary matter must be considered on its own facts.
"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. 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."

In re Disciplinary Action Against Ward, 2016 ND 113, ¶ 7, 881 N.W.2d 206 (quoting Disciplinary Bd. v. Carpenter, 2015 ND 111, ¶ 9, 863 N.W.2d 223) (internal citations and quotation marks omitted).

         A

         [¶7] Disciplinary counsel alleged Bolinske violated "Rule 1.5(a), N.D.R. Prof. Conduct, by making an agreement for, charging, or collecting an unreasonable fee due to failure to follow Rule 1.5(c), regarding contingent fees, by including a provision for fixed $10, 000 fee within the fee agreement." Rule 1.5(a), N.D.R. Prof. Conduct, prohibits unreasonable fees, and states:

"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."

         [¶8] Although executed at different times, Bolinske's fee agreements with Carter and the Watsons are identical. The agreements state:

"Contingent Fees for Services. I agree to pay my attorney for his services 33 1/3% of whatever amount is actually recovered as a result of trial or settlement. If no recovery is made, I will owe my attorney nothing for his labor and time spent. In addition, there shall be paid a non-refundable $10, 000.00 retainer payment which amount ...

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