The State Bar Association of North Dakota Spring 2013 Gavel Magazine | Page 30

ETHICS & DISCIPLINE

NOTICE OF TRANSFER TO INCAPACITY TO PRACTICE LAW STATUS In the Matter of the Application for Transfer to Incapacitated Status of Lee Richard Finstad, a Member of the Bar of the State of North Dakota No. 20130051 Attorney Lee Richard Finstad filed an Application for Transfer to Incapacitated Status under N.D.R. Lawyer Discipl. 5.1(C). Finstad asserted that due to severe and chronic symptoms of Post-Traumatic Stress Disorder, his ability to practice law is adversely affected. He asserted the following facts. He experiences a high degree of anxiety, intrusive thoughts about Vietnam, flashbacks, and the emotional avoidance of people which has resulted in him being incapacitated to practice law. He is unable to concentrate on writing or on what filings need to be accomplished on behalf of his clients, is unable to remember case details from day to day, feels overwhelmed trying to accomplish the simplest details, is unable to write cogently, and cannot seem to recall what to do on the simplest cases. Finstad provided a letter from his treating physician supporting his belief that he is currently unable to practice law. Finstad requested that a trustee be appointed under N.D.R. Lawyer Discipl. 6.4. Disciplinary Counsel filed a response to Finstad’s Application, indicating he is not aware of any other matters that would militate against granting the Application. The Court ordered that Finstad is placed on incapacity to practice law status under N.D.R. Lawyer Discipl. 5.1(C) until further order of the Court; that Disciplinary Counsel promptly apply to the district court for a professional trustee as provided in N.D.R. Lawyer Discipl. 6.4; and that notice must be given of the Court’s action to Finstad’s clients under N.D.R. Lawyer Discipl. 6.3. NOTICE OF DISCIPLINE OF ATTORNEY Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. Sidney A. Gross, Respondent No. 20120456

The Supreme Court had before it the findings, conclusions, and recommendation of a Hearing Panel recommending Sidney A. Gross be publicly reprimanded for violation of N.D.R. Prof. Conduct 1.15(e) and he pay the costs of the disciplinary proceeding in the amount of $2,000. The Petition alleged Gross violated N.D.R. Prof. Conduct 1.2(d) and 1.15(e). Following a hearing, the Hearing Panel found that Gross represented Darcie Shannon in a divorce action against Jeffrey Shannon. The divorce action was dismissed, but the parties took further action to settle debts and divide assets, including a machinery sale that resulted in approximately $57,000 in proceeds. Two pieces of machinery sold had secured debts against them. By agreement of the parties, the proceeds of the sale were to be held in trust by Gross, and the secured creditors would be paid from the machinery sale proceeds. Before the divorce action was refiled, Jeffrey Shannon was hospitalized for six months for a head injury. Darcie Shannon was appointed temporary guardian and conservator. In that capacity, she transferred interests in real property to herself and to another person, and she disposed of Jeffrey Shannon’s personal property for her benefit and not his. The Hearing Panel dismissed the allegation that Gross’s actions with regard to the property dispositions violated N.D.R. Prof. Conduct 1.2(d), because Darcie Shannon made the transfers against Gross’s advice, because the transfers were consistent with Darcie Shannon’s understanding of the property division, and because the district court did not consider the transfers to be fraudulent and included the transferred property in her share of the divorce proceeds. Gross disbursed to Darcie Shannon, or allowed her to obtain, the proceeds of the machinery sale. Darcie Shannon testified she did not pay the debts owed on the rake or mower, though Gross instructed her to. Although Darcie Shannon went against the advice of Gross, Gross had knowledge that two or more persons or entities had a claim to the proceeds held in his trust account. The Hear-

ing Panel concluded Gross violated N.D.R. Prof. Conduct 1.15(e). The Hearing recommended Gross be publicly reprimanded and he pay the costs of the disciplinary proceeding in the amount of $2,000. The Supreme Court accepted the findings, conclusions, and recommendation of the Hearing Panel. NOTICE OF DISCIPLINE OF ATTORNEY In the Matter of the Reciprocal Discipline of Craig V. Kitchen, a Person Admitted to the Bar of the State of North Dakota No. 20130018 Craig V. Kitchen was admitted to the bar of the State of North Dakota, but according to the records maintained by the State Board of Law Examiners, Kitchen has never been licensed in this state. On June 29, 2004, the Wisconsin Supreme Court suspended Kitchen from the practice of law in Wisconsin with conditions of reinstatement for engaging in misconduct in his representation of clients in a bankruptcy matter for failing to timely respond to his clients’ request for information concerning the status of the bankruptcy and for a bill; charging unreasonable fees when Kitchen’s bill included an hour of time to retrieve the file from storage and six hours of time to prepare the bill itself; failing to maintain the requisite degree of documentation to permit identification of trust account transactions and the periodic balances on hand for each client; failing to submit the requisite records to the Wisconsin Office of Lawyer Regulation to assist in its investigation; and misleading the Wisconsin Office of Lawyer Regulation by suggesting on several occasions that he was sending the necessary documentation but later conceding that he did not have it. The conditions of reinstatement included payment of the costs of the Wisconsin disciplinary proceeding, and furnishing trust account records, including month bank statements, cancelled checks, deposit slips, checks, if necessary, and any journals or ledgers, for specific periods of time, or provide a sworn statement why he cannot furnish them. On November 14, 2012, Assistant Dis-

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The Gavel Spring 2013