not be allowed to switch sides when they have had access to the former client ’ s file .” Schmalenberger at 738 ( quotations and citation omitted ). If to a reasonable layperson there would appear to be an existence of impropriety due to a perceived switching of sides , then the standard is a relevant consideration . Id . The basis for the appearance of impropriety doctrine is that “[ a ] t the heart of every ‘ side-switching attorney ’ case is the suspicion that by changing sides , the attorney has breached a duty of fidelity and loyalty to a former client .” Id . Finally , like with the Rule 1.10 analysis above , the burden of proof is with the firm or lawyer that may need to withdraw and any doubt is resolved in favor of requiring withdrawal . Id . at 736 .
Here , Ll ’ s Firm would appear to be “ switching sides ” against Former Client by initially moving to seal the court records , then later moving to unseal the same . As a result , the “ appearance of impropriety ” exists , and L1 would bear the burden to establish how the Firm was not violating its duties to Former Client by unsealing the records and using them on behalf of Current Client . Based upon the facts presented , this appears to be a difficult , if not impossible , task .
This opinion was drafted by Sean T . Foss and was unanimously approved by the Ethics Committee on the 9th day of June , 2017 .
This opinion is provided under Rule 1.2 ( B ), North Dakota Rules for Lawyer Discipline , which states :
A lawyer who acts with good faith and reasonable reliance on a written opinion or advisory letter of the ethics committee of the association is not subject to sanction for violation of the North Dakota Rules of Professional Conduct as to the conduct that is the subject of the opinion or advisory letter .
LAWYER DISCIPLINE
Disciplinary Board of the Supreme Court of the State of North Dakota , Petitioner v . TaLisa A . Nemec , Respondent No . 20170257
A hearing panel of the Disciplinary Board submitted a report in which it recommended TaLisa A . Nemec be disbarred for violation of the Rules of Professional Conduct . Nemec represented a client in a divorce . The client paid Nemec a $ 4,500 retainer . Nemec was not diligent in proceeding with the case . She failed to adequately communicate with the client , who experienced several delays obtaining information from Nemec . She failed to perform services for the client . She caused the client potentially serious injury because he was not represented . The client ’ s interests were not protected in the divorce , and he was not able to obtain a divorce in a timely manner . She failed to return the client ’ s file or refund any portion of the client ’ s retainer or unearned fees .
Nemec violated N . D . R . Prof . Conduct 1.3 , Diligence ; N . D . R . Prof . Conduct 1.4 , Communication ; and N . D . R . Prof . Conduct l . 16 ( e ), Declining or Terminating Representation . After considering the aggravating factors under N . D . Stds . Imposing Lawyer Sanctions 9.22 , of prior disciplinary offenses , a pattern of misconduct and substantial experience in the practice of law , the hearing panel recommended the sanction of disbarment .
The Supreme Court disbarred Nemec effective immediately ; and ordered she pay $ 4,500 restitution to the client , pay restitution to the client protection fund , and pay the costs and expenses of the disciplinary proceedings in the amount of $ 250 .
Disciplinary Board of the Supreme Court of North Dakota Petitioner v . Ervin J . Lee , Respondent No . 20170241
In a stipulation , consent to discipline , and recommendations , and after considering the aggravating and mitigating factors under the N . D . Stds . Imposing Lawyer Sanctions , a hearing panel of the Disciplinary Board recommended Ervin J . Lee be disbarred .
Lee was hired to represent a client in a family law matter . The client paid Lee $ 3,000 as advance payment of fees , $ 5,000 as advance payment for a parenting investigator , and $ 1,000 as a personal loan to Lee . Lee did not advise the client to seek independent counsel regarding the loan . A parenting investigator was not used , but Lee used the $ 5,000 as payment towards legal fees without informing the client . He did not bill the client for two and one-half years . Lee promised he would repay the $ 1,000 loan with interest in four weeks , but did not do so . Despite assurances by Lee he would repay the $ 1,000 loan and the $ 5,000 used for fees , he did not do so .
Lee agreed he violated N . D . R . Prof . Conduct 1.8 ( a ), N . D . R . Prof . Conduct 1.15 ( c ), N . D . R . Prof . Conduct 1.16 ( e ), and that disbarment was the appropriate sanction .
The Supreme Court disbarred Lee effective Aug . 30 , and ordered him to repay the client the $ 5,000 used for fees plus interest ; to repay the $ 1,000 loan with interest ; to forego any attorney ’ s lien he claimed to have against the client ; to provide an affidavit to the Office of Disciplinary Counsel to verify the repayments to the client had been made ; to pay restitution to the client protection fund ; and to pay the costs and expenses of these disciplinary proceedings in the amount of $ 250 .
In the Matter of Reciprocal Discipline of Jesse D . Matson , a Person Previously Admitted to the Bar of the State of North Dakota No . 20170305
On Jan . 18 , the Supreme Court of Minnesota filed an order disbarring Jesse D . Matson for misappropriation of client
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