The State Bar Association of North Dakota Summer 2013 Gavel Magazine | Page 34

ETHICS & DISCIPLINE

NOTICE OF DISCIPLINE OF ATTORNEY Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. Michael S. McIntee, Respondent No. 20130119 & 20130120 The Supreme Court considered and accepted the findings, conclusions, and recommendation of a Hearing Panel recommending Michael S. McIntee be reprimanded for violation of N.D.R. Prof. Conduct 1.7(c) and 1.9 and pay the costs of the disciplinary proceeding in the amount of $7,350.80. McIntee violated N.D.R. Prof. Conduct 1.7(c), Conflict of Interest: General Rule, because he should have been aware of the possibility that his clients, the co-personal representatives of their mother’s estate, would have differe nt perspectives on the handling of the estate, and should have known his representation might be adversely affected by his responsibilities to each. After becoming aware of one of the co-personal representative’s unhappiness, McIntee did not advise her she could hire her own attorney or withdraw from his representation of her as co-personal representative, or obtain her consent to his continued representation. McIntee also violated N.D.R. Prof. Conduct 1.9(a), Duties to Former Client, when following the administration of the estate, McIntee commenced an action on behalf of one co-personal representative against the other, as well as other heirs under the will, in a substantially related matter. The action involved the interpretation of their mother’s will so as to enforce the duties and obligations set out by the terms of the will, which had been administered by the co-personal representatives, both of whom McIntee represented in that capacity. McIntee did not obtain the consent in writing of the co-personal representative who was a defendant, or otherwise, to bring the action against her. An aggravating factor was McIntee’s prior disciplinary offenses. In 1999, McIntee prepared a will for Eleanor Striha. Following her 2004 death, McIntee met with the co-personal representatives of the estate to open the will and begin the pro-

bate process. The co-personal representatives were siblings, and both were beneficiaries and devisees under their mother’s will, along with two other siblings. Having prepared the will, McIntee was aware the distribution of the farmland to the children included severe limitations on the use and enjoyment of the land they inherited. McIntee did not discuss any problems or issues that may arise in situations when two co-personal representatives are appointed. He did not advise Ritterman that, as personal representative of her mother’s estate, she could hire her own attorney, and no written fee agreement between McIntee and Ritterman was executed employing McIntee to act as her attorney in administering her duties as co-personal representative of her mother’s estate. On April 6, 2009, McIntee, as attorney for Michael Striha, signed a Complaint filed in the district court of Sheridan County, in which Striha brought an action against his siblings, including Bonnett and Ritterman, to secure the rights he asserted were granted to him under the will of the parties’ mother, to secure a hay and crop lien and option to purchase, and to enjoin the defendants from interference with his right to the land. Before bringing the action, McIntee had not sought, or obtained, Ritterman’s consent for his bringing the action on behalf of Striha against her. The Supreme Court reprimanded McIntee for violation of N.D.R. Prof. Conduct 1.7(c) and 1.9 and ordered him to pay the costs of the disciplinary proceeding in the amount of $7,350.80. NOTICE OF DISCIPLINE OF ATTORNEY Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. Constance L. Triplett, Respondent No. 20130005 The Supreme Court considered and accepted the findings, conclusions, and recommendation of a Hearing Panel recommending Constance L. Triplett be reprimanded for violation of N.D.R. Prof. Conduct 1.3, 1.4(a)(3), 1.4(a)(4), and 1.16(e); return the $500 plus interest from September 28,

2002, to the client; and pay the costs of the disciplinary proceeding in the amount of $2,971.64. The Hearing Panel concluded Triplett did not violate N.D.R. Prof. Conduct 1.5(a). Following a hearing, the Hearing Panel found that in September 2002, Triplett was retained by a client in post-divorce matters for $500. Little work was required to resolve the dispute pending at that time, and by the client’s request, Triplett kept the money as a retainer. Triplett did not provide a billing or accounting of the fee earned or amount of unused retainer. In December 2007, Triplett said she would send a letter to the ex-husband regarding another post-divorce issue, but did not do so. During 2009, the client was unable to contact Triplett, and in August 2009 filed a complaint with the Disciplinary Board regarding Triplett’s inaction. The client was able to resolve the issue, and she wrote to Triplett requesting she return her retainer. The only response the client received was a copy of Triplett’s response to the client’s disciplinary complaint. Triplett testified she has suffered from depression since childhood. Her medical records reflect she has been prescribed anti-depressants at various times since September 2007, as well as medication for a sleep disorder and she received psychological counseling over much of the last five years. It appears that her condition has improved and stabilized. She testified that in 2007, she had difficulty staffing her office and she felt she was having difficulty focusing on her work, so she decided not to take any additional clients and to start decreasing her practice. In 2009 and 2010, she attended an advanced degree program in Oregon, and she did not provide the client with contact information during that time. The Hearing Panel recommended Triplett be reprimanded, return the $500 plus interest from September 28, 2002, to the client; and pay the costs of the disciplinary proceeding in the amount of $2,971.64. The Supreme Court accepted the findings, conclusions, and recommendation of the Hearing Panel.

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The Gavel Summer 2013