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Disciplinary Board of The Supreme Court of The State of North Dakota v. Seaworth12/6/1999
clear and convincing evidence Seaworth did not respond on Motl's behalf to the Bureau's inquiries. The Bureau's letters show she was neither diligent nor prompt in her responses on behalf of Motl. The disciplinary board's finding her failure to respond on Motl's behalf to at least thirteen of the Bureau's letters is supported by clear and convincing evidence.
2
[ ] The hearing body found Seaworth did not make a reasonable effort to keep Motl informed about the status of her claim, in violation of N.D.R. Prof. Conduct 1.4. Motl's complaint and subsequent disciplinary proceeding center around whether Seaworth notified Motl about the Bureau's offer of $7,382. Rule 1.4, N.D.R. Prof. Conduct, "requires a lawyer to make reasonable efforts to keep a client reasonably informed, to promptly comply with requests for information, and to explain matters to the extent reasonably necessary." Disciplinary Bd. v. Ellis, 504 N.W.2d 559, 564 (N.D. 1993). "A lawyer who receives from opposing counsel an offer of settlement in a civil controversy . . . should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable." N.D.R. Prof. Conduct 1.4 cmt.
[ ] It seems fairly certain Seaworth mailed the letter giving notice of the $7,382 offer to Motl, as evidenced by the flood-stained letter. Motl does not remember receiving the letter; however, she testified she did remember reading it, possibly at Seaworth's office. Motl was receiving her mail at two different addresses at the time Seaworth allegedly mailed the notice of the settlement offer, but Motl claims mail sent to one address would have been forwarded to the other.
[ ] It is unclear from the findings of fact of the hearing body, which were adopted by the disciplinary board, whether the disciplinary board concluded Motl received notification of the $7,382 offer. Findings of fact must be adequate to enable a reviewing court to ascertain the basis of the disciplinary board's decision. See Larsen v. Comm'n on Med. Competency, 1998 ND 193, 14, 585 N.W.2d 801. To aid us in our review of the disciplinary board's conclusions, clear and specific findings of fact are necessary.
[ ] From the record, it is uncertain whether Seaworth timely communicated the Bureau's additional settlement offers to Motl. Attorneys should well document contacts with clients, including telephone calls. See generally Disciplinary Bd. v. Nassif, 504 N.W.2d 311, 312-14 (N.D. 1993); Disciplinary Bd. v. Lovell, 292 N.W.2d 76 (N.D. 1980). Seaworth, while maintaining she informed Motl of the offers, testified any notes she may have had corroborating these communications were on time sheets lost in the 1997 flood.
[ ] We disagree with the disciplinary board's finding Seaworth failed to adequately communicate with Motl. There was some evidence presented indicating Seaworth violated N.D.R. Prof. Conduct 1.4, but the evidence does not rise to the level of clear and convincing. We conclude the assistant disciplinary counsel did not establish by clear and convincing evidence Seaworth failed to make reasonable efforts, in violation of N.D.R. Prof. Conduct 1.4, to keep Motl reasonably informed of the status of her claim.
B
[ ] In determining the appropriate sanction for a violation of the Rules of Professional Conduct, this Court is directed by the North Dakota Standards for Imposing Lawyer Sanctions. Disciplinary Bd. v. Landon, 1999 ND 202, 21 (citing Disciplinary Bd. v. Nassif, 547 N.W.2d 541, 544 (N.D. 1996)). Under N.D. Stds. Imposing Lawyer Sanctions 4.43, " eprimand is generally appropriate when a lawyer is negligent and does not act w
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