Published January 30 2011
Ask Your Government: Fargo reader inquires about mishandling of case
A Fargo reader wrote me the following:
“I read your column every Sunday. I hope to get an answer that many others would appreciate knowing as well.
“Last year, I was referred to an attorney in order to find out my rights in a dispute with some relatives over some real estate. Although he held himself out as a real estate attorney, it became clear to me that I knew more than he did.
“I had a couple of conversations with him, sharing information regarding the situation. I got papers from the courthouse as he requested and an O&E search. He sent a letter to my relatives without my approval or knowledge that was totally inaccurate that inflamed the already difficult situation.
“This has cost me lost inheritance from a recently deceased uncle who didn’t like the demands in the letter the attorney sent that at the time I had no knowledge. I immediately fired the attorney, but the damage was done.
“Attorneys do not like to go against a fellow attorney. How do I get justice? At the very least, he should be reprimanded and, beyond that, my personal loss should be a factor, too. Does the state have an attorney that will take on such a case, or is there a different direction to take with the state?”
Thanks for reading and writing! I asked State Bar Association of North Dakota Executive Director Bill Neumann to respond. Here’s what he said:
“This case sounds like a failure to communicate. A good lawyer should always make sure what the client wants before taking action. Unfortunately, that may not have happened here.
“The problem in this case could be addressed in two different ways, and the writer’s communication touches on both of them. The writer suggests the lawyer may have committed malpractice and also suggests the lawyer may have violated the North Dakota Rules of Professional Conduct. Both possibilities can be pursued.
“The writer says attorneys do not like to go against a fellow attorney. That was true many years ago, and some individual practitioners still may not take a case of lawyer malpractice, but today there are a great many attorneys who will pursue lawyer malpractice if they believe the client has a good case.
“Several phone calls should be enough to put the writer in touch with one or more lawyers willing to talk about the case. Of course, most lawyers are not eager to take cases with little or no chance of success.
“Depending on the details and the actual damages, what looks like an outrage to a client may look like a weak case to a lawyer. If the writer has talked to lawyers and can’t find anyone to take the case, it may be the lawyers don’t see the case in the same light as the writer.
“The second possibility is a disciplinary complaint. Every complaint filed with the attorney disciplinary system is given serious consideration. If the investigator finds clear and convincing evidence the lawyer has violated one or more Rules of Professional Conduct, some disciplinary action will be taken against the lawyer, ranging from admonition to suspension or disbarment, often with an order to reimburse a financially injured client.
“However, it’s important to know that malpractice often does not include an ethical violation, and ethical violations often do not include malpractice. There can be some overlap between the two in some situations, but usually they are two different things.
“If the writer believes an ethical violation has occurred in this case, the writer should contact the Office of Disciplinary Counsel at (701) 328-3925 or P.O. Box 2297, Bismarck, ND 58502-2297 to file a complaint.
“This writer should not have had a disappointing experience with the lawyer. The legal profession requires continuing education and annual relicensure of its members to protect against such things, but unfortunately, despite our profession’s best efforts, sometimes it can happen. I hope the remedies discussed here will provide the writer some satisfaction.”
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Teri Finneman is a multimedia reporter for Forum Communications Co.