Disciplinary Board v. Baird , 2022 ND 146 ( 2022 )

20210239, 20210329-20210330
FILED JULY 21, 2022
CLERK OF THE SUPREME COURT
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 146In the Matter of the Application for
Disciplinary Action Against Stephen J.
Baird, a Member of the Bar
of the State of North Dakota
Disciplinary Board of the Supreme Court
of the State of North Dakota, Petitioner
v.
Stephen J. Baird, Respondent
Nos. 20210239, 20210329 &
20210330
Application for disciplinary action.
DISBARMENT ORDERED.
Per Curiam.
Kara J. Erickson, Bismarck, ND, for petitioner.
Stephen J. Baird, Fargo, ND, self-represented.
Disciplinary Board v. Baird
Nos. 20210239, 20210329 & 20210330
Per Curiam.
[¶1] The Supreme Court has before it a report from a hearing panel of the
disciplinary board recommending Stephen J. Baird be disbarred from the
practice of law in North Dakota, refund three clients advance fees they paid,
and pay the costs and expenses of disciplinary proceedings. We adopt the
hearing panel’s findings and recommended sanctions as explained below, and
order disbarment.
I
[¶2] The North Dakota Constitution vests this Court with authority to
develop and administer a system for lawyer disability and discipline. N.D.
Const. art. VI, § 3; N.D.R. Lawyer Discipl. 1.1(A). This Court exercises that
authority in part through inquiry committees and a disciplinary board. The
inquiry committees screen lawyer disciplinary complaints for initial action. Id.
at Rule 2.4(F); Rule 3.1(A) and (D). Inquiry committees can, among other
things, direct disciplinary counsel to file formal proceedings before the
disciplinary board. Id. at Rule 2.4(F)(2)(e). Upon receipt of formal charges of
misconduct, the board must conduct a hearing through a hearing panel. Id. at
Rule 2.1(H)(2). The hearing panel is required to conduct the hearing and
provide this Court with a report containing findings and recommendations for
discipline. Id. at Rule 2.3(B).
[¶3] Upon receipt of findings and recommendations from the disciplinary
board, this Court reviews the proceeding de novo on the record. In re Discipl.
Action Against McDonald, 2000 ND 87, ¶ 13, 609 N.W.2d 418. The nature of
this Court’s review is well established:
“Disciplinary counsel has the burden to prove each alleged
violation by clear and convincing evidence. In re Discipl. Action
Against Lee, 2013 ND 151, ¶ 9, 835 N.W.2d 836. Clear and
convincing evidence is evidence that leads to a firm belief or
conviction the allegations are true. Id. ‘We give due weight to the
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findings, conclusions, and recommendations of the hearing panel,
but we do not act as a “rubber stamp” for those findings and
recommendations.’ McDonald, at ¶ 13. We give deference to the
hearing panel’s findings on matters of conflicting evidence when
the panel has heard the witnesses and observed their demeanor.
Id. We also give deference to the hearing panel’s findings on the
witnesses’ credibility because the hearing panel has the
opportunity to hear the witnesses testify and observe their
demeanor. Lee, at ¶ 9. We consider each case on its own facts to
determine what discipline is warranted. McDonald, at ¶ 13.”
In re Discipl. Action Against Overboe, 2014 ND 62, ¶ 9, 844 N.W.2d 851.
II
[¶4] Baird was admitted to practice law in North Dakota in 2013. He is not
currently licensed in this state. In August 2020, Maurice Mensah filed a
disciplinary complaint against Baird. On April 27, 2021, disciplinary counsel
filed formal charges against Baird alleging Baird failed to act with reasonable
diligence, failed to adequately communicate with him about the
representation, and failed to take reasonable steps to protect Mensah’s
interests for a period when Baird abandoned his representation of Mensah.
[¶5] On August 2, 2021, the hearing panel issued default findings of fact,
conclusions of law and recommendations for discipline. On October 6, 2021,
this Court remanded the matter for additional findings. On remand, the
disciplinary board consolidated Mensah’s complaint with complaints against
Baird by Christopher Gbagir and Daniel P. Odoi. On March 9, 2022, the
hearing panel conducted a hearing at which the complainants testified but
Baird did not appear or participate in the proceedings.
[¶6] On May 11, 2022, the hearing panel issued a report containing amended
findings of fact, conclusions of law and recommendations in the consolidated
cases. The hearing panel recommended that Baird be disbarred, be assessed
costs and expenses of disciplinary proceedings totaling $5,528.78, ordered to
refund to Mensah, Gbagir and Odoi advance fees paid to Baird in the amounts
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of $750, $2,000 and $1,800 respectively, and be ordered to comply with N.D.R.
Lawyer Discipl. 6.3, regarding notice.
[¶7] The hearing panel’s report was served on Baird and disciplinary counsel
on May 24, 2022, and forwarded to the Supreme Court. Objections to the report
were due within 20 days of service of the report. N.D.R. Lawyer Discipl.
3.1(F)(2). No objections were received and the matter was submitted to this
Court for consideration.
III
[¶8] Under N.D.R. Lawyer Discipl. 3.1(F)(2) the hearing panel’s report
contained findings of fact in each matter, which we adopt as summarized below.
A
File No. 6567-SE-2009 (Mensah)
[¶9] In February 2020, Maurice Mensah contacted Baird for representation
in an immigration matter focusing on Mensah obtaining citizenship and
immigration status. Baird accepted the representation and received $750 as
half of his fee. In March 2020, Baird informed Mensah that he would be closing
his office for the month due to the Covid-19 pandemic, but that he would reopen
in April 2020. Baird also advised that he was not taking phone calls, and
instead Mensah should text or email him.
[¶10] Mensah attempted to communicate with Baird from April to August
2020 by leaving telephone voice messages, sending emails and text messages,
and leaving written notes under Baird’s office door. Baird did not respond to
any of Mensah’s attempted communications. The hearing panel found Baird
abandoned his representation of Mensah during that time.
[¶11] In August 2020, Mensah demanded a refund of money he paid Baird, and
filed the disciplinary complaint leading to this proceeding. Baird thereafter
resumed communicating with Mensah. In December 2020, Baird filed
Mensah’s papers with the United States Citizenship and Immigration Services
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(USCIS). Baird did not tell Mensah about the filing; however, Mensah found
out through his own efforts that his application was accepted, and he obtained
a receipt number allowing him to track the progress of the filing. At about this
same time, Baird withdrew from the representation by telling Mensah he no
longer wanted to represent Mensah and suggesting he hire another lawyer.
Upon withdrawal, Baird did not provide Mensah with his file or return any
funds to him.
B
File No. 6604-SE-2101 (Gbagir)
[¶12] In the spring of 2020, Baird agreed to represent Christopher Gbagir on
an application for asylum, with his wife and children as riders. Gbagir
completed all of the necessary documentation, submitted their original
passports to Baird with the application, signed a retainer agreement and paid
$2,000 as a partial fee.
[¶13] In September 2020, Baird informed Gbagir that he filed an application
for him with the USCIS. Thereafter Gbagir attempted to communicate with
Baird regarding his case and its status. When Gbagir visited Baird’s office
during working hours, it was locked and did not appear that anyone was there.
Gbagir called Baird’s office, left voicemails, sent emails and text messages, and
left written messages slipped under Baird’s office door on several occasions.
Baird failed to respond to any of these attempted communications for two
months. In November and December 2020, Baird told Gbagir that they were
waiting for action from USCIS, and that he had no additional information.
[¶14] By chance meeting, Gbagir saw Baird in person in January 2021 when
Baird was moving offices. At that meeting, Baird returned Gbagir’s and his
family’s passports. Baird said he had no status updates and could not provide
Gbagir with confirmation of USCIS’s receipt of his application. Gbagir later
contacted USCIS himself and confirmed using his passport number that no
application had been received by USCIS on Gbagir’s behalf. Gbagir later
learned a United States Postal Service tracking number provided to him by
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Baird had been obtained online, but that the tracking number did not indicate
a document was ever mailed by Baird.
[¶15] Prior to a one-year deadline to seek asylum, which expired in March
2021, Gbagir asked Baird to “refile” the application. Gbagir mailed that
application himself in February 2021. Baird included a cover letter asking that,
if two matters were received by USCIS on behalf of Gbagir, the matters should
be merged and treated as one file. Gbagir never received a receipt number for
the filing Baird claimed he made. From these facts we conclude Baird withdrew
from the representation before completing his agreed upon work for Gbagir.
From these facts the hearing panel concluded, and we agree, Baird did not
complete and submit the asylum application in September 2020 as he told
Gbagir.
C
File No. 6605-SE-2101 (Odoi)
[¶16] In August 2020, Daniel P. Odoi retained Baird for an adjustment of
status with USCIS to obtain a green card, get a work authorization, and travel
permit. Baird accepted a partial payment of $1,800 for the work and $1,760 for
the USCIS filing fee, totaling $3,560.
[¶17] In September 2020, Baird told Odoi he submitted the application for an
adjustment of status. Odoi did not receive a subsequent communication from
Baird about an application receipt from USCIS. After six months, Odoi
attempted to communicate with Baird regarding his case and its status. Odoi
visited Baird’s office during working hours and found it was locked. Odoi called
Baird’s office, left voicemails, sent emails and text messages, and left written
messages under Baird’s office door. Baird did not respond to any of the
communications for approximately four months.
[¶18] Baird never provided Odoi with a verification of the mailing to confirm
the matter was submitted to USCIS, or a receipt from USCIS showing it
received the filing. From these facts the hearing panel concluded, and we agree,
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Baird did not complete or file the application for Odoi’s adjustment of status
with the USCIS as he told Odoi.
[¶19] In February 2021, Odoi finally spoke with Baird regarding his case and
obtained a refund of the $1,760 USCIS filing fee so that Odoi could “resubmit”
the application himself. Odoi completed the application and submitted it on his
own. He did not receive any drafts of documents from Baird, nor did he receive
a copy of his file. From these facts we conclude Baird withdrew from the
representation before completing his agreed upon work for Odoi. Despite not
completing the application or filing it for Odoi, Baird did not refund any portion
of the legal fees paid to him by Odoi.
IV
[¶20] Under N.D.R. Lawyer Discipl. 3.1(F)(2) the hearing panel provided a
report containing recommendations for discipline, including mitigating and
aggravating circumstances affecting the nature or degree of recommended
discipline. We adopt the hearing panel’s recommendations as indicated below.
A
[¶21] Baird violated N.D.R. Prof. Conduct 1.3 by knowingly failing to act with
reasonable diligence and promptness. In all three matters, Baird unreasonably
delayed taking action to further the representations. For Mensah, Baird
delayed filing his matter without explanation, filed the documents months
later, but then only after Mensah filed a disciplinary complaint. For Gbagir,
Baird never filed the time-sensitive asylum-related documents. Baird’s lack of
diligence placed the Gbagirs in a vulnerable situation because he kept their
original passports. As a result, they did not have government issued
identification so they would have been detained if stopped by law enforcement.
Pending a change in immigration status, Gbagir could not work, and not
having their passports also meant he and his family were not able to receive
money sent to them.
[¶22] For Odoi, Baird never completed or filed paperwork for adjustment of
Odoi’s legal status. As a result, Odoi experienced a six-month delay in receiving
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a work authorization to support his pregnant wife, and later his growing
family. The lack of travel documents that Baird agreed to obtain also caused
Odoi to not be able to travel to attend his father’s funeral in Nigeria.
[¶23] For each matter, Baird knowingly failed to provide the legal services he
was hired to provide, and his unreasonable delays exposed the clients to
potential or serious injury under the North Dakota Standards for Imposition
of Lawyer Sanctions.
B
[¶24] Baird violated N.D.R. Prof. Conduct 1.4 by knowingly failing to
reasonably communicate with Mensah regarding his case. Baird did not
communicate with or respond to Mensah regarding the representation for
extended periods. Although no deadline existed for filing Mensah’s
naturalization application and his green card did not expire until 2023, Baird
frequently provided misinformation about the status of Mensah’s filing.
[¶25] For Gbagir, Baird did not reasonably communicate with or respond to his
requests for information about the status of his filing for asylum. When
communication occurred, Baird frequently provided misinformation about the
status of Gbagir’s filing. Gbagir was an immigrant seeking asylum in the
United States, and was a vulnerable client. Baird’s delay in communicating
delayed Gbagir from seeking other legal representation on his time-sensitive
filing.
[¶26] For Odoi, Baird did not reasonably communicate with or respond to his
requests for information about the status of his filing for a green card, work
authorization and a travel permit. When communication occurred, Baird
frequently provided misinformation about the status of Odoi’s filing. Baird’s
delay in communicating delayed Odoi from seeking other legal assistance or
acting on his own to obtain a change in his legal status and preventing him
from being able to lawfully work in the United States during the pendency of
the matter.
C
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[¶27] The hearing panel recommended we find Baird violated N.D.R. Prof.
Conduct 1.16(e) when he knowingly failed to take reasonable steps to protect
Mensah’s interests by terminating the representation, including refunding his
unused fee or returning Mensah’s file and records so that he could seek other
counsel. By plain terms, Rule 1.16(e) imposes on a lawyer the obligations to
refund fees and return files upon termination of the representation.
“Terminating the representation” is not a violation of Rule 1.16(e); rather it is
the trigger for the requirements to refund fees and return files. Here, Baird
terminated his representations before completing the services he agreed to
provide Mensah, Gbagir and Odoi. Further, Baird’s “abandonment” of Mensah
as a client could be a termination of the representation supporting a finding
Baird violated Rule 1.16(e).
[¶28] The hearing panel recommended that we conclude Baird’s lack of work
on or communications about Mensah’s case from April 2020 to August 2020
constituted abandonment of Mensah as a client. The “abandonment” finding is
an integral part of determining the appropriate sanction for Baird’s ethical
violations. See N.D. Stds. Imposing Lawyer Sanctions 4.41(a) (“Disbarment is
generally appropriate when . . . a lawyer abandons the practice and causes
serious or potentially serious injury to a client[.]”). Here, a determination of
“abandonment” is called into question based on the record showing that, after
Mensah filed a disciplinary complaint in August 2020, Baird resumed
communicating with Mensah and completed the application portion of the
representation. We note that another jurisdiction concluded a lawyer
abandoned his practice through a temporary gap in representations, followed
by resumed representations. See In re Discipl. Proc. Against Wickersham, 310
P.3d 1237, 1243-44 (Wash. 2013) (lawyer abandoned law practice for five
months). We also note that sanction standard 4.41(a) applies to “a lawyer [who]
abandons the practice and causes serious or potentially serious injury to a
client.” N.D. Stds. Imposing Lawyer Sanctions 4.41(a). Here, the hearing panel
found Baird abandoned Mensah as a client, and did not find that Baird
abandoned his law practice. Nevertheless, absent objection by Baird and
absent the benefit of the full vigor of the adversarial process to resolve this
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question, for purposes of this case we determine Baird temporarily abandoned
his practice, including his representation of Mensah.
D
[¶29] The hearing panel recommended finding that, as to Gbagir, Baird
violated N.D.R. Prof. Conduct 8.1(a) as follows:
“During the course of the investigation of the matter, Baird
knowingly made false statements in connection with the
disciplinary proceedings regarding the initial filing of Gbagir’s
asylum application and his follow-up communication with Gbagir
about that application.”
[¶30] We do not adopt this conclusion because no supporting facts or findings
have been provided or located in the record. We also note Baird defaulted in
proceedings before the disciplinary board, and he did not make filings with this
Court in opposition to the hearing panel report. Therefore, we do not find where
Baird “knowingly ma[d]e a false statement of material fact” “in connection with
a disciplinary matter.” N.D.R. Prof. Conduct 8.1(a).
V
[¶31] Having found Baird violated N.D.R. Prof. Conduct 1.3, 1.4, and 1.16(e),
the next step is to determine the appropriate disciplinary sanction. North
Dakota has adopted a version of the American Bar Association Model
Standards for Imposition of Lawyer Sanctions. Under those standards, the
following factors generally are considered:
“In imposing a sanction after a finding of lawyer misconduct, a
court should consider the following factors:
(a) the duty violated;
(b) the lawyer’s mental state;
(c) the potential or actual injury caused by the lawyer’s
misconduct; and
(d) the existence of aggravating or mitigating factors.”
N.D. Stds. Imposing Lawyer Sanctions 3.0.
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[¶32] The hearing panel’s report recommended Baird’s disbarment under N.D.
Stds. Imposing Lawyer Sanctions 4.40 and 4.41 for lack of diligence. Those
standards provide:
“4.4. Lack of Diligence. Absent aggravating or mitigating
circumstances, upon application of the factors set out in Standard
3.0, the following sanctions are generally appropriate in cases
involving a failure to act with reasonable diligence and promptness
in representing a client:
4.41 Disbarment is generally appropriate when:
(a) a lawyer abandons the practice and causes serious or
potentially serious injury to a client; or
(b) a lawyer knowingly fails to perform services for a
client and causes serious or potentially serious injury to a
client; or
(c) a lawyer engages in a pattern of neglect with respect
to client matters and causes serious or potentially serious
injury to a client.”
[¶33] The hearing panel recommended that we consider as an aggravating
circumstance that Baird received an admonition in February 2021 for a
violation of N.D.R. Prof. Conduct 1.4 by not adequately communicating with
his client. See N.D. Stds. Imposing Lawyer Sanction 3.0(d). A split of authority
exists about whether another disciplinary offense is an aggravating factor
when the other misconduct occurred at or near the same time as the matter at
hand. See ABA Annotated Standards for Imposing Lawyer Sanctions, 452-54
(2d ed. 2019). Again, absent Baird’s objection, for purposes of this case we will
consider Baird’s co-occurring misconduct an aggravating factor.
[¶34] The hearing panel also recommended that we consider as aggravating
factors Baird’s pattern of misconduct, multiple offenses, and vulnerability of
the victims. See N.D. Stds. Imposing Lawyer Sanction 9.22(c), 9.22(d) and
9.22(h). Our findings adopted above support recognizing the aggravating
factors of Baird’s pattern of misconduct and commission of multiple offenses.
Because we rely on Sanction Standard 4.41 regarding lack of diligence, Baird’s
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violations of N.D.R. Prof. Conduct 1.4 and 1.16(e) are both aggravating factors
under N.D. Stds. Imposing Lawyer Sanctions 9.22(c) and consideration of the
duties violated under Sanction 3.0(2).
[¶35] Regarding vulnerable clients, our findings above about Gbagir’s asylum
seeking status and Odoi’s undocumented immigrant status support
recognizing the aggravating factor. As to Mensah, the only suggested support
was that, “[a]s an immigration client, Mensah was vulnerable because he was
not able to check a docket to see whether filings had been made.” We conclude
the articulated basis for Mensah does not rise to the level of vulnerability
constituting an aggravating factor.
[¶36] We have been provided with no evidence of mitigating factors. See N.D.
Stds. Imposing Lawyer Sanctions 3.0(d). Nor have we been directed to
information about Baird’s mental state. See id. at 3.0(b).
[¶37] Applying N.D. Stds. Imposing Lawyer Sanctions 4.41 to Baird’s
misconduct in the three consolidated matters, we conclude disbarment is the
appropriate sanction.
[¶38] Baird violated N.D.R. Prof. Conduct 1.3 by temporarily abandoning his
representation of Mensah and knowingly failing to diligently make
immigration filings. Baird violated N.D.R. Prof. Conduct 1.4 by knowingly
failing to reasonably communicate with him about the representation, and
misrepresented fact to Mensah when communications occurred. Baird also
violated N.D.R. Prof. Conduct 1.16(e) by knowingly failing to take reasonable
steps to protect Mensah’s interests by not refunding his unused fee or
returning Mensah’s file and records, which delayed or prevented Mensah from
seeking other representation for completion of his immigration case. Baird’s
violations caused Mensah potential injury and potentially serious injury.
[¶39] Baird similarly violated N.D.R. Prof. Conduct 1.3 by knowingly failing to
diligently represent Gbagir and Oboi by not acting on their time-sensitive
immigration filings. Baird violated N.D.R. Prof. Conduct 1.4 by knowingly
failing to reasonably communicate with Gbagir and Oboi about their
11
representations, and misrepresented fact to them when communications
occurred. Baird also violated N.D.R. Prof. Conduct 1.16(e) by knowingly failing
to take reasonable steps to protect Gbagir’s and Oboi’s interests by not
refunding their unused fee or returning Gbagir’s and Oboi’s file and records,
which delayed or prevented Gbagir and Oboi from seeking other representation
for completion of their immigration cases. For both Gbagir and Oboi, Baird’s
misconduct exposed them to potentially serious and serious injury, including
unnecessary delay in attempting to change their immigration status, economic
hardship, and possible removal from the United States.
VI
[¶40] Based on the foregoing:
[¶41] IT IS ORDERED, that Stephen J. Baird is DISBARRED from the
practice of law in North Dakota effective immediately.
[¶42] IT IS FURTHER ORDERED, that within 90 days of entry of judgment,
Baird refund to Mensah, Gbagir, and Odoi their advance fees paid of $750,
$2,000 and $1,800 respectively.
[¶43] IT IS FURTHER ORDERED, that Baird pay $5,528.78 for the costs and
expenses of these disciplinary proceedings, payable to the Secretary of the
Disciplinary Board, 300 East Boulevard Avenue, Bismarck, North Dakota,
58505-0530, within 90 days of entry of judgment.
[¶44] IT IS FURTHER ORDERED, that for any amounts already paid by the
North Dakota Client Protection Fund on Baird’s behalf to Mensah, Gbagir, or
Odoi, he make restitution within 90 days of entry of the judgment in this
matter. For any amounts relating to this matter paid in the future by the North
Dakota Client Protection Fund, Baird make restitution to the Fund within 90
days of receiving notice payment was made.
[¶45] IT IS FURTHER ORDERED, that any reinstatement is governed by
N.D.R. Lawyer Discipl. 4.5 and cannot occur until at least five years from the
effective date of disbarment and compliance with the conditions of this order.
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[¶46] IT IS FURTHER ORDERED, that Baird comply with N.D.R. Lawyer
Discipl. 6.3 regarding notice.
[¶47] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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