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Legal Memorandum: Disciplinary Proceedings against an Attorney

Issue: Does res judicata or collateral estoppel bar the North Dakota Disciplinary Board from initiating disciplinary proceedings against an attorney who has settled a civil suit with a former client who claimed that he fraudulently altered the terms of the fee contract to reflect a higher percentage of compensation?

Area of Law: Ethics & Professional Responsibility
Keywords: Res judicata or collateral estoppel; Disciplinary proceedings against an attorney
Jurisdiction: North Dakota
Cited Cases: 151 S.W.3d 473; 91 P.3d 1078; 657 S.E.2d 245; 708 P.2d 1295; 596 S.E.2d 156; 656 N.W.2d 661; 509 So. 2d 210; 472 A.2d 831
Cited Statutes: None
Date: 09/01/2008

In North Dakota, the doctrine of res judicata “prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies.”  Ungar v. No. Dak. State Univ., 721 N.W.2d 16, 21 (N.D. 2006).  Similarly, collateral estoppel “forecloses relitigation of issues of either fact or law in a second action based on a different claim, which were necessarily litigated, or by logical and necessary implication must have been litigated, and decided in a prior action.  Id.   Importantly, for purposes of both doctrines, “only parties or their privies are bound by an earlier judgment.  Id. 

As the Ungar points out, privity exists only if the Disciplinary Board “is so identified in interest” with the underlying plaintiff that it “represents the same legal right.”  Id.  In the context of a breach of a fee agreement, it is unlikely that the interests of the underlying plaintiff are sufficiently aligned with the Disciplinary Board’s interests to hold the two in privity. 

The North Dakota Supreme Court has recognized, on many occasions, that the interests involved in civil suits differ from those implicated in a disciplinary proceeding.  In In the Matter of Jaynes, 267 N.W.2d 782 (N.D. 1978), the Court embraced its duty protect the public trust in the legal profession even where a client obtains a civil judgment.  The Court explained:

Any act of a lawyer which tends to discredit his trust either by commission or omission cannot […]

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