In Re Petition for DISCIPLINARY ACTION AGAINST David A. OVERBOE, a Minnesota Attorney, Registration No. 83318

STATE OF MINNESOTA

IN SUPREME COURT

A14-1607

Original Jurisdiction Per Curiam

In re Petition for Disciplinary Action against Filed: July 29, 2015
David A. Overboe, a Minnesota Attorney, Office of Appellate Courts
Registration No. 83318

_______________________

Martin A. Cole, Director of the Office of Lawyers Professional Responsibility, Saint
Paul, Minnesota, for petitioner.

David A. Overboe, Fargo, North Dakota, pro se.
________________________

SYLLABUS

1. The North Dakota disciplinary proceedings were fundamentally fair and

consistent with due process.

2. Disbarment is the appropriate reciprocal discipline to impose on the

attorney in this case.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition

for disciplinary action seeking reciprocal discipline against respondent David A. Overboe

pursuant to Rule 12(d) of the Rules on Lawyers Professional Responsibility (RLPR).

Overboe was disbarred by the North Dakota Supreme Court on April 3, 2014. Because

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we conclude that the North Dakota disciplinary proceedings were fundamentally fair and

consistent with due process, and disbarment is not substantially different from the

discipline warranted in Minnesota for the same misconduct, we disbar Overboe from the

practice of law in Minnesota.

Overboe was admitted to practice law in North Dakota in 1972, and in Minnesota

in 1980. During the relevant time period, Overboe’s law practice was located in North

Dakota. In March 2008 we suspended Overboe from the practice of law for unrelated

misconduct, subject to his right to seek reinstatement after 1 year. In re Overboe

(Overboe I), 745 N.W.2d 852, 869 (Minn. 2008).1 Overboe did not seek reinstatement,

and is currently suspended in Minnesota.

In October 2006 an application was filed with the North Dakota Supreme Court

requesting Overboe’s interim suspension on the ground that Overboe had been charged

with sexual assault and two counts of hiring an individual to engage in sexual activity, a

violation of the North Dakota criminal code. The court concluded there was sufficient

evidence to demonstrate misconduct and a threat of harm to the public, and suspended

Overboe’s license effective December 4, 2006, pending final disposition of disciplinary

proceedings.

1
We suspended Overboe for deceptively labeling a personal account that contained
only his funds as a trust account to shield his funds from judgment creditors,
commingling client funds and personal funds in an Interest on Lawyers Trust Account,
and making misrepresentations to and failing to cooperate with the Office of Lawyers
Professional Responsibility. Overboe I, 745 N.W.2d at 856.

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Subsequently, four petitions for discipline were filed with the North Dakota

Supreme Court between January 2007 and September 2009 alleging various instances of

misconduct. Overboe moved for dismissal of the charges on the basis that the delay in

the prosecution of the disciplinary actions violated his due process rights, and requested

that he be placed on disability inactive status due to his incapacity to practice law because

he suffers from post-traumatic stress disorder (PTSD). The panel denied the motion and

request, and the matter proceeded to a hearing on the petitions. Ultimately, the panel

concluded Overboe committed the misconduct alleged in the four petitions and that

several aggravating factors were present. The panel recommended that Overboe be

disbarred.

Overboe appealed to the North Dakota Supreme Court, arguing that (1) he was

denied due process because of the delay in the prosecution of the disciplinary actions;

(2) there was not clear and convincing evidence he engaged in the alleged misconduct;

and (3) the panel erred in denying his request to be transferred to disability inactive

status, and therefore disbarment was not warranted. In re Overboe (Overboe II), 844

N.W.2d 851, 855-63 (N.D. 2014).

The North Dakota Supreme Court affirmed all but one of the panel’s findings and

conclusions and ordered that Overboe be disbarred. Id. at 865. The court concluded that

the delay in the commencement of the attorney disciplinary proceedings did not violate

Overboe’s due process rights, id. at 857, that Overboe failed to present sufficient

evidence to support his application to be transferred to disability inactive status, id. at

864-65, and that there was clear and convincing evidence both that Overboe committed

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the alleged misconduct in violation of the rules of professional conduct and to support the

aggravating factors.2 Id. at 865.

Specifically, the court concluded there was clear and convincing evidence that

Overboe had unwelcome sexual contact with multiple clients, including groping and

exposing himself to them, and had offered to reduce his legal fees in exchange for sexual

favors. Id. at 857-58. The evidence presented established that Overboe entered an Alford

plea and was convicted of one count of misdemeanor disorderly conduct for sexual

conduct that occurred in February 2006 involving a client. Id. at 857. Overboe also

pleaded guilty to two counts of disorderly conduct for sexual conduct that occurred in

October 2006 involving another client. Id. at 858. Evidence was also presented

regarding unwelcome sexual incidents involving four additional clients, which occurred

on various dates between 1995 and 1999. Id. Overboe’s actions violated the rules

regarding conflicts of interest and criminal acts by an attorney, and the rule prohibiting

sexual relations with a client. Id. at 859.

The court also concluded there was clear and convincing evidence that Overboe

prepared a durable power of attorney for D.G., who was then 92 years of age. Id. The

power of attorney was signed by D.G. and named Overboe’s wife, Debra, as D.G.’s

attorney-in-fact. Id. Debra and Overboe then went to a bank, and Debra used the power

of attorney to transfer $190,000 from D.G.’s financial accounts into a certificate of

2
The aggravating factors were Overboe’s disciplinary history, his dishonest or
selfish motive, his pattern of misconduct and multiple offenses, his refusal to
acknowledge the wrongful nature of his misconduct, the vulnerability of his victims, and
his substantial experience in the practice of law. Overboe II, 844 N.W.2d at 865.

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deposit payable to D.G. or to Debra, or alternatively to D.G. and upon his death to

Debra.3 Id. Additionally, Debra used the power of attorney and acted as attorney-in-fact

to convey to herself 640 acres of real estate owned by D.G. Id. Overboe drafted the quit

claim deed used in the transaction. Id. Both the transfer of $190,000 from D.G.’s

financial accounts and the conveyance of D.G.’s real estate were done without

consideration and without D.G.’s knowledge or consent. Id. at 860. The court concluded

Overboe’s actions violated the rules regarding conflicts of interest and the rules

prohibiting dishonesty, fraud, deceit, or misrepresentation.4 Id. at 861.

Finally, the court concluded there was clear and convincing evidence that Overboe

practiced law in North Dakota during the time that his license was suspended. Id. at 863.

Specifically, after his license was suspended in December 2006, Overboe served a

garnishment summons, interrogatories, and garnishment disclosure form upon a

corporation to garnish the employee’s wages, and served upon the employee a notice of

garnishment of wages. Id. at 861. Overboe’s secretary prepared all of these documents.

Id. at 862. Upon receiving notice of the garnishment action, the attorney for the

corporation was unable to find a judgment to substantiate the issuance of the garnishment

3
On the record before us, it appears that Overboe’s involvement with this
transaction was limited to drafting the power of attorney used by Debra in transferring the
funds. It is unclear where the funds transferred by Debra are now or if any further legal
action resulted from this transaction.
4
The North Dakota Supreme Court rejected the hearing panel’s finding that
Overboe violated the rule regarding prohibited transactions with clients in the D.G.
matter, because Overboe did not enter into a transaction with D.G. Overboe II, 844
N.W.2d at 860-61.

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summons, and sent Overboe a letter requesting withdrawal and release of the garnishment

summons. Id. Thereafter, Overboe complied with the request and withdrew the

summons. Id. The court concluded Overboe’s actions violated the rules regarding the

unauthorized practice of law, requiring an attorney to properly supervise a non-lawyer

assistant, and prohibiting dishonesty, fraud, deceit, or misrepresentation. Id. at 863.

In September 2014 the Director filed a petition for disciplinary action with this

court seeking reciprocal discipline against Overboe pursuant to Rule 12(d), RLPR, based

on his North Dakota disbarment. We ordered the parties to show cause why reciprocal

discipline should not be imposed. Overboe did not respond to our order, nor did he

appear at oral argument.

I.

When the Director learns that a lawyer licensed to practice in Minnesota has been

publicly disciplined in another jurisdiction, the Director may investigate and, without

further proceedings, file a petition for disciplinary action. Rule 12(d), RLPR. Thereafter,

the Court may “impose the identical discipline unless it appears that discipline procedures

in the other jurisdiction were unfair, or the imposition of the same discipline would be

unjust or substantially different from discipline warranted in Minnesota.” Id.

Consequently, we examine whether the discipline procedures in North Dakota were fair,

and whether the imposition of disbarment would be unjust or substantially different from

the discipline warranted in Minnesota for the same misconduct.

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A.

The disciplinary proceedings in another jurisdiction are fair if they are “consistent

with [the principles of] fundamental fairness and due process.” In re Wolff, 810 N.W.2d

312, 316 (Minn. 2012) (alteration in original). To determine the fairness of the

disciplinary proceedings in North Dakota, we review the underlying record to see if the

attorney received notice of the proceedings and the allegations against him, and had the

opportunity to respond to those allegations and offer evidence of mitigating

circumstances. In re Schmidt, 586 N.W.2d 774, 775-76 (Minn. 1998); In re Koss, 572

N.W.2d 276, 277 (Minn. 1997). We have consistently held that when the attorney is

given notice of the hearing and an opportunity to respond to the allegations, the

proceedings are fair. Wolff, 810 N.W.2d at 316; Schmidt, 586 N.W.2d at 776. But if the

attorney is not afforded a hearing with the opportunity to respond to the allegations

against him, the proceedings are unfair. Koss, 572 N.W.2d at 277-78.

Overboe was given notice of, and an opportunity to respond to, the application for

an interim suspension and the four petitions for discipline filed against him in North

Dakota. A hearing panel was appointed on the four petitions, and Overboe participated in

the proceedings by presenting evidence and making arguments on his own behalf.

Overboe also took the opportunity to appeal the findings of the panel to the North Dakota

Supreme Court.

There was a substantial delay between the filing of the North Dakota petitions for

disciplinary action and the disciplinary hearing in Overboe’s case. See Overboe II, 844

N.W.2d at 856. The North Dakota Supreme Court acknowledged that a delay of more

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than 6 years between the first petition for discipline and the hearing was troubling, but

that such a delay did not destroy the fundamental fairness of the entire process. Id. Our

law is consistent with North Dakota law. See In re N.P., 361 N.W.2d 386, 393 (Minn.

1985) (refusing to dismiss a disciplinary investigation based on an unreasonable delay

because the attorney failed to show prejudice from the delay); State v. Lawrence, 312

N.W.2d 251, 254 (Minn. 1981) (concluding that due process may be violated if a

preaccusation delay causes actual and substantial prejudice).

The North Dakota Supreme Court concluded that Overboe failed to prove he was

actually and substantially prejudiced by the delay. The record supports that conclusion.

At each stage of the proceedings, Overboe was given the opportunity to respond to the

allegations of misconduct and present a defense. Therefore, we conclude the North

Dakota disciplinary proceedings were fundamentally fair and consistent with due process.

B.

The North Dakota Supreme Court’s findings and conclusions of misconduct

“establish conclusively” Overboe’s “misconduct for purposes of [this] disciplinary

proceeding[].”5 Rule 12(d), RLPR. We must therefore examine whether the imposition

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Overboe’s misconduct in North Dakota violated Minn. R. Prof. Conduct 1.2(a)
(“[A] lawyer shall abide by a client’s decisions concerning the objectives of
representation . . . . A lawyer may take such action on behalf of the client as is impliedly
authorized to carry out the representation.”), 1.7(a) (“[A] lawyer shall not represent a
client if the representation involves a concurrent conflict of interest.”), 1.8(j) (“A lawyer
shall not have sexual relations with a client unless a consensual sexual relationship
existed between them when the client-lawyer relationship commenced.”), 4.1 (“In the
course of representing a client a lawyer shall not knowingly make a false statement of
fact or law.”), 5.3(b) (“[A] lawyer having direct supervisory authority over [a] nonlawyer
(Footnote continued on next page.)

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of reciprocal discipline would be unjust or substantially different from the discipline

warranted in Minnesota for the same misconduct. Wolff, 810 N.W.2d at 317. The

relevant factors to this determination include: (1) the nature of the misconduct; (2) the

cumulative weight of the disciplinary violations; (3) the harm to the public; and (4) the

harm to the legal profession. Id.; In re Rebeau, 787 N.W.2d 168, 173 (Minn. 2010). We

also consider any aggravating factors and mitigating circumstances that are present.

Rebeau, 787 N.W.2d at 173-74. The question, however, is not whether we might have

imposed different discipline had Overboe’s disciplinary proceedings originated in

Minnesota, but rather “whether the discipline imposed by [North Dakota] is unjust or

substantially different from discipline warranted in Minnesota.” In re Meaden, 628

N.W.2d 129, 134 (Minn. 2001) (“Although we might have imposed different discipline,

either more or less, had [the attorney’s] disciplinary proceedings originated in Minnesota,

that is not the situation presented.”).

Among the troubling aspects of Overboe’s misconduct is the D.G. matter. The

North Dakota Supreme Court concluded that Overboe assisted his wife in obtaining

D.G.’s assets when D.G. neither knew about nor consented to these transfers. Overboe II,

(Footnote continued from previous page.)
shall make reasonable efforts to ensure that the person’s conduct is compatible with the
professional obligations of the lawyer.”), 5.5(a) (“A lawyer shall not practice law in a
jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or
assist another in doing so.”), 8.4(b) (“It is professional misconduct for a lawyer to
. . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness,
or fitness as a lawyer in other respects.”), and 8.4(c) (“It is professional misconduct for a
lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation.”).

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844 N.W.2d at 861 (concluding that Overboe engaged in conduct “ ‘involving

dishonesty, fraud, deceit, or misrepresentation’ ” because D.G. “did not know or consent

to the transfer of his financial accounts or his real property to” Overboe’s wife (citing

N.D.R. Lawyer Discipl. 1.2(a)(3)). The court determined that Overboe knowingly

deceived D.G., an elderly and vulnerable client, with the intent to benefit himself or

another, to the detriment of D.G. See id. at 865 (explaining that disbarment was

appropriate under North Dakota’s disciplinary standard, which states that “[d]isbarment

is generally appropriate when a lawyer knowingly deceives a client with the intent to

benefit the lawyer or another, and causes serious injury or potential serious injury.”).

We, too, have disbarred attorneys who have financially exploited vulnerable clients. In

re Moe, 851 N.W.2d 868, 871 (Minn. 2014) (disbarring attorney who, among other

things, misappropriated funds from a ward); In re Peterson, 456 N.W.2d 89, 93 (Minn.

1990) (disbarring attorney who, among other things, took “advantage of a trusting,

vulnerable client to put $100,000” in the attorney’s business venture); see also In re

Franke, 345 N.W.2d 224, 228 (Minn. 1984) (stating that when an attorney “exhibits

callous disregard for the . . . financial well-being of vulnerable, dependent persons, that

attorney has a heavy burden to persuade the court of his fitness to continue the practice of

law.”).

In addition, Overboe engaged in extensive sexual misconduct. The North Dakota

Supreme Court found that Overboe engaged in unwelcome sexual conduct with four

clients by inappropriately touching them or exposing himself to them and that he made

inappropriate sexual comments to three clients, including requesting sexual favors in

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exchange for reduced legal fees. Overboe was criminally convicted for some of this

conduct. This misconduct warrants severe discipline. See In re Albrecht, 845 N.W.2d

184, 191 (Minn. 2014) (disbarring an attorney with an extensive disciplinary history for,

in part, engaging in sexual activity with a client).

Further, Overboe was suspended from the practice of law when he initiated the

garnishment action in which he falsely represented that there was a judgment in his favor

and failed to make reasonable efforts to ensure his secretary’s conduct complied with his

professional obligations. Practicing law while suspended “harm[s] the legal profession

and do[es] not represent the virtues that the public has the right to expect of lawyers.” In

re Grigsby, 815 N.W.2d 836, 846 (Minn. 2012). “In cases involving repeated instances

of serious misconduct, we have disbarred attorneys who have engaged in the practice of

law without a valid license.” Schmidt, 586 N.W.2d at 776.

We consider Overboe’s misconduct as a whole. In re Oberhauser, 679 N.W.2d

153, 160 (Minn. 2004) (“[T]he cumulative weight and severity of multiple disciplinary

rule violations may compel severe discipline even when a single act standing alone would

not have warranted such discipline.”). Overboe’s misconduct spanned 14 years and

continued despite his suspension. The North Dakota Supreme Court also found that

several aggravating factors were present.6 Overboe II, 844 N.W.2d at 865. The

6
The aggravating factors found by the North Dakota Supreme Court also constitute
aggravating factors in Minnesota. See In re Brost, 850 N.W.2d 699, 705 (Minn. 2014)
(selfish or dishonest motive as an aggravating factor); In re Ulanowski, 800 N.W.2d 785,
802 (Minn. 2011) (pattern of misconduct and multiple offenses as an aggravating factor);
Rebeau, 787 N.W.2d at 176 (disciplinary history and lack of remorse as aggravating
(Footnote continued on next page.)

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cumulative weight and severity of Overboe’s misconduct leads us to conclude that

disbarment is neither unjust nor substantially different from the discipline warranted in

Minnesota. We therefore impose reciprocal discipline and order Overboe disbarred from

the practice of law in Minnesota.

Accordingly, we order that:

1. Respondent David A. Overboe is disbarred from the practice of law in

Minnesota, effective upon the date of filing of this opinion.

2. Respondent shall pay to the Director the sum of $900 in costs under Rule

24, RLPR, and shall comply with Rule 26, RLPR (requiring notice of disbarment to

clients, opposing counsel, and tribunals).

(Footnote continued from previous page.)
factors); Overboe I, 745 N.W.2d at 867 (substantial experience in practice of law as an
aggravating factor); In re Stroble, 487 N.W.2d 869, 871 (Minn. 1992) (vulnerability of
victim as an aggravating factor).

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