1 

### IN THE SUPREME COURT STATE OF NORTH DAKOT A

2023 ND 187

In the Matter of the Application for Disciplinary Action Against Mark J. Pilch, a person addmitted to the the Bar of the State of North Dakota

---------- Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner

v. Mark J. Pilch, Respondent

No. 2023026 8

Application for disciplinary action.

DISBARMENT ORDERED.

Per Curiam.
[¶1] The Supreme Court has before it a report from a hearing panel of the disciplinary board recommending Mark J. Pilch be disbar r ed from the practice of law in North Dakota, refund the client in the amount of $ 5, 500 , and pay $250 in costs and expenses of the disciplinary proceeding. We adopt the hearing panel’s findings and recommended sanctions and order disbarment.

[¶2] Pilch was admitted to practice law in North Dakota on April 29, 2019. Pilch’s license was suspended October 31, 2022, for failing to comply with continuing education reporting requirements. He did not pay a license fee for2 2023, and is not licensed at this time. In two separate matters, Pilch was disbarred and suspended for one year, both effective August 17, 2023

. See Disciplinary Bd. v. Pilch , 202 3 ND 1 61 , 994 N.W.2d 417; See Disciplinary Bd. v. Pilch , 202 3 ND 1 62 , 994 N.W.2d 390

. Pilch practiced law at Pilch Law Firm in Fargo, North Dakota.

[¶3] Assistant Disciplinary Counsel filed an affidavit outlining unsuccessful efforts to serve Pilch in other recent d isciplinary mat ters. Therefore, service in these matters was made on the Clerk of the Supreme Court under Admission to Practice R. 1. Pilch failed to answer the petition and Disciplinary Counsel moved for default. Pilch is in default and the charges in the amended peti tion for discipline are deemed admitted under N.D.R. Lawyer Discipl. 3.l(E)(2).

[¶4] On July 24, 2023 , the hearing panel filed default findings of fact, conclusions of law, and r ecommendations for discipline. Pilch was retained in November 2021 to represent a client in a divorce. The client experienced difficulty communicating with Pilch throughout the representation. Pilch failed to respond to or notify the client of a motion to compel discovery. The client was found in contempt and ordered to pay $1,500. Pilc h also failed to inform the client of or attend a status conference. Pilch did not complete the representation or refund any unearned portion of the retainer. Pilch also failed to provide the client with a copy of his file. The client was required to reta in other counsel to complete the matter.

[¶5] The hearing panel concluded Pilch’s conduct violated N.D.R. Prof. Conduct 1.3 , Diligence, by abandoning the client and not fulfilling the terms or accomplishing the objectives of the representation. Pilch failed t o promptly respond to discovery requests, reply or otherwise comply with a motion to compel, and failed to attend scheduled hearings and conferences. The hearing panel concluded Pilch’s conduct violated N.D.R. Prof. Conduct 1. 4, Communication, by failing to make reasonable efforts to keep the client reasonably informed as to the status of the representation, his responsibilities therein, and the consequences as a result of Pilch’ s failures; and 1.16, by failing to take reasonably practicable ste ps to protect the client’s interests, specifically, but not limited to provide notice of discontinuation or services,3 provision of a refund of unearned monies, and surrender property to which the client was entitled.

[¶6] T he hearing panel recommended we conclu de Pilch abandon ed representation of the client. As we held in Baird v. Disciplinary Board , “Rule 1.16(e) imposes on a lawyer the obligations to refund fees and return files upon termination of the representation. ‘ T erminating 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.” 2022 ND 146, 977 N.W.2d 702

. We noted another jurisdiction concluded a lawyer abandoned his practice through a temporary gap in representations, foll owed by resumed repres entations. Id. ( citing In re Discipl. Proc. Against Wickersham , 178 Wash.2d 653, 310 P.3d 1237, 1243

- 44 (2013)). In Baird , we concluded that the hearing panel found Baird abandoned the c lient, but it did not find he abandoned his law practice. Similarly, in this matter, the hearing panel concluded Pilch abandoned the client during representation but did not conclude Pilch abandoned his law practice. However, a s in Baird , absent objection by Pilch and absent the benefit of the full vigo r of the adversarial process to resolve this question, for purposes of this
matter , we determine Pilch temporarily abandoned his practice, including his representation the client

. T he hearing panel considered the appropriate sanction under the North Dakota Standards for Imposing L awyer Sanctions, and concluded disbarment was appropriate.

[¶7] On July 24, 2023 , this matter was referred to this Court under N.D.R. Lawyer Discipl. 3.1(F)(2). The hearing panel’s report was served on the Clerk of the Supreme Court and disciplinary counsel , and forwarded to the Supreme Court

. Objections were due within 20 days of service of the report. No objections were received, and the matter was submitted to the Court for consideration. The Court considered the matter , and :
[¶8] IT IS ORDERED that as outlined above, the findings of fact, conclusions of law, and recommendations by the hearing panel are accepted.

[¶9] IT IS FURTHER ORDERED that Mark J. Pilch is DISBA R R ED from the practice of law , effective immediately

.4 [¶10] I T IS FURTHER O RDERED that Pilch pay restitution to the client in the amount of $ 5,500 within 30 days of entry of judgment

. [¶11] IT IS FURTHER ORDERED that Pilch pay the costs and expenses of these disciplinary proceedings in the amount of $250, payable to the Secretary of th e Disciplinary Board, 600 East Boulevard Avenue, Dept. 180, Bismarck, North Dakota 58505

- 0530, within 30 days of entry of judgment.

[¶12] IT IS FURTHER ORDERED that for any amounts already paid by the North Dakota Client Protection Fund on Pilch’s behalf, he mak e 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, Pilch make restitution to the Fund within 90 days of receiving notice payment was m ade.

[¶13] 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.

[¶14] IT IS FURTHER ORDERED that Pilch comply with N.D.R. Lawyer Discipl. 6.3 regarding notice.

[¶15] Jon J. Jensen, C.J. Daniel J. Crothers Lisa Fair McEvers Jerod E. Tufte Douglas A. Bahr