N.D. Supreme Court hears argument on attorney disqualification and notice in Kautzman probate dispute

At a June 20 hearing, the North Dakota Supreme Court heard oral arguments in file No. 20240256 over whether a district court properly disqualified attorney Jonathan Garris from representing Paul Kautzman in an informal probate of the estate of James Kautzman, and whether the district court acquired personal jurisdiction after contested notice and publication steps.

The issue arose after a district court entered an order disqualifying Garris from participation in the matter. Attorney Jonathan Garris told the Supreme Court he continued to represent Paul Kautzman and argued the disqualification order exceeded the district court's authority because the current proceeding at issue was an informal probate petition — not a contest of the 2012 will to which Garris said the disqualification related. "The court does not have the right to disqualify Paul Kautzman. He has a constitutional right ... to have the attorney of his choice," Garris said.

Garris told the court that the informal probate petition for a will notarized by him complied with the Uniform Probate Code and that the record showed the opposing party, identified in filings as a niece (referred to in court papers as Kim Kautzman), initiated a formal proceeding despite, he said, knowledge the prior will had been revoked on Oct. 12, 2023. Garris argued the district court lacked personal jurisdiction over all interested persons because required service and publication steps were not completed before the May 9 hearing. He said publication was run only once when the statute required notice once a week for three successive weeks plus 10 days and that proof of service for some named interested persons was not filed before the hearing.

The court questioned whether the appeal was ripe and whether the informal-probate character of the proceeding made the order appealable without a Rule 54(b)-type certification. A justice asked Garris to identify the authority for appearing when a district court had already entered a disqualification order and noted there had been no stay request. The court also cautioned that allowing argument did not amount to a present determination on Garris's ability to continue to appear.

Garris further contended the petition brought by the niece was deficient in multiple statutory particulars required for either an informal or formal probate petition, and that the district judge erred by acting on a petition that did not establish the petitioner as an "interested person" under the cited North Dakota probate statutes. He urged that, because the formal petition lacked required prerequisites and because service on some individuals was not completed, the district court never acquired the personal-jurisdiction necessary to enter orders affecting the estate.

The Supreme Court did not issue a decision during oral argument. The bench told Garris it had "not made a determination on your appearance yet today" and that the case would be taken under advisement. The court then adjourned.

The case centers on procedural questions about informal probate under the Uniform Probate Code as applied in North Dakota and on whether a district court may disqualify counsel under the circumstances described in the record. The Supreme Court's forthcoming opinion will determine whether the district court's orders and the record of service and publication meet statutory requirements and whether the disqualification order can be enforced while the appeal is pending.