concurring in part and dissenting in part.
[¶ 25] I concur in the sanctions imposed by the Court and with most of the Court’s decision. I write separately for many of the same reasons I wrote in Disciplinary Board v. Wolff:
“I write separately on two points of law arising, I believe, because disciplinary counsel is unnecessarily ‘stacking’ allegations of rule violations and because the disciplinary board’s hearing panel has not sufficiently explained the rationale behind several of its findings of fact and conclusions of law on those issues. Doing so, I recognize Wolff did not object to the hearing panel’s findings of fact, conclusions of law and recommendation. Yet, I am mindful of our obligation to correctly interpret and apply applicable law. Adhesion to our duty is especially important in lawyer disciplinary cases where we adjudicate in the first instance rather than act as an appellate tribunal.”
2010 ND 175, ¶ 28, 788 N.W.2d 594 (Crothers, J., specially concurring) (internal citation omitted). Like in Wolff, Rozan filed no objections to the Disciplinary Board Hearing Panel’s findings and conclusions. *389Unlike Wolff who presented a case before the Hearing Panel, Rozan failed to respond to the Petition for Discipline and is in default. Consequently, the charges against Rozan are deemed admitted. See N.D.R. Lawyer Discipl. 3.1(E)(2).
[¶ 26] Here, and in Wolff, disciplinary counsel alleged a number of related violations related to fee agreements and trust accounts. Rozan’s default resulting in deemed admissions make detailed discussion of the conflicting allegations largely unnecessary. However, two points merit comment.
[¶ 27] First, the court adopts the Hearing Panel’s conclusion 5 determining Ro-zan’s handling of his fees and the expert fees violated N.D.R. Prof. Conduct 1.15(b). See Majority Opinion at ¶ 11. Rule 1.15(b) provides, “A lawyer may deposit the lawyer’s own funds in a client trust account only for the purpose of paying bank service charges, fees associated with credit card payments, or wire transfers related to that account, but only in an amount necessary for that purpose.” Conclusion 5 tells us the Rule 1.15(b) violation is premised on the Hearing Panel’s finding “Rozan failed to refund unearned portions of Ervin’s $39,000 in advance fee payments and failed to provide an accounting of Ervin’s advance fee payments.” I cannot agree the rule and the reason cited for Rozan’s violation match. This case is not about Rozan placing excessive personal funds in his trust account. Rozan is being disciplined because he put no funds into a trust account. Given that, I find no support for concluding Rule 1.15(b) was violated, and I cannot agree to impose discipline on Rozan for that violation.
[¶ 28] Second, I am concerned about the twin determinations that Rozan had no fee agreement in violation of Rule 1.5(a) and that Rozan did not properly deposit advance fees into a trust account in violation of Rule 1.15(c). See Majority Opinion at ¶¶ 9, 12. Absent evidence of the fee agreement, we do not know whether Ro-zan had unearned fees which should have been deposited into a trust account. Only Rozan’s default saves this charge.
[¶ 29] Disciplinary counsel alleged violation of “Rule 1.15(c), N.D.R. Prof. Conduct, regarding safekeeping property, which provides a lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred, in that Rozan kept fees that were not earned and expenses that were not incurred.” Rule 1.15(c) provides, “A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.”
[¶ 30] Rozan is properly disciplined for having no fee agreement in violation of Rule 1.5(a). Majority Opinion at ¶ 9. Here, imposition of discipline for violating Rule 1.15(c) also is justified based on Ro-zan’s default and implicit admission he “kept fees that were not earned and expenses that were not incurred.” However, absent admission, we would need adequate findings containing clear and convincing evidence that money in the lawyer’s possession was “paid in advance.” Id. Such a determination usually will require proof about the underlying fee agreement and facts about when and to what extent the fee is “earned” or “unearned.” In turn, when and how much of the fee has been earned often depends on whether the underlying fee agreement was hourly billing or a flat fee. See Richmond v. Nodland, 501 N.W.2d 759, 762 (N.D.1993) (non-refundable retainer enforced in civil action over legal fees). But see In re Peterson, 348 Or. 325, 232 P.3d 940, 946 (2010) (“In the absence of a written fee agreement *390that expressly designates a fee as a nonrefundable retainer earned upon receipt, funds paid from a client to a lawyer remain subject to trust account rules regarding funds held for another.”)- Even if the agreement calls for a flat fee, when all legal work was not completed as initially contemplated under the agreement, factual determinations must be made about whether all of the flat fee was “earned” and whether any portion of the fee must be refunded. See N.D.R. Prof. Conduct 1.16(e) (lawyer’s duty upon termination of representation to refund “any advance payment of fee or expense that has not been earned or incurred”); Disciplinary Board v. Karlsen, 2008 ND 235, ¶ 9, 778 N.W.2d 522 (“The Hearing Panel found Karlsen was hired to represent [client] in an immigration matter for which he charged a non-refundable flat fee; Karlsen did not finish the work and did not refund the unearned portion of the fee.”); Disciplinary Board v. Madlom, 2004 ND 206, ¶ 7, 688 N.W.2d 923 (“Madlom charged a ‘non-refundable’ $750 fee to prepare and file a Chapter 7 bankruptcy petition ... but failed to make a refund of fees when representation was terminated before the bankruptcy petition was filed in violation of N.D.R. Prof. Conduct 1.5(a).”). Due to considerations such as these, charges of Rule 1.5(a) and Rule 1.15(c) violations usually will conflict. Even when they do not conflict, findings supported by clear and convincing evidence are required to explain the relationship between the fee agreement and the basis for concluding an improper trust account transaction occurred.
[¶ 31] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, J., concur.