Board of Overseers of the Bar v. Charles R. Bean, Esq.

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Docket No.: GCF 10-341; 11-171

Issued by: Grievance Commission

Date: July 25, 2011

Respondent: Charles R. Bean, Esq.

Bar Number: 002805

Order: Reprimand/Monitoring Order

Disposition/Conduct: Communication; Conduct Prejudicial to the Administration of Justice; Standards of Care and Judgment/Neglect; Diligence


STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION


On July 25, 2011, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Charles R. Bean, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 5, 2011.

At the July 25, 2011 stipulated hearing, Attorney Bean appeared pro se and the Board was represented by Assistant Bar Counsel Aria Eee. Additionally, complainants Robert Chiozzi and Margaret Fahey-Chiozzi were present for the proceeding. Complainant Stephen Hamilton also attended and all three complainants were provided with a copy of the parties’ proposed Report of Findings and Order to review in advance of the hearing.

Prior to that hearing, counsel had submitted a stipulated, proposed Report of Findings for the Grievance Commission Panel’s review and consideration. Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:

FINDINGS

Respondent Charles R. Bean of South Portland, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Bean was admitted to the Maine Bar in 1983 and he is currently registered as an active Maine attorney with a solo practice in South Portland, Maine.

In June 2004, Attorney Bean met with and was retained by Carl Lemke, an elderly resident of Cape Elizabeth, Maine. Following their first meeting, Attorney Bean drafted various estate planning documents. Those documents included a Will, Powers of Attorney (POA) and a Revocable Living Trust, all subsequently executed by Mr. Lemke. Mr. Lemke explained to Attorney Bean that he had no heirs and thus he intended to leave his estate to his friends/caretakers, Mr. and Mrs. Chiozzi. In his Will, Mr. Lemke named the Chiozzis as Trustees and Robert Chiozzi as his Durable POA for financial and health care decisions. Mr. Lemke’s Will also named Attorney Bean as his Personal Representative.

On March 30, 2008, Mr. Lemke passed away. His estate (totaling approximately $600,000) consists of real property which passed in trust to the Chiozzis and various bank accounts and three certificates of deposit accounts. On April 3, 2008 Attorney Bean applied for an Informal Probate of Mr. Lemke’s Will and for appointment as the Personal Representative (PR). Since becoming the PR, however, Attorney Bean has performed minimal work to distribute the remaining assets or otherwise finalize and close the estate. Although the Chiozzis forwarded bills/documents to Attorney Bean and repeatedly inquired about status and closure, he became unwilling to respond to their inquiries. His failure to do so constituted a violation of M. R. Prof. Conduct 1.4(4) [communication] and 8.4(d) [conduct prejudicial to the administration of justice]. Likewise, for various personal and professional reasons, Attorney Bean became unable to perform the necessary work to finalize the informal probate of Mr. Lemke’s estate. By way of his Answer to the Disciplinary Petition, Attorney Bean gave some explanation for his significant delays. He now agrees that his failures to respond and to perform his duties as Personal Representative constituted violations of M. Bar R. 3.6(a)(2)(3) (standards of care and judgment/neglect) and M. R. Prof. Conduct 1.3 (diligence) and 8.4(d) (conduct prejudicial to the administration of justice).

Moreover, when Bar Counsel’s office contacted Attorney Bean during its investigation and processing of this complaint matter, Bean failed to answer the complaint or to otherwise respond to Bar Counsel’s inquiries. Attorney Bean has expressed his regret at that lapse and acknowledges that his lack of response constituted a violation of M. R. Prof. Conduct 8.1(b) [Bar Admission and Disciplinary Matters]. As referenced above, Attorney Bean ultimately did file an Answer to the Disciplinary Petition and he has accepted responsibility for his failures to properly discharge his duties. He has committed to finalize and close the Lemke Estate by October 1, 2011. Given his remarks, the Panel expects that Attorney Bean will ensure that the Lemke Estate is concluded by that October 1 deadline.

Regarding the more recent complaint filed by Mr. Hamilton, it is clear that Mr. Hamilton began contacting Attorney Bean in 2008 to discuss a return of Hamilton’s unused fee. Until Mr. Hamilton engaged a new lawyer in 2010, he had received minimal response from Attorney Bean. At the hearing, Attorney Bean acknowledged his failure to address the fee questions, and Hamilton’s reimbursement request. Attorney Bean agrees that he failed to appropriately respond to his former client, in violation of M.R. Prof. Conduct 3.3 [fees] and 1.4 [communication].

CONCLUSION AND SANCTION

The Code of Professional Responsibility and the Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Due to Attorney Bean’s actions, the finalization of Mr. Lemke’s informal probate has been significantly delayed. The beneficiaries of that estate, Mr. and Mrs. Chiozzi, have waited patiently to have the probate matter concluded. Likewise, Mr. Hamilton has tried to engage Attorney Bean in discussions intended to resolve their dispute about Mr. Hamilton’s requested refund. However, his requests for information and resolution were not timely addressed by Attorney Bean.

The Panel notes that Attorney Bean was publicly reprimanded in 2004 and again in 2006 for conduct in each separate instance similar to that described in the Chiozzi complaint. It appears that Attorney Bean has struggled somewhat to manage his practice and he has informed the Panel that he is preparing to wind down his office toward the goal of retirement.

At the hearing, Attorney Bean apologized for his actions and accepted responsibility for his violations of the Code of Professional Responsibility and the Maine Rules of Professional Conduct. In that regard, the Panel anticipates that Attorney Bean will improve his calendaring system, his communications/responsiveness and his management of his caseload, so as to avoid future complaints of neglect and avoidance. To further address the concerns about practice management, the parties have agreed that Attorney Bean will submit his practice to monitoring by Attorneys Mark V. Hewes and Peter M. McGee of Portland, ME. The parties have executed a monitoring agreement which the Panel has reviewed and accepted as part of the disposition in this proceeding.

The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. See M. Bar. R. 2(a). Since the evidence of misconduct supports a finding and Attorney Bean agrees he did in fact violate the Code of Professional Responsibility and the Maine Rules of Professional Conduct, the Panel finds that its issuance of two public reprimands and a monitoring of Attorney Bean’s practice should serve to adequately protect the public.

Therefore, the Panel accepts the agreement of the parties including Attorney Bean’s separately executed waiver of the right to file a Petition for Review. The Panel concludes that the appropriate disposition of this case is the issuance of two Public Reprimands to Charles R. Bean, Esq. which are now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(c)(4).


For the Grievance Commission

Martha C. Gaythwaite, Esq., Chair

Martica S. Douglas, Esq.

John R. Hutchins