Board of Overseers of the Bar v. Steven A. Juskewitch
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Docket No.: GCF 10-228
Issued by: Grievance Commission
Date: September 2, 2011
Respondent: Steven A. Juskewitch
Bar Number: 000272
Order: Dismissal with Warning
Disposition/Conduct: Competence, Diligence
REPORT OF FINDINGS AND ORDER OF PANEL A OF THE GRIEVANCE COMMISSION
On August 24, 2011, pursuant to due notice, Panel A of the Grievance Commission conducted a disciplinary hearing, in accordance with Maine Bar Rule 7.1(e)(2) and open to the public, on a complaint concerning the Respondent, Steven A. Juskewitch, Esq. At the disciplinary hearing, the Board was represented by Assistant Bar Counsel Aria Eee, and Respondent was present and represented by Malcolm L. Lyons, Esq.
At the hearing, the Panel heard testimony from the following witnesses:
Daniel Lunt Linda Lunt Richard C. Gardner Stephanie Fountaine Barbara Ward Rose Giosia, Esq. Steven A. Juskewitch, Esq.
The Board’s exhibits 1-19, and Respondent’s exhibits 1-3, were admitted without objection1. Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings in this matter:
Respondent is, and was at all times relevant hereto, an attorney duly admitted to and engaged in the practice of law in the State of Maine, and subject to the Maine Bar Rules.
In July 2008, Daniel and Linda Lunt entered into a “House Sale Agreement” for the sale of their home in Long Island Plantation, also known as the island of Frenchboro, to their son Zachary Lunt and his wife Laurette Lunt. For various personal and financial reasons, Daniel and Linda were under significant pressure to leave the island community.
The “House Sale Agreement” agreement was prepared without assistance of legal counsel. Daniel and Linda testified that the agreement was notarized, and that the notary faxed it to Respondent’s office. Respondent denied ever having received it, and the copy submitted in evidence by the Board is neither signed nor notarized, although Daniel and Linda were in possession of a full copy of Respondent’s file. The “House Sale Agreement” stated: “The final closing for this house will take place only at Steve Juskewitch’s Law Office on July 24, 2008, at 11:00p.m. [sic].”
At or about the same time, Daniel and Linda engaged Respondent to help them sell their home. Linda forwarded copies of two source deeds to Respondent’s paralegal, Stephanie Fountaine, for her use in preparing a property description for the deed. Daniel and Linda did not engage Respondent to conduct a title search, nor to research the extent of the property interest governed by the description they provided. Both Respondent and Ms. Fountaine testified that it was Respondent’s practice never to hold real estate closings, but only to prepare deeds and transfer tax forms on request, and that Respondent would not have agreed to hold a closing if asked to do so; they both expected Daniel and Linda to come to Respondent’s office, execute the deed, and take the deed and real estate transfer tax form with them. However, Respondent did not document the scope of the engagement, nor confirm it in writing with Daniel and Linda.
The Frenchboro property owned by Daniel and Linda included not only their house and an adjacent lot on which their septic system was located, but also a half-interest in a wharf across the street. Daniel and Linda asserted that Respondent should have known, from other unspecified previous conversations, that they did not wish to include the wharf interest in the house sale. However, the wharf interest was included in the source deed that Daniel and Linda provided to Respondent and Ms. Fountaine; Daniel and Linda both testified at the hearing that they never specifically communicated to Respondent their intent not to include the wharf interest in the proposed conveyance to Zachary and Laurette; and on the evidence presented at the hearing, the Panel is unable to find that Respondent was ever clearly informed that the wharf interest was not to be included.
Respondent was in court on the morning of July 24, 2008, the day that Daniel and Linda were expected to review and sign the deed. Without any prior indication that he would attend, Daniel Lunt’s father, David Lunt, arrived at Respondent’s office that morning, followed by Zachary and Laurette. At some point, another Ellsworth attorney, Melissa Hale, Esq., also came to Respondent’s office to participate in the transaction; it appears she was representing David with respect to a mortgage to be granted to him to secure payment of a loan to Zachary and Laurette to finance their purchase of the property.
Daniel and Linda arrived shortly after David, but upon seeing that David was there, they left without getting out of their vehicle. Daniel and Linda were estranged from David, and at the time of this transaction, Respondent was also representing Linda in her separate personal injury claim against Sandra Lunt, David’s wife and Daniel’s mother.
Daniel and Linda then returned, but Linda ran their vehicle over a stone wall at the rear of Respondent’s parking lot, where it remained stuck until freed by a wrecker. Daniel and Linda refused to enter Respondent’s office due to David’s presence. Both Daniel and Linda testified that they were upset, distracted, and traumatized, both by David’s presence and by the difficulty of summoning a wrecker to free their vehicle. Daniel and Linda each agreed, and the evidence at the hearing appeared to confirm, that their memories of the events of the day may not be entirely complete.
In Respondent’s absence, Ms. Fountaine attempted to manage the situation. She came out of the office five or six times to confer with Daniel and Linda in the parking lot, spending a total of approximately one hour with them. She testified that she provided each person in attendance with a copy of the draft deed, although Daniel and Linda testified that they did not recall receiving copies.
Ms. Fountaine testified that she read the property description in the proposed deed, other than the metes and bounds description for Parcel 2, to Daniel and Linda. The property description for Parcel 2 in the deed begins with the words “[a] certain lot or parcel of land with all buildings and wharf thereon . . ..” (Emphasis added.) Daniel and Linda each testified that neither of them has any recollection of hearing the word “wharf” in the property description, nor of reading it in the deed. While Daniel has a reading disability, Linda does not. Apart from difficulty in reading, Daniel does not have any impairment in his ability to make adequately considered decisions.
When Respondent walked back from the court to his office, he saw Daniel and Linda’s vehicle stuck on the stone wall, and Daniel and Linda standing with Ms. Fountaine in his parking lot. Ms. Fountaine summarized the preceding events for him. Respondent understood that the reason for David’s presence was to make sure that the transaction was completed promptly; Ms. Fountaine testified that David’s expressed intent was to make sure that all of Daniel and Linda’s property on the island was conveyed to Zachary.
Respondent testified that Linda told him that she really wished that she and Daniel did not have to sell the wharf; that he went into the office and asked David whether the wharf could be excluded; and that he returned and told Daniel and Linda that David wanted them to convey all their island property, and that David would not finance the purchase otherwise. Daniel and Linda denied any recollection of this exchange. It was undisputed, however, that Respondent advised Daniel and Linda that they did not need to go through with the transaction that day if they had unresolved concerns, and that they considered leaving, but that they ultimately decided to proceed with the transaction. Daniel and Linda signed the deed, and Respondent executed the acknowledgment, on the hood of their car. Daniel and Linda each testified that Ms. Fountaine took their acknowledgment, but the evidence at the hearing demonstrated that their recollection was mistaken.
Respondent then conferred with Attorney Hale on a closing statement, which was hand-written primarily by Attorney Hale. Respondent learned that Zachary and Laurette were required to obtain homeowners’ insurance, but did not have the money to pay the $500 premium. After discussion, Daniel and Linda agreed to lend Zachary and Laurette that amount out of the sale proceeds, and Respondent subsequently prepared a promissory note for that loan.
Attorney Hale then raised the issue of proration of the property taxes. Respondent told her the property tax issue had never been previously raised or discussed, and it would not be possible to accomplish a proration if the parties wanted to complete the transaction that day. He proposed, and it appears all parties agreed, that the status of the property taxes be left as is – in other words, if that year’s taxes had already been paid, it would be a windfall to the buyers, and if they had not, it would be a windfall to the sellers.
Daniel and Linda did not pay any Frenchboro property taxes following the sale, including any taxes assessed on the wharf. Daniel testified that he had an unwritten agreement with Zachary that Zachary would pay the property taxes on the wharf, even though it had not been conveyed to Zachary and Laurette. In March 2009, Daniel and Linda sued Zachary in Small Claims Court on an unpaid debt for the purchase of certain lobstering gear, and Zachary sued them for failure to pay the property taxes. Those actions were taken up together; Daniel and Linda subpoenaed Respondent to testify about the property taxes, and Daniel and Linda prevailed as to both matters. Daniel and Linda were apparently upset, however, that Respondent spoke in a friendly manner with Zachary at the court.
In August 2009, Daniel and Linda informed Respondent that neither they nor Zachary had intended to include the wharf interest in the July 2008 deed. They related that, instead, they intended subsequently to convey their interest in the wharf separately to Zachary and his brother Nathaniel, by means of a new and separate deed. Respondent told them he had no specific recollection about what was included in the conveyance, and that he was sure the deed had conveyed whatever Daniel and Linda had intended on that day. He advised Daniel and Linda, however, that if all parties were in agreement, the situation could be cured by means of a corrective deed. He testified that Daniel and Linda assured him Zachary and Laurette were in agreement with them on this point; Linda denied that she or Daniel made such a representation.
Daniel and Linda requested that Respondent send a letter to Zachary and Laurette confirming that the wharf interest was not included in the July 2008 conveyance. After some discussion with Daniel and Linda, but without consulting Ms. Fountaine, who was on maternity leave, Respondent prepared and sent a letter dated August 27, 2009, to Daniel and Linda, with a copy to Zachary and Laurette, which stated:
This letter will confirm that your Warrant [sic] Deed, dated July 24, 2009 [sic], to Zachary and Laurette describes two parcels and, specifically, excepts and reserves the half interest Daniel received from David and Sandra Lunt on January 30, 2004
It is my understanding that the half interest pertains to a wharf but I have not reviewed the deeds pertaining to that half interest since it was not part of the conveyance to Zachary and Laurette.
It was undisputed that Respondent’s August 2009 letter did not accurately represent the effect of the July 2008 conveyance. At the hearing, Respondent stated that he was unable to account for the “terrible” quality of this letter, other than the fact that Ms. Fountaine was on maternity leave at the time, he had prepared it himself, and he felt unable to do good work in a timely manner without Ms. Fountaine’s help. He expressed regret and remorse for having sent the August 2009 letter.
It does not appear that Respondent ever received any response from Zachary and Laurette. However, Zachary and Nathaniel declined to go through with any subsequent purchase of the wharf interest, their position being that it had already been conveyed to Zachary and Laurette in the 2008 deed.
When Ms. Fountaine returned from maternity leave, Respondent discussed the issue with her, and she reminded him that the conveyance of the wharf interest had indeed been discussed. With his recollection refreshed by Ms. Fountaine, on October 21, 2009, Respondent sent Daniel and Linda another letter, as follows:
Finally, Stephanie, my paralegal, is back from maternity leave! When I explained to her that you thought the wharf was not included in the closing held on July 24, 2008, (of course) she remembered all the details of that day.
Stephanie says I was in court and arrived after you had agreed to include the wharf in the deed. She went over the deed description in detail with both of you to confirm that the wharf was being sold and it was what you wanted to do.
Stephanie and Barbara, my part time secretary, both recall that each of you “just wanted to get rid of what you owned and to get off the island!” Stephanie remembers the other lawyer arriving before I got back from court. She remembers going several times from the office down to where the car was stuck and remembers my talking with both of you down in back of the office. She described it as being very hectic because of Daniel’s father’s involvement and then the arrival of Attorney Hale.
Hopefully, this will clear up the confusion to the events and intentions at the closing. I apologize that my memory of my somewhat Johnny-Come-Lately-To-The-Dance involvement in the closing was not more complete when we first talked about the wharf issue. Thank goodness for good staff. Please let me know if you have any information to share or have any questions.
Daniel and Linda subsequently requested on multiple occasions, and Respondent provided on each occasion, a complete copy of Respondent’s file related to the July 2008 real estate transaction. By letter dated May 30, 2010, Daniel submitted a grievance complaint concerning Respondent’s actions.
Because Respondent’s actions in this matter occurred both before and after August 1, 2009, this matter is governed in part by the Maine Code of Professional Responsibility in effect prior to that date (the “Code”), and in part by the Maine Rules of Professional Conduct (the “Rules”), which replaced the Code effective as of August 1, 2009. It is the responsibility of the Panel to review Respondent’s conduct under the applicable ethical rules in effect at the time of the conduct in question. Board of Overseers of the Bar v. Dubois, No. BAR-09-7 (Dec. 28, 2009) (slip op. at 6, n. 2). For purposes of this proceeding, the July 2008 real estate transaction was governed by the former Code, and the August 2009 and October 2009 letters were governed by the Rules.
Respondent’s actions in connection with the July 2008 real estate transaction potentially implicated former Rule 3.6(a), which stated, in pertinent part:
A lawyer must employ reasonable care and skill . . . in the performance of professional services. . . . A lawyer shall not . . . handle a legal matter without preparation adequate in the circumstances, provided that, with respect to the provision of limited representation, the lawyer may rely on the representations of the client and the preparation shall be adequate within the scope of the limited representation . . ..
A violation of the above rule could also have constituted conduct prejudicial to the administration of justice in violation of former Rule 3.2(f)(4), and/or conduct unworthy of an attorney in violation of former Rule 3.1(a).
Former Rule 3.4(i) provided: “A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances, and the client provides informed consent after consultation.”2 As explained in the 2001 Advisory Notes to former Rule 3.4(i):
Both lawyer and client have authority and responsibility to determine the objectives and means of representation. The scope of services to be provided by a lawyer may be limited by agreement with the client. . . . Although an agreement for limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A lawyer’s advice may be based on the scope of the representation agreed upon by the lawyer and client, and the client’s representation of the facts.
The Panel concludes that Respondent’s representation of Daniel and Linda in connection with the July 2008 conveyance was a limited representation. Accordingly, Respondent’s preparation for the events of July 24, 2008, must be judged in light of the scope of that limited representation, and of the information communicated to him by Daniel and Linda. Respondent did what he reasonably understood Daniel and Linda had engaged him to do: prepare a deed and transfer tax form conveying the property described in the source deeds they provided. At minimum, Respondent was never informed of their intention not to include the wharf interest, and indeed it appears Respondent and Ms. Fountaine may have discussed the issue specifically with Daniel and Linda, and determined that they were willing to include the wharf interest in the conveyance, despite their reluctance to do so. The Panel is unable to conclude that Respondent’s conduct with respect to the July 2008 conveyance violated any provisions of the Code. Had Respondent’s representation of Daniel and Linda not been limited to preparation of the deed, the Panel might well have concluded that Respondent had a duty to advise Daniel and Linda more fully, including advising them not to act precipitously in selling their property due to pressure to leave the island.
With respect to matters occurring on or after August 1, 2009, which, for purposes of this proceeding, included the August 2009 and October 2009 letters, Respondent’s actions potentially implicated Rule 1.1, which provides that “[a] lawyer shall provide competent representation to a client,” as well as Rule 1.3, which provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Respondent’s August 2009 letter did not reflect reasonable diligence or competence in determining the legal effect of the July 2008 deed with respect to the wharf interest, nor the actual facts with respect to any understanding on the part of Zachary and Laurette on that point. Accordingly, the Panel concludes that Respondent’s conduct with respect to the August 2009 letter violated Rules 1.1 and 1.3.
The October 2009 letter, on the other hand, appears to have been a good faith effort on the part of Respondent to rectify the August 2009 letter. The Panel concludes that Respondent’s conduct with respect to the October 2009 letter did not violate any provision of the Rules.
Finally, the Board has alleged violations by Respondent of various other provisions of the Code and/or the Rules, including violations relating to the alleged unreasonableness of Respondent’s fee for the July 2008 transaction; Respondent’s alleged failure to provide the entire real estate file to Daniel and Linda; Respondent’s alleged breach of a duty to remove David from his office on July 24, 2008, because David’s presence was distressing to Daniel and Linda; and Respondent’s alleged misrepresentations to Daniel and Linda. The Panel did not find any of those allegations persuasive. In summary, the Panel concludes that Respondent’s only misconduct in this matter was sending the August 2009 letter without adequate preparation and diligence.
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 properly to discharge their professional duties. See M. Bar. R. 2(a). In considering an appropriate sanction under the Bar Rules, the Panel must consider the following factors set forth in M. Bar R. 7.1(e)(3)(C):
(i) whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
Respondent violated duties owed to Daniel and Linda, and to the legal profession. Respondent did not violate any duty owed to the public, nor to the legal system.
(ii) whether the attorney acted intentionally, knowingly, or negligently;
Respondent’s misconduct was, at worst, negligent.
(iii) the amount of actual or potential injury caused by the attorney’s misconduct;
Respondent’s misconduct with respect to the August 2009 letter caused no actual or potential injury.
(iv) the existence of any aggravating or mitigating factors.
A substantial mitigating factor with respect to Respondent’s misconduct is the confusion that prevailed with respect to the July 2008 transaction. The events of July 24, 2008, were chaotic. The property descriptions in the various deeds and mortgages were confusing and inconsistent. Daniel and Linda had unrealistic expectations, which they never communicated adequately to Respondent, about his role in the transaction.
Further mitigating factors include Respondent’s apparent reliance on the representation by Daniel and Linda in August 2009 that Zachary and Laurette had understood all along that the wharf interest was not included in the July 2008 deed, and Ms. Fountaine’s absence on maternity leave at the time Respondent prepared the August 2009 letter. Those factors help to explain, though they do not excuse, Respondent’s misconduct. Finally, Respondent expressed remorse for sending the August 2009 letter.
An aggravating factor noted by the Panel is Respondent’s prior disciplinary history, consisting of a dismissal with a warning issued October 6, 2010. See Grievance Commission File No. 09-272. While the circumstances of that matter were very different, the Panel concludes that both instances of misconduct stemmed, in part, from excessive informality in certain aspects of Respondent’s documentation practices. If Respondent had more formally documented the scope of his engagement and his clients’ expectations surrounding the July 2008 transaction, he might well have avoided committing misconduct by sending the August 2009 letter. Finally, Respondent’s high degree of reliance on Ms. Fountaine, while not rising to the level of a violation of Rule 5.3, “Responsibilities Regarding Nonlawyer Assistants,” could also be considered an aggravating factor.
For the foregoing reasons, the Panel concludes that the appropriate disposition of this matter is a dismissal with a warning in accordance with M. Bar R. 7.1(e)(3)(B). Accordingly, the Panel hereby DISMISSES the complaint, with the following WARNING to Respondent:
You are hereby warned that in order to meet your professional duty to provide competent representation to your clients, you must act with reasonable diligence, including making appropriate efforts to determine the actual state of affairs before communicating information to clients. Improving your office practices with respect to documentation of client engagements and expectations, and communications with office staff, could substantially assist you in meeting that duty.
For the Grievance Commission
Benjamin Townsend, Esq., Acting Chair
Tobi L. Schneider, Esq.
Norman A. Ross
1At the close of the Board’s case in chief, Respondent moved for judgment as a matter of law. The Chair denied Respondent’s motion without addressing its merits, on the basis that notwithstanding the authority of the Chair to “control the course of proceedings” under M. Bar. R. 7.1(e)(2)(D), the Maine Bar Rules governing public disciplinary proceedings before a panel of the Grievance Commission mandate that the panel “shall hold a hearing,” and do not contemplate dismissal of the complaint as a matter of law (other than by an abatement for failure of the complainant to proceed, in accordance with M. Bar R. 7.3(b)).
2The clients’ written consent to limited representation would have been required only if the representation had involved a court appearance.