Board of Overseers of the Bar v. Todd R. Collins

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Docket No.: GCF 11-071

Issued by: Grievance Commission

Date: October 12, 2011

Respondent: Todd R. Collins

Bar Number: 008970

Order: Dismissal

Disposition/Conduct: NA


ORDER OF DISMISSAL PURSUANT TO BOARD REGULATION NO. 51


For good cause, and under the terms set forth below, Panel E of the Grievance Commission of the Board of Overseers of the Bar ("the Panel") hereby dismisses the Disciplinary Petition dated July 27,2011 in this matter pursuant to Board Regulation No.51.

BACKGROUND

Respondent Todd R. Collins is the current District Attorney of Prosecutorial District 8; he took office in January 2011. A sua sponte grievance complaint was docketed and filed on March 3, 2011, concerning a long-standing1 policy of the Office of the District Attorney, the “No Talk, No Deal” Policy. Respondent provided the Panel with a copy of the Policy and a detailed and candid explanation of the Policy.

Furthermore, when Respondent learned that the Board of Overseers was questioning the Policy, he promptly issued written orders suspending the operation of the Policy and protecting any party from adverse action while the Policy was under review.

THE POLICY

The purpose of the Policy is to decrease the drug crime in Aroostook County by encouraging defendants to confess to the charges against themselves, and to cooperate with the agents of the Maine Drug Enforcement Agency [MDEA] in their investigation and/or prosecution of other drug crimes in Aroostook County. The Policy announced that, as a prerequisite to entering into plea negotiations with the District Attorney’s Office, a defendant must submit to a voluntary interview with an agent, a ‘debriefing,’ talking candidly about both his/her involvement with the pending charges, and also about whatever else that he/she was aware about illegal drug activity of others. A defendant who declined to submit to an interview was free to exercise his/her rights by going to trial, or to enter an open plea and present his/her evidence and argument to the judge on the issue of the appropriate sentence. However, there would be no negotiations for a plea agreement with the District Attorney’s Office, absent a ‘full debriefing.’

Concurrent with the “No Talk, No Plea” Policy, the MDEA agents had a policy, with respect to defendants who were represented by counsel, not to allow counsel to sit in on the debriefing interview. Defendants were allowed to have their attorney waiting in the hall, and were allowed to recess the interview at any time, in order to step out and consult privately with their attorney, but if any defendant insisted on his/her attorney’s presence, the agent would simply terminate the interview, and report the defendant to the District Attorney’s Office as not complying with the “No Talk, No Plea” Policy. A central tenant of the Policy is that the defendant and counsel would then be foreclosed from plea negotiations with the District Attorney’s Office.

This Panel reviewed the complaint and response pursuant to. M. Bar R. 7.1(d) “Preliminary Panel Review.” Under the Maine Bar Rules, that stage of the grievance complaint process is a preliminary review, conducted on the documents only, to screen out non-meritorious complaints, and to forward complaints which appear to have ‘probable cause’ to another Panel for a full hearing. M. Bar R. 7.1(d)(5).

This Panel was concerned that the “No Talk, No Plea” Policy, in combination with the understood policy of the MDEA agents about the presence, or rather absence, of defense attorneys, could be seen as a violation of Maine Rules of Professional Responsibility 4.2(c):

(c) If a prosecutor knows a person is represented with respect to the matter under investigation:

(1) the prosecutor shall not communicate directly with that person absent consent of the other lawyer or a court order; and

(2) The prosecutor shall not extend, through any third person an offer to meet with the prosecutor or an offer to enter into plea negotiations with the prosecutor, or an offer of a plea agreement absent consent of the other lawyer or a court order. [emphasis added]

Accordingly, at its earlier preliminary review, this Panel found probable cause of misconduct subject to sanction and thereby directed Bar Counsel to forward the complaint to another Panel for a formal, public hearing at which this issue could be explored and decided with the assistance of an evidentiary record and the presence of Bar Counsel and the Respondent.2

Shortly after this Panel’s determination, the Respondent offered to modify his “No Talk, No Deal” Policy in the following way:

Respondent shall provide the defendant and the defendant's attorney (for those defendants represented by counsel) with an election of one of the following options prior to their engaging in a debriefing interview: (1) bifurcating the interview by allowing the defendant's attorney to be present for that portion of the interview dealing with the facts of the pending case, but then to have the defendant's attorney leave so that the defendant can discuss those matters not subject to the attorney's representation privately with the agents; (2) allowing the defendant's attorney to be present for the full interview with the agents, but with the understanding that the attorney will necessarily withdraw from all conflict cases generated from that interview process; (3) allowing the defendant to meet with the agents outside the presence, but with the written consent, of the defendant's attorney; or (4) obtaining a written waiver of counsel and/or Miranda warnings from defendants (for unrepresented defendants).

Respondent (through counsel) letter of September 29, 2011.

This Panel concludes that these modifications in the “No Talk, No Deal” Policy completely eliminate any concerns that the Policy might conflict with M.R.P.C. 4.2(c), even in its most expansive interpretation.

DISPOSITION

Given the above factors, and consistent with the purpose of the Rules as set forth in M. Bar. R. 2, therefore, this Panel's directive to proceed to hearing is hereby rescinded pursuant to Board Regulation No. 51, and this matter is now hereby dismissed pursuant to M. Bar R. 7.1 (d).

This Order of Dismissal shall be deemed to be a hearing order of the Grievance Commission and therefore shall be published on the Board's website consistent with Board Regulation 56.


For the Grievance Commission

Victoria E. Powers, Esq., Chair for the entire Panel E


Footnotes

1Apparently, the policy pre-dated Collins' election to office by roughly 22 years; he re-issued the policy over his own signature shortly after taking office. It is this version of the policy that was submitted to the Panel.

2Respondent has made it clear to the Panel that he believes the Policy complies with all of the Maine Rules of Professional Conduct, and MRPC 4.2(c) in specific.