Board of Overseers of the Bar v. Alan F. Harding

Download Decision & Order with Monitoring Order (PDF)

Docket No.: BAR-11-3

Issued by: Single Justice, Maine Supreme Judicial Court

Date: December 21, 2011

Respondent: Alan F. Harding

Bar Number: 001113

Order: Suspension/Monitoring Order

Disposition/Conduct: Illegal Conduct; Neglect; Truthfullness in Statements to Others; Conduct Involving Deceit or Misrepresentation; Diligence


DECISION AND ORDER

The Board of Overseers of the Bar initiated the above attorney disciplinary action on April 5, 2011 by the filing of a Petition for Temporary Suspension pursuant to M. Bar R. 7.2(c) . That Petition was later amended to include an additional count and the Amended Petition was then filed on April 21, 2011. Attorney Harding responded with a timely Answer to the Board’s Petitions on April 28, 2011. Trial in this matter was set for November 2 and 3, 2011. After their final pre-trial discussions, the parties notified the Court that they were in agreement to a proposed order providing for stipulated findings and sanction.

On November 2, 2011, the parties appeared before the Court to outline their proposal for resolution of this matter. The Board was represented at the hearing by Assistant Bar Counsel Aria Eee and Marvin Glazier, Esq. appeared with Attorney Harding. Additionally, complainants Beverly Langley and Michelle Maier appeared and explained to the Court their respective difficult experiences as clients of Attorney Harding. Complainant Michelle Andersen, M. D. was not present but did submit a letter for the Court’s consideration.

FINDINGS AND CONCLUSIONS

Harding was admitted to the Maine bar in 1978. From his admission until the present, Harding has engaged in private practice in Presque Isle, Maine. The Court notes that except for the instant action, Harding has not otherwise been disciplined for attorney misconduct.

Following a review of the pleadings, the exhibits and the parties’ proposal, the Court finds and Harding agrees that he engaged in multiple violations of the former Maine Code of Professional Responsibility and the Maine Rules of Professional Conduct. Since the Board of Overseers’ Petition for Temporary Suspension outlined five (5) separate counts of alleged misconduct, the Court will address each count in turn.

COUNT I
(GCF# 10-242 Beverly Langley)

In 2004 Ms. Langley hired Harding to bring suit against the Town of Hampden based upon its alleged negligence as sewage flooded the Langley and Knowles duplex homes. This was due to the Town’s flushing of the sewer lines causing a partial blockage in the sewer lines to release at a location above the Langley/Knowles homes. At that time, Ms. Langley shared the duplex with her elderly mother. Both women were devastated they could not live in their homes due to the damage to the real estate and personal property. Neither Langley nor her mother were familiar with litigation, and it is clear they each unequivocally trusted Harding to pursue their legal action.

During the course of his six-year representation, Harding ultimately failed to provide the professional services Ms. Langley and her mother relied upon him to deliver. In sum, Harding failed to timely communicate with Langley, failed to adequately consult with her about the case, failed to execute a fee agreement or properly bill her and failed to adequately notify or inform her concerning decisions rendered by the Penobscot County Superior Court and the Maine Law Court. Harding’s failures constituted violations of then applicable Maine Bar Rules 3.1(a); 3.2(f)(3)(4); 3.3(a)(9); 3.3(d); 3.6(e)(2)(iii),(iv); 3.6(a)(b)(c) and current Maine Rules of Professional Conduct 1.3 and 1.4.

COUNT II
(GCF# 10-292 Phillip Curtis)

Phillip Curtis retained Harding in May 2009 to assist him in filing for Chapter 7 Bankruptcy. At the time, Curtis intended to reaffirm two debts to Ford Motor Credit Corporation. After signing and returning the reaffirmation agreements to Harding, Curtis expected that Harding would finalize those agreements with Ford’s counsel. Harding asserts he never did so as it was his belief that Curtis was not current in his payments and was not eligible to reaffirm. As a result, Curtis was discharged in bankruptcy without having reaffirmed his debts which would have allowed him to retain his vehicles. Subsequently, Harding misrepresented to Ford Motor Credit’s counsel that Curtis had never executed the forms. Finally, while Harding and Curtis disputed Curtis’ available income, the Board’s independent investigation (involving the Bankruptcy Trustee’s office) confirmed Curtis’ ability and willingness to reaffirm the two debts. Harding’s actions in the Curtis matter constituted violations of then applicable M. Bar R. 3.1(a); 3.6(a)(2)(3) and M. R. Prof. Conduct 4.1(a) and 8.4(c).

COUNT III
(GCF# 10-330 Michelle Andersen)

In November 2009, Dr. Michelle Andersen retained Harding to protect her interests related to a dispute about her reassigned duties at The Aroostook Medical Center. In her complaint to the Board of Overseers, Dr. Andersen alleged that during the initial meeting between her and the hospital CEO, Harding abandoned his advocacy of her and offered instead, to mediate the dispute. Harding agrees that he made that offer without first privately discussing/or reviewing it with Andersen and understands that by doing so, he violated M. R. Prof. Conduct 1.2; 1.4; 8.4(a). Harding later agreed to serve as the mediator but stressed to the Board that he did obtain Andersen’s consent before he began his work as the mediator. Thereafter, he failed to advise or suggest to Andersen that she obtain independent legal counsel during the continuing dispute and mediated sessions. In the end, Andersen felt betrayed by Harding as she had relied on his assurances when he took on the role of mediator. Harding’s failure to advise her of the potential conflict and its potential consequences were violations of M. R. Prof. Conduct 1.7(a)(2) and 8.4(a).

COUNT IV
(GCF# 11- Sua sponte complaint)

On February 1, 2011, Bar Counsel docketed a sua sponte complaint against Harding based upon his failure to file Maine tax returns and to pay Maine income tax for six (6) years, 2004-2009. Harding was charged by criminal complaint in November 2010 and pleaded no contest to those charges in June 2011. By the time of his sentencing, Harding had paid all or nearly all of the tax, penalties and interest due. As a result of his pleas, Harding was given a 180-day sentence to the Aroostook County Jail with all but 10 days suspended with a one (1) year of Administrative Release. The Court finds that Harding’s criminal conduct constituted violations of M. Bar R. 3.1(a); 3.2(f)(2)(3); and M. R. Prof. Conduct 8.1(b); 8.4(a)(b)(c).

Count V
(GCF# 10-124 Michelle Maier)

On April 11, 2011, Michelle Maier filed a complaint against Harding alleging his neglect of her personal injury case and his improper handling of her settlement funds. Maier also explained that Harding had failed to pay most of her medical bills, despite more than two years to do so. Harding contends that there was a lack of funds to pay all of Maier’s medical bills that were incurred, a fact he did not discover until after the matter had been arbitrated in 2009. Harding does agree that he delayed in making payments on any of the bills until after Maier’s complaint filing. Finally, Maier also expressed to the Court her upset about Harding’s unexplained delay in returning her client file to her. With assistance from Harding’s counsel, Attorney Glazier, Ms. Maier’s file was returned. Harding’s earlier failure to properly monitor and finalize Maier’s legal matter resulted in his violations of M. Bar R. 3.1(a); 3.6(a) 3); 3.6(e)(2) and M. R. Prof. Conduct 1.3; 1.4; 1.5(a); 1.15(b)(2); 1.16(d).

SANCTION

Attorney Harding’s multiple violations of the former Code of Professional Responsibility and the current Maine Rules of Professional Conduct are serious and the Court must now consider an appropriate sanction. The Court is mindful that the primary purpose of attorney discipline proceedings is not punishment but rather protection of the public. The Court’s Order is intended to address the serious problems associated with Harding’s law practice.

To address the concerns about Harding’s practice management deficiencies, the parties have agreed and the Court hereby orders that Harding submit his practice to monitoring by Attorney Winfred Stevens of Bangor, Maine. That detailed Order for Monitoring is incorporated herein by reference. The Court expects that Harding will improve his client relations, his calendaring system and his management of the breadth of his caseload, so as to avoid future grievance complaints.

Finally, the parties were unable to agree on whether Attorney Harding’s office would remain open or closed during the period of his actual suspension and presented the Court with their respective arguments on that issue. The Court acknowledges that if it were to accept the Board’s argument by completely closing down Harding’s Law Office the effect of that closure might prejudice clients’ cases regarding important deadlines, appeals, will deliveries, client file return, etc. Moreover, the requirement of a complete closure of the law office would exact a harsher sanction upon a solo practitioner than if the attorney was a member in a firm (small or large) where such complete closure would not occur. While the Court is mindful of the Board’s concern for ensuring that the public is protected by Harding’s serving an actual suspension, the goal under the Maine Bar Rules is for protection of the public, not penalization of Mr. Harding.

For that reason, the Court declines to order a complete closure but instead, ORDERS that Harding’s Law Office may only be open for up to three days a week to deal with the administrative functions of the office. During that time period, the office may be staffed by one support person and when necessary, Attorney Matthew Hunter will be available to address client questions and otherwise deal with client needs. If emergencies should arise, Attorney Frank Bemis will be available to assist Harding’s criminal clients (in Aroostook County Superior Court). Attorney Harding may not contact or be contacted by his staff to participate in any client requests or consultations.

Accordingly, the Court imposes upon Attorney Harding a six (6) month suspension from practice, with all but thirty (30) days of that period suspended. In doing so, the Court approves the parties’ agreement and ORDERS the following sanction and conditions:

  1. Attorney Harding shall serve his suspension from December 22, 2011 until January 21, 2012; on or before December 22, he shall provide notice to his clients of the suspension, consistent with M. Bar R. 7.3(i)(1).

  2. During that period of actual suspension, Attorney Harding may not appear before any tribunal and is prohibited from advising, consulting or meeting with any clients. In short, he may not practice law or appear as though he is practicing law in any manner. Consistent with the Court’s findings above, Attorney Harding’s office may only be open for reduced hours. During that time, one staff person is permitted to deal with the administrative functions of the office, including returning client files, paying bills, etc. Attorney Harding shall not be present in the office for any of that time and his “suspension notification” letter to clients shall inform them of that fact.

  3. Effective January 22, 2012, Attorney Harding shall submit his practice to monitoring for one year or longer if the Court or Monitor deems it necessary. The Court-Appointed Monitor is Attorney Winfred Stevens of Bangor, ME;

  4. If Attorney Harding commits any apparent violation of any of the conditions of this Order, Bar Counsel may proceed by way of contempt to request that the Court impose the suspended portion of this sanction;

  5. Additionally, Attorney Harding shall undertake six (6) hours of approved live continuing legal education focused on law practice management;

  6. Attorney Harding shall remain current in all filings and payment of all taxes (excepting real estate taxes) due to the United States and the State of Maine;

  7. Attorney Harding shall reimburse the Board $500.00 toward costs associated with its prosecution of him in this matter; and

  8. Attorney Harding shall comply with the provisions of M. Bar R. 7.3(i)(1).

  9. In the event a grievance complaint is received by Bar Counsel after December 1, 2011, Bar Counsel may elect to file a new disciplinary matter directly before the Court under Bar Rule 7.2(b) without involving the Grievance Commission under M. Bar R. 7.1(d)(e).


FOR THE COURT

Joseph M. Jabar, Associate Justice – Maine Supreme Judicial Court