Board of Overseers of the Bar v. Michael L. Kress

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Docket No.: GCF No. 11-016

Issued by: Grievance Commission

Date: December 23, 2011

Respondent: Michael L. Kress

Bar Number: 004430

Order: Reprimand

Disposition/Conduct: Failure to file required Affidavit after being Administratively Suspended, Failure to Respond to Disciplinary Petition


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


On December 19, 2011, with due notice, Panel C of the Grievance Commission conducted a disciplinary hearing concerning alleged misconduct by the Respondent, Michael L. Kress (Kress). This disciplinary proceeding was commenced on August 11, 2011 through the Board of Overseers of the Bar’s filing of a Disciplinary Petition. The December 19, 2011 hearing was open to the public pursuant to Maine Bar Rule 7.1(e)(2)(E).

Kress failed to file an Answer to the Disciplinary Petition. Therefore, pursuant to Maine Bar Rule 7.1(e)(1), the misconduct alleged in the Petition, as set forth below, was taken as admitted by Kress and the hearing was held to determine the appropriate sanction.

At the hearing, the Board of Overseers of the Bar (the Board) was represented by Assistant Bar Counsel Jacqueline L.L. Gomes. Kress was not represented by counsel and, despite being properly notified of the hearing, did not appear to be heard on the question of sanctions.

FINDINGS

Until the imposition of an administrative suspension, Respondent Michael L. Kress of Portland, Maine was, at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine and in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Kress was admitted to the Maine bar in 2009

On October 15, 2010, Kress was administratively suspended by the Board due to CLE deficiencies and his failure to register and pay the fees required by the Maine Bar Rules. These failures constituted violations of Maine Bar Rules 6(a)(1), 10(a) and 12, as well as Rule 3(a) of the Maine Rules For Lawyers’ Fund For Client Protection. Kress did not thereafter file the affidavit certifying his compliance with Maine Bar Rule 7.3(i)(2) as required within 30 days after that suspension date.

On January 13, 2011, Bar Counsel docketed a sua sponte grievance complaint against Kress for his failure to comply with the affidavit requirements of M. Bar R. 7.3(i)(2)(A)(B) and M. R. Prof. Conduct 8.4(a). Despite the opportunity to do so, Kress did not file a response to the grievance complaint. On May 19, 2011 a panel of the Grievance Commission reviewed the file on Kress’ conduct and found probable cause to believe that Kress had engaged in misconduct subject to sanction under the Maine Bar Rules.

On October 1, 2011, Kress was personally served with a copy of the Disciplinary Petition after he failed to respond to service by mail. As of the date of this hearing, Kress remains administratively suspended and has never filed an answer to the Disciplinary Petition. Further, he still has not filed any notification affidavit.

CONCLUSION AND SANCTION

Kress violated Maine Bar Rule 2(c), 7.3(i)(2)(A)(B), and Maine Rules of Professional Conduct 8.1(b) and 8.4(a).

M. Bar. R. 2(a) provides that 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. Among the factors to be considered in imposing sanctions are the duty violated, the lawyer’s mental state, the actual or potential injury caused by the lawyer’s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).

The first factor to be considered for sanctions under the ABA Standards is to determine the duty that was breached. The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Kress violated his duties to the legal system by failing to complete the annual registration requirements in 2010 and by failing to file the required notification affidavit once he was administratively suspended.

Kress’ failure to complete the annual registration requirements in 2010 caused injury to the legal system. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.

There are no mitigating circumstances. There are several aggravating circumstances. Kress failed to respond to the mailing containing his annual registration materials. He failed to file an initial response to the Grievance Complaint. He failed to accept service by mail of the Disciplinary Petition, which then required Bar Counsel to incur the cost of serving him personally. Finally, he failed to file an Answer causing him to be defaulted and deemed to have admitted the above referenced misconduct.

The evidence supports a finding that Kress violated the Maine Bar Rules and the Maine Rules of Professional Conduct. The Panel concludes that the appropriate disposition of this case is a Public Reprimand to Michael L. Kress which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C) and (4). Bar Counsel shall deliver that Reprimand to Kress by U.S. Mail on this date.


For the Grievance Commission

Peter C. Fessenden, Esq., Chair

Martica S. Douglas, Esq.

Christine Holden, Ph.D.