Board of Overseers of the Bar v. Erika L. Frank, Esq.

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Docket No.: GCF No. 11-199

Issued by: Panel C of the Grievance Commission

Date: May 15, 2012

Respondent: Erika L. Frank, Esq.

Bar Number: 00836

Order: Reprimand

Disposition/Conduct: Diligence; Conduct prejudicial to the administration of justice


STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(4)


On May 15, 2012 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 alleged misconduct by the Respondent, Erika L. Frank, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on February 10, 2012.

At the hearing, Attorney Frank was pro se, and the Board was represented by Assistant Bar Counsel Aria Eee. Prior to the hearing date, the parties had submitted a stipulated report of findings and order for the Panel’s review and consideration. Although Complainant Dawn D. Dyer, Esq. (Attorney Dyer) of Windham, Maine elected not to attend the hearing, Assistant Bar Counsel Eee had previously provided her with a copy of the proposed Report.

Having reviewed the agreed proposed Report of Findings as presented by counsel, the Panel makes the following disposition:

FINDINGS

Respondent Erika L. Frank, Esq. (Frank) of Windham, 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 Rules of Professional Conduct. Frank was admitted to the Maine Bar in 1996 and she is currently engaged as a solo private practitioner in Windham, Maine.

On June 3, 2011, pursuant to M. R. Prof. Conduct 8.3(a), Attorney Dyer filed a “mandatory reporting” complaint against Frank. That complaint concerned Frank’s involvement in an April 2011 real estate closing concerning property located in Gray, Maine. Frank represented the buyers and served as the closing agent. As such, she was responsible to make all disbursements after closing. For a variety of reasons, none of which were intentional or fraudulent, Frank did not timely do so in violation of M. R. Prof. Conduct 1.3 (diligence) and 8.4(d) (conduct prejudicial to the administration of justice).

Among the disbursements Frank was required to make was the payoff of the seller’s outstanding mortgage. Frank’s initial attempt to do so included a mistake on the wire transfer sheet. Thereafter, interest on the balance accrued resulting in a higher payoff amount. Frank believed she made all possible efforts to correct the mistake as quickly as possible. After the mortgage was subsequently paid, Frank’s account no longer had sufficient funds to pay the real estate taxes and the neighborhood association fees. Those disbursements were also delayed, but Frank ultimately paid all monies owed to the various entities.

CONCLUSION AND SANCTION

The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Due to Frank’s above-outlined conduct, the seller’s obligations were not timely paid and a June 2011 tax lien was recorded on the property. However, Frank has taken responsibility for her lapses and at the disciplinary hearing she apologized for her actions.

The Panel notes that Frank was previously reprimanded in July 2009 for conduct related to conflicts, standards of care and judgment and conduct prejudicial to the administration of justice. Prior to that, in August 2006, Frank received a dismissal with a warning for her violations concerning client communication.

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). Based upon the above-outlined facts, the evidence supports a finding that Frank engaged in misconduct, resulting in distress to the sellers and a delayed completion of the real estate matter. Frank acknowledges that her conduct was inconsistent with her obligations under Rules 1.3 and 8.4 of the Maine Rules of Professional Conduct. Since the evidence of misconduct supports a finding and Attorney Frank agrees she did in fact violate the Maine Rules of Professional Conduct, the Panel finds that its issuance of a reprimand should serve to adequately protect the public.

Therefore, the Panel accepts the agreement of the parties, including Frank’s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is the issuance of a Public Reprimand to Attorney Erika L. Frank. That reprimand is now hereby issued and imposed upon her pursuant to M. Bar R. 7.1(e)(3)(C),(4).


For the Grievance Commission

Martha Gaythwaite, Esq., Chair

Peter Fessenden, Esq.

Richard P. Dana (layperson)