Board of Overseers of the Bar v. Mary-Anne Martell, Esq.

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Docket No.: GCF No. 11-319 & 11-382

Issued by: Grievance Commission

Date: July 24, 2012

Respondent: Mary-Anne Martell, Esq.

Bar Number: 008341

Order: Reprimand

Disposition/Conduct: Safe Keeping of Property; Diligence; Conduct Prejudicial to Administration of Justice; Communication; Improper Withdrawal


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


On July 24, 2012, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1 (e)(2)(E), concerning misconduct by the Respondent, Mary-Anne Martell, Esq. The disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on May 2, 2012.

At the July 24, 2012 stipulated hearing, the Board was represented by Bar Counsel J. Scott Davis, and Attorney Martell appeared with her counsel, Attorney Peter J. DeTroy. Additionally, complainant Donald Marean was present and given an opportunity to address comments to the Panel. Mr. Marean had been provided with a copy of the parties' proposed stipulated sanction Report in advance of the stipulated hearing.

Prior to that hearing, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration. Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:

FINDINGS

Respondent Mary-Anne Martell of Westbrook, 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 Bar Rules and the Maine Rules of Professional Conduct. Attorney Martell was admitted to the Maine Bar in 1996 and she is currently registered as an active Maine attorney. In February 2004 she established the Law Office of Mary-Anne E. Martell, P.A., and in August 2005 then created Seacoast Law & Title.

GCF #11-319 (sua sponte complaint)

This grievance complaint was generated by Bar Counsel due to various independent sources contacting Bar Counsel concerning the manner in which she had improperly handled clients' matters and fees at her office. Those sources were all attorneys that had formerly worked with Attorney Martell at Seacoast Law & Title Company.

As a result of those contacts, Bar Counsel conducted an investigation which included interviews of attorneys and staff formerly employed by Attorney Martell. They each separately reported similar mishandling of funds by Attorney Martell, summarized inter alia as follows:

• Concerns that clients' advanced fees were regularly placed in the firm's operating account;

• Mishandling of the IOLTA;

• Attorney Martell's failure to timely and properly provide an agreed upon and court-ordered check to opposing counsel;

• Threatening clients with withdrawal if more fees were not paid;

• Improper termination of attorneys' employment at Seacoast Law & Title with improper notification to and protection of all clients regarding those respective departures; and

• Specifically and by way of example, one of those formerly employed attorneys discussed at least two clients that had provided advanced fees to the firm. Each client later decided to not pursue their respective legal matter, resulting in a required return of each fee by Attorney Martell's firm. The reporting attorney recalled that it took more than a month on each occasion for each client to receive that refund from Attorney Martell, despite repeated requests from the attorney and each client. Each refund amount was approximately $300.00.

Upon being presented with Bar Counsel's complaint and investigation materials, Attorney Martell employed Attorney DeTroy. He submitted a thorough response that included an admission that Attorney Martell's conduct violated former Maine Bar Rule 3.6(e) and current Maine Rules of Professional Conduct 1.15.

It was apparent and confirmed by the many documents provided by Attorney DeTroy to Bar Counsel, and Attorney Martell further admits, that on several occasions she improperly transferred funds from Seacoast's IOLTA to the operating account. Likewise, she admits to having deposited advanced fees directly into the operating account. Although Attorney Martell reports having eventually reimbursed the IOLTA for all such advanced fee amounts and client funds, she still admits such action by her was wrong and constituted misconduct.

In addition, the documents confirm and Attorney Martell admits she periodically made personal contributions to Seacoast's payroll and overhead accounts, and thereafter would withdraw funds from Seacoast's operating account for personal expenditures. At times client's advanced fees were withdrawn for personal expenditures. Attorney Martell reports that all clients were compensated and made whole at the completion of Attorney Martell's handling of their respective legal matters. She agrees and admits that refund of amounts properly owed to clients was delayed due to her need to replenish those funds through personal contributions or receipt of other monies through flat fees or retainers. In that regard, Attorney Martell agrees that her allowance and involvement in the disorganization of the financial records at Seacoast caused the delay in returning unearned fees, including amounts owed to those attorneys that left employment at Seacoast. At the time of those occurrences, a universal protocol was not followed at Seacoast and the system that was used was ineffective in maintaining the proper handling and organization of Seacoast's clients' finances.

Attorney Martell admits and acknowledges that her conduct, specifically her failure to properly and consistently segregate and escrow monies in an IOLTA violated former M. Bar R. 3.6(e) and current M. R. Prof. Conduct 1.15.

She has, however, established procedures to rectify and prevent such misconduct. By April of 2011, Attorney Martell understood that the problems at Seacoast were matters she was unable to control. She then hired a business consultant to upgrade and correct office policies and procedures, improve associate attorney billing and collection issues, and provide general assistance with management of Seacoast Law & Title. In August 2011, she then hired a legal assistant to oversee the daily operations of Seacoast, e.g. the handling client file organization, invoicing, receipt of retainers, receipt of flat fees, and handling of all conflict checks. Attorney Martell no longer handles any of those administrative tasks. In addition, whenever funds are now withdrawn from the IOLTA, an invoice is generated to ensure any withdrawal is appropriate and to create an appropriate "paper trail."

Attorney Martell agrees that her actions with these monies and accounts constituted violations of initially applicable M. Bar R. 3.6 (a)(1)(2) [standards of care and judgment]; and M. Bar R. 3.6(e)[preserving identity of funds and property] as well as currently applicable M. R. Prof. Conduct 1.3 [diligence]; 1.15[safekeeping property]; and 8.4(a)(d)[general misconduct and conduct prejudicial to the administration of justice].

GCF #11-382 (Donald Marean, o/b/o Christine (Morin) Marean)

This grievance complaint was filed by Donald Marean for his daughter, Christine (Morin) Marean, concerning Attorney Martell, Christine's divorce attorney. Donald had direct involvement in this divorce, due to the terms of a "Waiver of Confidentiality" signed by Christine on July 25, 2011, the same day she signed the "Attorney Fee Agreement," hiring Seacoast Law & Title.

Donald's claims and concerns regarding Attorney Martell's misconduct are summarized as follows:

• Her failure to properly communicate with Christine - or him;

• Her termination of representation in Christine's divorce without adequate notice or basis, and failing to assist Christine to find successor legal counsel;

• Her failure to timely forward the file to Christine's new attorney and properly refund unearned fees; and

• Her failure to provide accounting statements to Christine, which was a specific term of their fee agreement.

Bar Counsel's investigation of the Marean complaint confirmed and it is now admitted by Attorney Martell that she improperly and unilaterally decided without discussion or agreement with Christine to end her representation of Christine. Attorney Martell also agrees she did not always properly communicate with Christine or Donald, failed to timely deliver Christine's client file to her new counsel and initially made an improper refund of unearned fees to Christine's new attorney instead of directly to Christine or Donald.

Attorney Martell agrees she engaged in misconduct in the handling of Christine Marean's divorce matter in violation of M. R. Prof. Conduct 1.4[communication]; 1.15(b)(2)(iii)(iv)[failure to provide accounting or timely delivery of client's funds]; 1.16 (c)(d)[improper withdrawal]; and 8.4(a)(d)[general misconduct and conduct prejudicial to the administration of justice].

CONCLUSION AND SANCTION

The formerly applicable Code of Professional Responsibility and the current Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts.

Attorney Martell has made clear to the Panel her sincere remorse for her serious improper handling of her firm's financial records and accounts as well as the deficiencies in her handling of Christine Marean's family law matter. She directly apologized to Donald Marean at the hearing. Attorney Martell also then confirmed that she remains under a three-year contract with the Maine Assistance Program for Lawyers (MAP) to ensure that any emotional or related issues do not jeopardize or interfere with proper compliance with her professional obligations to her clients and to her profession.

As noted earlier in this Report, Attorney Martell has also taken significant steps and made important changes in her office management and operation procedures to correct her earlier financially related misconduct. Those changes and corrections will remain under watchful supervision and control for a significant period by Attorney Martell having agreed to submit her law practice to monitoring by Paul Driscoll of Portland, Maine. In that regard, the parties have executed a separate monitoring agreement with Attorney Driscoll which the Panel has reviewed and accepted as part of the disposition of this proceeding.

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. The Panel notes that Attorney Martell has no prior disciplinary or sanction record on file with the Board of Overseers of the Bar.

Attorney Martell apologized for her actions and accepted responsibility for her violations of the formerly applicable Code of Professional Responsibility and current MRPC. As noted earlier, Attorney Martell has agreed to have her practice monitored by another Maine attorney and is involved with the MAP.

Since the evidence of misconduct supports a finding and Attorney Martell agrees she did in fact violate the Code of Professional Responsibility and the Maine Rules of Professional Conduct, the Panel finds that its issuance of two separate Public Reprimands with monitoring of Attorney Martell's practice is an appropriate sanction.

Therefore, the Panel accepts the agreement of the parties including Attorney Martell's separately executed waiver of the right to file a Petition for Review. The Panel also specifically states and confirms Attorney Martell's agreement and understanding that any failure by her to continue and properly comply with her contractual engagements with either MAP or the monitoring agreement will subject her to Bar Counsel's initiation of a new grievance complaint against her under M. Bar R. 7.1 (b)(d).

The Panel thus concludes that the appropriate disposition of these two matters is the issuance of two Public Reprimands to Mary-Anne Martell Esq., which are now each hereby issued and imposed upon her pursuant to M. Bar R. 7.1(e)(3)(C), (4).

For the Grievance Commission

Victoria Powers, Esq., Chair

David Abramson, Esq.

Marjorie M. Medd