Board of Overseers of the Bar v. Peter L. Thompson, Esq.

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Docket No.: GCF# 11-258

Issued by: Grievance Commission

Date: May 22, 2013

Respondent: Peter L. Thompson, Esq.

Bar Number: 008011

Order: Dismissal

Disposition/Conduct: No Misconduct


REPORT OF FINDINGS, DETERMINATION AND ACTION OF GRIEVANCE COMMISSION PANEL B


Panel B of the Grievance Commission conducted a disciplinary hearing on the Petition of the Board of Overseers of the Bar (the "Board") against Peter L. Thompson, Esq. ("Respondent" or "Attorney Thompson") pursuant to Maine Bar Rule 7.1(e) on April 26 and May I, 2013. The Board was represented by Aria Eee, Esquire, Assistant Bar Counsel, Respondent Attorney Peter L. Thompson, was present and represented by Peter J. De Troy, Esquire.

Prior to opening arguments by counsel, the parties confirmed that they had no objections to the composition of the Panel and advised the Court regarding the pleadings, exhibits and the witness list. The matter proceeded to hearing on the Board's Disciplinary Petition dated January 23, 2013 and the Response of Respondent dated February 5, 2013. The parties agreed that Board Exhibits 1 through 30 and Respondent's Exhibits 1 through 40 were admitted without objection. The Board advised that it intended to call two witnesses, being complainant Dr. Lowell Gerber and Danielle Duval, NP-C. Respondent's counsel advised that he intended to call three witnesses Respondent, Chad Hansen, Esq. and Ronald Schneider, Esq.

The Disciplinary Petition alleges that Respondent engaged in violation of the following Maine Rules of Professional Conduct: Rule 1.2, Scope of Representation, Rule 1.4(a)(2) Communication- consult with client about means to accomplish objectives and Rule 1.4(b) Communication- explain as necessary to permit informed decisions. Assistant Bar Counsel advised that any references or claims relating to other Rules mentioned in the Disciplinary Petition were withdrawn.

FACTUAL BACKGROUND

Dr. Lowell Gerber and Danielle Duval, NP-C ("Complainants") engaged Attorney Thompson in January of 2009 to represent them in connection with a termination of employment dispute. Complainants are both healthcare professionals who were employed by Down East Medical Center ("DECH") until their respective contracts of employment were terminated without cause on July 24, 2008. DECH contends that the termination of employment was due to financial difficulties experienced by the hospital and was fully within its rights under the Employment Contract; Complainants contend that the termination of employment was in fact retaliation for the communications made by Complainants to the public and regulatory boards regarding the quality of care at the hospital.

Complainants consulted with several attorneys prior to engaging Attorney Thompson in January of 2009. Suit was filed against DECH, Quorum Health Resources, LLC and three named individuals on August 5, 2009. The case was actively litigated with more than twenty depositions conducted prior to the date of voluntary mediation held on July 30, 2010 with Patrick Coughlan of Conflict Solutions. The complaints about the professional conduct of Attorney Thompson arise out of the actions taken at the mediation. Prior to the mediation, Complainants were consistently complimentary about the service provided by Attorney Thompson and an affiliated attorney Chad Hansen. Attorneys Thompson and Hansen presented a twenty-six page single spaced mediation statement that was praised by Dr. Gerber as "absolutely fantastic" in an e-mail dated July 29, 2010. According to the testimony of Attorney Thompson and Attorney Hansen, they discussed for approximately three hours with the Complainants the nature of voluntary mediation, the benefits that might be obtained from mediation including a sense of how a disinterested party might view the respective cases and the possibility of settlement. Attorney Thompson advised the Complainants that he felt the case had a settlement value in a stated range taking into account back wages, damages permitted by law and the risks of litigation. Attorney Thompson also stated that when he discussed the prospects for injunctive relief including re-employment at DECH, Dr. Gerber was clear that he did not wish to return to DECH.

According to all witnesses, the mediation took approximately ten hours. In response to the initial settlement demand by the Complainants, the Defendants offered zero. After much private conferencing with the parties, a settlement proposal in excess of the amount discussed between Complainants and counsel was presented to the Complainants. When the Complainants accepted that dollar figure, the Defendants promptly provided a Term Sheet to outline the terms of the settlement. Because one of the major concerns of Dr. Gerber was to have a letter of reference from DECH, the Complainants and Attorney Thompson required that a paragraph setting forth the language to be contained within a reference letter be included in the Term Sheet. All witnesses testified that the negotiation of the reference letter language in the Term Sheet that ultimately was inserted as Paragraph 4 was the subject of further private conferencing with the mediator over the period of one to one and a half hours. Complainants testified that they in fact agreed to the language as set forth in the revised Term Sheet and signed the Term Sheet at the conclusion of the mediation.

On the day following the mediation, Saturday, July 31, 2010, Dr. Gerber sent an e-mail to Attorney Hansen asserting that the Complainants '"were unduly pressured in a hostage situation” and that they had been "coerced to make such a big decision under such a high degree of emotional duress." Complainants met with Attorneys Thompson and Hansen on August 5, 2010 to discuss their concerns and proposed revisions. During August 2010, Attorney Thompson and Attorney Hansen were in regular communication with Complainants and counsel for DECH seeking revisions to the Term Sheet as requested by the Complainants. By e-mail dated August 26, 2010, Attorney Thompson recommended to Dr. Gerber that the Complainants engage another attorney regarding the enforceability of the Term Sheet. On the same date, Attorney Thompson informed counsel for DECH that the Complainants were not willing to agree that the Term Sheet accurately reflected a settlement agreement and further requested that Complainants have another week to have the agreement reviewed by a new attorney. The Complainants disputed the settlement terms outlined in the Term Sheet, engaged other counsel and moved to have the dispute submitted to arbitration. Because the Term Sheet provided that disputes about the settlement be submitted to Conflict Solutions, Mr. Coughlan then acted in the capacity as arbitrator and found the agreement to be enforceable.

The Complainants received the settlement funds and reimbursed Attorney Thompson his disbursements but required that the attorneys' fees be placed in escrow. Ultimately Attorney Thompson sued to recover his fees and Complainants counterclaimed against Peter L. Thompson and Associates, P.A. and filed a Third-Party Complaint against Attorney Thompson and Attorney Hansen for breach of contract, legal malpractice and disgorgement of any attorneys' fees that might be found due to Peter L. Thompson and Associates P.A.

The claims of the Complainants against Attorney Thompson arising out of the conduct of Attorney Thompson and Attorney Hansen at the mediation are (1) that Paragraph 4 of the Term Sheet that recites the reference letter language was not in accordance with their wishes, (2) that Complainants never agreed in the Term Sheet that they would refrain from applying for reemployment with DECH or with Co-Defendant Quorum and therefore any suggestion by Attorney Thompson that Complainants would agree to such bar of reemployment was beyond the scope of his authority and (3) that they did not understand that Paragraph 15 of the Settlement requiring that disputes concerning the terms of settlement be referred to Conflict Solutions for binding arbitration would bar presentation of their claims before a jury.

FINDINGS

  1. Dr. Gerber is an articulate, sophisticated professional who in his e-mails attached as Exhibits by both parties and in his testimony demonstrated no reluctance or inability to advance his position. Ms. Duval is fluent in her native French but demonstrates clear capability to communicate well in English; she acknowledged, however, that Dr. Gerber had a better recollection and more involvement on many issues.

  2. Complainants acknowledged that Attorney Thompson and his firm devoted significant effort and understanding of the facts and the law underlying their claim.

  3. Despite their contention that they thought that the settlement demand in the mediation paper was their true settlement figure, Complainants did not dispute that they agreed with the recommendation of Attorney Thompson prior to the mediation that the case had a settlement value at a lesser figure.

  4. Complainants did not rebut the testimony of Attorney Thompson that Complainants had in fact stated that they did not wish to return to employment at DECH, but contend that their acknowledgement meant only that they did not wish to return to employment at DECH while the current management at DECH was in place.

  5. The duration of the negotiation of the Paragraph 4 of the revised Term Sheet regarding the language of the reference letter was one to one and a half hours of back-and-forth discussion and drafting. Complainants do not dispute that they agreed to the language at Paragraph 4 when they signed the Term Sheet, but contend that they were under duress when they did so.

  6. The dollar figure of the settlement set forth in the Term Sheet was in an amount greater than the amount earlier discussed with Complainants.

  7. Attorneys Thompson and Hansen reasonably believed that they fully explained all terms and conditions of the revised Term Sheet to the Complainants and that the Complainants understood and accepted the condition of the settlement.

  8. At the conclusion of the mediation Complainants expressed great satisfaction and relief with the settlement and appreciation for the work of the counsel.

CONCLUSION

The presentations by Bar Counsel and counsel for Respondent were thorough and well supported by reference to exhibits and witness testimony. Resolution of the charges of misconduct ultimately rested upon the weight of the evidence, credibility, memory and motivation and the recognition that a mediated settlement seldom produces a result fully satisfactory to all parties.

Bar Counsel in charging an attorney with a violation of the Maine Rules of Professional Conduct has the burden of proof to establish by preponderance of the evidence that the Respondent engaged in misconduct. Bearing in mind the burden of proof, the Panel determined that the evidence does not support a conclusion that Attorney Thompson engaged in misconduct subject to sanction under the Maine Rules of Professional Conduct.

ACTION

Panel B hereby finds on the evidence and arguments presented that no misconduct subject to sanction under the Maine Rules of Professional Conduct has occurred and that the Petition dated January 23, 2013 against Attorney Peter L. Thompson is hereby DISMISSED.


John R. Bass, II, Esq., Chair

Kenneth L. Roberts

Maurice Libner, Esq., Panel B Member, dissenting:

I do not take issue with the facts found in the majority's decision. However, additional facts established at the hearing made a different impression upon me, and cause me to reach a different conclusion. Dr. Gerber is a 61 year-old cardiologist of many years' experience. Ms. Duval, a masters-level cardiac nurse practitioner, also had an accomplished professional resume. Complainants (who are unmarried domestic partners) moved to Washington County from Florida, to be closer to Ms. Duval's ailing mother who resided in Quebec. Down East Community Hospital hired them in the expectation of beginning a nonsurgical practice in cardiology to meet the needs of patients who otherwise would have to travel to Bangor or hospitals even farther away.

The tenure of Complainants' employment at DECH lasted only one year. After Dr. Gerber made a number of complaints to hospital administration about deficiencies in equipment, practice standards and even potentially fraudulent billing practices, they were unexpectedly and unceremoniously discharged by the hospital. After his termination, the Bangor Daily News published a story about the doctor's termination, which quoted hospital management and cast him in a very negative public light. Dr. Gerber subsequently was unable to find work in his specialty, though Ms. Duvall obtained employment with Maine Medical Center.

A lawsuit under Maine's Whistleblower Statute, for defamation and other tortious causes of action ensued. Following protracted discovery, Complainants, DECH and other defendants engaged in an intense, 10 hour mediation session on July 30, 2010. Claimants contend that they did not really understand the nature or purpose of mediation, which had been elected by their counsel as a fully voluntary avenue to attempt settlement before trial in federal court. Though their counsel spoke with them by phone at length in preparation for the meeting it appears from Dr. Gerber's email the night before that he nevertheless didn't comprehend the nature, intention or seriousness of the mediation venture.

During the mediation, Dr. Gerber and his counsel were frustrated, as the Defendants at first refused to make any settlement offer. Dr. Gerber testified that he continued participating in the mediation under duress and against his better judgment, on the assurance of Respondent that patience could produce a settlement agreement. He described a confrontational and hostile environment, in which the mediator, described as one of the most experienced and effective in Maine, harangued him, red in the face, to deflate his self-confidence and discourage him from proceeding to trial.

After over 8 hours of discussion, the parties agreed on a monetary settlement of Claimants' financial damages that was slightly more than the minimum goal established by Respondent before the mediation. (Though at first blush this amount appears substantial, the net ultimately received by Complainants only equaled about one year of lost earnings.) After agreeing on this financial settlement, Dr. Gerber insisted on getting an effective letter of reference to clear his reputation and allow him to resume work in his field. Ultimately, the parties signed a "Term Sheet", acknowledging that a letter of reference would be provided, along with provisions for arbitration before the same mediator, should the parties be unable to agree on a comprehensive final settlement document.

Critically, in the undersigned's view, Dr. Gerber explained that he only agreed to sign the Term Sheet on the assurance of Respondent that its defects could be remedied by further negotiation or arbitration. Although he tried diligently, Respondent was unable to expand or improve the language Dr. Gerber deemed unsatisfactory.

I agree with Bar Counsel that Respondent's described conduct of the mediation resulted in the abdication of one of his client's primary goals in retaining his professional services, that of clearing his professional reputation, and in so doing violated M. R.P.C. 1.4(a)(2) and 1.4(b). I am persuaded that Respondent lost focus on the aspect of the litigation most important to Dr. Gerber: not simply obtaining financial compensation, but restoring his ability to work in his chosen profession. The importance of this objective, if not lost on Respondent, was given short shrift in the final reckoning of the litigation.

One of the most trenchant proclamations that a damaged reputation is not easily salvaged by exchange of the coin of the realm was given by Shakespeare, through the mouth of Iago:

"Good name in man and woman, dear my lord,

Is the immediate jewel of their souls.

Who steals my purse steals trash; 'tis something, nothing;

'Twas mine, 'tis his, and has been slave to thousands:

But he that filches from me my good name

Robs me of that which not enriches him

And makes me poor indeed." Othello (3.3.155-161)

Though we are conditioned as lawyers to believe that even the most intangible "human" damages can be monetized and reduced to a figure easily divisible by three, or in this case 40%, it is still incumbent on us to realize that there are occasions when some client goals exceed the importance of a financial settlement. I believe this case was such an instance. Having accepted Dr. Gerber's representation, Respondent was obligated to respect and advance his client's objective in the litigation, even where this may not have been expedient, even at the risk of possibly losing the case.

Maurice Libner, Esq.