Board of Overseers of the Bar v. Mark J. Nale, Esq.

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Docket No.: GCF# 11-153

Issued by: Grievance Commission

Date: May 30, 2013

Respondent: Mark J. Nale, Esq.

Bar Number: 002976

Order: Dismissal with Warning

Disposition/Conduct: Conflict of Interest, Informed Consent of a Client; Conflict of Interest, Concurrent Representation; Keeping Client Informed


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


On May 30, 2013, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Mark J. Nale, 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 March 19, 2013.

At the May 30, 2013 hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley and Attorney Nale appeared with his counsel, James M. Bowie, Esq. Prior to that hearing, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel’s review and consideration. Additionally, the complainant, Mourad Jdaini, had been provided with a copy of the proposed stipulated sanction Report in advance of the stipulated hearing. Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following findings and disposition:

FINDINGS

Respondent Mark J. Nale of Waterville, 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. As such, Attorney Nale is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Attorney Nale was admitted to the Maine Bar in 1984 and is currently registered as an active Maine attorney.

The legal dispute which engendered this complaint matter arises out of the death of the Complainant’s 6 year old son, Zyah Denis. At the time of Zyah’s death, the Complainant shared joint custody with his estranged wife, Casey Denis (now Casey Perkins); however, the child’s primary residence was with his mother. In June of 2007, Ms. Denis and Zyah came from their home in Arizona to Waterville, Maine to visit with family. It was during that visit that Zyah was left unattended and accidentally drowned in the swimming pool at the family’s rented home.

Attorney Nale was initially contacted by Sherry Levesque, Ms. Denis’ mother, setting up an appointment for both Ms. Denis Ms. Levesque to meet with him regarding the death of Zyah. Following that initial meeting, on June 19, 2007 Ms. Levesque, Ms. Denis and Mr. Jdaini (who had come to Maine for Zyah’s funeral) met with Attorney Nale at his office, and Ms. Denis and Mr. Jdaini each signed the contingency fee agreement retaining Nale’s representation of them for the wrongful death of Zyah Denis. Attorney Nale advised them that he would commence the investigation into Zyah’s death, but that he would refer the case out to an experienced litigation counsel. Although the fee agreement was between Attorney Nale and Zyah’s parents, the file was set up by his office staff with Sherry Levesque and Casey Denis as the clients, and Mr. Jdaini’s name was omitted from the client contact list.

Mr. Jdaini left Maine, returning home to Arizona. Attorney Nale began an investigation, and at the same time referred the case to an experienced personal injury litigation counsel, for assessment and prosecution of the underlying wrongful death action. Attorney Nale gathered information from the Waterville City Officials and police regarding their response to the scene; assuring the preservation of evidence such as the 911 tape; and corresponding with the personal injury attorney regarding his involvement in the case. Attorney Nale sent several letters during the summer of 2007, routinely providing copies to Casey Denis and her mother Sherry Levesque to keep them apprised of his progress, but failing to send copies to his client, Mr. Jdaini.

On September 4, 2007, at the request of the personal injury attorney that he had referred the case to, Attorney Nale notified the insurance company for the homeowners that he was withdrawing from representation of Casey Denis and Sherry Levesque, “individually and as personal representative of the Estate of Zyah Denis”. With that notice, Attorney Nale also provided the name of the personal injury attorney as the new counsel for his former clients. Due to his office’s initial error in setting up the file, Attorney Nale omitted to reference Mr. Jdaini in the letter, or to provide him with a copy of the letter.

Attorney Nale had no further involvement in the case until the summer of 2008, when he was again contacted by the personal injury attorney he had referred the case to. The personal injury attorney had arranged for another attorney to begin the process of filing formal probate proceedings for the Estate of Zyah Denis. The probate attorney had made the initial contact with both Ms. Denis and Mr. Jdaini, seeking their approval to have Casey Denis’ cousin, Melissa Denis appointed as the Personal Representative. However, due to a conflict of interest, the other attorney had to withdraw, and the personal injury attorney asked that Attorney Nale take over the appointment of Melissa Denis as personal representative of Zyah’s estate.

In anticipation of her appointment, in September 2008 Melissa Denis signed a contingency fee agreement with the personal injury attorney in her capacity as Personal Representative for the estate of Zyah Denis. Attorney Nale had already sought and obtained a renunciation of her right to be appointed as Personal Representative from Casey Denis. Attorney Nale had also contacted Mr. Jdaini in Arizona, and Mr. Jdaini advised him that he would consult with independent counsel regarding his renunciation. Mr. Jdaini subsequently signed the renunciation document in October of 2008 and returned it to Attorney Nale. Melissa Denis was formally appointed as the Personal Representative of Zyah Denis’ estate shortly thereafter.

In March of 2009, the personal injury attorney filed a wrongful death suit on behalf of the estate of Zyah Denis against the renters of the property, as well as the property’s owners. Third party complaints were brought by both defendants against Casey Denis. The case went to mediation in August of 2009 and a settlement was reached with the insurance carriers for the two principal defendants. After learning the terms of the settlement from his former wife, Mr. Jdaini obtained counsel in Arizona, and eventually in Maine, filing a motion to stay the dismissal of the lawsuit, and seeking intervener status.

The wrongful death settlement reached by the personal injury attorney was ultimately agreed to by Mr. Jdaini and the suit was dismissed. Mr. Jdaini, through counsel, in due course negotiated a settlement with Ms. Denis for the allocation and disbursement of the proceeds from the wrongful death action.

Mourad Jdaini filed his bar complaint against Attorney Nale in May of 2011. Within that filing Jdaini complained that in undertaking the initial concurrent representation of Jdaini and his estranged wife, Attorney Nale failed to adequately consider the potential conflict of interest engendered by such representation; to adequately disclose and discuss it with the parties; or to obtain their informed consent to the representation. Mr. Jdaini also complained that Attorney Nale failed to keep him adequately apprised of the status of the case and its referral to successor counsel, or to otherwise communicate with him during the course of the 2007 representation. Attorney Nale contends he did communicate with Mr. Jdaini about the referral, but concedes that Mr. Jadaini was inadvertently not copied on correspondence during the summer of 2007.

Attorney Nale’s actions constituted violations of the then applicable Maine Bar Rules (M. Bar R.) 3.4(b); 3.4(c) and 3.6(a). Attorney Nale acknowledges that in undertaking the simultaneous representation of Mr. Jdaini and his estranged wife that he failed to adequately obtain, and/or document the informed consent of each client. Accordingly, Attorney Nale agrees that his conduct constituted violations of M. Bar R. 3.4(b) and 3.4(c). Attorney Nale also agrees that during the period of his representation during the summer of 2007, that he failed to communicate with his client, or otherwise keep Mr. Jdaini informed of the status of the case in violation of M. Bar R. 3.6(a).

CONCLUSION AND SANCTION

The Maine Bar Rules specifically require attorneys to uphold their duties to clients and the courts. Due to Attorney Nale’s 2007 conduct, he negligently engaged in conduct that was prejudicial to his clients and detrimental to the administration of justice. Attorney Nale’s misconduct was in direct violation of the then Code of Professional Responsibility.

At the stipulated hearing, Attorney Nale made clear his remorse for his actions related to the matter. He extended apologies to those people who were affected by his behavior and in attendance at this disciplinary hearing.

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.

The first factor to be considered for sanctions under the ABA Standards is to determine the duty that was breached. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(B). Attorney Nale violated his duties as an officer of the court by negligently undertaking concurrent representation of clients, without adequately considering the potential for their conflicting interests, or discussing and obtaining the clients’ informed consent to representation. (ABA Standards, 4.34). Attorney Nale also inadvertently failed to communicate with one of his clients, to keep him informed of the progress of his case, or even to advise him that the case had been successfully referred to new counsel, and that he was withdrawing from further representation. (ABA Standards, 4.44) In mitigation, the Panel notes that Attorney Nale’s failures to communicate with his client were unintentional due to his initial error in the setting up of the client file. Further mitigation exists because that the Board’s regulation history reflects that Attorney Nale has no prior disciplinary record.

In sum, the evidence of misconduct supports the Panel’s findings, and Attorney Nale agrees he did in fact violate the Maine Bar Rules. However, the Panel agrees that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Attorney Nale. Accordingly, the Panel concludes that a dismissal with a warning is a proper sanction to impose upon Attorney Nale.

Therefore, the Panel accepts the agreement of the parties including Attorney Nale’s separately executed waiver of the right to object to the warning or its terms. The Panel concludes that the appropriate disposition of this case is the issuance of a Dismissal with a Warning to Mark J. Nale, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(B), (4).


Maurice A. Libner, Esq., Chair

Justin D. LeBlanc, Esq.

Kenneth L. Roberts