Board of Overseers of the Bar v. Scott A. Wanner, Esq.

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Docket No.: GCF# 11-095

Issued by: Grievance Commission

Date: June 14, 2013

Respondent: Scott A. Wanner, Esq.

Bar Number: 009264

Order: Reprimand

Disposition/Conduct: Conflict of Interest; Personal Conflict


REPORT OF FINDINGS PANEL C OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(E); M. BarR. 7.1(e)(4)

On April 30 and May 10, 2013, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.l(e)(2)(E), concerning alleged misconduct by the Respondent, Scott A. Wanner, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on November 26, 2012.

At the hearing, the Board was represented by Assistant Bar Counsel, Aria Eee and the Respondent appeared pro se. After due consideration of the testimony of the witnesses and the evidence presented, the Panel makes the following disposition:

FINDINGS

Respondent Scott A. Wanner, Esq. of Portsmouth, New Hampshire, has been at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Wanner was admitted to the Maine Bar in May 14, 2002. He was suspended administratively on October 22, 2012 due to a failure to complete his annual registration requirements.

On March 18, 2011, Robert M.A. Nadeau submitted a complaint against Attorney Wanner to the Board of Overseers. In due course, the Board of Overseers, through counsel, filed a formal disciplinary petition dated November 26, 2012 alleging that Attorney Wanner engaged in misconduct in violation of a number of Bar Rules. In her opening and again at closing, Assistant Bar Counsel abandoned all counts except those involving Maine Bar Rule 3.4(a) through (f).

Maine Bar Rule 3.4(a)(1) requires a lawyer to disclose to a prospective client any relationship or interest of the lawyer that might reasonably give rise to a conflict of interest and impose a continuing duty to disclose to the client any information that might give rise to such a conflict of interest after commencement of representation. Maine Bar Rule 3.4(b)(1) prohibits a lawyer from commencing representation or continuing to represent a client if that representation would involve a conflict of interest. A "conflict of interest" during representation would arise if "there is a substantial risk that the lawyer's representation of one client would be materially and adversely affected by the lawyer's duty to another current client, to a former client, or to a third person, or by the lawyer's own interest." Maine Bar Rule 3.4(b)(1).

Maine Bar Rule 3.4(f)(1) prohibits a lawyer from commencing representation "if there is a substantial risk that a significant personal relationship of the lawyer will materially and adversely affect the lawyer's representation of [a] client."

The panel admitted Board exhibits 1 through 61 and Respondent's exhibits 1 through 17, 19 through 21, 23 through 27, 29, 30, 32 through 42, and 45 through 47 into evidence without objection. Respondent's exhibits 18, 22, 28, 31, 43 and 44 were objected to by Assistant Bar Counsel, but thereafter reference to them was made repeatedly by both sides and they are deemed to have been admitted. Attorney Wanner was called as a witness by Assistant Bar Counsel and further testified on his own behalf. Attorney Robert M. A. Nadeau and Attorney Ian Brown, an associate in Attorney Nadeau's office in 2007, also testified.

The Panel's findings and conclusions are derived solely from the documentary evidence and the testimony of Attorneys Wanner and Brown. It does not rely on Attorney Nadeau's testimony, which was exaggerated, inconsistent and unreliable.

Attorney Wanner was hired as an associate in January 2007 by Nadeau & Associates. Approximately one month later, Attorney Wanner had a sexual encounter with a woman, LF,1 who was Attorney Nadeau's on-again-off-again fiancÚ and who was also an on-again-off-again employee of the firm. Attorney Wanner was aware of Attorney Nadeau's lengthy and public relationship with LF. He described the February 2007 sexual encounter as a one-time indiscretion that took place when he believed that the relationship between her and Attorney Nadeau had ended. Attorney Wanner left the firm in October 2007 without ever disclosing his sexual encounter with LF to Attorney Nadeau.

The Panel finds that the Respondent established an attorney-client relationship with Nadeau when he was asked to gather evidence in connection with Attorney Nadeau's defense of a protection from abuse complaint filed against him by LF. Attorney Wanner also assisted as a witness at the PFA hearing, although the case was settled after only brief testimony from him. Both the arc of events and Attorney Wanner's 2007 case status reports, admitted into evidence without objection, show that Attorney Wanner accounted for the time spent on behalf of Attorney Nadeau whom he described as his client.

This is the type of situation that Maine Bar Rules 3.4(a)(1), 3.4(b)(1) and 3.4(f)(1) were designed to avoid. Despite his brief tenure at Nadeau & Associates, Attorney Wanner should have known that his involvement with LF was a "significant personal relationship" that could have compromised his client's defense in the protection from abuse matter. Our analysis under Maine Bar Rule 3.4 is not result-oriented. It does not require a finding that the Respondent's work was deficient. The Rule requires an attorney to determine whether he or she should accept representation in the first place on behalf of a client and thereafter to reevaluate continuously whether a conflict of interest has emerged or evolved to the point where disclosure and withdrawal are required.

The panel finds that Attorney Wanner had an obligation to disclose to Attorney Nadeau that he had a personal relationship with LF which might give rise to a conflict of interest; or, in the alternative, Attorney Wanner should have refused to become involved in the case if he chose not to disclose this information to Nadeau. His failure to do either violated Maine Bar Rule 3.4(a)(1), 3.4(b)(1) and 3.4(f)(1).

CONCLUSION AND SANCTION

Maine Bar Rules 3.4(a)(1), 3.4(b)(1), and 3.4(f)(1) require that the client be informed of any and all conflicts, whenever they arise. Attorney Nadeau was the client. The impact on Attorney Nadeau's interests is irrelevant to Attorney Wanner's obligation to disclose his relationship with LF, so that his client could make his own decisions about the Respondent's representation. The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. The duty is on the lawyer to exercise punctilious care when complying with rules regarding disclosure. An attorney may explain to the client why he or she believes that no conflict exists. Without disclosure, the client has no opportunity to consider and decide for him or herself. The Panel does not believe that Attorney Wanner acted with malice, but in attempting to prevent personal embarrassment or awkwardness, he deprived his client of information he was duty-bound to reveal.

Maine Bar Rule 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, or likely to be unable, to discharge properly their professional duties. It is troubling that Attorney Wanner appears not to appreciate the conflicts presented. He was not contrite. Since the evidence supports a finding that the Respondent violated Maine Bar Rule 3.4 as set forth above, the Panel finds that a Public Reprimand is the appropriate sanction, which is hereby imposed on Attorney Scott A. Wanner.


David S. Abramson, Esq., Chair

Peter C. Fessenden, Esq.

Richard P. Dana, C.P.A.


1Initials of this individual are used to protect privacy.