Board of Overseers of the Bar v. Alexander F. McCann, Esq.

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Docket No.: GCF# 12-349

Issued by: Grievance Commission

Date: October 9, 2013

Respondent: Alexander F. McCann, Esq.

Bar Number: 007196

Order: Reprimand

Disposition/Conduct: Failure to promptly deliver to the client funds that the client was entitled to receive upon; Failure to keep disputed funds separate from his own until the dispute was resolved; Engaging in conduct that was prejudicial to the administration of justice.


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

On October 9, 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, Alexander F. McCann, 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 May 7, 2013.

At the October 9, 2013 hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley and Attorney McCann appeared with his counsel, Attorney Peter J. DeTroy. Additionally, the complainant, Thomas C. Turmelle, had been provided with a copy of the parties’ proposed stipulated sanction Report in advance of the stipulated hearing. Mr. Turmelle elected not to be present at the hearing.

Prior to the hearing, the parties submitted the 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 Alexander F. McCann of Gorham, 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 McCann is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Attorney McCann was admitted to the Maine Bar in 1990 and is currently registered as an active Maine attorney.

In August of 2002, McCann entered into a contingency fee agreement with Susan Turmelle (now deceased) to represent her in a Worker’s Compensation matter. Along with its other provisions, the fee agreement provided for a 30% contingency fee after expenses in the event of a successful “claim for benefits or for entitlement to continuing benefits.” Susan Turmelle subsequently died in October of 2009 from causes unconnected to her work related injuries.

Between the signing of the fee agreement in 2002 and the death of Ms. Turmelle in 2009, McCann provided various legal services to Susan Turmelle that were not specifically covered under the terms of their fee agreement. Although McCann was entitled to payment for the legal services he rendered, he did not seek payment from Ms. Turmelle while she was alive, nor did he submit a bill for his fees to her estate after her death.

After Susan Turmelle’s death, her brother, Thomas Turmelle, hired Attorney Steven Whiting to handle Susan Turmelle’s estate at McCann’s recommendation. After learning of Ms. Turmelle’s death, in November of 2009, McCann contacted the worker’s compensation counsel for Susan Turmelle’s former employer requesting that he “investigate the value of discontinued fringe benefits paid by the Employer.” McCann negotiated and received a settlement in the amount of $18,998.10 for Susan Turmelle’s accrued past benefits on August 19, 2010, depositing the check he received into his IOLTA account.

McCann, in accordance with the provisions of the 2002 fee agreement described above, deducted his fee of $5,585.04 representing 30% of the recovery of accrued benefits, together with his expenses of $381.30. The balance of $13,031.76 remained in McCann’s IOLTA account.

In September of 2010, McCann states that he spoke to Attorney Whiting, as attorney for the estate of Susan Turmelle, suggesting that the $13,031.76 be paid to him as compensation for the legal services he performed on behalf of Susan Turmelle between 2002 and her death in 2009. McCann advised Attorney Whiting that applying the remaining funds as attorneys’ fees would not have an adverse effect upon Susan Turmelle’s estate; however, he believed that if the remaining funds were paid to the estate, the Social Security Administration would retroactively claim an overpayment of Social Security benefits, and seek reimbursement from the estate. McCann believed that Attorney Whiting agreed with his analysis, and followed up his conversation with a letter making the request.

After receiving the letter, Attorney Whiting advised McCann that he would have to obtain approval from the Personal Representative of Susan Turmelle’s estate, before he could finally agree to McCann’s request to apply the remainder of that money to his legal fees. Nevertheless, without obtaining approval from the Turmelle Estate, McCann improperly transferred the funds from his IOLTA account to his own personal account in two installments on September 17th and October 12th, 2010.

On October 25th of 2010, Attorney Whiting advised McCann that after conferring with the Personal Representative, the Turmelle Estate would not agree to McCann applying those remaining funds to his fees. At that time, and again in January of 2012, Attorney Whiting requested that McCann return of the funds to the estate.

In March of 2012 McCann wrote to Attorney Whiting reasserting his belief that payment of the funds to Susan Turmelle’s estate would result in an “overpayment of benefits” and a claim against the estate for “recovery of overpayments by the Social Security Administration.”

In September of 2012 Attorney Whiting advised McCann that the estate was prepared to deal with the Social Security Administration, and demanded that McCann return the money to Susan Turmelle’s estate by the end of that month. Due to McCann’s failure to return the money, on October 9, 2012 Thomas Turmelle filed a grievance complaint against McCann.

Although McCann at first contested the issue, indicating that it was a fee issue that should be referred for fee arbitration, he subsequently repaid the full amount of the disputed funds to the Estate of Susan Turmelle. McCann now agrees and acknowledges that that his overall conduct by failing to promptly return the client funds to the Estate, and then failing to hold them in his trust account once it was determined that they were subject to dispute, constituted his violations of the Maine Rules of Professional Conduct, specifically Rules 1.15(d)(e) and 8.4(a)(d).

CONCLUSION AND SANCTION

The Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Attorney McCann’s conduct reflects adversely upon him as a lawyer. His conduct was prejudicial to his former client’s estate, and detrimental to the administration of justice. Attorney McCann’s misconduct was in direct violation of the Maine Rules of Professional Conduct.

At the stipulated hearing, Attorney McCann made clear his regret for his actions, and extended an apology for not handling the matter differently to the panel and those 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. Attorney McCann violated his duties as an officer of the court by failing to promptly turn the funds over to the Turmelle Estate when they were requested, and when it was clear that the funds were the subject of a dispute, by failing to place them and keep them in his IOLTA account. The substantial delay of more than two years in repaying the disputed money to the Turmelle Estate constitutes an actual injury that resulted from Attorney McCann’s misconduct. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).

In mitigation, the Panel notes that Attorney McCann now recognizes his actions were improper under the Maine Rules of Professional Conduct, and that the Board’s regulation history reflects that Attorney McCann has no prior disciplinary record.

In sum, the evidence of misconduct supports the Panel’s findings, and Attorney McCann has agreed he did in fact violate the Maine Rules of Professional Conduct. Accordingly, the Panel concludes that its issuance of a Public Reprimand is a proper sanction to impose upon Attorney McCann under the Maine Bar Rules.

Therefore, the Panel accepts the agreement of the parties including Attorney McCann’s separately executed waiver of the right to file a Petition for Review. The Panel concludes that the appropriate disposition of this case is the issuance of a Public Reprimand to Alexander F. McCann, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).


John R. Bass II, Esq. - Chair

Maurice A. Libner, Esq.

John Hutchins