Board of Overseers of the Bar v. Joe Lewis, Esq.

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Docket No.: GCF# 13-074

Issued by: Grievance Commission

Date: October 29, 2013

Respondent: Joe Lewis, Esq.

Bar Number: 004800

Order: Reprimand

Disposition/Conduct: Failure to deposit and maintain legal fees that have been paid in advance into a client trust account until fees were earned.


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

On October 29, 2013, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Joe Lewis, 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 September 20, 2013.

At the October 29, 2013 hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley and Attorney Lewis appeared with his counsel, Peter J. DeTroy, Esq. Prior to that hearing, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel’s review and consideration. As the underlying complaint was brought by Bar Counsel sua sponte, no complainant was present at the hearing. Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following findings and disposition:

FINDINGS

Respondent Joe Lewis of Portland, 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 Lewis is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Attorney Lewis was admitted to the Maine Bar in 2011 and is currently registered as an active Maine attorney.

On November 28, 2012, Lewis contacted the Board of Overseers by email indicating that he had “likely” engaged in conduct that would constitute violation of “at least one” of the Maine Bar Rules, and that he wanted to begin the process of self-reporting.

On February 11, 2013, Lewis, through Counsel, self-reported that he had six instances where he received cash payments from clients, and failed to promptly deposit those funds into his Trust (IOLTA) Account.

On November 1, 2011, Lewis was paid $1,000 in cash as a retainer by Christopher Geisinger with a fee agreement that specified that the money would be placed in his client trust account and that his fees would be billed monthly against the retainer.

Lewis admits that despite the provisions of his fee agreement and the requirements of the Maine Rules of Professional Conduct 1.15(a)(b), that he failed to deposit the cash he received into his Client Trust (IOLTA) Account.

According to Lewis, his actual fees exceeded the $1,000 retainer; however, he never sought further payment from Geisinger beyond the initial retainer, and the entire $1,000 was earned.

On November 25, 2011 Lewis was paid $1,200 in cash as a retainer by Juli Larrabee along with a signed acceptance by her of his “fee sheet”, and its terms. Juli Larrabee paid an additional $600 in cash toward the retainer within a few weeks of her first payment.

Lewis admits that despite the requirements of the Maine Rules of Professional Conduct 1.15(a)(b), that he failed to deposit the $1,800 in cash that he received from Juli Larrabee into his Client Trust (IOLTA) Account.

According to Lewis, his actual fees exceeded the $1,800 in cash payments, and additional fees were ultimately billed by him and paid by Juli Larrabee.

On February 16, 2012, Lewis was paid $2,500 in cash as a retainer by Stephen Larrabee with a fee agreement that specified that the money would be placed in his client trust account and that his fees would be billed monthly against the retainer.

Lewis admits that despite the provisions of his fee agreement and the requirements of the Maine Rules of Professional Conduct 1.15(a)(b), that he failed to deposit the cash he received into his Client Trust (IOLTA) Account.

According to Lewis, his actual fees were slightly less than the $2,500 retainer; however, by agreement of his client the credit balance was applied to the outstanding balance owed on the account of his wife, Juli Larrabee.

On July 17, 2012, Lewis was paid $2,500 in cash as a retainer by Ashly Brown with a fee agreement that specified that the money would be placed in his client trust account and that his fees would be billed monthly against the retainer.

Lewis admits that despite the provisions of his fee agreement and the requirements of the Maine Rules of Professional Conduct 1.15(a)(b), that he failed to deposit the cash he received into his Client Trust (IOLTA) Account.

According to Lewis, his actual fees exceeded the $2,500 retainer; however, he “wrote off” the outstanding balance, and did not seek further payment from Ashly Brown beyond the initial retainer of $2,500.

On September 12, 2012, Lewis was paid $2,500 in cash as a retainer by Iuliana Voinea with a fee agreement that specified that the money would be placed in his client trust account and that his fees would be billed monthly against the retainer.

Lewis admits that despite the provisions of his fee agreement and the requirements of the Maine Rules of Professional Conduct 1.15(a)(b), that he failed to deposit the cash he received into his Client Trust (IOLTA) Account.

According to Lewis, On November 26, 2012, two days prior to instituting his self-report to the Board of Overseers of the Bar, he deposited $1,450 representing the unearned portion of Ms. Voinea’s retainer into his Client Trust (IOLTA) Account.

On November 7, 2012, Lewis was paid $1,500 in cash as a retainer by Sandra Hutchins with a fee agreement that specified that the money would be placed in his client trust account and that his fees would be billed monthly against the retainer.

Lewis admits that despite the provisions of his fee agreement and the requirements of the Maine Rules of Professional Conduct 1.15(a)(b), that he failed to deposit the cash he received into his Client Trust (IOLTA) Account until approximately three weeks later on November 26, 2012, two days prior to instituting his self-report to the Board of Overseers of the Bar.

As a result of the foregoing, Lewis has admitted receiving a total of $11,800 in cash representing client funds subject to his obligation to keep those funds separate, and to deposit them in a Client Trust (IOLTA) Account. His failure and/or delay in doing so constitutes a violation of the Maine Rules of Professional Conduct (M.R.P.C.) 1.15(b)(1). Accordingly, Attorney Lewis agrees that his conduct constituted a violation of M.R.P.C. 1.15(b)(1).

CONCLUSION AND SANCTION

The Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. In 2012 Attorney Lewis received on six occasions client funds subject to his obligation to be held in a separate trust account until they were earned. His failure to do so was a violation of the Maine Code of Professional Responsibility.

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)(C). Attorney Lewis violated his duties as an attorney by failing to deposit his clients’ funds in the trust account as required by his fee agreements and by the M.R.P.C. While it appears that the client funds were ultimately credited to his client’s accounts, and that no client suffered actual economic harm as a result of Lewis’ failure, Lewis’ violations of his agreements with his clients, as well as his obligations under the Maine Rules of Professional Responsibility, were significant and cannot be characterized as “minor”. Mitigation does exist because Lewis recognized his errors, self-reported to the Board, and the Board’s regulation history reflects that Attorney Lewis has no prior disciplinary record. Finally, at the stipulated hearing, Attorney Lewis made clear his remorse for his actions related to these matters.

In sum, the evidence of misconduct supports the Panel’s findings, and Attorney Lewis agrees he did in fact violate the Maine Rules of Professional Conduct on multiple occasions. Although it does not appear that any client suffered actual injury, there was the potential for financial injury caused by Attorney Lewis's misconduct. In mitigation, Attorney Lewis self-reported his misconduct, and he has no prior misconduct on his record. Accordingly, the Panel concludes that a public reprimand is a proper sanction to impose upon Attorney Lewis.

Therefore, the Panel accepts the agreement of the parties including Attorney Lewis’s separately executed waiver of the right to petition for a review of the action of this Panel in imposing the agreed upon sanction pursuant to Rule 7.2(a). The Panel concludes that the appropriate disposition of this case is the issuance of a Public Reprimand to Joe Lewis, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).


Martha C. Gaythwaite, Esq. Chair

Peter C. Fessenden, Esq.

Richard P. Dana