Board of Overseers of the Bar v. Heather J. Smith

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Docket No.: GCF# 13-041

Issued by: Grievance Commission

Date: November 5, 2013

Respondent: Heather J. Smith

Bar Number: 004082

Order: Reprimand

Disposition/Conduct: Failure to file an affidavit attesting compliance with the provisions of M.B.R. 7.3(i)(2); Failure to respond to a lawful demand for information from a disciplinary authority


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 alleged misconduct by the Respondent, Heather J. Smith. This disciplinary proceeding was commenced by the filing of a Grievance Complaint by the Board of Overseers of the Bar (the Board) on January 29, 2013.

At the hearing, the Respondent was not present and the Board was represented by Assistant Bar Counsel Alan P. Kelley.

The Panel makes the following disposition:


Respondent Heather J. Smith (Smith) of Woodstock, Georgia was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of professional conduct.

Smith was admitted to the Maine bar in 2007 and she is currently subject to an administrative non-disciplinary suspension.

On October 22, 2012 Smith was administratively suspended by the Board for her failure to report CLE credit and her failure to register and pay the fees required by Maine Bar Rules 6(a)(l), 10(a) and 12, as well as Rule 3(a) of Maine's Rules For Lawyers' Fund For Client Protection. Smith did not file the affidavit certifying her compliance with Maine Bar Rule 7.3(i)(2) as required within 30 days after that suspension date. The Board sent a certified letter on November 29, 2012 which notified Smith of the consequence of her failure to file that required affidavit.

On January 29, 2013, Bar Counsel docketed a sua sponte grievance complaint against Smith for to her failure to comply with the affidavit requirements. Smith did not respond to the investigation of this grievance matter in violation of M. R. Prof. Conduct 8.1(b). On June 25, 2013 a panel of the Grievance Commission reviewed Smith's actions and, based upon that review, found probable cause to believe that she had engaged in misconduct subject to sanction under the Maine Bar Rules.

On July 17, 2013, the Board filed a Disciplinary Petition. On August 8, 2013, Smith was served with a copy of the Disciplinary Petition. Smith failed to file an answer to the Disciplinary Petition. To date, Smith has not filed an affidavit certifying compliance with the requirements of M. Bar R. 7.3(i)(2)(A)(B).


Smith violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). As a consequence of her administrative suspension, she is not currently a licensed member of the Maine Bar, nor has she completed a change of status to inactive or withdrawn.

M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather is 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. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 2.1(e)(3)(C).

The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Smith violated her duties to the legal system by failing to complete the annual registration requirements in 2012 and, by failing to file the required notification affidavit once she was administratively suspended. Smith's neglect caused minor injury to the legal system. The Maine Supreme Judicial court promulgated the Maine Bar Rules and the Maine Rules of Professional conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.

Smith's continuing failure to file an affidavit complying with M. Bar R. 7.3(i)(2)(A)(B) is an aggravating circumstance. There are, however, mitigating circumstances such as the fact that the misconduct is not the result of dishonest or selfish motives, and the fact that Smith has no prior disciplinary record.

Because the evidence supports a finding that Smith did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Heather J. Smith which is now hereby issued and imposed upon his pursuant to M. Bar R. 7.1(e)(3)(C), (a).

For the Panel:

Martha C. Gaythwaite, Esq., Chair

Peter C. Fessenden, Esq.

Richard P. Dana