Board of Overseers of the Bar v. Richard L. Currier, Esq.

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Docket No.: 13-238

Issued by: Grievance Commission

Date: October 15, 2014

Respondent: Richard L. Currier, Esq.

Bar Number: 002245

Order: Dismissal with Warning

Disposition/Conduct: Conflict of Interest; Duties to Former Client; Conduct Prejudice to the Administration of Justice


REPORT OF A PANEL OF THE GRIEVANCE COMMISSION

Introduction

On August 22, 2014 in Kennebec County Superior Court, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1 (e) (2), concerning an alleged misconduct by Respondent Richard L. Currier, Esq. The disciplinary proceeding had been commenced on March 13, 2014 by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board).

The Board in its Petition alleged that Attorney Currier had violated M. R. of Prof. Conduct 1.9 (a), Duties to Former Clients, which reads:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which the person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

At the hearing, the Board was represented by Alan P. Kelley, Esq., Assistant Bar Counsel. The Respondent was represented by Malcolm L. Lyons, Esq.

The Parties' Exhibits were admitted without objection. The following witnesses testified at the hearing:

Mark Crouch, Jr.
Richard L. Currier, Esq.
Judith Walton-Phair
Kirk Phair
James M. Dunleavy, Esq.

Findings

This matter began in 2003 when attorney Richard Currier (Currier) represented complainant Mark Crouch when Crouch was indicted and convicted of gross sexual assault against his pregnant girlfriend. Then, in 2013 Currier represented Kirk Phair (Phair) in his Motion to Modify his 2009 divorce judgment with Judy Walton-Phair (Walton-Phair). At this time Walton-Phair had custody of their two minor children. Also at this time Walton-Phair was engaged to marry Crouch.

Crouch discovered that his attorney from his 2003 gross sexual assault conviction was now representing Phair and seeking to modify his fiance’s divorce judgment. Crouch complained to Currier about a "conflict of interest" and asked him to withdraw from representing Phair in his Motion to Modify. Currier refused to do so. Crouch complained to the Board of Overseers of the Bar, leading to this disciplinary proceeding.

Crouch 's criminal history is serious and violent. In 2003 Currier represented Crouch after he was indicted for several crimes, based on his pregnant girlfriend's allegation that Crouch severely beat her; choked her; and sexually assaulted her. On December 19, 2003, after a four day trial, Crouch was convicted of Gross Sexual Assault and Assault.

The Court ordered that a confidential pre-sentence investigation be completed and a sentencing hearing was held June 8, 2004. Crouch received a sentence of20 years to the Department of Corrections, all but 10 years suspended and 6 years of probation. Among the conditions of probation were that Crouch undergo evaluation, counseling and treatment as a "sex offender" and for "certified batterer's intervention." Crouch is a registered sex offender.

Currier continued to represent Crouch in an unsuccessful application to the Law Court for leave to appeal the sentence imposed upon him. Currier did not file an appeal on Crouch’s behalf of the underlying conviction.

Shortly after his release from prison in 2012, Crouch met and started dating Walton-Phair. They had known each other from childhood. In September, 2012 Crouch was again involved in a violent episode, which resulted in him being shot. Walton-Phair was indirectly involved. On June 21, after a contested hearing, Crouch was found to have violated probation and sentenced to 5 years imprisonment.

Before this second imprisonment, in May, 2013, Crouch and Walton-Phair became engaged. Walton-Phair phoned Phair to inform him of her engagement to Crouch.

At this time Phair engaged Currier as his attorney to draft a motion to modify his divorce decree with Walton-Phair. Phair testified that his main reason for filing this motion was his difficulty with obtaining his court ordered right to visit with his two young children. However, Phair was also concerned about his wife's history of involvement with abusive men, including Crouch, and his children's exposure to such men.

Currier drafted for Phair the Motion to Modify. As to the "changed circumstances" that necessitated Phair's return to court, the motion stated:

1. Plaintiff has repeatedly interfered with my right of contact.
2. Plaintiff has repeatedly exposed the children to men who are abusive and who is [sic] a registered sex offender.
The motion sought the following changes in the divorce decree:

Award primary residence to me and allow Plaintiff contact, limit contact with sex offenders, criminals and abusers, recalculate child support and award all income tax deductions to me.

Crouch is the "registered sex offender" referenced in Phair's Motion to Modify. The underlying conviction that required Crouch to register as a sex offender was the Gross Sexual Assault conviction that Currier represented him at trial and sentencing in 2003.

At the time Phair filed this Motion to Modify he was aware that Crouch and Walton-Phair were engaged to be married.

After the Motion to Modify was filed Crouch contacted Currier and advised him that he and Walton-Phair were engaged to be married and that he considered Currier's representation of Phair in the Motion to Modify to be adverse to his interests and a "conflict of interest." When Currier declined to cease his representation of Phair, Crouch complained to the Board of Overseers in a letter dated July 8, 2013. His hand written complaint in part stated:

My [criminal] charges have nothing to do with children. So there is no stipulation not to be around children. Judy's [Walton-Phair] ex-husband Kirk Phair is taking her to court for full custody of the children and has hired Richard Currier to help him. Mr. Currier is using my case, that he defended me, against her. I called Mr. Currier and told him that was not rite cause he's the one who told me to go [?] and now he's using it against my girlfriend/fienaccy. Isn 't that a conflict of interest? How can he do that?

In his July 26, 2013 response to Crouch 's complaint, Currier stated to the Board:

Mr. Crouch did call my office and speak with me about this matter. He insisted that I was in a "conflict of interest" and should withdraw from the case. I advised him that my review of the Bar Rules suggests that there is no conflict, that he is not a party, that we have not accepted any case against a former client and, in fact, he may not even be called to testify in the case. I do not perceive that there is a violation of the Rules of Professional Conduct in this instance.

My review of the Rules of Professional Conduct lead me to believe that there has been no violation in this case. This does not involve a matter which is substantially related to the previous matter for which we provided legal services to Mr. Crouch. Further, no confidence or secrets of a former client have been used to the disadvantage of the former client. Finally, there is no evidence of misconduct by counsel in this matter. All information provided has been developed through public records. This pending family matter does not involve Mr. Crouch, except in his capacity as "fiancee" to Judy Walton-Phair.

In its Disciplinary Petition, the Board concluded its allegations as follows:

28. As a result of Currier 's prior representation of Crouch in 2003-2004, he obtained substantial confidential information relating to Crouch's history and background; the nature of his prior relationships with women; any propensities for violence or abuse that he might have; his addictions and substance abuse history; as well as other information that would be relevant in his current (Phair) client's claim that Judy Walton-Phair is exposing her children to "abusive men" and a "registered sex offender".

29. The interests of Crouch, as the fiancee of Judy Walton-Phair, are directly adverse to those of Kirk. A. Phair in his Motion to Modify.

Eventually, Currier transferred Phair's case to another lawyer in his firm and James M. Dunleavy, Esq. became Phair 's attorney. Currier testified that his reason for having Dunleavy represent Phair was not because he feared he might be in violation of the Maine Rules of Professional Conduct, but was instead due to the involvement of children and possibly DHHS in Phair's case.

At the hearing on Phair's Motion to Modify, Dunleavy questioned Walton-Phair on Crouch and his relationship with her. After hearing her answers, the Judge requested a conference of counsel and suggested that the parties reach an agreement. Walton-Phair testified at the Board's hearing that she felt that she was forced to choose between her children and Crouch.

Discussion

The Board in its Petition alleged that Attorney Currier had violated M. R. of Prof. Conduct 1.9(a), Duties to Former Clients, which reads:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which the person 's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

The Rule 1.9(a) phrase "substantially related matter" is defined by Rule 1.9(d) which reads:

(d) Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the [new] client's position in the subsequent matter.

The issue before this Panel is whether Currier's representation of Phair in his 2013 effort to modify his divorce decree with Walton-Phair is: "a substantially related matter in which the person’s interests are materially adverse to the interests of the former client...."

On its face it might appear that it is not. Currier's 2003 defense of Crouch was for criminal sexual assault. In 2013 Currier represented Phair in a family matter against his former wife Walton-Phair. Crouch is not an opposing party. He has no legal relation to Walton-Phair or to her children. While Crouch and Walton-Phair are engaged to marry, engagements do not always survive.

However, Phair submitted a Motion to Modify, as advised and drafted by Currier, that made Crouch's criminal conviction for gross sexual assault a key part of its litigation strategy. Phair knew Walton-Phair was engaged to marry Crouch. His Motion to Modify specifically asked the court to bar Walton-Phair from associating with "sex offenders, criminals and abusers."

In effect, Phair's Motion to Modify could have forced Walton-Phair to choose between her children and Crouch, the man she was engaged to marry. This would be a powerful legal strategy. At the hearing on the Motion to Modify, Dunleavy called Walton-Phair as his witness and proceeded to question her on her relationship with Crouch. The testimony was damaging and the Court suggested the parties consider an agreement. As a result Walton-Phair capitulated.

There is no doubt Crouch's sexual assault conviction was more than tangentially related to Phair's Motion to Modify.

Nonetheless, Currier argues that he has not violated Rule 1 .9 (a). He had no plans to use confidential information. Crouch 's conviction for sexual assault and the fact that he is a registered sex offender were already public knowledge.

But the test of Rule 1.9 (a) is not what information the attorney plans to use. Pursuant to Rule 1.9 (d), the matter is "substantially related" when there is a "substantial risk" that past confidences might be used. Rule 1.9 (d) reads as follows:"

(d) Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the [new] client 's position in the subsequent matter.

Emphasis added.

The Panel agrees with the Board's position that Currier did indeed know confidential information concerning Crouch that was not public. In its Disciplinary Petition the Board described this information as follows:

28. As a result of Currier 's prior representation of Crouch in 2003-2004, he obtained substantial confidential information relating to Crouch's history and background; the nature of his prior relationships with women; any propensities for violence or abuse that he might have; his addictions and substance abuse history; as well as other information that would be relevant in his current (Phair) client's claim that Judy Walton-Phair is exposing her children to "abusive men" and a "registered sex offender".

The Panel finds there was a substantial risk that confidential information known to Currier could have been used to assist Phair's Motion to Modify. The possibility alone that Currier might1 call Crouch as a witness increased the pressure on Walton-Phair to settle.

Conclusion and Sanction

This Panel unanimously concludes that when Currier accepted Phair as a client, he violated Rule 1 .9 (a), Duties to Former Clients and Rule 8.4 (a), Misconduct.

Specifically, the Panel finds that Currier’s 2013 representation of Phair in his Motion to Modify was "substantially related" to his 2003 defense of Crouch for Gross Sexual Assault. There was a "substantial risk" that Currier could have used confidential information gleaned from his 2003 representation of Crouch to "materially advance" Phair's Motion to Modify. See Rule 1.9 (d).

The Panel further concludes that the proper sanction for Currier’s violations is Dismissal with a Warning. In reaching this conclusion the Panel considered the following factors set forth in M. Bar R. 7.1(e)(3)(B), namely, whether (1) the misconduct was minor, (2) there was little or no injury to the client, and (3) there is little likelihood of repetition by the attorney.

1. The misconduct was minor.

Currier’s violation was based on a misreading of Rule 1.9. Currier testified that he did review Rule 1 .9 and decided it did not apply to taking Phair as a client. Currier believed that he would not violate Rule 1 .9 (a) because any information he might use concerning Crouch was already public knowledge (e.g., Crouch’s convictions and listing on the sex registry). Currier failed to consider the restriction of Rule 1.9 (d), which barred him from representing Phair when there was "a substantial risk" that the confidential information he possessed about Crouch could have assisted Phair's Motion to Modify.

2. There is little or no injury to Walton-Phair.

Currier did indeed draft Phair's Motion to Modify and asked the Court to limit her association with Crouch. However, this was a strategy initiated by Phair, who informed Currier that Walton-Phair had exposed their children to abusive men. If Phair had engaged a different attorney, it is reasonable to assume this legal strategy would also have been pursued.

3. There is little likelihood of repetition by Currier of this error.

At his hearing on this matter Currier argued forcefully for his interpretation of Rule 1 .9, but there was no suggestion that he would not abide by the Panel's decision if it ruled against him.

Accordingly, the Board's Complaint against Richard L. Currier, Esq. is hereby dismissed, with the following warning to Attorney Currier:

Rule 1.9(a), as defined by Rule 1.9(d), sets forth your duty to your former clients. Unless your former client grants you informed permission in writing, you may not accept a new client if there is a substantial risk that confidential information learned from representing your former client would materially advance your new client 's case. This prohibition applies even if your former client will not be an actual party in any matter your new client might pursue.


Grievance Commission Panel D

James A. McKenna III, Esq., Panel Chair
Mary A. Denison, Esq., Panel Member
Emile Van Eeghen, Public Member


1Currier stated to the Board in his written response to Crouch 's complaint that Crouch "may not even be a witness."