Board of Overseers of the Bar v. Pamela S. Holmes, Esq.

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Docket No.: 13-145

Issued by: Board of Overseers of the Bar

Date: December 15, 2014

Respondent: Pamela S. Holmes, Esq.

Bar Number: 008973

Order: Dismissal with Warning

Disposition/Conduct: Knowingly disobeying an obligation under the rules of a tribunal


REPORT OF A PANEL OF THE GRIEVANCE COMMISSION

FINDINGS AND ORDER

This matter was the subject of a hearing before the Grievance Panel on November 24, 2014. The office of Bar Counsel was represented by Aria Eee, and the respondent was represented by Peter DeTroy.

The Complainant, who is the Judge of Probate for York County, and the Respondent have a historical and a troubled relationship. From February, 2002 to July, 2003, Respondent worked as an attorney in the Complainant’s law firm, at that time, Nadeau and McGarry. Subsequently, the Respondent left the firm and became a partner of the Complainant’s former law partner, McGarry, for some seven years. This resulted in the initiation of litigation between the parties in Superior Court. Subsequently, Complainant filed a number of complaints against Respondent before the Grievance Commission, and Complainant, in his private law practice, commenced a civil action on behalf of one of his clients against a number of parties, including a claim naming the Respondent personally as a party Defendant. That action was dismissed as against Respondent.

That the Complainant harbors personal bias against the Respondent is not in dispute (“The personal bias I harbor against Attorney Holmes and against certain others is not unprecedented among judges…” Board Exhibit 11, page 2)

It is the position of Bar Counsel that Respondent violated three (3) of the Rules of Professional Conduct; namely, 3.4(c), 4.4, and 8.4:

Rule 3.4. Fairness to opposing party and counsel

A lawyer shall not:

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

Rule 4.4. Respect for rights of third persons; inadvertent disclosures

(b) A lawyer who receives a writing and has reasonable cause to believe the writing may have been inadvertently disclosed and contain confidential information or be subject to a claim of privilege or of protection as trial preparation material.

(1) shall not read the writing or, if he or she has begun to do so, shall stop reading the writing;

(2) shall notify the sender of the receipt of the writing; and

(3) shall promptly return, destroy or sequester the specified information and any copies.

The recipient may not use or disclose the information in the writing until the claim is resolved, formally or informally. The sending or receiving lawyer may promptly present the writing to a tribunal under seal for a determination of the claim.

***

Rule 8.4. Misconduct

It is professional misconduct for a lawyer to:

(d) engage in conduct that is prejudicial to the administration of justice;

The immediate facts giving rise to this grievance commenced shortly after the Complainant was elected in November of 2012 as Probate Judge of York County. Under the prior Probate judge, Respondent and several other attorneys in her office had been practicing in the York Probate Court, both as privately retained attorneys and accepting appointment by the court, in cases pertaining to protective proceedings.

Shortly after his election, but prior to Complainant’s taking office (in January of 2013), Complainant sent an e-mail to the Register of Probate, indicating that he did not want Respondent or her associated attorneys to be considered for court appointments in such cases, as he doubted their integrity. The e-mail was a public record as broadly defined in the Freedom of Access Law, 1 M.R.S.A. 402(3), and does not appear to be within any of the statutory exceptions set forth in that statute 1. The Respondent, in conversation with the Register, learned of the existence of this e-mail and requested a copy. After consulting with the County Manager, and through him, the attorney for the County, Respondent was forwarded a copy of the email. Subsequently, hearing from other sources that there was another e-mail from the Complainant that discussed her firm, and cognizant of the history with the Complainant, Respondent filed a request “under the Freedom of Information Act” (intending to refer to Maine’s Freedom of Access statute) for production of the other e-mail. The request was forwarded to the County Manager and to the County’s attorney, and it was ultimately brought to the attention of the Complainant, who, by this time had been sworn in as Probate Judge. The Complainant issued an order in a pending case (Board Exhibit 7) requiring that the November email be sealed, that the Respondent must destroy all copies of it and certify her compliance within 7 days of the order.

This created a dilemma for the Respondent, who was faced with unattractive alternatives of complying with this order and destroying a public record, without any assurance that a copy of the document would be preserved as part of a record on appeal, or disobeying an order of the court. See M.R. Prof. Conduct 3.4(a).

Respondent took steps to effectively seal the e-mail and ensure that it was unavailable within and outside her office, and made no further use of the email, but it is undisputed that she failed to comply with the order to destroy it and certify that she had done so.

Complicating the issues faced by Respondent was the pendency of a series of cases her office had in the Probate Court. Some of the billings for the appointed counsel cases had been approved only at reduced level, and a review by Respondent or her associates of other cases entailing appointed counsel from other offices, indicated that the fees of other law offices were not being similarly reduced. One of her associated attorneys had requested that several of her cases be transferred to another Probate Judge; and in several cases the Complainant declined to transfer the cases, and in others, rather than transfer the cases, Complainant treated the request as a request by counsel to withdraw and he appointed replacement counsel.

Respondent sought the advice of another experienced and trusted attorney in York County and also that of Attorney Peter DeTroy. Attorney DeTroy suggested that Respondent file a complaint with the Committee on Judicial Responsibility and Disability against the Complainant, but Respondent, having already been sued by, and grieved against by the Complainant, hoping that the problem would simply go away, and also concerned about the likelihood that the progress of her clients’ cases could be held up, declined to file that Complaint.

There was some discussion of an appeal, but this entailed both a significant risk that an appeal of a non-final judgment would be found by the Law Court not to be within any of the established exceptions to the final judgment rule and thus that the appeal would not be entertained; and there was also the certainty of increasing the cost to the clients by inflicting upon them the expense of an appeal, simply because of whom they chose to employ as counsel, or whom the prior Probate Judge had appointed as counsel; and there was also the absolute consequence that an appeal (if not dismissed by the Law Court as interlocutory) would impose a delay of at least five or six months upon the progress of the clients’ cases.

In response to these orders Respondent filed written objections to the Complainant’s orders and attached, as an exhibit, copies of the e-mail she had been ordered to destroy. There is no evidence that the Complainant has ordered the Respondent’s objections – to which were attached copies of the offending e-mail – to be sealed.

Nonetheless, the Complainant filed this grievance asserting that the Respondent violated the Maine Rules of Professional Conduct by failing to comply with his court order to destroy the November e-mail.

The panel is mindful that the Respondent did not in fact comply with the court’s order, which required the destruction of a copy of a public record that had been lawfully obtained by the Respondent.

Because this e-mail was a public record under the Freedom of Access Law, of course, it was a document that could have been obtained by anyone. Even if the Respondent had obeyed the court order, there was nothing to prevent her – or anyone – from turning around and requesting and obtaining the document anew, under the provisions of 1 M.R.S.A. 408-A.

However, the Respondent reasonably perceived that she was faced with serious consequences – not merely to herself but also to the other lawyers in her office, and most importantly to her clients, by complying with the order, thereby risking the absence of a record for an appeal; and, in the alternative, filing an interlocutory appeal , without any certainty that the Law court would entertain it, and thereby certainly inflicting a serious delay in the clients’ then-pending litigation (Rule 3.2, failing to expedite litigation) and imposing substantial cost to the clients.

RULES ALLEGED TO HAVE BEEN VIOLATED

Rule 4.4 The Panel can quickly dispose of Rule 4.4, in that the rule addresses an entirely different set of issues, relating to a lawyer having “…reasonable cause to believe the writing may have been inadvertently disclosed and contain confidential information or be subject to a claim of privilege or of protection…” Here, the document is a public record and hence cannot be said to be within the ambit of Rule 4.4.

Rule 3.4(c) It is clear from the evidence that the Respondent did in fact disobey an express order of the court. It is also clear that the very same rule guards against willful destruction of evidence by prohibiting a lawyer from “…unlawfully alter[ing], destroy[ing] or conceal[ing] a document or other material having potential evidentiary value.” Every attorney has had the experience of having a judge sustain an objection to a piece of his or her proffered evidence and persisting in offering the evidence on some other ground - often in opposition to the court’s prior ruling, and sometimes occasioning the ire of the judge2. Nonetheless, the Rule should not be construed as an invitation to disobey a court order.

Rule 8.4 The allegation of conduct that is prejudicial to the administration of justice, is always and necessarily a matter of degree and judgment. Under the circumstances of this case, we cannot find a violation of Rule 8.4.

APPROPRIATE SANCTION

The grounds for the Commission to issue a dismissal with a warning are as follows:

Me. Bar R. 7.1(E)(3)(B):

(B) Dismissal With A Warning. If the disciplinary panel finds that misconduct subject to sanction under these rules has occurred; that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by the attorney, the panel may dismiss the complaint with a warning …

Here, where the document which Respondent failed to destroy is one, the production of which could have been compelled anew under the Freedom of Access Law, even had it been destroyed in compliance with the court’s order, the commission finds that the misconduct can be said to be minor.

Although we recognize that the failure of counsel to comply with a court order can never be characterized as inflicting no injury upon the legal system, the provisions of the rule do not require a finding of no injury; rather the language of the rule refers to little or no injury; in addition, it cannot be described as any tangible injury to a client, the public, the legal system or the profession. The document which was subject of the destruction order was a public one that is available to all citizens.

Finally, there is no showing that there is any likelihood of repetition here. The only likelihood of repetition could arise if the Complainant once again orders the destruction by Respondent of a public record, which the panel deems - and hopes – to be unlikely.

Having thus concluded, we proceed to dismiss, but include this warning: The compliance by counsel with a direct order of a court is a serious matter that should not in the future be overlooked.

December 15, 2014.

BY:

Robert S. Hark, Esq., Regular Panel B Member

Sallie Crittenden, Panel B Lay Member

Maurice A. Libner, Esq., Chairman Panel B


1At the time of the creation of the document, the Complainant had been elected but not yet sworn in as Probate Judge; hence this was not a communication between a probate judge and the Register. Had this not been the case, it is possible that the exception in 1 M.R.S.A. 402(3)(B) for “…Records that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records or inspection thereof were sought in the course of a court proceeding…” might have been applicable.

2This is a function of the lawyer’s obligation to be competent (Rule 1.1) and exercise diligence (Rule 1.3) on behalf of a client.