Board of Overseers of the Bar v. Dale L. Lavi, Esq.

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Docket No.: GCF#15-056

Issued by: Grievance Commission

Date: August 20, 2015

Respondent: Dale L. Lavi, Esq.

Bar Number: 008848

Order: Findings

Disposition/Conduct: Probable cause found for further proceedings before the Court


Findings and Order of Panel D of the Grievance Commission
M. Bar R. 13

INTRODUCTION

On July 23, 2015, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Bar Rule 13(e)(7) concerning misconduct by Respondent David L. Lavi, Esq. On June 5, 2015 Bar Counsel J. Scott Davis filed with the Board of Overseers of the Bar [Board] a Disciplinary Petition. On June 10, 2015 the Board served this Disciplinary Petition on Attorney Lavi along with a Summons requiring him to answer the Petition within twenty days.

This Summons specifically warned Mr. Lavi that failure to file an answer to the Disciplinary Petition within 20 days from the date of service would mean that the misconduct alleged in the Petition “shall be taken as admitted, but you may be heard on the question of sanctions.” Mr. Lavi did not answer the Board’s Petition. However, Mr. Lavi did appear at the July 23, 2015 public disciplinary hearing and addressed the Panel. He was not represented by counsel.

BOARD DISCIPLINARY PETITION

Because Mr. Lavi failed to respond to the Board’s Petition, pursuant to M. Bar R. 13(e)(3), the facts set forth and the misconduct alleged in the Board’s Disciplinary Petition are taken as admitted by Mr. Lavi (see M. Bar R. 20(a)). Therefore, the Panel adopts in total the assertions in the Board’s Petition:

  1. Petitioner is the Board of Overseers of the Bar.
  2. Respondent is Dale L. Lavi of Camden, Maine. Lavi is and was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC).
  3. The Board asserts upon information and belief within paragraphs #4 through #24 that Lavi engaged in conduct that violated specific portions of the Maine Rules of Professional Conduct (MRPC) that warrants the imposition of discipline.
  4. Kenneth R. Artkop of Searsmont, Maine filed a complaint against Lavi on February 23, 2015.
  5. In that filing, Artkop complained that Lavi has seriously neglected his and his wife's (Jill) bankruptcy matter that Lavi was hired to handle nearly three years ago, in the summer of 2012.
  6. According to Artkop, Lavi was disorganized, failed to return many phone calls brought the wrong file to a discussion meeting, and was repetitive at the few meetings he had with the Artkops.
  7. Artkop also asserted that Lavi has been unreachable by phone, both prior to and subsequent to Lavi having submitted his grievance complaint, and has failed to return their client file.
  8. The Artkops had paid Lavi $1,500.00 to legally represent them and properly handle their bankruptcy matter.
  9. On February 24, 2015 Bar Counsel mailed a copy of the Artkop grievance filing to Lavi, requesting and directing that Lavi submit a written response thereto by March 17, 2015.
  10. Lavi never filed any such written response, in violation of MRPC 8.1(b).
  11. Lavi’s being accessible by phone was later confirmed by Bar Counsel Assistant, Marilyn DeMichele, who had a similar experience on March 25, 2015.
  12. On that date, DeMichele both telephoned and emailed Lavi confirming that his response remained overdue, and requesting that he submit a written response by April 3, 2015.
  13. On that same date, March 25, 2015, Bar Counsel again wrote to Lavi, directing him to so respond to the Artkop grievance by April 3, 2015.
  14. Lavi failed to so respond by that date or at any time.
  15. In that regard, Lavi has totally neglected the discipline process by failing to submit any response whatsoever, in violation of Rule 8.1(b).
  16. On or about April 28, 2015, Jill Artkop spoke by telephone with Lavi. In that call, Lavi claimed that he had earlier mailed the Artkops their file materials, but was unable and failed to provide any confirmatory information of when or how he had done so.
  17. In that call, Lavi also promised Jill that he would again mail those documents to the Artkops on that date, April 28, 2015.
  18. Lavi failed to do so, as the Artkops have never received any of their bankruptcy file documents from Lavi. As a result, Lavi engaged in conduct that violated MRPC 1.1; 1.3; 1.4(a); 1.5(a); 1.15(b)(2)(iv); 1.16(d); and 8.4(a)(c)(d).
  19. In addition to the above-described difficulties and failures the Artkops have experienced with Lavi, they have been further injured from his misconduct by needing to hire new replacement counsel, resulting in additional legal fees, filing fees (totaling at least $2,000.00) and other monetary damages.
  20. The new attorney for the Artkops has also written and telephoned Lavi with similar requests, but has also received no response or any documents from Lavi.
  21. Upon a recent visit to Lavi’s office in Camden, Artkop discovered it to be abandoned.
  22. On or about May 19, 2015, Bar Counsel also left a voicemail and email for Lavi to directly contact Bar Counsel concerning the return of the Artkops' file.
  23. Lavi never replied in any manner to Bar Counsel's call, emails or letters, in violation of MRPC 8.1(b).
  24. Based on the facts set forth in the above, the Board alleges that Dale L. Lavi, Esq. engaged in violations of at least the following Maine Rules of Professional Conduct: 1.1; 1.3; 1.4(a); 1.5(a); 1.15(b)(2)(iv); 1.16(d); 8.1(b); and 8.4(a)(c)(d).

JULY 23, 2015 HEARING

At the July 23, 2105 disciplinary hearing both Mr. Lavi and Kenneth and Jill Artkop were present and addressed the Panel. They were not placed under oath. The Panel considered their comments during its deliberations as to the proper resolution of the Artkops’ complaint.

The Artkops confirmed Mr. Lavi’s neglect of their bankruptcy action, as described in the Board’s Disciplinary Petition, and described how his neglect had damaged them.

Mr. Lavi confirmed the Board’s repeated efforts to have him respond to the Artkops’ complaint and he confirmed his repeated silence. He stated that several months ago he had closed his Camden, Maine office and moved his solo practice to his home in So. Thomaston. At the current time his practice consists almost entirely of criminal defense work, with perhaps 40 active clients. He stated that he was skilled at criminal defense work. Such work fulfilled the reason he had become a lawyer, to help people in need.

This, however, was not the case with his bankruptcy work, and when Mr. Lavi received the Board’s thick mailings describing the Artkops’ complaint, he was not emotionally able to even open them. He feared that if he read the Artkops’ complaint it would so emotionally consume him that he would not be able to provide good service to his criminal clients. He was frightened.

Mr. Lavi emphasized that he had indeed attempted to mail to the Artkops their bankruptcy file. He could not explain why neither they nor their new attorney ever received it.

VIOLATIONS OF MAINE RULES OF PROFESSIONAL CONDUCT

The Panel concludes that Mr. Lavi intentionally, knowingly and negligently violated the following provisions of the Maine Rules of Professional Conduct:

Rule 1.1, Competence: he failed to provide the Artkops with competent representation in their effort to declare bankruptcy.

Rule 1.3, Diligence: he eventually ignored the Artkops’ case.

Rule 1.4, Communication: he ignored the Artkops repeated attempts to communicate with him.

Rule 1.5, Fees: he collected from the Artkops an unreasonable fee.

Rule 1.15, Safekeeping property, Client trust Accounts, Interest of Trust Accounts: he has failed to return the Artkops’ bankruptcy file.

Rule 1.16, Declining or Terminating Representation: he has not formally terminated his representation of the Artkops; he has ignored them.

Rule 8.1, Bar Admission and Disciplinary Matters: he ignored the Board’s disciplinary proceedings until the day of the hearing, when he appeared.

Rule 8.4 Misconduct: in violating the above Rules of Professional Conduct, he has engaged in conduct that is prejudicial to the administration of justice.

SANCTION

After hearing the comments of the Artkops and Mr. Lavi, the Panel closed the hearing and commenced its deliberations. Given Mr. Lavi’s failure to answer the Board’s charges, the only issue before the Panel was the matter of appropriate sanction for his misconduct.

Before reaching its decision the Panel reviewed a February, 2010 Stipulated Report of Findings and Order of Panel C of the Grievance Commission. In that Order, Mr. Lavi agreed to a Public Reprimand for his failure to properly represent a client in consumer debt matters.1

Pursuant to M. Bar R. 13 (e)(10)(E), based on the facts set forth in the Board’s Petition and on the comments made by the Artkops and Mr. Lavi at the hearing, the Panel finds there is probable cause for suspension or disbarment and hereby directs Bar Counsel to file an Information pursuant to M Bar R. 13(g).

In closing, the Panel notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties.

Date: August 20, 2015


James A. McKenna, Esq., Panel Chair
Mary A. Denison, Esq., Panel Member
Emilie van Eeghen, Public Member


1The agreed upon facts in the 2010 disciplinary action were similar to this instant case:

”Undoubtedly, his [Mr. Lavi’s] failure to timely communicate or meet with Ms. Miller in order to file her bankruptcy and to avoid garnishment of her wages resulted in real harm to Ms. Miller….”