Board of Overseers of the Bar v. David J. Van Dyke, Esq.

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Docket No.: GCF#14-476

Issued by: Grievance Commission

Date: September 30, 2015

Respondent: David J. Van Dyke, Esq.

Bar Number: 007227

Order: Reprimand

Disposition/Conduct: Communication, Candor toward the Tribunal, Responsibilities Regarding Nonlawyer Assistants, Conduct Prejudicial to the Administration of Justice


STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION
M. Bar R. 13 & 25

On August 20, 2015, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) and 25(b) concerning misconduct by Respondent David J. Van Dyke, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on June 11, 2015.

At the hearing, Respondent Attorney Van Dyke was present and represented by Attorney Jennifer N. Ferguson, and the Board was represented by Bar Counsel J. Scott Davis. Complainant Attorney Leonard I. Sharon did not attend the hearing. Bar Counsel had earlier provided Attorney Sharon with a copy of the parties’ proposed Report. In that regard, prior to the disciplinary proceeding the parties filed with the Clerk a proposed stipulated sanction Report for the Grievance Commission Panel’s review and consideration. That filing also included Respondent Van Dyke’s “Affidavit of Consent” pursuant to M. Bar R. 25(b).

Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:

FINDINGS

Respondent David J. Van Dyke, Esq. (Van Dyke) of Lewiston, 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 and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Van Dyke was admitted to the Maine Bar in 1991 and he is currently a partner with the law firm of Lynch & Van Dyke, P.A. in Lewiston, Maine

Sharon’s complaint concerns Van Dyke’s involvement and representation of his client, Lori Baillargeon, in her divorce litigation against her husband, Gary Baillargeon, in the Lewiston District Court. Sharon is Gary’s attorney in that family matter. In his initial response to Sharon’s complaint, Van Dyke asserted that Lori was a disabled, anxious victim of both domestic violence and a history of domination and intimidation by Gary (a police officer and a good friend of Sharon), and that she had experienced seizing and secreting of marital monies and assets by Gary throughout the marriage.

On March 24, 2014, a Preliminary Injunction automatically issued that ordered the parties not to “sell, transfer, give away, encumber, conceal, or dispose of any property owned individually or jointly by the parties, unless it is done (a) with the written consent of both parties, (b) to purchase the necessities of life, (c) in the usual course of a business owned by either party, or (d) with the permission of the court.”

At that time, Lori and Gary held a Church Extension Plan account (“Church account”) jointly, in the amount of $33,338.09, and those funds had not been touched by either of them since being deposited therein upon receipt through an inheritance several years prior to the commencement of the parties’ divorce.

On May 27, 2014, believing that she was acting under the advice of Van Dyke, Lori withdrew the total balance of the Church account and on June 11, 2014 she deposited those funds into an account at Rainbow Credit Union (“Rainbow account”), to which only Lori and her mother had access. Gary did not receive notice from Lori or give any consent allowing her to remove any or all of the funds from the Church account, nor did Lori seek any permission from the court to do so. At a contempt hearing on September 16, 2014, Lori testified that Van Dyke was informed and aware of her transfer and concealment of the Church account funds and resulting denial of Gary’s access to the funds. Van Dyke’s recollection is that he was only made aware of that transfer after it had occurred.

By issuance of its Order on Defendant’s Motion for Contempt of October 9, 2014, the District Court found that Lori’s creation of the Rainbow account had violated the Preliminary Injunction.

Van Dyke admits and agrees that he did advise Lori to secure all the funds in the Church account, but states that his recommendation for her to secure the funds was only to be undertaken by her in the following context:

  1. Lori was to spend no monies other than for the necessities of life;
  2. She was to maintain a complete accounting; and
  3. She was supposed to disclose the existence of the account to Gary.

In fact, however, while Lori did maintain a complete accounting, she failed to limit her spending to the necessities of life and failed to disclose the existence of the account to Gary. In addition, Van Dyke agrees that he failed to follow up with Lori on whether and how she had secured the account, that he failed to timely learn of the existence of that new Rainbow account, and that he did not take remedial steps after he learned of the existence of that new account to compel the monies to be returned to a joint account with Gary.

Van Dyke now agrees and admits that his advice to Lori was ambiguous and potentially confusing with respect to the proper means of “securing” the account, and that his lack of follow-up led to Lori’s actual withdrawal of funds from the jointly held Church account and to her deposit of those funds in a new account to which Gary had no access.

Van Dyke further admits and agrees that those actions resulted in the court finding a violation of the terms of the Preliminary Injunction. As a result, he also admits his conduct violated M.R. Prof. Conduct 1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions), M. R. Prof. Conduct 3.3(b)(a lawyer who knows that a person has engaged in fraudulent conduct shall take reasonable remedial measures) and 8.4(d)(engaging in conduct prejudicial to the administration of justice).

In addition, on June 12, 2014 Lori signed interrogatories under oath that stated that she and Gary had a joint account, the Church account, and that the account was still in existence with a balance of $33,904.69. When also asked therein to identify any financial accounts held “solely in [her] name or jointly with any person or persons,” Lori signed under oath that she only had a checking and savings account with Gary, failing to mention or disclose the existence of the Rainbow account which was then held jointly in Lori’s and her mother’s name. Lori testified at her deposition and these omissions were innocent mistakes on her part.

In Van Dyke’s initial response to Sharon’s complaint concerning Lori’s false interrogatories, he claimed that he did not knowingly offer the false interrogatories because he had “played no role whatsoever in the preparation of (Lori’s) answers to interrogatories,” which had been “completed between (Lori) and (his) secretary…” He also stated therein that he “does not routinely get intimately involved in a client’s production of civil discovery.”

With respect to Lori’s submission of false interrogatories, Van Dyke agrees and admits that he was required but failed to properly make reasonable efforts to ensure that his secretary’s conduct complied with his own professional obligations as a lawyer as required by M. R. Prof. Conduct 5.3(b)(attorney’s requirement to have remedial measures in place to ensure proper conduct by law firm’s non-lawyer employees). Furthermore, Van Dyke also agrees and admits that he was obligated but failed to take reasonable action, i.e., making sure his client promptly corrected the answers if the false information was innocently provided, or notifying the court and Sharon, if he was aware that Lori had engaged in fraudulent conduct by submission of her false interrogatories, such inaction by him, or his staff acting under his supervision, constitutes a violation of M. R. Prof. Conduct 3.3(b)(candor to a tribunal).

CONCLUSION AND SANCTION

The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients and the courts. The panel notes that Van Dyke has taken responsibility for his violations of the following Maine Rules of Professional Conduct: 1.4(b)(explanation of a matter to the extent necessary to permit the client to make informed decisions); 3.3(b)(a lawyer who knows that a person has engaged in fraudulent conduct shall take remedial measures); 5.3(b)(making reasonable efforts to ensure non-lawyer staff’s conduct is compatible with the Maine Rules of Professional Conduct); and 8.4(d)(conduct prejudicial to the administration of justice).

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. Since the evidence supports a finding and Attorney Van Dyke agrees that he did in fact violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.

Therefore, the Panel accepts the agreement of the parties, including Attorney Van Dyke’s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to David J. Van Dyke, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e) and 25.

Date: September 30, 2015



John C. Hunt, Esq., Acting Chair
Jennifer E. Hoopes, Esq., Panel Member
Marjorie M. Medd, Public Member