Board of Overseers of the Bar v. William D. Maselli, Esq.

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Docket No.: GCF#05-402

Issued by: Grievance Commission

Date: April 19, 2007

Respondent: William D. Maselli, Esq.

Bar Number: 003853

Order: Dismissal with Warning

Disposition/Conduct:


REPORT OF FINDINGS OF GRIEVANCE COMMISSION PANEL B

On April 19, 2007, pursuant to due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by the Respondent, William D. Maselli. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on January 2, 2007. That Petition was supplemented by an amended Petition as agreed to by counsel on April 6, 2007.

Pursuant to M. Bar R. 7.1(e)(2)(E), a disciplinary proceeding incorporating the parties' submission of an agreed proposed sanction order was conducted on April 19, 2007. The Board was represented by Assistant Bar Counsel, Aria Eee, and Attorney Maselli was present and represented by Peter Rodway, Esq. The complainant, Jeannette Spiller-Sutherland, had been provided with a copy of this Report (in its proposal form) and was (was not) present, pro se.

On November 15, 2005 Jeannette Spiller filed a grievance complaint regarding Attorney Maselli's prior representation of Ms. Spiller's son, Emil Stammel. In her complaint, Ms. Spiller alleged neglect and dishonesty by Maselli during his handling of post-conviction review of Stammel's 2003 Cumberland County criminal convictions. Ms. Spiller further alleged that Attorney Maselli characterized his $5000.00 retainer as "non-refundable", that he did not earn his fee and that he refused to return any portion of the retainer.

In his answer to the complaint, Attorney Maselli acknowledged his failure to file Mr. Stammel's post-conviction matter within the statutorily mandated deadline, but asserted his belief that the deadline was extended due to Stammel's later conviction for related charges in York County. That September 2004 conviction occurred by voluntary plea with court-appointed counsel. Additionally, Attorney Maselli averred that he had considered both convictions and fully earned his retainer fee in Mr. Stammel's post-conviction action.

On January 18, 2005, Attorney Maselli filed Stammel's Petition for Post-Conviction Review in the Cumberland County Superior Court. By order dated January 28, 2005, the court summarily dismissed that Petition as being time-barred. Attorney Maselli did not retain a copy of the Petition for his files, nor did he send a copy to his client or to the District Attorney's office. Furthermore, Attorney Maselli did not receive a copy of the court's dismissal order.

By way of background, 15 M.R.S.A. § 2124(3)(A) outlines a "present indirect impediment", which allows post-conviction jurisdiction in the Superior Court when incarceration is imposed for a "subsequent criminal judgment" and the length of incarceration [is] greater than it would otherwise have been in the absence of the challenged criminal judgment." Without ruling on the merits of Attorney Maselli's argument in this regard, the Panel notes that if it proved to be a successful argument on Stammel's behalf, then the statutory deadline may have been met.

Of note, by October 2005, apparently neither the Petition nor the Order Summarily Dismissing the Petition for Post-Conviction Review was available from the court's file. This omission was apparent when Attorney Maselli received an initial grievance complaint against him by Ms. Spiller. Once he learned that he could not locate that January 2005 filing, he prepared a second Petition for Post-Conviction Review which Stammel then signed and returned to him for re-filing. Attorney Maselli filed the second Petition on December 7, 2005.

On January 5, 2006, Stammel's second Petition for Post-Conviction Review was summarily dismissed by the Cumberland County Superior Court. Since the Superior Court's order only referenced the second petition filing date—December 7, 2005-- presumably, Attorney Maselli's initial filing and its attendant order still then remained missing from the court's file. Given that fact, it appeared that the January 2005 filing did not occur.

During the Board's investigation, Bar Counsel's office and Attorney Maselli each learned from the Superior Court Clerk's office that the earlier post-conviction filing could not be found. It was only after Assistant Bar Counsel conducted her trial preparation in early April 2007 that the parties discovered that both of Stammel's Petitions and the related orders were then contained in the court's file.

Prior to that discovery, Attorney Maselli had potentially renewed his client's chances for post-conviction review. In that regard, his April 13, 2006 filing of simultaneous Motions to Vacate and to Amend the Petition for Post-Conviction Review led to a "second-chance" for Stammel. The Superior Court ultimately granted Stammel's motions thereby restoring the post-conviction review action to the docket. The State objected to the post-conviction review and requested a dismissal of the action. Following Attorney Maselli's further consultation and analysis with his client, in August 2006, the Petition for Post-Conviction Review was voluntarily dismissed by Stammel.

During this grievance proceeding, Attorney Maselli has acknowledged that best practice would have warranted his more frequent monitoring of Stammel’s case and of the related court and post-conviction proceedings. In doing so, he likely would have filed the initial Petition sooner so that no argument could be made that the January 2005 filing was time-barred. Although Attorney Maselli's failure initially resulted in a dismissal of Stammel’s post-conviction action, Attorney Maselli did succeed in having the matter restored to the Superior Court's docket. Notwithstanding that fact, Attorney Maselli's neglect likely proved stressful and frustrating for both Stammel and the family members supporting him.

Based upon the parties' proposal, the Grievance Commission Panel finds that Attorney Maselli's lack of due diligence delayed Stammel's post-conviction action and required extra efforts to restore the case to the court's docket. Although Attorney Maselli does not necessarily concede that the first Petition was late, he does understand why his client is upset and furthermore, that his "indirect impediment" arguments likely would have proved unsuccessful. Attorney Maselli's actions constituted a violation of M. Bar. R. 3.6(a)(1)(2)(3). As a result of these events, Attorney Maselli has apologized to Mr. Stammel and has demonstrated remorse for his behavior.

The Panel concludes that strategy decisions are ultimately within the purview of an attorney's professional judgment. While those decisions may or may not achieve the client's goals, in this case, Mr. Stammel voluntarily withdrew his Petition which essentially rendered the filing questions moot.

SANCTION

M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Maselli agrees that he did in fact, violate the Code of Professional Responsibility, it appears that a dismissal with a warning serves those purposes. Attorney Maselli has no history of discipline and the Panel finds that it is unlikely that he will repeat the same behavior in future advocacy for his clients.

Therefore, the Panel accepts the agreement of the parties, including Attorney Maselli's waiver of the right to file a petition for review, and concludes that the appropriate disposition of this case is a dismissal with a warning to William D. Maselli, Esq. as provided by M. Bar R. 7.1(e)(3)(B).

Dated: April 19, 2007


John Rich, Esq., Panel Chair
John R. Bass, Esq., Panel Member
John Hutchins, Public Member