Board of Overseers of the Bar v. Robert M. Napolitano, Esq.

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Docket No.: GCF#15-360

Issued by: Grievance Commission

Date: August 25, 2016

Respondent: Robert M. Napolitano, Esq.

Bar Number: 001021

Order: Reprimand Probation

Disposition/Conduct: Competence, Diligence, Communication with Client, Conduct Prejudicial to the Administration of Justice


STIPULATED REPORT of FINDINGS and ORDER of PANEL B of the GRIEVANCE COMMISSION
M. Bar R. 13(e)(10)(d) & 21(b)(4)

On August 25, 2016, with due notice and pursuant to Maine Bar Rule 13(e), Panel B of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Robert M. Napolitano, Esq. The Board of Overseers of the Bar (the Board) commenced the disciplinary proceedings by filing a Stipulated Disciplinary Petition on May 26, 2016.

At the hearing, Attorney Napolitano appeared with his attorney, Theodore H. Kirchner, and the Board was represented by Bar Counsel J. Scott Davis. Prior to that hearing date, the parties submitted a stipulated proposed sanction Report for the Grievance Commission Panel's review and consideration. Having reviewed the stipulated, proposed findings as presented by counsel, the Panel makes the following disposition:

Respondent Robert M. Napolitano, Esq. 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 (MRPC). Attorney Napolitano was admitted to the Maine Bar in 1970 and has practiced mainly and most currently as a solo practitioner.

This grievance matter was initially brought to Bar Counsel’s attention by the U. S. District Court of the District of New Hampshire, but as so directed and requested by that jurisdiction, that court has had no further involvement in the processing of this matter after making that referral.

After processing an investigation being conducted by Bar Counsel under the Maine Bar Rules, the parties agree and Attorney Napolitano admits that he engaged in the following misconduct in his pro hac vice representation of the defendant in the matter of United States v. Mustafa Arif in the U.S. District Court, District of New Hampshire:

  1. He failed to appear at a court hearing on November 5, 2015, concerning the status of that representation, based upon a letter filed by Mr. Arif with the Court that raised concerns about the manner of Attorney Napolitano’s handling of Mr. Arif’s matter;
  2. He failed to request a continuance of that hearing date once he knew he would be unable to attend; and
  3. He knowingly filed an apparently meritless Motion to Dismiss the charges against Mr. Arif, with that motion having been entirely drafted by Mr. Arif.

Attorney Napolitano admits that his conduct in his handling of Mr. Arif's matter violated the following Rules of the Maine Rules of Professional Conduct: 1.1 (competence); 1.3 (diligence); 1.4(a) (communication with client); and 8.4(d) (conduct prejudicial to the administration of justice).

In addition to that federal court grievance matter, Bar Counsel was subsequently informally made aware by a Maine Superior Court Justice of his concerns of similar conduct by Attorney Napolitano in a post-conviction review matter, specifically Louis Atkinson v. State of Maine in the Lincoln County Superior Court.

CONCLUSION AND SANCTION

The panel notes that Attorney Napolitano has the following sanction history with the Board: He received a stipulated public reprimand in 1998 for his admitted neglect of a criminal matter, and in 2004 he received a private warning sanction for an improper fee agreement, i.e., a minor conduct violation unrelated to the type of misconduct at hand.

The Panel further notes that the purpose of bar disciplinary proceedings is not punishment, but rather protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Napolitano agrees that he did in fact violate the above-referenced portions of the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.

Attorney Napolitano agrees and admits that he does now have certain physical issues and disabilities rendering a need for a limitation of his law practice. As a result, he has agreed to represent clients in felony-level criminal matters only with Attorney Peter E. Rodway of Portland, Maine also representing those clients as co-counsel. Attorney Napolitano further agrees that when he represents clients without co-counsel for more minor criminal matters, i.e., OUIs, possession of controlled substances, etc., he will restrict his practice to only handling criminal cases in the District and Superior Courts of Cumberland and York Counties. Attorney Napolitano may represent clients who are witnesses in federal criminal matters. Attorney Napolitano’s representation without co-counsel of clients for more minor criminal matters and clients as witnesses in federal matters shall remain subject to monitoring by Attorney Rodway under the terms of the probation, as discussed and referenced below. Accordingly, for that limited manner of representation and practice to be properly implemented, regulated and monitored, the Panel hereby directs that Attorney Napolitano shall be placed on probation for two years subject to annual review by the Grievance Commission Chair, or at earlier times as may be deemed necessary for good cause shown by Bar Counsel. Under the terms of that probation, Attorney Peter E. Rodway of Portland, Maine shall serve as the Monitor of Attorney Napolitano’s law practice. The specific terms of that probation and that Monitor service by Attorney Rodway shall be as set forth in a separate Probation Terms document which is incorporated by reference as a part of this Report.

Accordingly, for the admitted misconduct involved in his representation of Mr. Arif, the Panel hereby accepts the agreement of the parties, including Attorney Napolitano’s separately executed waiver of the right to file a Petition for Review, and directs that Attorney Napolitano receive a reprimand pursuant to M. Bar R. 21(b)(5) subject to probation as described herein and in the related Probation Terms document.

Dated: August 25, 2016



Thomas H. Kelley, Esq., Panel Chair
Vendean V. Vafiades, Esq., Panel Member
John C. Alfano, Public Member


PROBATION DECISION AND MANDATE
M. Bar R. 21(b)(4)

This Decision and Mandate is incorporated by reference to the related Report of Findings and Decision dated August 25, 2016, in the above-docketed matter.

As the parties have agreed and this Panel has so ordered in its Report, Attorney Robert M. Napolitano shall submit his practice of law to a period of probation pursuant to M. Bar R. 21(b)(4). The person serving as probation attorney is Peter E. Rodway, Esq. of Portland, Maine. The term of such probation is two (2) years unless otherwise ordered by the Grievance Commission or the Maine Supreme Judicial Court (Court). The Grievance Commission further directs that:

  1. Any costs or fees associated with Attorney Rodway’s service shall be borne by Attorney Napolitano.
  2. Attorney Rodway shall enter his appearance as Attorney Napolitano’s co-counsel in all criminal client matters as described in and required by the above-referenced Report of Findings and Decision by Grievance Commission Panel B, dated August 25, 2016.

  3. Attorney Napolitano shall meet with Attorney Rodway to review and prepare such clients’ matters consistent with Attorney Rodway’s directives. The meetings shall initially occur on a weekly basis, unless or until Attorney Rodway subsequently determines that more or less frequent meetings are appropriate.
  4. Attorney Napolitano acknowledges and accepts that Attorney Rodway shall have the right to withdraw and terminate his probationary services at any time for any reason he deems necessary. If Attorney Rodway intends to so withdraw, he shall immediately first notify Bar Counsel J. Scott Davis, Attorney Napolitano and his counsel, Attorney Theodore H. Kirchner, of his intended withdrawal. Thereafter, this matter may then be scheduled for further hearing and/or action as deemed appropriate by Grievance Commission Panel B or the Court.
  5. If any aspect of the probationary process creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Rules of Professional Conduct, Attorney Rodway may adopt any one of the following courses with the proposed result:
  6. a. Attorney Rodway ceases to act as probation attorney and a potential conflict is avoided;
    b. Attorney Rodway continues as the probation attorney, but totally excludes Attorney Napolitano’s client’s matter from the process, so that no conflict is deemed to exist;
    c. Attorney Rodway continues as probation attorney, but withdraws from the conflicted matter; or
    d. Attorney Rodway continues as probation attorney and obligates Attorney Napolitano not to participate in the matter and to promptly refer his client to successor counsel or the Lawyer Referral Service of the Maine State Bar Association.

  7. Attorney Rodway shall have the right to contact clerks of court, judges, or opposing counsel to monitor Attorney Napolitano’s compliance with his professional obligations.
  8. Likewise, if Attorney Rodway determines that Attorney Napolitano should refrain from accepting particular cases or otherwise expanding his practice, Attorney Rodway shall inform Attorney Napolitano of that fact. Attorney Napolitano shall then follow Attorney Rodway’s directive to refrain or limit his acceptance of such cases, absent this Panel’s (or the Court’s) order to the contrary.
  9. Attorney Rodway shall have the authority to review and examine Attorney Napolitano’s files in such criminal matters, except those in which Attorney Rodway might have adverse interests under paragraph five (5) above. In that event, Attorney Rodway shall notify Bar Counsel Davis who may then develop an alternative means of file review.
  10. Attorney Rodway agrees, as soon as practicable, to have Attorney Napolitano establish a method of objectively identifying any delinquent client matters or other matters which have proven challenging for Attorney Napolitano to manage. As a result, as soon as is practicable, Attorney Napolitano shall establish and institute internal checks and controls to make his practice appropriately responsive to the needs of his clients and to the courts, consistent with Attorney Rodway’s directive(s).
  11. Attorney Rodway shall file a confidential report with the Grievance Commission Clerk every four months or sooner if he deems it necessary. The Report shall be copied to Attorney Kirchner and Bar Counsel Davis and it shall cover at least the following subjects:
  12. a. Measures Attorney Napolitano has taken to avoid problematic interactions with his clients, opposing counsel/litigants, jurists and clerks and others related to his practice of law;
    b. A description of any client matter identified as delinquent or problematic; and
    c. Any professional assistance Attorney Rodway has provided to Attorney Napolitano.

  13. Attorney Rodway shall have the duty to report to Bar Counsel Davis any apparent or actual professional misconduct by Attorney Napolitano of which Attorney Rodway becomes aware. Likewise, Attorney Rodway shall report to Bar Counsel Davis any lack of cooperation by Attorney Napolitano with the terms of this Decision and Mandate.
  14. Upon review and investigation of any such reports so filed by Attorney Rodway, Bar Counsel Davis shall notify the Grievance Commission Clerk thereof, as appropriate.
  15. The terms of this Decision and Mandate are effective upon the date of entry on the Grievance Commission’s docket.

Date: August 25, 2016


Thomas H. Kelley, Esq., Panel B Chair