Board of Overseers of the Bar v. Erika L. Frank, Esq.

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Docket No.: GCF#16-094

Issued by: Grievance Commission

Date: October 13, 2016

Respondent: Erika L. Frank, Esq.

Bar Number: 008326

Order: Reprimand

Disposition/Conduct: Meritorious Claims and Contentions, Conduct Prejudicial to the Administration of Justice


Stipulated Report of Findings and Order of Panel E of the Grievance Commission
M. Bar R. 13(e) & 21(b)(5)

On October 13, 2016, with due notice and pursuant to Maine Bar Rule 1.3(e)(7), a Panel of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Erika L. Frank, Esq. This disciplinary proceeding commenced on September 26, 2016, by the Board’s filing of a Stipulated Disciplinary Petition.

At the October 13, 2016, hearing, Attorney Frank appeared pro se and the Board was represented by Aria Eee, Deputy Bar Counsel. Ms. P1, who is the Complainant in this proceeding, attended the stipulated hearing, and received an advanced copy of this proposed order. Ms. P has had the opportunity to remark on the proposal and her comments have been considered by the Grievance Commission Panel.

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

FINDINGS

Respondent Erika L. Frank, Esq., of Windham, Maine, was at all times relevant hereto an attorney duly admitted to the practice of law in Maine. As such she was and is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct). Attorney Frank was admitted to the Maine Bar in 1996 and at the time of the relevant events, Frank was a solo practitioner with a varied civil law practice.

According to the parties’ stipulations, the Panel finds the following relevant facts: During her client, Mr. P’s divorce action, Attorney Frank served as successor counsel, following mediation which involved Mr. P’s prior counsel. In an attempt to achieve settlement on terms desired by her client, Attorney Frank wrote a letter intended to expedite finalization of the matter. In doing so, however, she engaged in improper negotiations. The specific language of that settlement letter contained terminology that reflected a quid pro quo, which included the below statements:

“If your client will not agree to the terms of settlement proposed in my February 18, 2016 letter, then we intend to pursue Ms. P for the following: Violation of the PFA…Child abuse based upon videos of the children speaking of [her] abuse of [the son]; and …Federal offense of opening Mr. P’s mail without his knowledge or consent. If we do not have a response by March 11, 2016 I will prepare to take action on the items listed above.”

The Panel finds that Attorney Frank’s transmittal of that letter, with the specific language as detailed above, constituted a violation of MRPC 3.1(b). That Rule is as follows:

3.1 Meritorious Claims and Contentions
(b) A lawyer shall not report or threaten to report misconduct to a criminal, administrative or disciplinary authority solely to obtain an advantage in a civil matter.

The letter she sent to opposing counsel arguably suggests that Attorney Frank would make a referral to criminal and or administrative authorities. In that regard, while Attorney Frank herself did not report Ms. P to DHHS, her client (who was copied on the letter to opposing counsel) did make such a report. He did so on March 14, 2016, two days after the deadline given by Attorney Frank in her letter. DHHS conducted a subsequent investigation of Ms. P’s parenting which according to her attorney, proved very distressing to Ms. P and the family. Also according to her attorney, Ms. P’s legal fees were increased due to the additional work required of him to ready witnesses to rebut any charges of child maltreatment.

Although Attorney Frank was unaware of her own client’s report to DHHS, the Panel finds that she should have anticipated him doing so, given his involvement in the DHHS issue. Attorney Frank should also have anticipated that by sending a letter which included the above-cited language, it would result in Ms. P’s perceiving such a letter as a threat to pursue criminal and or child abuse charges.

The Panel accepts Attorney Frank’s explanation that she did not intend to cause distress to Ms. P, and further accepts her acknowledgement that such upset was nevertheless a reasonable reaction to the letter sent by Attorney Frank. The Panel finds that the letter caused actual harm to Ms. P and constituted a violation of MRPC 3.1(b) and 8.4(d). By way of mitigation, however, Attorney Frank has expressed remorse and reports that DHHS issued no adverse findings against Ms. P. Attorney Frank further understands how to avoid such errors in her future course of dealing with adverse litigants.

CONCLUSION AND SANCTION

The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to their clients and as officers of the court. Due to Attorney Frank’s actions, Ms. P experienced further avoidable distress in her acrimonious divorce matter. Attorney Frank has accepted responsibility for her improper treatment of Ms. P (by way of the aforementioned letter) and acknowledged the upset it caused her.

The Panel notes that Attorney Frank was previously reprimanded in May 2012 for conduct related to her lack of diligence in serving as a real estate closing agent. Attorney Frank was also reprimanded in 2009 for conduct related to conflicts, standards of care and judgment and conduct prejudicial to the administration of justice. Prior to that, in August 2006, Attorney Frank received a dismissal with a warning for her violations concerning client communication. 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. Since the evidence supports a finding and Attorney Frank agrees that she 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 Frank’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. Pursuant to M. Bar R. 21(b)(5), the Panel hereby issues that Reprimand to Erika L. Frank, Esq.

Dated: October 13, 2016


Andre J. Hungerford, Esq., Panel Chair
Stephanie P. Anderson, Esq., Panel Member
Sallie M. Crittendon, Public Member


1Initials are used throughout this Order to protect the privacy of the family law clients and their children.