Board of Overseers of the Bar v. Darrick X. Banda, Esq.

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Docket No.: GCF#16-043

Issued by: Grievance Commission

Date: December 19, 2016

Respondent: Darrick X. Banda, Esq.

Bar Number: 009329

Order: Admonition

Disposition/Conduct: Dealing with Unrepresented Person


STIPULATED REPORT OF FINDINGS AND ORDER OF THE GRIEVANCE COMMISSION
M. BAR R. 13(e) and 21(b)(5)

On December 19, 2016, with due notice and pursuant to Maine Bar Rule 1.3(e)(7), Panel D of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Darrick X. Banda, Esq. This disciplinary proceeding commenced on October 20, 2016 by the Board of Overseers of the Bar’s (Board) filing of a Stipulated Disciplinary Petition.

At that hearing, Attorney Banda was represented by Attorney James M. Bowie, and the Board was represented by Bar Counsel J. Scott Davis. The complainant, District Attorney Andrew Robinson had been provided by Bar Counsel Davis with a copy of the parties’ proposed Stipulated Report and was not present at that proceeding.

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

FINDINGS

Respondent Darrick X. Banda, Esq., of Augusta, Maine, was at all times relevant hereto an attorney duly admitted to the practice of law in Maine subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct). Attorney Banda was admitted to the Maine Bar in 2002 and at the time of the relevant events, he was a sole practitioner with a law office located in Augusta, Maine.

According to the parties’ stipulations, the Panel finds the following relevant facts:

This complaint was filed by Prosecutorial District Three District Attorney Andrew Robinson regarding the conduct of defense counsel Darrick Banda, a former criminal prosecutor in District Four (Augusta/Skowhegan).

DA Robinson complained concerning the manner in which Banda contacted and spoke with Savannah C, the victim in the then-pending domestic violence (DV) Assault charge against Banda’s client, Andrew S.

On December 18, 2015 Banda telephoned and spoke with Savannah shortly after she had just met with an Assistant District Attorney (ADA) in Robinson’s office to review that pending DV Assault case. Banda’s comments with Savannah included the different manners in which it might be resolved. Such a discussion was certainly proper and appropriate for Banda to engage in with Savannah, as the facts indicate she was willing to do so. In that telephone discussion with Savannah, Banda discussed and explained the results and ramifications of her not testifying for the State (the prosecutor) against Andrew, both under subpoena and without a subpoena. In that discussion, Banda provided Savannah with legal information concerning her appearance as a witness against his client, Andrew.

From that discussion, Savannah was also informed by Banda about the likely result with Andrews’ charges if she was not subpoenaed and did not appear at court, i.e. that the case would be dismissed because the State would not be able to proceed without her testimony.

In his initial response to Bar Counsel Davis’ investigative inquiry, Banda agreed that as part of his discussion with Savannah, he explained her Fifth Amendment rights under the facts of the case. Banda’s comments to Savannah included his clarification to her “that (because) she did not have a good faith basis to invoke her right to remain silent, she would have a legal obligation to appear and answer questions truthfully if she were in fact subpoenaed to testify.” In addition, Banda also agrees that he informed Savannah that from his analysis of the case he did not think she could avoid testifying by invoking her Fifth Amendment rights against self-incrimination.

Such comments constituted “legal advice” by Banda to an unrepresented person that had legal interests adverse to those of his client, Andrew. Although Banda may have intended to interview Savannah in preparation for defending the charge against Andrew, under the actual facts in this matter he crossed into the prohibited realm of providing “legal advice to an unrepresented person,” as prohibited by M. R. Prof. Conduct 4.3.

CONCLUSION AND SANCTION

The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients, the legal profession and to the courts. Due to Banda’s above-outlined failure to properly comply with the safeguards required by Rule 4.3, a sanction is required under the Maine Bar Rules. The panel notes that Banda has no prior sanction record with the Board and has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Banda expressed his remorse for his violation of the Maine Rules of Professional Conduct.

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 Banda agrees that he did in fact violate the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21. As a result, the Panel finds under M. Bar R. 21(b)(1) that this was a minor violation; there was little or no injury caused to a client, the public, the legal system or the profession; and there is little likelihood of repetition by Banda. As a result, the Panel finds and agrees that an admonition serves those purposes.

Therefore, the Panel accepts the agreement of the parties, including Attorney Banda’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 admonition to Darrick X. Banda, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 21(b)(1).

Date: December 19, 2016


Teresa M. Cloutier, Esq., Acting Chair
Carolyn A. Silsby, Esq., Panel Member
Emilie van Eeghen, Public Member