Board of Overseers of the Bar v. Scott G. Adams, Esq.

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Docket No.: GCF# 16-025

Issued by: Grievance Commission

Date: June 26, 2017

Respondent: Scott G. Adams, Esq.

Bar Number: 008019

Order: Reprimand

Disposition/Conduct:

UNDER APPEAL

Respect for Rights of Third Persons; Inadvertent Disclosures, Conduct involving dishonesty, fraud, deceit or misrepresentation, Conduct Prejudicial to the Administration of Justice


REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION
M. Bar R. 13(e)

On May 11 and 15, 2017, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Scott G. Adams, 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 August 10, 2016. Both the Board’s 18 exhibits and the Respondent’s 18 exhibits were admitted without objection.

At the hearing, Attorney Adams appeared and was represented by Kent G. Murdick, Esq., and the Board was represented by Assistant Bar Counsel Alan P. Kelley.

PROCEDURAL BACKGROUND

Respondent Scott G. Adams, Esq. of East Boothbay, 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. Attorney Adams was admitted to the Maine Bar in 1994 and is currently a registered, active practitioner in good standing.

On January 20, 2016, the Board filed a sua sponte grievance complaint against Attorney Adams. Attorney Adams has law offices in both East Boothbay, Maine and Newcastle, Maine. The Board’s grievance complaint alleged that Attorney Adams had committed an unauthorized taking of a confidential listing of client names and information from the possession of the court-appointed Receivers of Attorney Richard Salewski’s law practice. Attorney Adams duly replied to the Board’s complaint. A three-member panel of the Grievance Commission performed a confidential review of the matter pursuant to Maine Bar Rules 9(d) and 13(d)(4) and found probable cause for a hearing before another panel. Subsequently, Assistant Bar Counsel Kelley filed a Disciplinary Petition pursuant to Maine Bar Rule 13(e), charging Attorney Adams with taking the Salewski client list in violation of the following provisions of the M.R. of Prof. Conduct: 3.4 (c) (Fairness to Opposing Party and Counsel); 4.4 (b) (Respect for Rights of Third Person; Inadvertent Disclosures); and 8.4 (a) (b) (c) (d) (Misconduct). Attorney Adams duly responded to the Disciplinary Petition.

As stated above, a hearing in this matter was held before Panel D of the Grievance Commission on May 11 and 15, 2017.

FACTUAL FINDINGS

On December 2, 2014, Justice Andrew Mead issued a written order for the appointment of Attorneys Hylie West and Jennifer Villeneuve as Receivers for Richard Salewski’s law practice. Five days later, on December 7, 2014, Attorney Salewski died after a long illness. In his Order, Justice Mead was explicit as to the confidentiality of Attorney Salewski’s client files. His Order gave the Receivers sole authority to inventory Attorney Salewski’s open and closed files and prohibited the disclosure of:

…any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of the court.

At the hearing, Attorney Adams testified that, shortly after Attorney Salewski’s death, he called Receiver West and inquired whether he would be developing a list of Attorney Salewski’s clients. Attorney Adams told Receiver West he wanted to match the names of Attorney Salewski’s clients with his own clients. Receiver West told him that such a list could not be mailed to him because it would be confidential.

Attorney Adams persisted in his effort to obtain a listing of Attorney Salewski’s clients. In November 2015, Attorney Adams requested that Attorney Lynn Madison contact Receiver West on his behalf and ask if a list of Attorney Salewski’s clients was available. Receiver West informed Attorney Madison that such a list was confidential but if Attorney Adams submitted a list of his clients to the Receivers they would keep an eye out for those specific files.

At the time of the relevant events, Paul Chaiken, Esq. was serving as Special Assistant Bar Counsel, responsible for monitoring court-ordered receiverships for the Board. On January 11, 2016, he sent out an email to Attorney Adams and other members of the Maine Bar. This email sought volunteer assistance for Wednesday, January 13, when the Receivers would be “clearing out the files of Richard Salewski.” The email informed the potential volunteers that the client files had been moved to 441 Main Street in Damariscotta, noting that the building was “the old pawn shop building opposite Romeo’s Restaurant.” Attorney Adams acknowledged that he received this email but did not volunteer to attend the January 13 work session.

Attorney Adams testified that, one day later, on Thursday, January 14, 2016, a client of his, who was considering purchasing the building at 441 Main Street, happened to ask him to accompany her while the realtor showed her the building. The building was locked but the real estate agency had obtained a key from Receiver West. Receiver West testified that the only individuals with keys were himself and the listing broker and that the broker had been instructed that the Salewski files were confidential.

When realtor Miles Geisler unlocked the building Attorney Adams saw the boxes of Salewski client files and also a six (6) page typed document entitled “Rick Salewski Files Requests.” This was a listing of Attorney Salewski’s clients which had been prepared by Receivers West and Villeneuve.

Mr. Geisler testified that when Attorney Adams saw this document he remarked that he had been trying to obtain a listing of Attorney Salewski’s clients for a long time. Mr. Geisler did not recall Attorney Adams telling him he was going to take the list of clients, only that he would like to take it. Mr. Geisler did comment that there is a long-standing understanding among realtors that personal items will not be removed when a building is being shown to a potential buyer. After being in the building less than 20 minutes, Attorney Adams took the list without properly informing Mr. Gisler and returned to his East Boothbay office. Attorney Adams did not contact Receiver West and inform him that he (Attorney Adams) had taken the client list.

On Tuesday, January 19, 2016, after the Martin Luther King holiday, Receiver West notified Special Counsel Chaiken that Attorney Salewski’s client list was missing from 441 Main Street, Damariscotta. When Receiver West had discovered the list was missing he called Mr. Geisler, the realtor. After discussing the matter with Mr. Geisler, Receiver West now believed that Attorney Adams had taken the list. Special Counsel Chaiken and Deputy Bar Counsel Aria Eee were very concerned and immediately called Attorney Adams. The evidence at hearing is conflicted as to the beginning of this conversation, but ultimately Attorney Adams confirmed that he had taken the client list from 441 Main Street. He agreed to return it immediately and the next day mailed it to Receiver West. Attorney Adams also stated that the only other person who had seen this client list since he had taken it on January 14, 2016, was his Office Manager.

On January 20, 2016, Assistant Bar Counsel Kelley docketed a sua sponte complaint against Attorney Adams. On February 11, 2016, Assistant Bar Counsel Kelley wrote Attorney Adams and requested that Attorney Adams “destroy any and all electronic or paper copies of the list, and notify me of your compliance with my request within five days of receipt of this letter.” He reiterated his request in a letter dated February 24, 2016. Attorney Adams, in anticipation of the forthcoming Board hearing, had indeed made a copy of the client list. He declined to destroy it. Attorney Adams placed his copy of the list on a private thumb drive and pledged not to show it to any other person. He testified at hearing that, once he had given the document to his attorney for purposes of defending against the bar complaint, he did not retain a copy.

The Salewski client list in question is six pages long and contains 93 entries. It is entitled “Rick Salewski Files Requests.” On the top right-hand side of the first page are two categories which read, “Clients have all or some” and “Clients Notified-Still Looking.” Some of the client entries are annotated with substantive information about the client matter (e.g.: “Estate Planning”; “Need to see if there is a title policy. Error in deed.”; or “Wills and Estate Plan. Docs.”).

Beginning with his conversation with Bar Counsel on January 19, 2016, in subsequent correspondence and submissions, and throughout the hearing, Attorney Adams acknowledged that he had been told that the Salewski client list was considered confidential and that he could not have a copy. He has admitted that he had no proprietary interest in the list. He has admitted that he took the list without Receiver West’s permission. Despite these admissions, Attorney Adams has suggested a variety of justifications for taking the document. The Panel finds these rationales to be disingenuous.

Even if Justice Mead had not ordered that the Salewski client files and their inventory be kept confidential, there is no credible argument that this information was public and available for the taking. The files and client lists were properly being treated by the receivers as protected client confidences. Client confidentiality can extend even to the identity of an attorney’s clients, see Comment 3 to M.R. Prof. Conduct 1.6 (“The confidentiality rule…applies not only to matters communicated in confidence by the client but also to all information relating to the representation….”); see also ABA Formal Opinion 09-455 (the persons involved in a matter are protected by the client confidentiality rule).

Even the fact that a person has hired a lawyer can open a door on that person’s life. Is the person selling a home? Is the person seeking a divorce? Privacy demands that this door be kept closed. Protection of a client’s confidences is vital to the relationship between lawyers, their clients, and the public. It was Attorney Salewski’s clients who had the power to decide whether their confidences could be disclosed, not Attorney Adams.

CONCLUSION AND SANCTION

The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. As described above, Attorney Adams’s intentional taking of the Salewski client list violates the following provisions of the Maine Rules of Professional Conduct:

Rule 4.4 Respect for Rights of Third Persons; Inadvertent Disclosures

(b) A lawyer who receives a writing and has reasonable cause to believe the writing may have been inadvertently disclosed and contain confidential information or be subject to a claim of privilege or of protection as trial preparation material:

  1. shall not read the writing or, if he or she has begun to do so, shall stop reading the writing;
  2. shall notify the sender of the receipt of the writing; and
  3. shall promptly return, destroy or sequester the specified information and any copies.

The recipient may not use or disclose the information in the writing until the claim is resolved, formally or informally. The sending or receiving lawyer may promptly present the writing to a tribunal under seal for a determination of the claim.

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is 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. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer’s mental state, the actual or potential injury caused by the lawyer's misconduct, and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).

Attorney Adams intentionally took a document to which he was not entitled and the Panel finds that he did so knowingly. Attorney Adams knew that the Receivers deemed the list of Attorney Salewski’s clients to be confidential. Attorney Adams’s claim that the client list was a public document because it was in plain sight is not persuasive. He found it in a locked building being used by the Receivers of the Salewski law practice. He had no right to unilaterally determine that the list was his to take. By taking the six-page listing of Salewski clients and sharing it with his office manager, Attorney Adams violated the privacy of those clients and violated the ethical rules cited above. There were no mitigating circumstances.

Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Scott G. Adams, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e)(10)(C).

Date: June 26, 2017


James A. McKenna III, Esq., Chair
Teresa M. Cloutier, Esq., Panel Member
Emilie van Eeghen, Public Member