Board of Overseers of the Bar v. Anthony P. Shusta II, Esq.
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Docket No.: GCF# 15-291
Issued by: Grievance Commission
Date: September 8, 2017
Respondent: Anthony P. Shusta II, Esq.
Bar Number: 003424
Order: Reprimand Probation
Candor Toward the Tribunal, Dealing with Unrepresented Person, Misconduct
M. Bar R. 13(e)
On June 14 and July 17, 2017, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning alleged misconduct by the Respondent, Anthony P. Shusta II, Esq. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 21, 2016. After a telephonic counsel conference on June 12, 2017, between Panel Chair Andre J. Hungerford, William D. Robitzek, Esq., who represented Attorney Shusta, and Assistant Bar Counsel Alan P. Kelly, who represented the Board, the parties agreed that witness Wayne Doane, Esq. would appear telephonically and that all exhibits would be admitted.
On both hearing dates, Attorney Shusta appeared and was represented by Attorney Robitzek, and the Board was represented by Assistant Bar Counsel Kelley.
Respondent Anthony P. Shusta II, Esq. of Madison, Maine, has been at all relevant times an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
On September 17, 2015, Assistant Attorney General (AAG) Loralie Spooner filed a complaint with the Board alleging that Attorney Shusta engaged in professional misconduct during a family matter proceeding. 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. In turn, on April 21, 2016, Bar Counsel J. Scott Davis filed a Formal Disciplinary Petition, alleging among other things, that Attorney Shusta failed to be candid with a Family Law Magistrate and dealt improperly with an unrepresented person. Attorney Shusta contests all allegations against him.
In 2015, Attorney Shusta represented James L. in a paternity suit. The Department of Health and Human Services (DHHS) filed a complaint in Skowhegan District Court against Mr. L., seeking to establish that he was the father of a child borne by Amy C. in 2012. AAG Spooner represented DHHS in the matter. Separately, Attorney Shusta filed a parental rights and responsibility action regarding the minor. In turn, AAG Spooner filed a motion to consolidate the two cases, which the court granted without objection by Attorney Shusta. The court then issued a case management order, scheduling mediation followed by a status conference on March 9, 2015.
Prior to mediation, Attorney Shusta contacted Ms. C., who was unrepresented, asking her if she would consent to the termination of Mr. L.’s parental rights, suggesting to her that her child could be adopted by her boyfriend. Attorney Shusta claimed that the “the word on the street was” that Ms. C. wanted to terminate the parental rights of Mr. L. In her interactions with Attorney Shusta, Ms. C., who has an 11th grade education, did understand that he was not representing her legal interests. Attorney Shusta states that at a case management conference he informed Ms. C. about the eﬀect of termination, including giving up all future child support from Mr. L. At this time Ms. C. was not interested in termination.
At some point, Attorney Shusta and AAG Spooner had discussed the termination of parental rights issue: AAG Spooner informed Attorney Shusta that she would object to the termination unless there was a finding that it was in the child’s best interests, and that DHHS would not bring such a case under the present circumstances.
On March 9, 2015, Attorney Shusta met with Ms. C. in the Skowhegan courthouse prior to mediation, presenting her with a petition to terminate his client’s parental rights, which he had not provided to AAG Spooner. Ms. C. signed the paperwork. Denise Bemis, a DHHS enforcement agent, was running late and did not take part in mediation discussions overseen by Attorney Rob Washburn, which lasted 20 minutes. Eleven minutes later, Attorney Shusta, Ms. Bemis, and Ms. C. appeared in front of Family Law Magistrate Stephen J. Chandler. AAG Spooner was not in attendance, nor was her presence required by DHHS policy.
Attorney Shusta informed Magistrate Chandler that an agreed-upon petition for termination of parental rights and responsibilities would be filed. Magistrate Chandler asked Ms. Bemis about her understanding of the agreement. The transcript shows the following colloquy (emphasis added):
Ms. Bemis: I understand the agreement. I still – I feel that AAG Spooner should be given the opportunity to review that agreement.
Mr. Shusta: She has had the opportunity to review the agreement. She has had the opportunity to review the petition. She requested a change in the petition and we made that change today.
The Court: And she knows that this – there’s going to be no ongoing child support?
Mr. Shusta: Yes. And I suspect that there’s going to be a name change and an adoption in the near future
As a result, Magistrate Chandler signed Attorney Shusta’s draft order, which ended the parental rights and responsibilities matter and severed the DHHS paternity action. Attorney Shusta claims when he used the term “she” in the above dialogue, he was referring to Ms. C., who was present in the courtroom, and not to AAG Spooner, who was not present.
At the June 14, 2017 Grievance Commission hearing, AAG Spooner testified that Attorney Shusta never gave her an agreement or petition to review. Magistrate Chandler testified at this hearing that he had no independent recollection of what occurred during the status conference, adding that he was unsure of whom “she” referred to because the hearing was a long time ago and since then he had heard many other cases. He stated that under the circumstances he probably would have still signed the same order even if he knew that AAG Spooner had not received the documents from Attorney Shusta. However, Magistrate Chandler opined that it would be logical that the first “she” addressed AAG Spooner. Ms. Bemis credibly testified that she thought Attorney Shusta was referring to AAG Spooner. Initially, Ms. C. thought “she” referred to AAG Spooner, but upon further questioning was unsure.
At the grievance hearing, AAG Spooner testified that Maine law only allowed DHHS or a custodial parent to a file termination of parental rights action. Because Mr. L. was not the custodial parent, he could not initiate termination of parental rights proceedings. There is no dispute that Attorney Shusta prepared the paperwork for Ms. C. even though he was solely representing Mr. L.
The context strongly suggests that the “she” referred to by Attorney Shusta in the colloquy was AAG Spooner, whom he knew had a strong interest in this case. Arguably, Attorney Shusta was vigorously representing his client, who did not want to pay child support because he was not involved in his son’s life. However, Ms. Bemis informed the court that she felt AAG Spooner should be given the opportunity to review the agreement, which set the reference point for the colloquy. The evidence strongly weighs against Attorney Shusta who suggests that he was referring to Ms. C. because she annotated the agreement in front of the court. Furthermore, the electronic recording of the colloquy indicates that Attorney Shusta emphasized that “she” has reviewed the agreement, which supports the conclusion that “she” referred to AGG Spooner, who had not reviewed the agreement.
Even if Attorney Shusta had quickly explained to Ms. C. that she would never receive child support from Mr. L. upon termination being approved by the court, he was the one who planted the idea in her head that it would be a good idea because the child could be adopted. Attorney Shusta was the one who called Ms. C., who earlier rejected termination, to see if she would reconsider. In fact, he called her two times to review the details in the proposed agreement. At the July 17, 2017 Grievance Commission hearing, Attorney Shusta’s attorney asked him the following questions:
Q. And do you believe that you explained things to [Ms. C.] in a way that she could understand?
Q. And did you provide her with opportunities to ask you questions.
Q. And did you make it clear to her that she could always back out of the termination process at any point if she wanted to?
A. Yes. And I pointed out that if she did, she wasn't losing on the child support.
Yet, Ms. C. had no idea that only DHHS or herself could initiate termination. She signed paperwork prepared by Attorney Shusta, who says that he orally, but never in writing, encouraged her to get her own counsel to review everything. It appears that Attorney Shusta may have been hoping that Ms. C., who has struggled financially, would not get an attorney to review the paperwork, to the benefit of his client, Mr. L. When all the facts are viewed together, Attorney Shusta provided legal advice to an unrepresented adverse party by encouraging her to sign a petition, which his client was not legally authorized to submit to a court, to the detriment of the unrepresented party.
Attorney Shusta knew that he could only represent one party, which was Mr. L. and not Ms. C.
The Panel finds that Attorney Shusta failed to uphold his responsibilities to the court by making a false statement to a Family Law Magistrate and not correcting it as well as giving legal advice to Ms. C., who was not only unrepresented but also unsophisticated with legal matters, by having her sign a Petition for Termination of Parental Rights that would have serious financial consequences for her and her child. He crossed the line by urging her to sign oﬀ on the paperwork even though she knew he was not her attorney.
More specifically, the panel finds that Attorney Shusta has violated the following provisions of the Maine Rules of Professional Conduct:
3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
4.3 Dealing with Unrepresented Person
The lawyer shall not give legal advice to an unrepresented person, but may provide legal information to and may negotiate with the unrepresented person.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another; [or]
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .
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.
Because the evidence supports a finding and Attorney Shusta did in fact violate the Maine Rules of Professional Conduct, and in light of Attorney Shusta’s prior disciplinary history with the Board, Panel E concludes that the appropriate disposition of this case is a Public Reprimand and Probation. Pursuant to M. Bar R. 13(e)(10)(C) & (D), Panel E hereby issues that Reprimand to Anthony P. Shusta II, Esq. and mandates supervised probation pursuant to M. Bar R. 21(b)(4) as set forth in the attached Confidential Probation Decision and Mandate.
Dated: September 8, 2017
Andre J. Hungerford, Esq., Chair
Gretchen L. Jones, Esq., Panel Member
Margaret J. Palmer, Ph.D., Public Member