Board of Overseers of the Bar v. David M. Hirshon, Esq.

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Docket No.: 08-208

Issued by: Panel C of the Grievance Commission

Date: May 4, 2010

Respondent: David M. Hirshon, Esq.

Bar Number: 001036

Order: Reprimand

Disposition/Conduct: Scope and Effect; Acts as a Public Official; Conflict of Interest: Succesive Representation, Interests of Former Clients


REPORT OF FINDINGS OF PANEL C OF THE GRIEVANCE COMMISSION

On April 12, 2010, pursuant to due notice, Panel C of the Grievance Commission conducted a disciplinary heairng, in accordance with Maine Bar Rule 7.1(e)(2) and open to the public, on a complaint concerning the Respondent, David M. Hirshon, Esq. At the disciplinary hearing, the Board was represented by Assistant Bar Counsel Aria Eee, and Respondent was present and represented by Peter J. DeTroy, Esq.

The Panel heard testimony from Attorney Hirshon; the complainant, John Noel; Neil S. Shankman, Esq.; and Michelle Noel. Board Exhibits 1-9, 11-15, and 17-28, and Respondent's Exhibits 1-4 and 6-14 were admitted in evidence without objection. Respondent's Exhibits 15 and 16 were admitted subject to Bar counsel's motion in limine to redact certain portions, which the Panel, having reviewed those exhibits, now overrules.

Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings in this matter:

FINDINGS

Respondent is, and was at all times relevant hereto, an attorney duly admitted to and engaged in the practice of law in the State of Maine, and subject to the Maine Bar Rules.1 In late 2004 or early 2005, he advised John and Michelle Noel with respect to potential guardianship arrangments for their daughter in the event of their deaths. In 2005 and 2006, he represented Mr. Noel in a post-divorce motion to modify a child support order arising out of Mr. Noel's previous marriage.

In early 2007, Respondent learned that John and Michelle Noel were separated and that Ms. Noel had filed for a divorce, and shortly thereafter, he commenced an intimate relationship with Ms. Noel. Ms. Noel was representing herself pro se in her divorce, and was represented by one or more attorneys from Pine Tree Legal Services in connections with a Protection from Abuse matter related to the divorce.

A mediation in the divorce matter was scheduled for May 29, 2007. On May 18, Respondent filed a "Limited Entry of Appearance" with the District Court in the divorce matter. The filing stated, in its entirety: "The clerk will please enter my appearance on behalf of the Plaintiff with regard to the parties' mediation." Respondent testified that he intended to enter into a limited representation of Ms. Noel solely for purposes of the mediation, as permitted by M. Bar R. 3.4(i), but he conceded that he did not obtain Ms. Noel's informed written consent to a limited representation, as required by that rule, and Ms. Noel testified that she did not have an understanding as to Respondent's limited representation.

Respondent testified that Ms. Noel had informed him that she believed the substantive issues related to the divorce would not be at issue in the mediation, that all of the financial and child custody issues were already resolved, and that Ms. Noel was requesting his presence at the mediation primarily for personal support. Accordingly, prior to entering his appearance, he analyzed the potential conflict due to his former representation of Mr. Noel, and concluded that his representation of Ms. Noel at the mediation was permissable under M. Bar R. 3.4(d)(1)(i), in that the new representation would not be substantially related to the subject matter of his former representation, and that it would not involved the use of any confidential information obtained through such former representation. Respondent did not consult with anyone else in the course of reaching that conclusion. As discussed in more detail below, Respondent's analysis of the successive representation issue occurred just prior to the Law Court's decision in Hurley v. Hurley, 2007 ME 65 (May 22, 2007), clarifying the standard for disqualification of an attorney under M. Bar R. 3.4(d)(1)(i).

At the mediation, Mr. Noel and his attorney, Mr. Shankman, objected to Respondent's involvement and raised the conflict issue. After a delay of approximately two weeks due to his efforts to secure other counsel for Ms. Noel, Respondent withdrew from his representation of Ms. Noel in the divorce matter.2

Mr. Noel alleged that despite Respondent's withdrawal, Respondent continued to provide legal counsel to Ms. Noel. After hearing all of the testimony and evaluating all of the evidence in this matter, however, the Panel finds no credible evidence to support that assertion. Respondent admittedly provided Ms. Noel with the name of another client, whom Ms. Noel interviewed and engaged to provide counseling for her daughter, and also furnished Ms. Noel with certain financial support during the course of their relationship. The Panel concludes that those actions did not implicate the Maine Bar Rules.

CONCLUSIONS

After considering the evidence presented at the hearing, the Panel concludes that Respondent engaged in conduct unworthy of an attorney in violation of M. Bar R. 3.1. Respondent's specific violations of the Code of Professional REsponsibility in this matter included: (i) engaging in conduct prejudicial to the administration of justice, in violation of M. BAr R. 3.2(f)(4); (ii) commencing represendation adverse to a former client where the subject matter was substantially related to the subject matter of the former representation and/or might have involved the use of confidential information obtained through such former representation, in violation of M. Bar R. 3.4(d)(1)(i); and (iii) entering a limited appearance on behalf of a client without obtaining the client's written informed consent, in violation of M. Bar R. 3.4(i).3 Accordingly, Respondent has engaged in misconduct that is subject to sanction under the Maine Bar Rules.

With respect to M. Bar R. 3.4(d)(1)(i),4 notwithstanding Respondent's testimony that he conducted a good-faith analysis of the successive representation issue, the Panel concludes that Respondent reasonably should have understood that the successive representation rule precluded him from even a limited representation of Ms. Noel in her divorce from Mr. Noel.

Further, the Law Court issues its decision in Hurley v. Hurley on May 22, 2007, shortly after Respondent submitted his "Limited Entry of Appearance" and one week before the scheduled mediation. The Panel concludes that the facts of Hurley are sufficiently similar to those of this case that, even if a reasonable attorney could have concluded prior to that decision that the successive representation of Mr. and Ms. Noel was permissable, Respondent was effectively on notice as of the date of the Hurley decision that it was not. In Hurley, the Law Court held that information gained by a lawyer in a former representation about how the former client handles the stress of litigation is confidential, and precludes a successive representation adverse to the former client. Hurley, 2007 ME 65, 14-17. In view of Hurley, Respondent reasonably should have known, one week before the mediation was scheduled to occur, that he was required to withdraw from even a limited representation of Ms. Noel in her divorce action against Mr. Noel.

Respondent's violation of M. Bar R. 3.4(i) is apparent, in that he has conceded that although he intended a limited representation of Ms. Noel, he failed to obtain her written, informed consent for that limited representation. Respondent appears to have assumed that his limited representation excused him from his duty to prepare for the mediation with reasonable skill, care, and judgment, which was not the case.

SANCTION

In considering an appropriate sanction under the Bar Rules, the Panel must consider the following factors set forth in M. Bar R. 7.1(e)(3)(C):

(i) whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;

Respondent's actions in this matter violated duties owed to the legal system, to the profession, and to his former client.

(ii) whether the attorney acted intentionally, knowingly, or negligently;

For the reasons discussed above, the Panel concludes that Respondent's misconduct was negligent, in that a reasonable attorney should have concluded that the limited representation of Ms. Noel was impermissible. Further, having entered into the representation, a reasonable attorney would have prepared for the mediation using appropriate care, skill, and judgment. It did not appear to the Panel, however, that Respondent intentionally or knowingly violated the Bar Rules.

(iii) the amount of actual or potential injury caused by the attorney's misconduct;

The Panel concludes that Respondent's misconduct in this matter caused some delay and confusion in the Noels' divorce and related proceedings, but that it did not materially affect the outcome. Respondent's presence at the mediation clearly caused Mr. Noel some consternation, but the Panel was not presented with any evidence that Respondent imparted to Ms. Noel, or to her successor counsel, any confidential information that he may have gained in the course of his former representation of Mr. Noel. Further, the Panel concludes there is little likelihood that Respondent will repeat his misconduct.

(iv) the existence of any aggravating or mitigating factors.

As an aggravating factor, it appears to the Panel that Respondent allowed his personal relationship with Ms. Noel to interfere with his professional judgment, both in failing to enter into the limited representation with her written, informed consent, and in attending the mediation with the intention of providing personal support rather than acting as a legal advocate on her behalf. Respondent apparently relied in good faith upon Ms. Noel's assurance that the financial and child custody issues in the divorce were sufficiently resolved that he would not be called upon to address them in the mediation. However, this reliance was inappropriate, given his role as her attorney. As a mitigating factor, the Panel notes that Respondent did analyze his ethical obligations, and once he was advised that the successive representation was impermissable, he secured successor counsel for Ms. Noel and withdrew as her attorney.

In view of the foregoing factors, and in accordance with M. Bar. R. 7.1(e)(3)(C), the Panel concludes that an appropriate sanction in this matter would be the issuance of a public reprimand, and Respondent is hereby so reprimanded.


For the Grievance Commission

Benjamin P. Townsend, Esq., Acting Chair

James A. McKenna III, Esq.

Christine Holden, Ph.D.


FOOTNOTES

1 All of the conduct at issue in this matter occurred prior to the abrogation of the former Maine Code of Professional Responsibility (former M. Bar R. 3), and the replacement of the Code by the Maine Rules of Professional Conduct, effective August 1, 2009. The Panel analyzes Respondent's conduct in this matter under the provisions of the now-abrogated Code of Professional Responsibility.

2 Respondent's involvement in collateral matters related to the divorce continued, primarily due to numerous complaints and allegations filed against him by Mr. Noel, but none of those matters appears materials to the issues before the Panel.

3 Unlike the now-abrogated M. Bar R. 3.4(i), Rule 1.2(c) of the Rules of Professional Conduct no longer requires that the client's informed consent to a limited representation be memorialized in writing, although that remains the better practice.

4 The requirements of current Rule 1.9 are identical in substance to those of the now-abrogated M. Bar R. 3.4(d)(1)(i)