Board of Overseers of the Bar v. John D. Duncan

Download Decision (PDF)

Docket No.: BAR-08-3

Issued by: Single Justice, Maine Supreme Judicial Court

Date: July 8, 2008

Respondent: John D. Duncan

Bar Number: 001077

Order: Disbarment

Disposition/Conduct: Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation


Order of Disbarment M. Bar R. 7.2(b)(5)


Background

In this matter, the Board of Overseers of the Bar was represented by Bar Counsel J. Scott Davis, and Defendant John D. Duncan (Duncan) was represented by Attorney George T. Dilworth. The Court, on May 1, 2008, approved counsel's Stipulated Waiver of Grievance Commission Proceedings. As a result, the Court has jurisdiction to proceed directly in this disciplinary proceeding under M. Bar R. 7.2(b) and issue an Order of Disbarment absent any of the usual preliminary procedures of M. Bar R. 7.1(d) or (e). Through his counsel, Duncan has confirmed to the Court that he waives his right to appeal this matter to the Law Court and agrees the disciplinary sanction imposed, disbarment, is to be effective July 1, 2008.

The parties have stipulated to the following facts. Duncan was 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. The Board of Overseers of the Bar asserts and it is agreed by Duncan that he engaged in very serious professional misconduct which constituted both violations of specific portions of the Code of Professional Responsibility as well as violations of the Maine Criminal Code (all of which is detailed below) for which he may be disbarred.

Attorney Duncan was admitted to the bar in Maine in 1978 and practiced law in Portland at Verrill Dana, LLP from 1978 to 2007. He became a partner at the firm in 1983.

On November 2, 2007, Duncan submitted to the Board a letter reporting his own professional misconduct. He admitted that he deposited checks from certain clients for the payment of legal and other services into a personal account. He also reported that he had diverted funds from a client who had previously appointed him to act under a durable power of attorney; instead of writing out the checks for legal services to the firm, he had written them to himself and deposited them into his own bank account. When confronted by the firm's managing partner, he confessed that he diverted those funds, but falsely denied that he had diverted funds from other clients. Duncan also reported to Bar Counsel that he withdrew from the firm on October 28, 2007, and had repaid the firm $77,500. Although he did not state definitively how many times he had diverted funds or the total amount of money involved, he admitted that there were other clients from whom he had diverted funds.

In late 2007 and early 2008, Verrill Dana and Eleanor M. Rommel - Duncan's legal secretary from August 2001 through June 13, 2007--filed respective grievance complaints against Duncan. Duncan understands, agrees and the Court so finds that, in summary, those complainants correctly alleged that Duncan had misappropriated funds meant for Verrill Dana or its clients in an aggregate amount of approximately $300,000, as described below, and that when he was initially confronted he falsely denied a substantial portion of his serious misconduct.

For a significant period of his practice, Duncan had been a leader of Verrill Dana's Private Clients Group, where he primarily handled estate planning and estate administration matters. Starting in September 1997 and continuing through January 2007, Duncan deposited checks for the payment of legal and other services totaling at least $109,000 into his personal bank account, and did not transfer the proceeds to the firm as he should have. Duncan also agrees that a client, JT, had appointed him to act under a durable power of attorney. As part of his duties, Duncan issued or authorized checks from that client's bank account for payment of legal fees. On occasion, he detailed in the client's check register the amount of the check and the firm's name as the payee, but Duncan wrote his name on the check as the payee. Duncan then deposited the check into an account he controlled.

In early June 2007, Ms. Rommel informed and provided supporting documentation to at least two experienced attorneys at Verrill Dana that she had become aware of documents and conduct confirming that Duncan had engaged in theft of a significant amount of a client's funds. When initially confronted on June 28, 2007 by one of those attorneys--the firm’s managing partner--Duncan then admitted only that he had diverted funds totaling $77,500.00 to himself from one client (JT) when those funds should have gone to the firm. He offered to repay the firm that amount and to resign from the firm.

The following week, on July 2, 2007, Duncan paid the firm $77,500 to repay the money he admitted he had diverted from that client. In his further discussions with Verrill Dana attorneys during the summer of 2007, Duncan continued to falsely claim he had not stolen any other client or law firm funds. Eventually, on October 22, 2007, Duncan admitted to Verrill Dana's legal counsel that he had improperly handled and diverted other clients ' funds that were properly owed to Verrill Dana. By letter dated October 28, 2007, Duncan resigned from Verrill Dana, to be effective December 31, 2007.

Duncan now agrees that his initial statements to Verrill Dana's managing partner and other attorneys at the firm were false and deceitful. There were additional instances where Duncan diverted payments totaling $31,500 from clients for legal fees to his own account.

Duncan admits that he also diverted other payments that were intended for Verrill Dana. Duncan received checks for legal services provided to several clients from the respective trust companies attending to their particular interests. Those checks were usually made out in his name. Duncan deposited such checks from trust companies, totaling $187,495.75, into a bank account that he controlled rather than turn them over to the firm.

Duncan has reviewed the summaries prepared by accountants hired by Verrill Dana, and he understands and agrees that their records confirm that the total amount of funds he improperly diverted is approximately $300,000. The total monetary amount that Duncan has repaid or that Verrill Dana has withheld from him as a result of his thefts exceeds $480,000. Duncan acknowledges that his misconduct was most serious and violated Maine Bar Rules 3.2(f)(2),(3) and 3.6( e)(1).

On June 10, 2008 Duncan appeared before the Cumberland County Superior Court (Crowley, J.), waived indictment and pled guilty by information to two counts of Theft (Class B). Specifically, Count I (Theft by Unlawful Taking or Transfer - 17-A M.R.S. Section 353) involved Duncan's theft of $109,000.00, and Count II (Theft by Misapplication of Property - 17-A M.R.S. Section 358) involved his theft $187,495.75. After inquiry, Justice Crowley accepted Duncan's two guilty pleas pursuant to M. R. Crim. P., Rule 11, and continued those matters for sentencing until September 10, 2008.

At that Criminal Rule 11 proceeding, each counsel confirmed for Justice Crowley that the parties' agreed recommendation to that court included a condition of probation requiring Duncan to make restitution totaling $296,495.75, minus any amounts that the Court finds he has already repaid to Verrill Dana. Duncan has also admitted to federal tax authorities that he did not report the income from this conduct on his tax returns, and he has agreed to waive indictment and plead guilty to federal tax evasion charges.

Order

The Court hereby orders Duncan be disbarred effective July 1, 2008. The Court further orders (pursuant to M. Bar R. 7.3(j)) that Duncan is disbarred for his lifetime. The long-term nature of the theft, over a ten-year period, and the size of the theft make clear to the Court that Duncan should not ever be eligible to apply for reinstatement to the Bar of the State of Maine. The Court further orders that all costs of this proceeding be paid by Duncan no later than September 10, 2008.


For the Court

Hon. Warren M. Silver, Associate Justice - Maine Supreme Judicial Court

Board of Overseers of the Bar v. Richard K. Dubois

Download Decision (PDF)

Docket No.: BAR-09-7

Issued by: Single Justice, Maine Supreme Judicial Court

Date: December 28, 2009

Respondent: Richard K. Dubois, Esquire

Bar Number: 007032

Order: Reprimand

Disposition/Conduct:


Disciplinary Order

This matter came before the Court upon the filing of an Information by the Board of Overseers of the Bar, pursuant to M. Bar R. 7.2(b). Throughout the proceedings before this Court, the Board has been represented by Assistant Bar Counsel, Jacqueline L.L. Gomes and Defendant, Richard K. Dubois, has been represented by Attorney Michael E. Carpenter.

Following the filing of the Information and a conference with the Court, parties submitted stipulations of the facts and exhibits. The matter was heard in Bangor on December 21, 2009. At the hearing Richard Dubois testified, and counsel presented argument primarily directed to the nature sanction that the Court might impose. The matter was then submitted for decision based on the testimony at hearing, the stipulations and exhibits, and the arguments of counsel.

I. Case History

Mr. Dubois was admitted to the Maine Bar in 1990. He is in private practice as a solo practitioner in Caribou. Proceedings before the Board commenced in September 2007 when an attorney representing a client in a criminal proceeding that did not involve Mr. Dubois, learned of Mr. Dubois' participation in the transaction discussed below and reported it to the Board.

In October 2004, Mr. Dubois was the closing agent for a real estate transaction involving property located in Madawaska. The seller of the property was represented by another attorney. The purchaser was listed on all of the documents associated with the real estate transaction as Ricky Daigle. Mr. Dubois was contacted by Michael Pelletier, a former client, who said he wanted to refer a friend (Mr. Daigle) to Mr. Dubois regarding this real estate transaction. Mr. Dubois opened a file at his office reflecting that Mr. Daigle was the purchaser of the property. Mr. Dubois was to serve only as the closing agent. He did not represent the buyer or the seller.

Numerous telephone calls were made to the Dubois law office by Mr. Pelletier concerning the transaction. Mr. Dubois's legal secretary spoke with Mr. Pelletier in great detail about the transaction. She believed that Mr. Pelletier was actual purchaser of the property and that she had authority to answer any questions from Mr. Pelletier. However, this belief was not communicated to Mr. Dubois. The office calendar as kept by the legal secretary reflected that there was a closing for Michael Pelletier on September 27, 2004, followed by a closing for Ricky Daigle and the seller on October 1, 2004.

According to Mr. Daigle's testimony in federal court, Mr. Pelletier provided him with the directions to the Dubois law office as well as the date and time to meet Mr. Pelletier for the closing. Mr. Pelletier also informed Mr. Daigle that the closing was going to be postponed to September 28, 2004. This information had been provided by Mr. Dubois's secretary to Mr. Pelletier. Again, according to Mr. Daigle's testimony, prior to Mr. Dubois's arrival at the closing on September 28, 2004, Mr. Pelletier met Mr. Daigle in the parking lot of the Dubois law office. There Mr. Pelletier gave Mr. Daigle a bag containing cash.

The parking lot surrounds the building that contains the Dubois law office and six other businesses. Because the entrance to the Dubois law office is on the back of the building, portions of the parking lot are not visible to an individual entering law office.

When Mr. Dubois arrived, Mr. Daigle followed him into the building. Mr. Daigle and the secretary then joined Mr. Dubois in his personal office. Mr. Daigle put the bag containing cash in the amount of $50,540 on Mr. Dubois's desk and signed the closing documents. Mr. Daigle asked if he could leave. Mr. Dubois informed Mr. Daigle that he would not be given a receipt if he left before the cash was counted. Mr. Daigle left the law office.

Mr. Dubois, accompanied by his legal secretary, deposited the cash into his trust account. At the time of the transaction, Mr. Dubois did not file an Internal Revenue Service (IRS) Form 8300 regarding the receipt of the cash payment in excess of $10,000. The Internal Revenue Code, 26 U.S.C. § 6050 I (a), (b) (2008) requires that any person engaged in a business who receives more than $10,000 cash in one transaction must file a return, and IRS Form 8300 is the means for filing that return.1

The seller attended a closing at the Dubois law office on October 1, 2004. It was the seller's belief that she was selling the property to Michael Pelletier. Mr. Pelletier was in the parking lot of the Dubois Law office when the seller entered the building, and they spoke to each other briefly. The seller signed the deed and closing paperwork (which listed the buyer as Ricky Daigle) without asking any questions of Mr. Dubois. The seller received a check from Attorney Dubois's trust account for the proceeds of the sale. According to her testimony, the seller then met with Mr. Pelletier in the parking lot outside of Attorney Dubois's office and gave him the keys to the property.

For serving as closing agent for this transaction, Mr. Dubois received a fee of$250.

Based upon Mr. Dubois's contacts with the court system, he knew that Mr. Pelletier was a reputed drug dealer in Aroostook County.

As a result of the above-described transaction, in 2007, Mr. Pelletier was convicted and Mr. Daigle pled guilty to charges of money laundering in federal court.

On October 2, 2007, approximately one week after receipt of the Grievance Complaint, Mr. Dubois filed an IRS Form 8300 regarding the transaction.

II. Conclusions

In this matter, Mr. Dubois was asked by a former client to perform a relatively minor function as a closing agent for a real estate transaction. Because of the apparent minor nature of the transaction, Mr. Dubois did not give it the attention it was due. Also, he failed to adequately supervise and communicate with his staff who undertook most of the communication to schedule and effectuate the transaction before his appearance for the closing. Further, when presented with over $50,000 cash as payment for the transaction, a payment method Mr. Dubois did not anticipate, he failed to be attentive to his legal obligation, pursuant to 26 U.S.C. § 6050 I (a), (b), to file IRS Form 8300.

These actions were the result or Mr. Dubois's carelessness and inattention, but without any plan or intent to violate the law or his ethical obligations, or to aid any other person in violating the law.

For his conduct in failing to adequately supervise his non-lawyer legal secretary and failing to file an IRS Form 8300 regarding the receipt of a cash payment in excess of $10,000 at the time of the transaction, Attorney Dubois agrees and the Court finds that he violated the then applicable M. Bar R. 3.1(a) [Conduct Prejudicial to the Administration of Justice]; and 3.13(c)(2) [Failure to Properly Supervise Attorney's Non-Lawyer Staff.2

III. Sanction

For the violations of the Maine Bar Rules, cited above, that resulted from Mr. Dubois inattention and carelessness in this transaction, the Court ORDERS discipline and sanctions, as follows:

  1. By this ORDER, the Court tissues a Public Reprimand to Attorney Richard K. Dubois.
  2. Bar Counsel may file any further complaints regarding allegations of misconduct by Attorney Richard K. Dubois directly with this Court pursuant to M. Bar R. 7.2(b) when a preliminary review panel, acting pursuant to M. Bar R. 7.1(d)(5), first find probable cause that misconducts has occurred. This is limited to complaints initially received by the Board on or before the January 11, 2011.

For the Court

Hon. Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court


Footnotes

1Title 26 U.S.C. § 6050 I (2008) states, in pertinent part:

(a) Cash receipts of more than $10,000. Any person -
(1) who is engaged in a trade or business, and
(2) who in the course of such trade or receives more than $10,000 in cash in 1 transaction (2 or more related shall make the return described in subsection (b) with respect to such transactions) shall make the return described in subsection (b) with respect to such transaction (or related transactions at such time as the Secretary may by prescribe.
(b) Form and manner of returns. A return is described in this subsection if such return -
(1) is in such form as the Secretary may prescribe,
(2) contains -
(A) the name, address, and TIN of the person from the cash was received,
(B) the amount of cash received,
(C) the date and nature of the transaction, and
(D) such other information as the Secretary may prescribe

2The Maine Bar Rules, including its Code Professional Responsibility, are applicable to this proceeding because all events at issue occurred prior to the August 1, 2009, date of the Maine Rules of Professional Conduct.

Board of Overseers of the Bar v. Margaret P. Shalhoob

Download Decision (PDF)

Docket No.: GCF 08-311

Issued by: Grievance Commission

Date: December 1, 2009

Respondent: Margaret P. Shalhoob, Esquire

Bar Number: 003676

Order: Reprimand

Disposition/Conduct:


Stipulated Report of Findings and Order of Panel A of the Grievance Commission M. Bar. R. 7(e)(2)(4)


On December 1, 2009, with due notice, Panel A of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1 (e)(2)(E), concerning misconduct by the Respondent, Margaret P. Shalhoob, Esq. This disciplinary proceeding had been commenced by the June 22, 2009 filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar.

At the hearing, the Respondent was represented by Attorney Dale F. Thistle and the Board of Overseers of the Bar (the Board) was represented by Assistant Bar Counsel Aria Eee. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration. Although Complainant, District Court Judge Jessie B. Gunther did not attend the hearing, the second complainant Brice E. Gould, did attend and he offered comments to the Panel concerning the proposed Report.

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

Findings

Respondent Margaret P. Shalhoob (Shalhoob) of Bangor, County of Penobscot, State of 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 Shalhoob was admitted to the Maine Bar in 1987 and she is currently registered as an active Maine attorney, practicing in Bangor.

Attorney Shalhoob regularly represents court-appointed clients in Maine's District Courts. During the month of August 2008, Attorney Shalhoob encountered some difficulties managing her calendar and court schedule. Part of the difficulty arose because of the absence of her support staff that month. As a consequence of those difficulties, Attorney Shalhoob failed to appear for two protective custody case hearings in August and September, 2008. In response to that failure, Judge Gunther sanctioned Attorney Shalhoob and filed the complaint referenced herein.

During the same time period, Mr. Gould engaged Attorney Shalhoob to represent him in some estate planning matters. Again, due to the decline in Attorney Shalhoob's law practice management, she did not appropriately communicate with Mr. Gould and did not timely address his legal matters.

Conclusion and Sanction

The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Shalhoob's lapse in August-September 2008, there were negative impacts up on her clients' affairs and within her role as an officer of the court. The panel notes that Attorney Shalhoob has taken responsibility for her transgressions. While she has no history of bar discipline, Attorney Shalhoob did receive a public dismissal with a warning in 2006 for reasons unrelated to the instant complaints. At the disciplinary hearing, Attorney Shalhoob expressed remorse for her violations of M. Bar. R. 3.6(a)(2)(3) of the Code of Professional Responsibility.

M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Shalhoob agrees that she did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.

Therefore, the Panel accepts the agreement of the parties, including Attorney Shalhoob's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Margaret P. Shalhoob, Esq. which is now hereby issued and imposed up on her pursuant to M. Bar R. 7. 1(e)(3)(C), (4).


For the Parties

Board - Aria Eee, Assistant Bar Counsel
Respondent - Margaret P. Shalhoob, Esquire


For the Grievance Commission

Harold L. Stewart, Esquire
Paul A. Cavanaugh, II, Esquire
Raymond J. Cota

Board of Overseers of the Bar v. James B. Smith

Download Decision (PDF)

Docket No.: GCF 07-029

Issued by: Grievance Commission

Date: October 19, 2009

Respondent: James B. Smith, Esquire

Bar Number: 000350

Order: Reprimand

Disposition/Conduct:


Stipulated Report of Findings and Order of Panel C of the Grievance Commission M. Bar R. 7.1(e)(2)(4)

On October 19, 2009, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1 (e)(2)(E), concerning misconduct by the Respondent, James B. Smith, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on March 11, 2009.

At the hearing, the Board was represented by Bar Counsel J. Scott Davis, and Attorney Smith appeared with Attorney James M. Bowie. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration. The complainant, Jeffrey P. Buhrman, did not attend the Stipulated Hearing, but had previously received a copy of the Proposed Report and informed Bar Counsel that he did not object to the issuance of such a Report.

Having reviewed the agreed, proposed findings as presented by counsel and having heard from counsel and received testimony from Attorney Smith at that hearing the Panel now makes the following disposition:

          Findings

  1. Respondent James B. Smith, Esq. of Biddeford County of York State of Maine is and was 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.

  2. The Board asserts upon information and belief within paragraphs #4 through #24 that Attorney Smith violated specific portions of the Code of Professional Responsibility as set forth below for which he should be disciplined.

  3. Jeffrey P. Buhrman (Buhrman) Esq. of South Portland Maine filed a complaint on January 25, 2007. Attorney Smith filed his initial response on March 23, 2007 denying that he mishandled the representation of his client in her real estate transaction.

  4. During the course of the Board’s investigation Attorney Buhrman and Attorney Smith were afforded opportunities for rebuttal and supplemental responses resulting in a fully developed investigation pursuant to M. Bar R. 7.1(b).

  5. On August 16, 2007 a panel of the Grievance Commission reviewed Attorney Smith's actions in this matter, and based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.

    Specific Facts of His Misconduct

  6. Attorney Smith commenced representation of Felicidade Thurber on September 17, 2004. She was then 87 years old.

  7. Ms. Thurber had been referred to Attorney Smith by another local law firm to provide representation to her concerning her daughter, Linda Wright-Phelps', proposed purchase of Mr. and Mrs. Thurber's residence in return for a life estate to her parents.

  8. At the time of Attorney Smith's first meeting with Mrs. Thurber, he was aware that her 91-year old husband (and the adoptive father of Ms. Wright-Phelps), Everett Thurber, was residing in an assisted living facility.

  9. Attorney Smith never met independently with Mrs. Thurber before the closing for that real estate transaction.

  10. Hence, Mr. and Mrs. Thurber would lose the ability to sell or mortgage their home to privately pay for long-term care costs as well as lose approximately 80% of the value of their estate.

  11. The life lease would be subject to a loan that Ms. Wright-Phelps was obtaining.

  12. Attorney Smith was aware of the pending guardianship matter involving Mr. Thurber and had been informed by Ms. Wright-Phelps that it was uncontested. However, he did not independently confirm with the Probate Court whether the proceeding was in fact uncontested, whether Mr. Thurber had independent counsel in that proceeding or whether anyone opposed Ms. Wright-Phelps' petition.

  13. Attorney Smith did not directly contact Mr. Thurber to determine whether he had any objections to the real estate transfer, believing that Ms. Wright-Phelps' appointment as his temporary guardian meant that he lacked the capacity to understand that transaction.

  14. Mrs. Thurber held a Power of Attorney for her husband that had been executed by Mr. Thurber in February of 2004.

  15. The Power of Attorney placed the following restriction on Mrs. Thurber's authorization to make gifts: "no distribution ... shall be made except upon review and written certification by an attorney from the Law Offices of Smith Elliott Smith & Garmey, P.A., or its successor, or any attorney experienced in estate planning and/or elder law that such distribution is appropriate (i.e. advisable as an estate planning and/or Medicaid planning measure) ... and is otherwise in my best interests."

  16. While factual evidence supported a judicial finding that Attorney Smith assisted Mrs. Thurber in exceeding her authority under the Power of Attorney, and failed to appropriately evaluate her mental condition and competence which caused a drain on judicial resources and compounded the litigation and family distress, Attorney Smith denies that he knowingly did so.

  17. Nevertheless, by Order dated August 1, 2006, York County Superior Court Justice Fritzsche ruled on a Motion for Summary Judgment filed by the personal representative for the estate of Everett Thurber (ALFSC-RE-06-053). By that Order, the court rescinded the deed from Felicidade Thurber to Linda Wright-Phelps on the grounds that the transaction ... "was for well below market value, fiduciary obligations were not met, and the restrictions on a power of attorney were not followed" (Page1 of Order on Pending Motions dated August 1, 2006).

  18. Although Attorney Smith did not initially accept or understand the seriousness of his misconduct in this entire matter, he does so now. In fact, he has attempted to assist in resolving the disruption and disturbance suffered by the Thurber Estate as a result of the transaction at issue, including participating in a resolution which involved having him and his law firm pay a financial consideration.

  19. Attorney Smith now agrees his conduct in this representation violated Maine Bar Rules 3.6(a) and (j) in that he did not employ reasonable skill and care or use his best judgment in the handling of Mrs. Thurber's transaction, and failed to recognize or appreciate her diminished mental capacity. Although at the time Mrs. Thurber appeared to him to have sufficient understanding and capacity to communicate her wishes and make decisions concerning her real estate, Attorney Smith now agrees the total facts showed otherwise.

  20. Attorney Smith agrees that despite her apparent normal or satisfactory presentation and performance at meetings with him (which were never private), Ms. Thurber in fact had a variety of mental and physical conditions that impaired her judgment.

  21. In hindsight, Attorney Smith agrees and admits he should have met privately with his client, Ms. Thurber, without the presence of her daughter, Ms. Wright-Phelps, and that he failed to ever do so.

  22. Therefore, Attorney Smith agrees that by his conduct he engaged in violations of Maine Bar Rules 3.6(a)(standards of care and judgment) and 3.6(j)(client with diminished capacity).

Conclusion and Sanction

The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. As a result of Attorney Smith's actions, judicial and attorneys' time and resources were necessarily expended for participation In the resulting litigation in the York County Superior Court.

The Panel notes that Attorney Smith has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Smith expressed his remorse for his violations of the Code of Professional Responsibility. The Panel also expects that there is little likelihood of repetition of such misconduct by Attorney Smith. The Panel was informed that Attorney Smith was previously reprimanded in 1994 for conduct dissimilar to that involved here, i.e. improperly threatening prosecution, and has received no other misconduct sanctions.

M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Smith agrees that he did, in fact, violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.

Therefore, the Panel accepts the agreement of the parties, including Attorney Smith's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand of Attorney James B. Smith which is now hereby issued and imposed upon him pursuant to M. Bar R. 7. 1(e)(3)(C),(4).


For the Parties

J. Scott Davis, Bar Counsel
James B. Smith Esq., Respondent
James M. Bowie, Esq. Attorney for Respondent Smith


For the Grievance Commission

David S. Abramson, Esq, Panel C Chair
Martha C. Gaythwaite, Esq.
Christine Holden Ph.D.

Board of Overseers of the Bar v. Michael Montembeau

Download Decision (PDF)

Docket No.: BAR-09-10

Issued by: Single Justice, Maine Supreme Judicial Court

Date: October 6, 2009

Respondent: Michael I. Montembeau

Bar Number: 009211

Order: Suspension

Disposition/Conduct:


Disciplinary Order M. Bar R. 7.2(b)


Background

In this matter, the Board of Overseers of the Bar was represented by Assistant Bar Counsel Jacqueline L.L. Gomes, and Defendant Michael I. Montembeau was represented by Attorney Peter J. DeTroy. On June 11, 2009 the Court approved counsel's Stipulated Waiver of Grievance Commission Proceedings. As a result, the Court has jurisdiction to proceed directly in this disciplinary proceeding under M. Bar R. 7.2(b) and issue a Disciplinary Order absent any earlier Grievance Commission hearing under M. Bar R. 7.1(e). At the hearing of this matter, Attorney Montembeau expressed his remorse and apologized for his misconduct, confirmed that he waives his right to appeal this Order to the Law Court and also agreed that the sanctions imposed by this Order are effective on the date of this Order. Charles W. Smith, Jr., Esq. who is a partner of Smith, Elliot, Smith & Garmey the injured party in this matter was present at the hearing. He was provided with a copy of the proposed Order and notice of the hearing. Attorney Smith indicated that he had no objection to the proposed Order.

Stipulations

Counsel for the parties have stipulated to the following material facts now found and adopted by the Court.

At all times relevant hereto, Attorney Montembeau has been an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules. He practiced land use law and general litigation with the law firm of Smith, Elliot, Smith & Garmey in Saco from 2005 until April 1, 2008. By Attorney DeTroy's filing letter of April 4, 2008, Attorney Montembeau self-reported to Bar Counsel J. Scott Davis his misconduct in two separate instances as summarized below. Smith, Elliot, Smith & Garmey reported the misconduct by a letter dated April 7, 2008. While Attorney Montembeau has maintained an active license to practice law, he has not engaged in the practice of law since April 1, 2008.

The June 2007 Fraudulent Bill

Attorney Montembeau began representing a couple regarding a boundary dispute in the fall of 2006. The clients had title insurance through Chicago Title Company (Chicago Title) which agreed to pay for the legal defense of the clients. Attorney Montembeau attempted to persuade the other parties involved in the litigation to compensate his clients for costs they incurred to secure housing during the time they were not permitted to build a home on their property. Those attempts were unsuccessful. Attorney Montembeau then tried to persuade Chicago Title to compensate his clients for the same costs. In June 2007, Chicago Title informed Attorney Montembeau that it would not make any payment for displacement costs. On or about June 12, 2007, Attorney Montembeau submitted an invoice to Chicago Title in the amount of 23,066.76.

The document that Attorney Montembeau prepared and dated June 12, 2007 purported to be an invoice for the boundary dispute case. It was created by Attorney Montembeau in a word processing program outside the law firm's normal billing protocol, i.e. an invoice generated by computer automation from contemporaneously maintained time and billing records of the firm's employees. The invoice was approximately $7,000 higher than the actual time charges expended on the case. Chicago Title paid the invoice in full in August 2007 by a check made out to Smith, Elliot, Smith & Garmey. The check was deposited into the firm's trust account. Attorney Montembeau provided the clients with a check from the firm's trust account in the amount of $7,000.

Attorney Montembeau agrees that he misrepresented to Chicago Title the amount of total time and hourly rates included on the invoice he submitted in June 2007.

The firm's internal time and billing records - based upon the contemporaneous entries of firm staff into a time and billing data base - resulted in an actual billable amount of time spent by the firm on behalf of Attorney Montembeau's clients of $16,066.76. The firm was paid $16,066.76 from a check written on the firm's trust account based on the remittance by Chicago Title. Attorney Montembeau did not disclose this misconduct to his firm.

By his conduct in preparing and presenting inaccurate information to Chicago Title on behalf of a client concerning the above billing information, Attorney Montembeau agrees and the Court so finds that he violated M. Bar R. 3.2(f)(3) and 3.3(a).

The October 2007 Fraudulent Bill

On or about October 25, 2007, Attorney Montembeau submitted another invoice to Chicago Title in the amount of $18,584.50 for work purportedly done on the same case.

The document that Attorney Montembeau prepared and dated October 25, 2007 was again created by Attorney Montembeau in a word processing program outside the firm's normal billing protocol, i.e. an invoice generated by computer automation from contemporaneously maintained time and billing records of the firm's employees. The invoice was approximately $6,000 higher than the actual time charges expended on the case. On or about March 12, 2008 Attorney Montembeau wrote a letter to Chicago Title offering to discount the invoice to $14,000 if paid in full within a week. The discounted amount overstated the value of legal services provided by Attorney Montembeau by $2,000.

Attorney Montembeau agrees that he misrepresented to Chicago Title the amount of total time and hourly rates included on the invoice he submitted in October 2007.

The firm's internal time and billing records - based upon the contemporaneous entries of firm staff into a time and billing data base resulted in an actual billable amount of time spent by the firm on behalf of Attorney Montembeau's clients of $12,584.50. Chicago Title did not pay either the October 27, 2007 invoice or the discounted amount proposed by Attorney Montembeau. Attorney Montembeau did not disclose this misconduct to his firm.

By his conduct in preparing and presenting inaccurate information to Chicago Title on behalf of a client concerning the above billing information, Attorney Montembeau agrees and the Court so finds that he violated M. Bar R. 3.2(f)(3) and 3.3(a).

Order of Sanctions

It is agreed by the parties and now so found by the Court that Attorney Montembeau engaged in professional misconduct. Attorney Montembeau engaged in misrepresentations and misstatements to Chicago Title regarding the law firm's bill and diverted money paid for attorney's fees to his clients.

Attorney Montembeau's misconduct violated specific portions of the Code of Professional Responsibility as noted above, for which Attorney Montembeau is now disciplined and sanctioned. It is hereby ORDERED:

  1. For his misrepresentations to Chicago Title, collection of an excessive fee, diversion of attorneys fees to his clients and resultant violations of Maine Bar Rules 3.2(f)(3) and 3.3(a) the Court issues a suspension from practice of 15 months retroactive to April 1, 2008. Pursuant to Bar Rule 7.3(j)(1), in order to return to practice in Maine he must thereafter petition for reinstatement. Prior to petitioning for reinstatement, he must complete the restitution payments to Smith, Elliot, Smith & Garmey of $7,000 in accordance with the agreement he executed May 13, 2009. He must also provide a written plan to be approved by Bar Counsel regarding appropriate financial safeguards and the manner and types of such safeguards he proposes. Although such misconduct often results in the Court's appointment of a Monitor upon reinstatement to supervise and control the disciplined attorney's conduct for an appropriate period of time, given Attorney Montembeau's remorseful attitude and actions, his filing of a self-report, his acknowledgement of his misconduct, his self-imposed sabbatical from the practice of law and his apology to the Court, the Court is satisfied that it is not necessary to appoint a Monitor in this instance; and

  2. Attorney Montembeau shall refrain from any misconduct in the future. Bar Counsel has the authority to notify the Court of Attorney Montembeau's non-compliance with this Order and to file any future complaints of his misconduct directly with this Court without any prior review by and/or hearing before the Grievance Commission for such action as may be found or deemed appropriate.


For the Court

Hon. Andrew M. Mead, Associate Justice - Maine Supreme Judicial Court

Board of Overseers of the Bar v. Clarence H. Spurling

Download Decision (PDF)

Docket No.: GCF 06-246, GCF 08-447

Issued by: Grievance Commission

Date: October 31, 2009

Respondent: Clarence H. Spurling, Esquire

Bar Number: 007416

Order: Reprimand

Disposition/Conduct: Conflict of Interest: Successive Representation


Report of Findings Panel E of the Grievance Commission


On September 29, 2009, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing, open to the public, pursuant to Maine Bar Rule 7.1(e)(2). The disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar [the Board] on February 10, 2009 (GCF# 06-246) and May 28. 2009 (GCF II 08-447). These petitions were consolidated for hearing. The petitions allege violations of M. Bar Rules, 3.1(a), 3.4(d) and 3.6(h). At the hearing, the Board was represented by Assistant Bar Counsel Aria Eee and the Respondent, Charles H. Spurling, Esq. was represented by Julian L Sweet, Esq. The complainant in 08447, Nadine Hinkley (formerly Nadine Hurley) was also present. The Respondent, Ms. Hinkley, Attorneys Alice Knapp and Barbara Raimondi testified. The Panel accepted into evidence Board Exhibits 1-23, 29, 30,33, and 34, and Respondent Exhibits l-8.

Findings

Respondent Clarence H. Spurling of Gardiner, Maine, has been at all times relevant to the petitions an attorney admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Spurling was admitted to practice in 1991 and he is in a private practice in Gardiner.

Respondent has extended family in the community in which he practices. Among them is a cousin John P. Hurley, who was married for many years to Nadine G. Hinkley [then Hurley]. Ms. Hinkley was involved in a rear-end collision in 2001 and retained Respondent to pursue her claim for damages. Her principal claim was for the loss of her vehicle, but personal injury was also an element of damages. Ms. Hinkley's deposition was taken on May 16, 2003, and the matter settled in September 2003 on the eve of jury selection. Near the end of the personal injury case, Ms. Hinkley was at least contemplating divorce and approached Respondent for representation. He declined to represent her, because of his family relationship with Mr. Hurley.

Ms. Hinkley filed for divorce in August 2005 and Mr. Hurley asked Respondent to represent him. Respondent considered the matter and made a determination that his former representation of Nadine [Hinkley] was not a conflict within the meaning of the Maine Bar Rules, and entered his appearance on behalf of Mr. Hurley. Ms. Hinkley's first counsel, Attorney Knapp, also had a conflict of interest because she had initially discussed joint representation with both parties, and drafted a settlement agreement between them. Ms. Hinkley wanted Attorney Knapp to continue in the case representing her, and offered several times that each party waive the conflict for Attorneys Knapp and Spurling respectively. Respondent made it clear that Mr. Hurley was unwilling to waive Attorney Knapp's conflict, but, since he perceived no conflict on his own part, Respondent intended to proceed with representing Mr. Hurley.1 Attorney Knapp then filed a motion in the District Court to disqualify Respondent as Mr. Hurley's attorney and withdrew from representing Ms. Hinkley. The motion was prosecuted by successor counsel, Attorney Raimondi. Respondent vigorously opposed his own disqualification, arguing to the District Court that Me. Bar Rule 3.4(d)(l)(i) did not apply in the circumstances of this case and that he should not be removed. Bd. Ex. 9, 10, 12.

The District Court had a testimonial hearing, and, on June 9, 2006, the District Court filed a Decision and Order removing Attorney Spurling as defendant's counsel. Nadine G. Hurley vs John P Hurley, Docket No. WES-FM-05-364.

Maine Bar Rule 3.4(d)(l)(i) prescribes a two pronged test for disqualification from representing an adverse party in a successive case:

(i) Except as permitted by this rule, a lawyer shall not commence representation adverse to a former client without that client's informed written consent if such new representation is substantially related to the subject matter of the former representation or may involve the use of confidential information obtained through such former representation. [emphasis added]

The District Court found that the personal injury case raised questions of Ms. Hinkley's "...health, prior injuries, work history and income-earning capacity," which would also be at issue in a divorce case if the Court were required to resolve issues of spousal support, attorneys fees, or parental rights and responsibilities. Thus, the divorce case met the "substantially related" prong of the Rule. Decision and Order, June 9, 2006 (Bd Ex. 13) at 5. The District Court also found that Ms. Hinkley had communicated to the Respondent confidential information regarding her health, prior injuries, work history and earning capacity in the course of the personal injury case, thus meeting the second prong of the Rule. ld, at 6. Thus, the Court concluded that "Attorney Spurling's prior representation of Mr. (sic for "Ms."] Hurley in (a] personal injury action ... is sufficient to disqualify him under Maine Bar Rule3.4(d)(1)(i)." Decision and Order, June 9, 2006 (Bd Ex. 13) at 4. On June 20, 2006 Bar Counsel filed a sua sponte grievance complaint against Attorney Spurling for conflict of interest.2

Respondent filed an interlocutory appeal from the Decision and Order. Respondent prosecuted the appeal on behalf of Mr. Hurley through the process of settling the record, which was contested in this case. Bd. Ex. 15, 16, 17. New counsel appeared and briefed the case for Mr. Hurley at the Law Court. This appeal was decided in Nadine G. Hurley vs. John P. Hurley, 2007 ME 65 (decided May 22, 2007); the Law Court affirmed the decision of the District Court. The Law Court "use[d] a highly deferential standard of review," since both prongs of the Rule require a factual determination. The decision was reviewed for clear error; the District Court would be found in error only when there is no competent evidence in the record to support its decision. Id, ¶ 8.

From June 2006 to May 2007, Attorney Raimondi felt she was unable to move forward with the divorce, both because the file was transmitted to the Law Court and because dealing with the Respondent on substantive issues would prejudice Ms. Hinkley's case. The divorce was eventually settled in December 2007.

Shortly thereafter, Ms. Hinkley filed a grievance complaint against Respondent, docketed GCF #08-447, for his failure to withdraw from his conflicting representation of Mr. Hurley, and cited the following as the resulting injury to her:

Thus my divorce ground to a halt for over sixteen months severely prejudicing me as I was unable to move on from my failed marriage, I was forced to maintain John on my health insurance, I was unable to proceed with a child support hearing and I incurred several thousand dollars defending my ultimately successful motion.

Bd. Ex. 20. It appears from her complaint that she was unaware of the pending sua sponte Bar Counsel complaint.

At hearing Respondent's central argument is that the decision in Hurley vs. Hurley was a radical departure from the prior law on the scope of disqualifying conflict in successive representation; that no reasonable lawyer in Respondent's position could be expected to anticipate the interpretation of the Rule set forth in the Hurley decision. Thus, Respondent should not be disciplined for pursuing his interpretation of the Rule.

Discussion

Much of Respondent's evidence at the hearing revisited the facts in both the personal injury case and the divorce, in an attempt to demonstrate that his representation in the divorce matter was not "substantially related to the subject matter of the former representation," nor did it "involve the use of confidential information obtained through such former representation." Respondent sought to demonstrate that, although personal injury was a minor component of the automobile accident case, he never actually learned anything of significance about Ms. Hinkley's health, past injury, or past and future earning capacity.

The Panel rejects this argument for three reasons.

First, Respondent's analysis of his conflict, and of thus his duty to Mrs. Hinkley, must be made at the time that he accepted representation of Mr. Hurley. Facts that came to light after he appeared for Mr. Hurley cannot be used to bootstrap him into compliance with the Rule. Divorces are notoriously changeable as to the issues in dispute. Thus, the Respondent was in error at the time that he concluded that the divorce case was not "substantially related" to his earlier representation of Ms. Hinkley in the personal injury case.

Second, by parallel reasoning, the Respondent was in possession of confidential information from Ms. Hinkley which he may have been called upon to use in the divorce case. This included information about her health, prior injuries, work history and earning capacity. He assisted her in preparing and signing interrogatory answers and objections on these topics. Bd. Ex. 21, Answers 14 - 22. That the information was in fact negative or trivial from the Respondent's point of view is beside the point. The significance of the confidential information must be judged from the client's point of view. See, Grievance Commission Opinion #2, 10/17/1979; see, M. Bar R. 2(a). From a lay person's perspective, the confidential information was significant.

Third, the Panel does not agree that the Law Court's holding in the Hurley case was a radical departure from prior law and the generally understood limits of permissible successive representation. The basis for this suggestion appears to be the discussion by the Law Court that confidential information could include " ... information about the way in which Nadine [Ms. Hinkley] handled the litigation process." 2007 ME 65, ¶ 13. Confidential information of this type was briefly mentioned by the District Court. Decision and Order (Bd Ex. 13) at 6.

Moreover, confidential information of this type was discussed in Adam vs. MacDonald Page &Co., 644 A.2d 461 at 464 (Me. 1994). Adam was cited with approval by the law Court in Hurley. 2007 ME 65,¶ 14.

As early as 1979, an Advisory Opinion of the Grievance Commission spoke of "apparent" as well as "actual" disclosure of confidences in a successive representation. Grievance Commission Opinion #2, 10/17/1979, at 2.

Ethical considerations, as well as Rule 3.4(e), suggest avoidance of representation where there may be a possible violation of confidence.

Id, 3. [emphasis in original]3

The Panel finds that, when approached by Mr. Hurley to represent him in the divorce, the Respondent had a duty to his former client Ms. Hinkley to decline to do so; that this disability should have been apparent to the Respondent at the time; and that this conclusion was not a novel or unexpected interpretation of the Rule.

Conclusion and Sanction

The Code of Professional Responsibility establishes the duties owed by an attorney to his or her client. Attorney Spurling substantially deviated from his duties to his former client, Ms. Hinkley, when he accepted representation of Mr. Hurley in the divorce.

M. Bar R. 2(a) provides that 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. A Public Reprimand serves those purposes.

Therefore, the Panel herby issues a Public Reprimand to Clarence H. Spurling, Esq, as provided by M. Bar R. 7.1(e)(3)(C).


For the Grievance Commission

Victoria Powers, Esq., Chair of Panel E
Jack Hunt, Esq.
Michael K. Knowles


Footnotes

1Attorney Knapp explicitly threatened to make a Bar complaint if Respondent did not advise Mr. Hurley to sign a waiver, or withdraw. Since Respondent did neither, and Ms. Hinkley eventually did file a complaint, Respondent has characterized the complaint as "retaliatory." Since this complaint was made two and one half years after the fact, it is difficult to see it as retaliatory. In any event, Attorney Knapp's motives are not relevant to the Panel's decision, which focuses on the Respondent's conduct.

2 The District Court directed that a copy of the Decision and Order be sent to Bar Counsel for review Id fn 3.

3 The facts in the Advisory Opinion parallel those faced by the Respondent. In that case, the attorney was approached by three tenants of a trailer park to bring suit on their behalf against the park developer for a malfunctioning septic system. Earlier, the attorney had represented the park developer for the real estate transaction acquiring the park property, and in obtaining the local and State approvals necessary to develop the trailer park. The former client believed that the septic system had been an element in the approval process; the attorney believed not. Id. The Grievance Commission was of the opinion that the attorney should decline the representation for two reasons. First, to accept the successive representation would erode public confidence in the confidentiality of lawyer communications; second, it would create a risk of later finding it necessary to withdraw, placing an unnecessary burden on the client. Id, 3.

Board of Overseers of the Bar v. Jed Davis

Download Decision (PDF)

Docket No.: GCF 07-308 & GCF 07-309

Issued by: Grievance Commission

Date: December 30, 2008

Respondent: Jed Davis, Esquire

Bar Number: 001686

Order: Reprimand

Disposition/Conduct: Conduct Unworthy of an Attorney; Threatening Prosecution


Report of Findings of Grievance Commission Panel D


On December 29. 2008, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(c )(2), concerning the Respondent, Jed Davis, Esq. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar through Bar Counsel on July 11, 2008, alleging violat ions of M.Bar R.3.1(a), 3.6(c), and 3.6(g).

At the disciplinary hearing, the Board was represented by Assistant Bar Counsel Jacqueline L.L. Gomes, and Respondent was present and represented by Peter J. DeTroy, Esq. The Board 's exhibits marked Board Exh. 1-12, and Respondent's Exhibit 1, were admitted without objection.1 The Panel heard testimony from Attomey Davis, David Lothridge. Shannon Shea, Ryan Shea, Karen Lothridge, and Craig Donovan.

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

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. In August 2007, Mr. Donovan engaged Respondent in connection with a dispute with his neighbors over the use of a private camp road. On August 30, 2007, Respondent sent identical letters to Mr. and Mrs. Lothridge, and to Mr. and Mrs. Shea, that contained, among other things, the following paragraph:

I don't know if you're mentally ill or just nasty; but your outrageous behavior must cease immediately. My client has a right-of-way over Lothridge Lane, and it is illegal for you to interfere with his use of it. (By the way, the last mentally-ill person who tried to do this to a client of mine ended up in jail.

The four recipients of this letter filed complaints with the Board of Overseers. Ryan Shea, Shannon Shea, and David Lothridge each complained, and subsequently testified, that they found the letter insulting, demeaning, threatening, and unprofessional. Karen Lothridge wrote:

I feel it was an expressed threat for Mr. Davis to say, "By the way, the last mentally ill person who tried to do this to a client of mine ended up in jail." He is inferring we are all "mentally ill" and we may get jail time. NOT AT ALL PROFESSIONAL. ... If I were a lawyer I would be ashamed to admit that Mr. Davis was a lawyer also.

In response to the complaints, Respondent listed various actions that his client had alleged the complainants to have committed, and concluded, "Given such outrageous behavior, my letter was not unreasonable." Respondent admitted at the hearing, however, that he had not investigated the facts of the matter in any way prior to sending the letter, and had relied entirely on the version of the facts that was related to him by his client.2

At the hearing, Respondent's client testified that he had reviewed the letter before it was sent, and that he understood it to threaten the recipients with criminal prosecution. Each of the recipients also testified that they so understood it. Respondent, however, testified that he never even considered the possibility that his reference to an adverse party who "ended up in jail" could be interpreted as a threat to present criminal charges; instead, he testified that the wording of his letter related only to the unique circumstances of a previous right-of-way dispute in which he had been involved, in which the adverse party had been jailed for contempt after violating an injunction issued by the Superior Court. The Panel did not find Respondent's explanation credible. Further, Respondent was unable to provide any plausible explanation of what purpose the reference to "jail" might have served, if it was not intended as threat to present criminal charges, and if its purpose was not solely to obtain an advantage in this civil matter.

Conclusions

The Panel concludes that Respondent has conducted himself in a manner unworthy of an attorney in violation of M. Bar R. 3.1(a), both generally through the use of abusive language in his letter to the complainants, and specifically by threatening to present criminal charges solely to obtain an advantage in a civil matter in violation of M. Bar R. 3.6(c).3

Of great concern to the Panel is Respondent's contention that only conduct expressly prohibited by the Code of Professional Responsibility is subject to sanction. The Panel finds Respondent's view of the scope of sanctionable misconduct to be unduly constrained. The Maine Bar Rules specifically state that they are "intended to provide appropriate standards for attorneys with respect to their practice of the profession of law, including, but not limited to, their relationship with their clients, the general public, other members of the legal profession, the courts and other agencies of the State," M. Bar R. 2(a), and that "the prohibition of certain misconduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned." M. Bar R. 3.1(a). Because the proceeding before this Panel is "an inquiry to determine the fitness of an officer of the court to continue in that capacity," M. Bar R. 2(a), and because 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, or likely to be unable, to discharge properly their professional duties, the Panel reaffirms its view that conduct that is not specifically prohibited by the Code, but that a reasonable attorney should know to be "conduct unworthy of an attorney," may be subject to sanction. As this Panel has previously stated:

"Attorney behavior, particularly in the context of representation of a client, must be worthy of our profession. . .. 'Any verbal abuse of an adversary is unworthy of an attorney regardless of the circumstances.'" Board of Overseers v. Neal L. Weinstein, GCF 03-252 (July 30, 2004) (quoting Board of Overseers v. Richard B. Slosberg, BAR 92-13, 93-3, and 95-9 (Mar. 21, 1996). " 'The zeal employed by an attorney in guarding the interests of his clients must always be tempered so as not to inject his personal feelings or display a demeanor that subjects parties to a proceeding or opposing counsel to certain indignities.''' Id. (quoting Office of Disciplinary Counsel v. Jackson, 84 Ohio St. 3d 386, 387-388, 704 N.E.2d 246 (1999). In the Weinstein matter, Panel E of the Grievance Commission concluded that the respondent's verbal abuse and physical confrontation was "conduct prejudicial to the administration of justice, a dramatic failure to exercise reasonable care and skill, and a grievous shortage of 'lawyer's best judgment' in the performance of professional services;' and appeared to be "action on behalf of the client which the lawyer knows, or should know, would merely serve to harass or maliciously injure another." Id.

Board of Overseers v. James L. Auddifred, GCF 05-286 (Sept. 1, 2006). The Panel therefore believes that Respondent's use of gratuitously offensive and abusive language in his letter to the complainants, without more, could have constituted misconduct subject to sanction under the Maine Bar Rules, and was behavior inconsistent with the office of an attorney.

The Panel also concludes, however, that Attorney Davis violated a specific provision of the Code of Professional Responsibility, namely the prohibition in M. Bar R. 3.6(c): "[a] lawyer shall not ... threaten to present ... criminal ... charges solely to obtain an advantage in a civil matter." The Panel concludes that, contrary to his assertion at the hearing, Respondent did specifically intend the statement in his letter to serve as a threat to present criminal charges, and that his sole purpose in doing so was for advantage in this civil matter. Accordingly, Respondent has engaged in misconduct that is subject to sanction under the Maine Bar Rules.

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 clearly violated duties owed to the legal system, to the profession, and to the public. Respondent's letter was not merely, as Respondent characterized it, "indecorous," but gratuitously abusive. Further, Respondent clearly threatened to present criminal charges solely to obtain an advantage in a civil matter. The Panel is unable to conclude that Respondent's misconduct was minor.

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

The Panel concludes that Respondent's conduct was intentional and knowing. In particular, the Panel found Respondent's testimony that he had no subjective intent to threaten criminal" prosecution not to be credible, especially as he was unable to articulate any persuasive explanation of what other meaning or purpose his statement in the letter might have had.

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

Any economic injury caused by Respondent's misconduct appears to have been minor. While the recipients of the letter did engage an attorney who, among other things, cautioned Respondent to temper his communications, it appears that they likely would have required legal representation in the underlying right-of-way dispute in any event. However, the Panel concludes that Respondent's letter caused unwarranted distress to the recipients, and a loss of respect for the legal profession. The Panel is therefore unable to conclude that "little or no injury" occurred.

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

The Panel finds that aggravating factors present in this matter include Respondent's initial lack of recognition of his misconduct, and his initial lack of remorse. As a mitigating factor, the Panel notes that Attorney Davis has no prior disciplinary record on file with the Board of Overseers of the Bar, and that in his testimony, he did express remorse for the misconduct. However, in light of Respondent's initial difficulty in recognizing his violation of the Code of Professional Responsibility, the Panel is unable to conclude that there is little likelihood that Respondent will repeat the misconduct in the future.

In view of the foregoing factors, the Panel concludes the appropriate sanction for Respondent' s misconduct is a public reprimand, in accordance with M. Bar R. 7.1(e)(3)(C). Accordingly, it is hereby ORDERED that Jed Davis, Esq., shall be, and hereby is, reprimanded for his violations of Maine Bar Rules 3. 1(a) and.6(c).


For the Grievance Commission

Benjamin Townsend, Esquire, Chair
William E. Baghdoyan, Esquire
David Nyberg, Ph.D.


Footnotes

1 Respondent also provided copies of various professional ethics opinions, cases, and other interpretive guidance, marked Resp. Exh. 2-6, but did not move their admission. The Panel views those materials as providing assistance with legal conclusion, rather than as evidence on any disputed factual issues.

2At the hearing, both Bar Counsel and Respondent presented evidence as to the facts of the underlying right-of-way dispute. The Panel considered that evidence only to evaluate Respondent's state of mind and purpose in sending the letter.

3The Panel concluded that notwithstanding the reference to "a client of mine" (emphasis added), the letter did not imply any improper influence in violation of M. Bar R. 3.6(g).

Board of Overseers of the Bar v. Marsha Weeks Traill

Download Decision (PDF)

Docket No.: BAR 09-04

Issued by: Single Justice, Maine Supreme Judicial Court

Date: October 16, 2009

Respondent: Marsha Weeks Traill, Esquire

Bar Number: 002509

Order: Decision Affirmed

Disposition/Conduct:


Decision


Procedural History

On March 12, 2009. Respondent Marsha Weeks Traill filed a petition, pursuant to Maine Bar Rule 7.2(a), seeking review by a single Justice of the Law Court of a public reprimand imposed upon her on February 17, 2009, by Panel C of the Grievance Commission of the Maine Board of Overseers of the Bar. The public reprimand was issued upon a disciplinary petition submitted to the Grievance Commission July 8, 2008, and was the subject of a public testimonial hearing conducted on December 8, 2008.

The petition for review was assigned to the undersigned Justice of the Maine Supreme Judicial Court on March 16, 2009. Oral argument was held on October 6, 2009, in Portland and the matter was submitted for decision upon the existing record.

Facts

This Court's review is based upon the facts as found by the Grievance Commission Panel, all of which are supported in the record and none of which are clearly erroneous. Indeed, the parties do not challenge the Panel's findings on this review.

Marsha Weeks Traill is an attorney admitted to practice in the courts of the State of Maine. At all relevant times, she represented Mrs. J in a contentious divorce proceeding. Her husband, Mr. J, was represented by attorney Ray R. Pallas. Mrs. J suffers from bipolar and borderline personality disorders which are treated with prescription medications. Her mental health status was a central issue in the child custody aspect of the divorce proceeding.

As the date for a final contested hearing (April 12, 2006) drew close, the parties were engaged in seemingly promising settlement negotiations. On April 7, 2006, Mrs. J was admitted to the Spring Harbor mental health facility. Attorney Traill became aware of this admission on April 10, 2006, when members of Mrs. J's church reported this fact to her and advised that Mrs. J directed her not to disclose the fact of her hospitalization to Mr. J or his attorney.

Attorney Traill knew that Mr. J and his attorney would be very interested in her client's mental health status on the eve of the hearing date. She also knew that the disclosure of the hospitalization would likely sink the settlement negotiations and force the matter to a contentious trial. Given this concern, and her client's direction to avoid disclosing the fact, she was certainly conflicted by how she would answer questions regarding her client's mental health status.1

Attorney Pallas did inquire about Mrs. J's status in a telephone call on April 10 and at the courthouse on April 12. Although his questions were posed in rather vague terms,2 the import of the questions, as understood by both parties, was clear: What is the status of Mrs. J's mental health? Asked if there was anything to be concerned about, Attorney Traill answered something to the effect of: "Not that I am aware of." No mention was made of the in-patient hospitalization. Thus reassured, Attorney Pallas advised his client to proceed with the negotiated settlement, which involved shared parental rights and responsibilities and shared primary residence.3

Discussion

Attorney Traill argues that the Panel, in finding that she violated Maine Bar Rules 3.2(f)(3)--engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; 3.2(f)(4)--engaging in conduct that is prejudicial to the administration of justice; and 3.1(a)--conduct unworthy of an attorney, effectively grafted a new obligation onto the rules that required her to violate Rule 3.6(h)-- maintaining client confidentiality.4 She argues that the Panel's ruling would have required her to disclose the fact of her client's hospitalization over the client's express direction not to do so.5

Attorney Traill is quite correct when she argues that an attorney has no duty to spontaneously disclose facts to opposing counsel that he or she knows the other attorney would like to know. Absent an order or legal obligation to disclose, parties are well within their rights to play their cards as close to the vest as they wish. Indeed, Rule 3.6(h) absolutely bars disclosure of client confidences unless authorized by one or more of the enumerated exceptions. In the absence of a valid discovery order or continuing duty to disclose, Attorney Traill had no obligation to respond to Attorney Pallas's inquiries.

The fact that Attorney Traill undertook to respond to the inquiry takes her out of the scope and protection of Rule 3.6(h). She simply could have, and arguably should have, declined to comment. When she did undertake to respond, Attorney Pallas was justified in believing that Attorney Traill was expressly not invoking any rule of confidentiality. He was entitled to believe that her answer would not be dishonest, fraudulent, deceitful, or otherwise misrepresentative. In fact, her answer, which avoided any mention of the obviously pivotal fact of the psychiatric hospitalization, was patently intended to misrepresent the gravity of the situation and keep the settlement viable.6 It was deceitful.

The Panel reached the same conclusion in similar language:

A determination of whether an attorney has fulfilled the obligations set forth in Rule 3.2(f)(3) should not depend on the parsing of words or a strained interpretation of precisely what was said. Attorney Traill knew that Mr. J would not go forward with the settlement agreement if he learned about his wife's hospitalization. While Attorney Traill may not have personally believed that the hospitalization was significant, she knew that her client's husband would have found it to be fundamentally important. By answering Attorney Pallas' question the way she did on April 12, 2006, Attorney Traill knew or should have known that she had provided Attorney Pallas and his client with a false sense of security which resulted in them moving forward with the settlement agreement without further inquiry.

When attorneys undertake to make affirmative statements in their capacity as attorneys, they are bound to do so within the parameters established by the rules. Attorneys are skilled in the use of language. While nothing prevents them from using those skills to argue and communicate effectively on behalf of their clients, there is no license for patently false statements or statements that employ strategic omissions to intentionally mislead. While those practices routinely occur in the rough-and-tumble world of the marketplace or human relations, they are beneath the dignity of the law.

Accordingly, as the Court finds no errors of fact or misapplication of law in the Panel's Report and Reprimand, it is hereby AFFIRMED.


For the Court

Hon. Andrew M. Mead, Associate Justice - Maine Supreme Judicial Court


Footnotes

1Although the Panel's findings do not mention it, Attorney Traill advised her client that they would have to disclose the fact of the hospitalization if asked a direct question during the hearing.

2 Neither party to the conversations can recall the verbatim language, but both agree it was something along the lines of: “Do we have anything to be concerned about?"

3Although the Panel's findings do not mention it, the verbatim record discloses that Mr. J discovered the fact of the hospitalization shortly thereafter when an insurance bill arrived. He immediately commenced proceedings in the divorce court to address his concerns.

4Bar Rule 3, abrogated and replaced by the Maine Rules of Professional Conduct (effective 8/1/09), was in effect at all relevant times.

5 Although the Panel's findings do not mention it, Mr. J requested discovery, including medical reports, regarding Mrs. J 's mental health during the course of the litigation. It is not clear on the existing record whether Mrs. J had a continuing duty to disclose her status pursuant to the discovery requests. Neither the parties nor the Panel have addressed this issue.

6Attorney Traill asserts that Attorney Pallas's inquiry was not sufficiently specific (i.e. he should have asked if Mrs. J had any recent hospitalizations) and she was entitled to withhold information based upon the inartful nature of the question. The Panel implicitly-and properly-rejected this argument.

Board of Overseers of the Bar v. Seth T. Carey

Download Decision (PDF)

Docket No.: BAR-08-10

Issued by: Single Justice, Maine Supreme Judicial Court

Date: October 6, 2009

Respondent: Seth T. Carey

Bar Number: 009970

Order: Suspension

Disposition/Conduct: Conduct Unworthy of an Attorney


Decision and Order


On November 25, 2008 counsel agreed to waive any proceedings before the Grievance Commission and to stipulate to the filing of a disciplinary information with the Court concerning a grievance complaint that had been filed on October 8, 2008 by Anne Corbin against Seth Carey. That Waiver was approved by the Court's Order dated December 1, 2008. As a result, the Board of Overseers of the Bar initiated this attorney disciplinary action by the filing of an information on January 28, 2009. Based upon their discussions, the parties' counsel notified the Court that they had agreed to a proposed Order including stipulated findings and a sanction.

On this date, October 6, 2009, the parties appeared before the Court and presented that proposed Order for its consideration. At the hearing, the Board of Overseers was represented by Bar Counsel J. Scott Davis, and Mr. Carey was represented by Gerald F. Petruccelli, Esq. Ms. Corbin was present and provided an opportunity to comment about counsel's proposed Order.

Based upon a review of the factual allegations set forth in that underlying disciplinary information coupled with this Court's knowledge of the findings and conclusions as set forth in its Order of February 12, 2009, the Court deems it appropriate to adopt counsel's proposed submission as follows:

Findings of Fact

  1. Although Mr. Carey currently remains suspended from practice under that February 12, 2009 Order, at all times relevant to this new action he was still an attorney in good standing admitted to and engaging in the practice of law in the State of Maine and therefore subject to the Maine Bar Rules.

  2. Mr. Carey was admitted to the Maine bar in May 2006 and since that time until his suspension in 2009 had been engaged in private practice in Rumford.

  3. On October 8, 2008 - the second and final day of Mr. Carey's disciplinary hearing which resulted in this Court's issuance of that February 2009 suspension order - Anne Corbin, an Assistant Professor of Criminal Justice at Thomas College in Waterville, filed a grievance complaint with the Board against Mr. Carey.

  4. A brief friendship had developed between Ms. Corbin and Mr. Carey in the middle of September 2008. As a result, Mr. Carey was at her residence on October 4, 2008 and did then discuss certain issues that greatly bothered him in his then pending grievance matters, with the Court's disciplinary hearing scheduled to commence on October 7, 2008. Mr. Carey was experiencing considerable stress at that time. Ms. Corbin reported in her complaint and would testify that Mr. Carey became quite emotionally upset and angry such that he suddenly struck or grabbed Ms. Corbin’s German Shepherd puppy; that Ms. Corbin then asked Mr. Carey to leave, but he refused; that Mr. Carey never struck or harmed Ms. Corbin, but his sudden aggressive behavior did cause her to be wary of what she termed in her complaint as his "unhinged” behavior. Ms. Corbin also reported and would testify that due to his refusal to leave. Mr. Carey spent the evening at her residence while she was in a room away from him; that on the morning of October 5th Mr. Carey initially refused to leave and continued to behave in a manner causing Ms. Corbin to remain very concerned about his emotional angry outbursts; and that he did eventually comply with her request to leave. Ms. Corbin then very soon thereafter telephoned the office of the Board of Overseers of the Bar to "report" Mr. Carey's conduct, and then formally filed her grievance complaint with the Board on October 8, 2008.

  5. Mr. Carey does not agree with all and denies certain of Ms. Corbin's descriptions of his attitude and behavior, but he does now agree and regret that a number of his comments and actions were improper and could have caused Ms. Corbin to become as upset and distraught as she described in her complaint. As such, he agrees that his conduct was unworthy of an attorney in violation of then applicable M. Bar R. 3.1(a).

Sanction

The events that are the subject of this proceeding occurred before the February 12, 2009 Order and just prior to the time of the hearing on the earlier disciplinary matters. Therefore, the Court will not impose any additional length of suspension or repeat the conditions and terms currently imposed and in place by the February 12, 2009 Order. Accordingly, the following sanction with conditions is now imposed upon Mr. Carey in this matter effective this date:

  • A concurrent 60-day suspension of practice is imposed upon Mr. Carey, retroactive to August 1, 2009;

  • Within 14 days of the date of this Order Mr. Carey shall meet with the Director of the Maine Assistance Program (MAP) as the latter deems necessary to determine what, if any, services Mr. Carey should receive or undertake either directly or indirectly through MAP. If requested by MAP's Director, Mr. Carey shall enter into a contract for services to be administered and monitored through the MAP program as reasonably required by its Director. If the Director and Mr. Carey should disagree as to the necessity of such a contract being executed by Mr. Carey, he may file his written objection with Bar Counsel for consideration and decision by the Chair of the Grievance Commission; Mr. Carey shall have no further contact or discussion of any kind with Anne Corbin, nor shall he direct, request or allow anyone else on his behalf to do so;

  • Mr. Carey's future contacts with the Board of Overseers' staff shall only be through his attorney, or if done pro se shall then involve only his discussion or correspondence with Bar Counsel Davis, the Board's Executive Director or its CLE Coordinator.

  • Bar Counsel shall have the discretion to file an additional disciplinary information, either directly with the Court or after receiving authority from the Grievance Commission to do so under M. Bar R. 7.1(d)(5), without needing to conduct any preliminary hearing under M. Bar R. 7.1(e) concerning any new complaint(s) of professional misconduct allegedly committed by Mr. Carey, regardless of the alleged date of the occurrence of that misconduct; and

  • Any apparent violation of the conditions of this Order shall be brought to the attention of the Court by Bar Counsel.


For the Court

Hon. Andrew M. Mead, Associate Justice - Maine Supreme Judicial Court

Board of Overseers of the Bar v. James P. Boone

Download Decision (PDF)

Docket No.: BAR-01-05

Issued by: Single Justice, Maine Supreme Judicial Court

Date: May 14, 2002

Respondent: James P. Bonne

Bar Number: 002443

Order: Suspension

Disposition/Conduct:


Findings, Conclusions and Order

This matter is before the Court on information by the Board of Overseers of the Bar, upon recommendation of a panel of the Grievance Commission, seeking discipline of Attorney James P. Boone. M. Bar. R. 7.2(b). The information was filed with the Court and duly served upon Mr. Boone. Mr. Boone did not file a timely response to the information, and the Board of Overseers has filed a motion for default judgment.

The pending matters were heard on May 6, 2002. At that time, counsel for the Board and Mr. Boone appeared. Based on the discussion with Bar Counsel and Mr. Boone at the hearing, it appears that the factual allegations asserted by Bar Counsel are largely undisputed except that it is agreed that issues regarding Mr. Boone's obligation towards Patrons Oxford Insurance Company have been resolved with payment acceptable to Patrons Oxford.

With this matter resolved, the only issue in dispute at hearing related to the appropriate sanction, with Bar Counsel urging disbarment and Mr. Boone urging an indefinite suspension.

The facts relative to the Court's determination in this proceeding are as follows:

  1. Mr. Boone was admitted to practice approximately twenty years ago and, until 1999, maintained an active litigation practice in York County. Prior to this proceeding, Mr. Boone had not been subject to any bar disciplinary action.

  2. In late 1996, Mr. Boone undertook to represent David Robert Mailhiot and Mailhiot's finance, Leslie Perkins in their respective bankruptcy matters. For this legal representation, Mr. Boone was paid approximately $1,600.

  3. Mr. Boone took no action on the Mailhiot and Lewis matters for more than a year, while telling them that such matters take time.

  4. During this same time, a severe illness of Mr. Boone's wife caused him to close his office and work out of his home and then to cease his practice entirely.

  5. Eventually, sometime in 1998 or 1999, Mr. Boone relocated to a residence in Dixmont, Maine where he is required to spend substantial amount of time caring for his disabled wife. In addition, Mr. Boone performs some carpentry work, but no legal work, out of this residence.

  6. Mr. Boone closed his practice and relocated to Dixmont without notifying Mr. Mailhiot and Ms. Lewis of his actions.

  7. Mr. Mailhiot then took the bankruptcy issue into his own hands and worked out a payment arrangement.

  8. Some of the fees which Mr. Boone originally charged have been reimbursed. However, on March 7, 2002, a fee arbitration panel ordered that Mr. Boone repay Mr. Mailhiot the remaining $675 owed as a result of Mr. Boone's taking a fee and then performing no work.

  9. The Board of Overseers disciplinary action was initiated as a result t of a complaint by Mr. Mailhiot in the fall of 2001. After hearing before a Grievance Commission, the matter was referred to this Court for disciplinary action.

  10. On October 25, 2001, Mr. Boone was suspended from the practice of law as a result of his failure to register with the Board of Overseers and pay the annual fee required by the Board of Overseers for continuation of practice in the State of Maine, M. Bar. R. 6(b) and 10(b).

  11. Mr. Boone has not sought and does not plan to seek reinstatement at the present time or in the near future.

Based on Mr. Boone's actions in: (i) agreeing to undertake representation of clients; (ii) accepting fees from clients for the representation; (iii) failing to perform any of the requested legal work for the clients; (iv) misleading the clients with regard to the status of the work; (v) abandoning his practice without notice to the clients; (vi) failing to keep the clients' funds for the representation secure in a trust account; and (vii) failing to repay the clients after he had abandoned them without doing any work, the Court concludes that Mr. Boone has violated Bar Disciplinary Rules 3.1(a); 3.2(f)(3)(4); 3.3(a); 3.5(a)(2); 3.6(a)(2)(3); 3.6(e)(2)(ii); and 3.7(e)(l)(i).

Mr. Boone's conduct in undertaking to provide legal representation and then abandoning his clients is seriously inappropriate for a lawyer. His conduct in misleading his clients as to the status of their case and in failing to repay funds he took from them and for which he did no work is dishonest.

In considering the appropriate sanction, the Court recognizes that the misconduct found here is serious misconduct. However, it is apparently the only bar disciplinary action against Mr. Boone in a twenty year active litigation practice. Further Mr. Boone's misconduct did not result from desire for personal gain, did not result in any serious prejudice to his clients and, so far as appears from the record, is not part of a pattern of widespread misconduct affecting other clients. Instead, Mr. Boone's motivations in abandoning his practice largely focused on his desire to provide necessary full-time aid to a seriously ill spouse. Mr. Boone has come forward and acknowledged his errors in judgment and, at the present time, recognizes that his personal situation makes it unlikely that he will soon return to practice. In this circumstances, with the mitigating factors of Mr. Boone's conduct having been motivated by a desire to aid a seriously ill spouse and of his accepting responsibility for his misconduct and the problems it has caused and in light of his prior unblemished record in an active litigation practice, it appears that disbarment would be to severe a remedy. An indefinite suspension is, in itself, a substantial sanction. It provides continuing protection for the public from Mr. Boone while he may be indisposed to practice law and, at the same time, it can assure that Mr. Boone may only return to practice when he is desirous and able to provide full, active representation of clients.

Order

Therefore, based on the findings and conclusions stated above, James P. Boone's present suspension from the practice of law is made indefinite. Mr. Boone may be considered for reinstatement to the practice of law only after he has:

  1. Repaid the $675 found to be due to Mr. Mailhiot by the Fee Arbitration Panel, provided that this repayment shall occur no later than May 1, 2003.

  2. Paid all the fees and charges due to the Board of Overseers of the Bar, the Lawyers Fund for Client Protection and any other fees which are the obligation of lawyers engaging in active practice in the State of Maine:

  3. Demonstrated to Bar Counsel that he is capable and desirous of resuming the active practice of law and that he is capable of serving his clients promptly and with all good fidelity as required by the Bar Rules; and

  4. Demonstrated that for the first two years of return to active practice, Mr. Boone will either be associated in practice with another active Maine attorney acceptable to Bar Counsel or have his practice monitored by a Maine attorney acceptable to Bar Counsel, to assure that Mr. Boone properly complies with his obligations to his clients, the courts, and the profession.


For the Court

Hon. Donald G. Alexander, Justice - Maine Supreme Judicial Court

Board of Overseers of the Bar v. Stephen M. Brett

Download Decision (PDF)

Docket No.: BAR-06-01

Issued by: Single Justice, Maine Supreme Judicial Court

Date: May 11, 2006

Respondent: Stephen M. Brett, Esquire

Bar Number: 009277

Order: Temporary Suspension

Disposition/Conduct:


Order


A telephonic conference with counsel was conducted this date concerning the Board of Overseers of the Bar's Petition for Temporary Suspension. Bar Counsel J. Scott Davis appeared for the Board, with Attorney Peter J. DeTroy appearing for Mr. Brett.

As a result and by agreement of counsel, it is hereby ORDERED as follows:

  1. The Petition for Temporary Suspension is GRANTED effective May 26, 2006. As of that date, Stephen M. Brett, Maine Bar # 9277 is suspended from the practice of law in Maine.

  2. The Court directs counsel to continue their efforts to prepare and present a proposed stipulated Order for the Court's consideration concerning final resolution of the grievance complaints pending against Mr. Brett.

  3. Counsel shall present that proposed Order to the Court (or competing drafts) on or before June 14, 2006.

  4. The Court sets a hearing date of June 20, 2006, at 9:30 A.M. at the Cumberland County Courthouse, Courtroom No. 13, for its consideration of any proposed Order, a hearing, or such other action as may be needed or relevant on those pending grievances.


For the Court

Hon. Howard H. Dana, Jr., Associate Justice - Maine Supreme Judicial Court

Board of Overseers of the Bar v. Thomas Acker

Download Download Decision (PDF)

Docket No.: BAR 90-15

Issued by: Supreme Judicial Court

Date: December 11, 1990

Respondent: Thomas Acker

Bar Number: 003381

Order: Resignation

Disposition/Conduct:

Board of Overseers of the Bar v. Paul L. Letourneau

Download Decision and Monitoring Order (PDF)

Docket No.: BAR-09-11

Issued by: Single Justice, Maine Supreme Judicial Court

Date: September 25, 2009

Respondent: Paul L. Letourneau

Bar Number: 009544

Order: Suspended Suspension

Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Responsibilities Regarding Non-Lawyer Assistants


Decision and Order


Background

The Board of Overseers of the Bar initiated the above attorney disciplinary action on August 29, 2009, by the filing of a Petition for Temporary Suspension. Based upon their discussions at a subsequent pre-trial conference, the parties notified the Court that they had reached an agreement concerning a provisional order that would include stipulated findings and a portion of the sanction. On September 22, 2009, the parties appeared before the Court to outline their proposal and argue the issue of disciplinary sanction. At the hearing, Attorney Letourneau was represented by Timothy E. Zerillo, Esq., and the Board of Overseers was represented by Assistant Bar Counsel Aria eee.

Attorney Letourneau was admitted to the Maine Bar in December 2003. Since then, he has primarily worked as a solo practitioner with a concentration on criminal defense, family law, and some personal injury cases. Following a review of the parties' submissions and proposal and based on the stipulations reached for this proceeding, the Court finds that over the course of his time as a solo practitioner, Attorney Letourneau violated M. Bar Rules 3.6(a) and 3.13(c). Specifically, Attorney Letourneau's failure to adequately communicate with his clients and properly monitor their legal matters led to a general neglect of eight (8) clients who complained to the Board. Furthermore, Attorney Letourneau's failure to supervise his former legal assistant exacerbated the existing problems related to client communication, neglect of legal matters, and management of his law practice.

After argument by counsel, the Court imposes upon Attorney Letourneau a seven (7) month suspension, but suspends all of that period. Having had an opportunity to review the complaints filed by Attorney Letourneau's clients, and after hearing directly from Attorney Letourneau, the Court concludes that an entirely suspended suspension is appropriate at this stage of the proceedings. If the monitoring and support system now in place do not result in a dramatic improvement in Attorney Letourneau's communication with all of his clients and with his personal involvement in the management of his office, further sanctions may be imposed.

Moreover, after brief argument from the parties, the Court concludes that Attorney Letourneau's practice shall be limited to his criminal defense cases, with the exception of one divorce matter identified at the interim hearing, and some protective custody matters already in process. Attorney Letourneau may complete the divorce matter if his client wishes him to do so, but he shall seek to withdraw from the protective custody matters. If any of Attorney Letourneau's motions to withdraw are denied, he shall associate with competent counsel to assist him in completing those cases, and such counsel shall be approved by the Office of Bar Counsel. This limitation on Letourneau's practice includes his agreement to concentrate his efforts solely on the practice of law and shall continue until further order of this Court.

Additionally, Attorney Letourneau shall undergo weekly monitoring by Joseph Mekonis, Esq., who shall serve in that capacity until further order of the Court. The specific terms of Mr. Mekonis's monitoring shall be outlined by separate order of the Court and are incorporated into this Order by reference.

Within fourteen (14) days from the date of this Order, Attorney Letourneau shall also meet with the Director of the Maine Assistance Program (MAP) to determine what, if any, services or steps he should undertake in order to improve his management of his law practice. If requested by MAP, Attorney Letourneau shall enter into a contract for services to be administered and monitored through the MAP program.

Finally, Attorney Letourneau has agreed and is ordered to personally apologize to all of the complainants involved in this bar disciplinary proceeding. Attorney Letourneau shall inform his monitor and the Office of Bar Counsel upon his completion of those apologies.

In order to put in place the monitoring and other services, the parties stipulated to a determination that Attorney Letourneau violated certain provisions of the Maine Bar Rules and also stipulated that those violations would result in a suspension of Attorney Letourneau's license to practice law. Those stipulations, which appear in this Order, do not estop Attorney Letourneau from arguing that he did not violate the Bar Rules as described in this Order, if future contested hearings on this matter are held. Likewise, the stipulations do not estop the Board of Overseers from arguing additional findings or Bar Rule violations by Attorney Letourneau. If subsequent contested hearings occur, both parties may proceed with the presentation of evidence before this Court without the preclusive effect of collateral estoppel.

Finally, by agreement of the parties, and with permission from the Court, if, after the date of this Order, the Board receives any new complaints of professional misconduct allegedly committed by Attorney Letourneau, Bar Counsel may file an Information directly with the Court without any Grievance Commission review or hearing concerning those new complaints.

Accordingly, it is hereby ORDERED and ADJUDGED that Paul L. Letourneau, Esq. is suspended for a period of seven (7) months for his violations of Maine Bar Rules 3.6(a) and 3.13. However, all of this suspension is hereby suspended so long as Attorney Letourneau complies with the above-outlined conditions and engages in no further misconduct. Within six months from the date of this Order, the Court will schedule a final proceeding concerning all bar disciplinary matters now pending against Attorney Letourneau.


For the Court

Hon. Ellen A. Gorman, Associate Justice – Maine Supreme Judicial Court

Board of Overseers of the Bar v. Stephen M. Brett

Download Decision (PDF)

Docket No.: GCF 04-324 & 05-090

Issued by: Grievance Commission

Date: January 25, 2006

Respondent: Stephen M. Brett

Bar Number: 009277

Order: Reprimand

Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Conduct before a Tribunal; Referral Solicitation; Confidentiality


Report of Findings and Determinations


This matter came before Panel B of the Grievance Commission on a Petition of Bar Counsel, alleging in three separate Counts that Respondent Stephen M. Brett, Esq. of York Beach, Maine violated each of the following Maine Bar Rules:

§3.1(a) - conduct "unworthy of an attorney"
§3.2(f)(1) - conduct violating the provisions of the Maine Bar Rules
§3.2(f)(3) - deceitful or dishonest conduct
§3.2(f)(4) - conduct prejudicial to the administration of justice
§§3.6(h)(1)&(3) - revelation of confidential information
§3.6(h)(5) - failure to call upon a client to rectify fraud on tribunal
§3.7(e)(1)(i) - misrepresentation to a judge, jury or tribunal
§3.7(e)(2)(v) - asserting a personal opinion as to the guilt or innocence of an accused
§3.7(e)(2)(vi) - engaging in conduct degrading to a tribunal
§3.9(f)(2) - engaging in solicitation of employment

A public hearing was conducted on December 15, 2005 in Portland, Maine to determine whether a Bar Rule violation had occurred and whether probable cause exists for filing an information pursuant to Maine Bar Rule 7.2(b).

The Board of Overseers of the Bar ("the Board") was represented by Aria eee, Esq. Respondent Stephen M. Brett, Esq. was represented by Peter J. DeTroy III, Esq. No objection was made to the composition of the Panel. At the hearing the Panel admitted Board Exhibits 1 - 11 and 13, as well as Respondent's Exhibit 15, all without objection. The Panel also heard testimony of Mr. Brett, Officer Jamie Rooney, Officer Paul Pomeroy, Jeffrey H. Moskowitz, Esq. and Thomas F. Lonnquist. In addition, counsel stipulated as the nature of testimony which would have been given by an Officer Ciampi if he had attended the hearing. On the basis of this evidence, Panel B finds that Respondent Stephen M. Brett, Esq. did not violate Maine Bar Rules 3.6(h)(1) or (3) or 3. 7( e )(2)(v) as alleged, but did violate each of the other Maine Bar Rules listed above. For the reasons described in greater detail below, the Panel issues three separate public reprimands to Stephen M. Brett, Esq. for violations embodied in Counts I, II and III of the Petition.

Findings of Fact

Count I: First Complaint of Judge John D. Kennedy (File No. 04-324).

On August 20,2004, Judge Kennedy facilitated a judicially-assisted settlement conference between two parties and their respective counsel, one of whom was Attorney Brett. Following an initial session with parties and counsel in the courtroom, Judge Kennedy met with both counsel in his chambers, and then, in split sessions, invited the respective parties and their counsel to meet with him separately. The party and counsel not meeting with Judge Kennedy were generally expected to stay in the courtroom adjacent to the Judge's chambers, so the Court Officer could find them when the Judge wished to see them again. That day Attorney Brett had gotten up early, failed to get lunch, and then discovered that the settlement conference process would move slowly that afternoon.

Attorney Brett testified that after about 35 to 40 minutes of initial discussion and another 30 minutes or more with Judge Kennedy, he and his client found themselves back in the courtroom, alone, waiting patiently to be called back into the discussions. In the course of their wait, Mr. Brett admits he first entered the area behind the bench (an area adjacent to the door leading directly to the Judge's chambers) to retrieve fresh water for his client and dispose of some trash. Mr. Brett also admits that somewhere between 2:30 and 3:00 PM, becoming overcome by hunger, he entered the area again with the express intent to eavesdrop on the Judge's discussions to attempt to ascertain how much longer they might need to wait. He states he could not actually translate the mumbled conversation coming from chambers. Neither Mr. Brett nor his client made any effort that afternoon to contact the Court Officer or the Clerk's office to explain their desire to leave the courtroom, even momentarily.

Court Security Officer Paul Pomeroy saw things somewhat differently. At approximately 3:00 PM, after he had closed another courtroom, he went looking for the Court Security Officer assigned to Judge Kennedy. His search began by peeking through that courtroom's entrance door window. Officer Pomeroy reports he observed Attorney Brett, whom he recognized, standing behind the Judge's bench, an uncommon event in his experience. Officer Pomeroy testified that he then saw Mr. Brett speak to a person he assumed to be Mr. Brett's client, who was on the other side of the bench. According to Officer Pomeroy, Mr. Brett next appeared to lean back to within two feet of the Judge's chambers door and cock his head, obviously eavesdropping. Rather than enter the courtroom immediately however, Officer Pomeroy continued to observe Mr. Brett for "a minute or two," although the actual time he spent in further observation remains debatable. At some point the Officer retreated from the courtroom door and spent "twenty seconds or so" entering a secure hallway alongside the courtroom and speaking with Judge Kennedy's Security Officer. He then claims to have observed Mr. Brett a second time, this time through another window between the hallway and the courtroom. In Officer Pomeroy's opinion, Attorney Brett was still engaged in eavesdropping at that time. The Officer then entered the courtroom directly from the hallway, and Mr. Brett left the area behind the bench.

Stephen Brett admits to eavesdropping, asserts it was nevertheless entirely innocent, and confesses in retrospect to exercising poor judgment, compounded by the fact he could not actually determine whether the settlement discussions were "winding down" in any event. Officer Pomeroy added that 1) logistically one would not need to enter the bench area to obtain water or dispose of trash, and 2) it is possible, in his opinion, to hear conversations clearly through the Judge's door, which is what, he maintains, Mr. Brett was doing. Panel B finds that eavesdropping by Attorney Brett, for whatever purpose, did occur for an undetermined length of time.

Count II: Second Complaint of Judge John D. Kennedy (File No. 04-324).

Judge Kennedy also passed along allegations he had heard that Attorney Stephen M. Brett had solicited business from a Town of York Police Officer. Further investigation by the Board and testimony of Officer Jamie A. Rooney (f/k/a Jamie A. Dodge) appears to confirm such an offer occurred. During the Winter of 2003 - 2004, Ms. Rooney took a bicycle "spinning" class at a facility in Portsmouth, New Hampshire known as Spinnaker Point. Although her preferred spinning instructor was a Tom Lonnquist, Mr. Lonnquist began sharing his instructor duties with his friend, Mr. Brett, during that Winter. Officer Rooney, Tom Lonnquist and Stephen Brett apparently all agree that Ms. Rooney and Mr. Brett each probably became aware of the other's occupation through Mr. Lonnquist, and likely through the class' "exercise chatter." But Officer Rooney testified that following one particular morning spinning session lead by Mr. Brett, he approached her to explain that he was building a house in York and, in fact, was already living in it. He went on to explain that he had just started out on his own and certainly could use more clients. It was then, according to Officer Rooney, that Mr. Brett made an explicit offer that she take his business cards and hand them out to her "arrestees." For each person who eventually retained Mr. Brett, he proposed to pay her $50.00. Mr. Brett then went on to regret he had no business cards to give her that day. Officer Rooney described her reaction as "being uncomfortable," although she did nothing in response to the proposal other than avoid Mr. Brett's classes in the future and then tell her fiancé about the incident.

Mr. Brett asserts the solicitation event never happened, and, along with Mr. Lonnquist, suggests Officer Rooney more likely remembers another "exercise chatter" discussion in which Mr. Lonnquist quipped that Mr. Brett should pay Officer Rooney for referrals. But Officer Rooney remains adamant that although a second referral discussion did occur, that event took place weeks later. She states the second "business referral" suggestion still made her uncomfortable, but concedes it was more clearly made entirely in jest by Mr. Lonnquist. As a young officer, she understandably was unprepared for such an unusual offer and now admits to being even somewhat disoriented in her response. To avoid being confronted with such offers again, Officer Rooney stopped attending the spinning classes entirely, until recently.

Panel B finds Officer Jamie Rooney's testimony credible. No obvious reason exists for her to embellish her story. In fact, when Officer Rooney revealed the original solicitation to her fiancé, he reported it to the York Police Department, which precipitated a regrettable, informal investigation into the matter by her superior officers. Panel B believes Ms. Rooney had every reason to minimize the first solicitation event under the circumstances, but nevertheless treated the conversation with Mr. Brett as a serious offer soliciting clients in return for cash.

Count III: Complaint of Jeffrey Moskowitz, Esq. (File No. 05-90).

The final Petition Count stems from Mr. Brett's representation of the defendant in the matter of State v. Keith Armstrong in a York County Superior Court criminal jury trial. Mr. Armstrong was alleged to have operated a motor vehicle while having a blood-alcohol level of .15 on June 16, 2004. Mr. Armstrong met Mr. Brett at the Biddeford District Court and asked that he be made his court appointed attorney. On September 28, 2004, after having spoken to Mr. Brett for only "approximately 15 - 20 minutes," the defendant and Mr. Brett appeared at the Bureau of Motor Vehicles Office in Kennebunk, Maine for Mr. Armstrong's administrative license suspension hearing. No one disputes that, at that hearing, Mr. Armstrong testified he had driven to a 7-Eleven Store, parked the car, walked to a nearby bar to have some drinks, and, when he returned to his car, he was arrested. In other words, he maintained that he had been drinking but that he had not been driving. Not surprisingly, the defendant's story differed from that of the arresting officer, an Officer Ciampi, who testified at the trial that he witnessed Mr. Armstrong driving while intoxicated.

During later plea negotiations with the Assistant District Attorney, Jeffrey H. Moskowitz, Esq., Mr. Brett explained that he expected his client to testify that he had not been driving. Mr. Moskowitz responded that if, in fact, that testimony would be presented, and he obtained a conviction, he would seek a harsher sentence because he believed the defendant would be lying under oath. Mr. Brett made no response, and continued to prepare for what would be his first jury trial. To make trial preparation somewhat more difficult for Mr. Brett, a few weeks prior to the trial Mr. Armstrong spent some time in a psychiatric ward. Mr. Brett complained that it became difficult to keep Mr. Armstrong focused. It is easy to see Mr. Armstrong may not have made a model client.

On January 24th, Mr. Armstrong did take the stand in his own defense as expected, but what he had to say caught at least the prosecuting attorney off guard. Under direct examination by Mr. Brett and again under cross examination, Mr. Armstrong insisted, under oath, that he had been very sick on June 16th, had had nothing alcoholic to drink that day, and had driven from his home to a 7-Eleven Store to buy cough medicine and cigarettes. Mr. Armstrong's story ends with the arresting officer stopping him at the store and later establishing a .15 blood-alcohol level.

Mr. Brett explained to the Panel at one point that he was "dumbfounded" by his client's testimony of no drinking and "didn't know what to do." But later he also insisted that he had not made any notes at the BMV hearing and did not recollect his client's previous testimony. In either case, the transcript of Mr. Armstrong's testimony, and specifically Mr. Brett's questioning of him, suggests strongly that Mr. Brett was aware of the story about to be told, a story on which Mr. Brett continued to rely obliquely in his closing argument to the jury. All parties agree that Mr. Brett did not request a sidebar or act in any other way during the trial to attempt to rectify his client's testimony. Despite Mr. Armstrong's testimony, the jury returned a guilty verdict, and true to his word, Mr. Moskowitz sought a slightly more caustic sentence. The presiding Justice ultimately imposed a much more rigorous sentence, noting in doing so that both he and the jury felt the defendant had lied.

After the trial, Defendant's testimony continued to bother both the arresting officer and Mr. Moskowitz, who obtained the Bureau of Motor Vehicles suspension hearing tape to compare the Armstrong testimony in both hearings and to also confirm Mr. Brett was in attendance at that earlier hearing. The result is the present complaint against Mr. Brett for allowing his client to materially deviate from his known, sworn testimony, effectively allowing a falsehood to be submitted to the Court.

Discussion

Stephen M. Brett, Esq. is alleged to have violated Maine Bar Rules in the course of his eavesdropping, business solicitation, and courtroom behavior. We chose to examine each matter independently.

Panel B views Mr. Brett's admitted eavesdropping as a deplorable and lamentable exercise of unsatisfactory judgment. We find no difficulty characterizing listening in on conversations behind closed doors, and particularly conversations between the opposing party and a Judge, as conduct 1) "unworthy of an attorney," 2) prejudicial to the administration of justice, and 3) degrading to a tribunal. In short, it is hard to imagine eavesdropping as the preferred course of action in any litigated matter, particularly since there were other avenues available to Mr. Brett to determine whether he could step out to find lunch. Moreover, we believe that, in the context of judicially assisted settlement discussions, an improper advantage could be achieved by listening in on the other party's discussions with the Judge. It is apparent to this Panel, in this instance, that Mr. Brett could have no logical or innocent reason to loiter behind the bench, near the Judge's chamber's door, other than to attempt to hear what was being said by his opponent. If it is true, as asserted by Mr. Brett, that one cannot discern the actual dialogue behind that door, then certainly no justification exists for remaining in that location more than a mere few seconds.

Panel B also views Mr. Brett's solicitation of business, whether light-hearted or deliberate, as serious lawyer misconduct. Maine Bar Rule §3.9(f)(2) expressly prohibits engaging in solicitation of employment or giving anything of value to recommend employment by a client or as a reward for having made the recommendation resulting in employment by a client. As observed above, Panel B elects to believe the Town of York Police Officer's recollection of events surrounding Mr. Brett's offer to pay her for client referrals. The terms of Mr. Brett's business proposal could not have been more straightforward to Officer Rooney. She was to pass out Mr. Brett's business cards to solicit work for him, and in return would receive $50 for each successful referral. Such an explicit offer, even made in jest, would cause a reasonable person to conclude he or she may be receiving an actual business proposition. Mr. Brett's offer, coupled with his description of his current financial need at the time, causes this Panel to conclude that Mr. Brett violated Maine Bar Rule §3.9(f)(2) prohibiting solicitation of employment. Panel B also chooses to find that the foregoing solicitation conduct is also a violation of Maine Bar Rule §3.1(a), conduct "unworthy of an attorney," and Maine Bar Rule §3.2(f)(1), conduct violating the provisions of the Maine Bar Rules.

Lastly, Mr. Brett's failure to take corrective action during his client's trial violates Maine Bar Rule §3.6(h)(5). That particular Bar Rule compels each Maine lawyer, when he or she "receives information clearly establishing that a client ... has, during the representation, perpetrated a fraud upon any ... tribunal" to call upon the client to rectify the fraud on that tribunal. The Court in Board of Overseers v. Dineen, 481 A.2d 499 (Me. 1984), also observed:

A lawyer practicing before the Maine bar enjoys a privileged status. Upon entering the profession that lawyer takes an oath to "do no falsehood nor consent to the doing of any in court," 4 M.R.S.A. §806 (1979). While the lawyer has a duty to act zealously on his client's behalf, that duty is subject to ethical limitations which the lawyer may ignore at his peril. Among these is the "affirmative obligation to inform the court of the falsity of the client's assertions." State v. Gilcott, 420 A. 2d 1238, 1240 (Me. 1980).

Id. at 503-504,

Panel B concludes that Attorney Stephen M. Brett was, or should have been, aware of his client's divergent, sworn testimony during his OUI and BMV hearings. Although Respondent's counsel correctly points out that Mr. Brett had no previous jury trial experience, Mr. Brett's very unfamiliarity with the process would suggest that he had committed the likely testimony of the trial's only two witnesses (the arresting officer and the defendant) to memory. In this Panel's view, Mr. Brett's response should have been obvious. Except where the information is protected (not the present circumstances), one must use the first opportunity to reveal the fraud to the tribunal, i.e. utilize a sidebar during the jury trial to explain your quandary and ask to be given the opportunity to rectify the fraud. No such effort was made by Mr. Brett.

Determinations

In the event the Panel concludes lawyer misconduct subject to sanction under the Maine Bar Rules has occurred, Maine Bar Rule 7.1 (e)(3) requires this Panel either to issue a dismissal with a warning or issue a public reprimand or a finding of probable cause for suspension or disbarment and direct Bar Counsel to commence an attorney disciplinary action by filing an information pursuant to Maine Bar Rule 7.2(b). This Panel finds that misconduct by Stephen M. Brett, Esq., subject to sanction under the Maine Bar Rules, has occurred in each matter before us.

A. The Panel finds Mr. Brett's courtroom eavesdropping violated Maine Bar Rules §3.1 (a), §3.2(f)(1), §3.2(f)(4) and §3.7(e)(2)(vi), and represents more than a minor departure from acceptable lawyer conduct The appropriate sanction is that Stephen M. Brett, Esq. be and hereby is issued a public reprimand.

B. The Panel also finds that Mr. Brett's solicitation of business referrals from Officer Jamie A. Rooney (f/k/a Jamie A. Dodge) is a conspicuous and distressing violation of Maine Bar Rule §3.9(f)(2). The appropriate sanction is that Stephen M. Brett, Esq. be and hereby is issued a second public reprimand.

C. Lastly, the Panel finds that Mr. Brett's failure to rectify a fraud upon a tribunal to be a violation of Maine Bar Rules §§3.1(a), 3.2(f)(1), 3.2(f)(3), 3.2(f)(4), 3.6(h)(5), 3. 7(e)(1)(i) and 3.7(e)(2)(vi). This conduct represents a serious transgression of acceptable behavior during a trial. The appropriate sanction is that Stephen M. Brett, Esq. be and hereby is issued a third public reprimand.


For the Grievance Commission

David R. Weiss, Chair Panel B
John H. Rich III
Susannah White

Board of Overseers of the Bar v. Stephen M. Brett

Download Decision (PDF)

Docket No.: BAR-06-01

Issued by: Single Justice, Maine Supreme Judicial Court

Date: June 20, 2006

Respondent: Stephen M. Brett

Bar Number: 09277

Order: Suspension

Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct involving Dishonesty, Fraud, Deceit or Misrepresentation; Conduct Prejudicial to the Administration of Justice; Neglect; Communicating with Adverse Party


Order


This matter came before the Court on June 20, 2006 pursuant to the Court's Order of May 11, 2006. The Board of Overseers of the Bar (the Board) was represented by Bar Counsel J. Scott Davis. Defendant Stephen M. Brett was present and represented by Attorney Peter J. DeTroy. Most of the various complainants have generally been made aware of counsel's stipulated proposed order, were invited to be present, but did not appear. The Court received two written statements from police officers involved in the criminal matters pending in the Cumberland County Superior Court. These statements will be made part of the record in this matter.

Stipulations

The parties have stipulated to the following material facts now found and adopted by the Court:

Stephen M. Brett has been licensed to practice law in Maine since 2001. His practice has generally focused on criminal defense and civil litigation. Mr. Brett has accepted numerous court appointments and maintained a smaller base of retained clients. Five years into his practice, Mr. Brett received three separate reprimands by a Grievance Commission hearing panel's decision dated January 25, 2006. That Grievance Commission hearing panel made the following findings:

"Panel B views Mr. Brett's admitted eavesdropping as a deplorable and lamentable exercise of unsatisfactory judgment. We find no difficulty characterizing listening in on conversations behind closed doors, and particularly conversations between the opposing party and a Judge, as conduct 1) unworthy of an attorney, 2) prejudicial to the administration of justice, and 3) degrading to a tribunal."

The Panel further determined that the balance of Attorney Brett's conduct as outlined in the decision amounted to "serious lawyer misconduct".

Approximately one month after those reprimands had been issued, on or about February 20, 2006 Cumberland County District Attorney Stephanie Anderson filed a grievance complaint with the Board against Mr. Brett which is now the subject of a pending criminal complaint to which he has entered a plea of not guilty. Ms. Anderson's complaint and the supporting statements therein detailed Mr. Brett's alleged violation of a client's conditions of release. Specifically, on or about February 20, 2006, Mr. Brett was charged with violation of those conditions because of his role in providing his then client with access to the client's victim/partner, which was in violation of a District Court order. Although Mr. Brett disputes the State's complete version of those events, he agrees a finding that he engaged in misconduct under the Bar Rules is warranted.

On or about April 25, 2006, Mr. Brett was arrested and again charged with new violations of the Maine Criminal Code (theft) based upon his alleged request and receipt of money from a client whom he had been court-appointed to represent on her criminal charge. District Attorney Anderson once again notified the Board of those new pending charges against Mr. Brett. He again pled not guilty and that criminal matter(s) remains pending against him.

During the time period between Mr. Brett's two arrests, other grievance complaints were filed against him. One of those complaints involved Mr. Brett's handling of his client's (Jeffrey Brisset's) arraignment in the Biddeford District Court. Although the District Court issued proper notice to Mr. Brett of the scheduled arraignment date for his client, neither Mr. Brett nor Mr. Brisset (who was already incarcerated in another county jail but had not been notified or arranged to be present by execution of a writ of habeas corpus) appeared at the initial arraignment. Due to Mr. Brisset's non-appearance, the court forfeited the bail money that his parents (complainants Ernie and Donna Hamel) had posted on their son's behalf. The District Court later vacated that default and returned the forfeited bail money to Mr. and Mrs. Hamel.

In his response to the Board concerning the Hamels' grievance complaint, Mr. Brett was less than completely candid when he wrote that the District Court failed to provide the necessary notice to him. Assistant Bar Counsel investigated that complaint and on March 27, 2006, a Grievance Commission review panel found probable cause to believe that concerning both his neglect of Mr. Brisset's arraignment and the inaccuracy of his written response to the Board, Mr. Brett had committed misconduct subject to sanction under the Maine Bar Rules.

A subsequent grievance revealed that Mr. Brett also exhibited poor judgment and a lack of impulse control during his interactions with another complainant, Tracy D. At the time they met, Ms. D was the former partner of Mr. Brett's then client, Taylor S. On more than one occasion, Ms. D had been assaulted by Mr. S. In order to discuss whether she intended to testify against Mr. S.; Mr. Brett repeatedly contacted Ms. D, who met with him to discuss the case. After Mr. S's case was resolved, the two met socially on a few occasions as friends, and subsequently Mr. Brett attempted to initiate a romantic relationship with her. Ms. D, however, became uncomfortable with those interactions and ceased contact with Mr. Brett. Mr. Brett, however, persisted trying to reinitiate contact with her. Despite her non-response, he requested to see her again by mailing or hand-delivering two letters. Ms. D did not respond to his correspondence, and changed her residence, cancelled her cell phone and changed her email address. Ms. D. then complained to the Board about Mr. Brett's actions.

All of the above-outlined investigations culminated in the Board's expedited filing of a "Petition for Temporary Suspension". On May 11, 2006, counsel for both parties appeared before this Court by teleconference and agreed to a resolution of the Board's Petition. Later that day, this Court issued an order temporarily suspending Mr. Brett, effective May 26, 2006, from the further practice of law in Maine.

Just prior to the issuance of that order of temporary suspension, (on May 10, 2006) the Board received a new complaint from an opposing party concerning Mr. Brett's conduct between September 2004 and August 2005 when he allegedly mishandled a mechanics lien action, including having direct contact with the opposing party without the consent of that party's attorney. Mr. Brett now agrees he should not have acted as he did in that matter.

On May 12, 2006 the Maine Law Court issued its Per Curiam decision in the matter of Hayden v. Orfe 2006 ME 56 finding among other things that "the appeal is interlocutory and must be dismissed." Mr. Brett served as Appellant Orfes' attorney. In its decision, the Court imposed sanctions upon Mr. Brett's clients because the " ... appeal (was) obviously without any merit and (had) been taken with no reasonable likelihood of prevailing ... " The Law Court also found that Mr. Brett had stated inconsistent positions at oral argument concerning the facts as they related to the "notice" issue and he was also undecided about those facts. In that opinion, Mr. Brett's clients were assessed sanctions of "treble costs and reasonable attorney fees in the amount of $1000.00".

As recently as June 12 and 13, 2006, the Board received an audio recording of Mr. Brett and a written complaint that confirmed that on June 12th Mr. Brett still acted and spoke in such a manner as to cause a recent former client, and/or his power of attorney, to believe Mr. Brett was still serving as his lawyer or was at least providing some informal legal assistance concerning an appellate matter. The Court hereby stresses that during his suspension from practice, Mr. Brett must completely abstain from providing any advice, assistance or counseling of any kind to anyone.

Taken in their totality, these continuing new allegations against Mr. Brett are serious and disturbing. Mr. Brett acknowledges collectively these allegations exhibit impulsivity, serious lapses of judgment and serious professional misconduct by him. Mr. Brett further agrees that it is necessary and appropriate for him to discontinue his practice of law for an indefinite amount of time.

It is apparent that this misconduct all occurred after Mr. Brett became a solo practitioner without any officer support in 2004 and then became financially unable to pay for health insurance. Based upon that lack of insurance, he could not afford to pay for medical care or medications essential for his mental health functioning and his ability to make reasoned decisions.

While he accepts responsibility for his behavior, Mr. Brett has asserted that he intended no harm and believed that he was justified in his actions. Regardless of Mr. Brett's intent, his actions and inactions referenced above all resulted in various violations of the rules of criminal and civil procedure and the Code of Professional Responsibility. Mr. Brett's misconduct and poor judgment provide the rationale for this Court to protect the public by providing that (at a minimum) Mr. Brett's current suspension from the practice of law remain in effect until further order of this Court.

Conclusions of Law

The parties agree and the Court so finds that Attorney Brett's conduct violated Maine Bar Rules 3.1 (a) (conduct unworthy of an attorney); 3.2(f)(1) (conduct subverting any provision of the Maine Bar Rules); 3.2(f)(3)( conduct involving dishonesty, fraud, deceit or misrepresentation); 3.2(f)(4)(conduct prejudicial to the administration of justice); 3.6(a)(3)(neglect of a client's matter); and 3.6(f)(communicating with adverse party).

Sanction

In light of Mr. Brett's many violations of the Maine Bar Rules, the Court must now consider an appropriate sanction.

Recognizing that the primary purpose of attorney discipline is not punishment, but protection of the public, the Court hereby ORDERS the following sanction in this matter as proposed by the parties:

  1. Stephen M. Brett remains suspended from the practice of law until further order of the Court and must proceed pursuant to M. Bar R. 7.3(j)(reinstatement) prior to being readmitted to practice;

  2. Within 30 days of this Order, Mr. Brett shall arrange to meet with the Director of the Maine Assistance Program for Lawyers and Judges (MAP) and enter into a contractual relationship with MAP that shall be incorporated by reference in this order. All conditions contained within the contract shall be completed to the satisfaction of and as directed by the Director of MAP;

  3. Prior to seeking reinstatement to practice under M. Bar R. 7.3(j), Mr. Brett shall be and remain in compliance with the MAP contract and shall undergo a forensic evaluation by such clinical psychologist as directed by Bar Counsel.

  4. Prior to filing any such petition for reinstatement, Mr. Brett shall obtain malpractice insurance coverage in an amount satisfactory to the Board as confirmed by Bar Counsel.

  5. Within 90 days of this Order, Mr. Brett shall ensure that all of the sanctions imposed by the Law Court in Hayden v. Orfe have been paid as required;

  6. In the event a grievance complaint is received by Bar Counsel concerning alleged misconduct by Mr. Brett, such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as appropriate, but in the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1 (d)(5), the matter shall then be filed directly before the Court under Bar Rule 7.2(b) instead of before the Grievance Commission under M. Bar R. 7.1(e);

  7. Any apparent violation of any of the conditions of this Order shall be filed by Bar Counsel directly with the Court; and

  8. On or before June 30, 2006, Mr. Brett shall comply with all the provisions and requirements of Maine Bar Rule 7.3(i)(1)(A), (B) and (C).


For the Court

Hon. Howard H. Dana, Jr., Associate Justice - Maine Supreme Judicial Court

Board of Overseers of the Bar v. Bronson Platner

Download Decision

Docket No.: GCF 07-056

Issued by: Grievance Commission

Date: March 28, 2008

Respondent: Bronson Platner

Bar Number: 000885

Order: Reprimand

Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment


Stipulated Report of Findings and Sanction Order
M. Bar R. 7.1(e)(3)(C)
M. Bar R. 7.1(e)(4)


On March 28, 2008, after due notice, Panel B of the Grievance Commission, pursuant to Maine Bar Rule 7.1 (e)(2)(E), reviewed and approved this agreed sanction order concerning misconduct by the Respondent, Bronson Platner, 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 January 9, 2008.

The Board was represented by Bar Counsel J. Scott Davis, and Attorney Platner was represented by Attorney James M. Bowie. The complainant, Shane K. Campbell, had been provided with a copy of this Report (in its proposal form), and stated to Bar Counsel Davis that he agreed with it.

Having reviewed the agreed proposed findings as presented by counsel, the Panel hereby finds the facts and imposes the disposition as follows:

Findings

  1. Petitioner is the Board of Overseers of the Bar (the Board).

  2. Respondent Bronson Platner (Attorney Platner) of Ellsworth, County of Hancock, State of Maine is and was 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.

  3. In the summer of 2005 Attorney Platner represented Shane Campbell in his bankruptcy matter. During the course of that representation, Attorney Platner had advised Campbell concerning how to handle a $4,000.00 debt he had been ordered by the Farmington District Court to pay to his former wife, Janis Walker Campbell, regarding her attorney fees from their January 2005 divorce.

  4. In Campbell's bankruptcy filing with the U.S. Bankruptcy Court at Bangor, Maine, Attorney Platner omitted a correct listing of the amount the Farmington District Court had ordered Campbell to pay, i.e. he was "... responsible for contributing $4,000.00 towards (Janis Walker Campbell's) legal fees and guardian ad litem costs... until paid in full ... " (Section 25 of the Campbells' divorce judgment of January 25, 2005.)

  5. Attorney Platner agrees that he had advised Campbell that if he listed that $4,000.00 debt in his bankruptcy filing as a debt owed to his former wife and she then objected to discharge of that debt, then it would be a non-dischargeable debt. Attorney Platner then (incorrectly) believed that discharge of that court-ordered $4,000 debt would likely occur if it was instead described and stated in that bankruptcy filing as being owed by Campbell to his former wife's attorney. Attorney Platner now agrees that such legal advice was an incorrect interpretation of bankruptcy law.

  6. As a result of Attorney Platner's incorrect advice and filing action in the U.S. Bankruptcy Court, Campbell's $4,000.00 court-ordered obligation and debt to Janis Walker Campbell was not discharged.

  7. However, Campbell thought that debt had been discharged and he therefore did not make any payments to his former spouse after filing bankruptcy.

  8. For a number of reasons which included Campbell's non-payment of that $4,000.00 debt, by order dated March 13,2006 he was found in contempt by the Farmington District Court (McElwee, J.), with that court specifically finding that "... since there is no evidence that plaintiff (Shane Campbell) listed defendant (Janis Walker Campbell) as a creditor, nor has he been discharged of the obligation to defendant, section 25 of the divorce judgment remains in full force and effect" (page 2, footnote 1 of that order).

  9. Campbell then incurred additional interest and attorney fee amounts totaling approximately $1,850.00.

  10. Attorney Platner agrees and admits that the spousal debt in question as owed by Campbell was not dischargeable under the Bankruptcy Code, and also admits that his failure to list the debt on Campbell's Schedule F meant that a debt owed to a person not listed on the schedule was not discharged even if it were otherwise dischargeable.

  11. Attorney Platner concedes that due to the phrasing of the divorce judgment the debt, although ultimately inuring to the benefit of Attorney Laskoff, was in fact a debt owed by Campbell to his former spouse.

  12. As a result, Attorney Platner agrees he engaged in professional misconduct involving his failure to use reasonable care and skill and his best judgment by giving improper legal advice to Campbell, in violation of Maine Bar Rule 3.6(a)(1).

Conclusion and Sanction

M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Platner agrees that he did in fact violate the Code of Professional Responsibility, it appears that a public reprimand serves those purposes. Attorney Platner has no history of discipline and the Panel finds that it is unlikely he will repeat the same behavior in the future.

By signature of his counsel, Attorney Platner hereby waives the right to a hearing under Maine Bar Rule 7.1(e) and also waives the right to file a petition for review under Maine Bar Rule 7.2(a).

Therefore, the Panel accepts the agreement of the parties, and concludes that the appropriate disposition of this case is to now hereby impose a reprimand upon Attorney Bronson Platner as provided by M. Bar R. 7. 1(e)(3)(C).


For the Parties

J. Scott Davis, Bar Counsel
James M. Bowie for Bronson Platner, Esq.


For the Grievance Commission

John R. Bass II, Esq., Panel B Chair

Board of Overseers of the Bar v. Stephen C. Whiting

Download Decision (PDF)

Docket No.: GCF 08-396

Issued by: Grievance Commission

Date: September 17, 2009

Respondent: Stephen C. Whiting, Esquire

Bar Number: 000559

Order: Reprimand

Disposition/Conduct: Conflict of Interest; Conduct Prejudiical to Admin. of Justice


Stipulated Report of Findings and Order of Panel B of the Grievance Commission M. Bar R. 7.1(e)(4), M. Bar R. 7.1(e)(2)


On September 7, 2009, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(c)(2)(E), concerning misconduct by the Respondent, Stephen C. Whiting, 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 June 29, 2009.

At the hearing, Attorney Whiting was represented by James M. Bowie, Esq., and the Board was represented by Assistant Bar Counsel Aria Eee. The complainant, Bernard J. Broder III, Esq. was present and participated in the disciplinary hearing. Prior to the hearing, the parties had submitted a proposed, stipulated Report of Findings and Order for this Grievance Commission Panel's review and consideration.

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

Findings

Respondent Stephen C. Whiting (Whiting) of Portland, 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 Whiting was admitted to the Maine bar in 1978 and he is currently registered with the Board of Overseers of the Bar as an active Maine Attorney.

On November 3, 2008, pursuant to his obligation as a mandated reporter, Attorney Broder filed a grievance complaint against Attorney Whiting. The complaint alleged Attorney Whiting's violations of the Code of Professional Responsibility due to his failure to appropriately protect the interests of his clients.

By way of background, the underlying legal matter concerned a real estate transaction involving Attorney Whiting's then clients, Mr. and Mrs. Proulx. The Proulx contacted Whiting to facilitate a conveyance of Seashore Motor Lodge Motels (Seashore), an ocean front property in Old Orchard Beach, ME. At that time, Seashore was owned by Proulx Real Estate Investment Company, LLC, a limited liability company owned by Mrs. Proulx and the Gerald A. Proulx Irrevocable Trust, an entity wherein Mr. and Mrs. Proulx serve as the Trustees. The conveyance to Mr. Proulx's step-son, Armand Vachon (Vachon), was designed to allow the stepson Vachon to obtain a mortgage loan on the property.

While Mr. Proulx expressed to Whiting his intention to sell the property to Vachon, Mrs. Proulx sought to outright gift the property to her son. Given the divergent goals of Mr. and Mrs. Proulx, Whiting should have conducted a conflict analysis to determine whether he could adequately protect each client's interest in the proposed transaction. In that regard Whiting should have reviewed the apparent conflict with the Proulx and thereafter sought each client's informed, written consent to the concurrent conflict of interest. His failure to undertake such measures constituted a violation of M. Bar R. 3.4(c).

Likewise, Whiting's failure to review with the Proulx and appropriately advise them of their duties as fiduciaries to the Irrevocable Trust, only served to exacerbate the conflict problem inherent in the real estate conveyance. Additionally, the manner in which Whiting carried out the transaction resulted in conduct prejudicial to the administration of justice. See M. Bar R. 3.4(c)(2); and 3.2(f)(4).

Conclusion and Sanction

The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Whiting's above-outlined failures, his clients were not made aware that they could have separate representation. The property was subsequently conveyed as a gift by the LLC to Vachon.

The Panel notes that Attorney Whiting has taken responsibility for his actions and he expressed remorse for his violations of the Code of Professional Responsibility.

M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Whiting agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.

Therefore, the Panel accepts the agreement of the parties, including Attorney Whiting's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Stephen C. Whiting, Esq. which is now hereby issued and imposed pursuant to M. Bar R. 7.1(e)(3)(C),(4).


For the Parties

Aria Eee, Assistant Bar Counsel
Stephen C. Whiting, Esq.


For the Grievance Commission

Maurice A. Libner, Esq.
Ann M. Courtney, Esq.
Susannah White

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

Download Decision (PDF)

Docket No.: GCF 07-095 & 09-003

Issued by: Grievance Commission

Date: July 28, 2009

Respondent: Erika L. Frank, Esq.

Bar Number: 008326

Order: Reprimand

Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Competency; Conflict of Interest: Simultaneous Representation


Stipulated Report of Findings and Order of Panel E of the Grievance Commission M. Bar. R. 7.1(3)(2)(4)


On July 28, 2009, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent. Erika M. Frank, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on September 4, 2008. Additionally, on March 18, 2009 the Board filed a second Disciplinary Petition which was stipulated to by the parties. By agreement, the two Petitions were consolidated for this public disciplinary hearing before Panel E of the Commission.

At the hearing, James Bowie, Esq. appeared on behalf of his client, Erika Frank, Esq., and the Board was represented by Bar Counsel J. Scott Davis. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction for the Grievance Commission Panel’s review and consideration. The complainant, Martica Douglas, Esq., though not present for the hearing, was provided with a copy of the Report (in its proposal form) and did not object to the parties' proposal. Having reviewed the proposed findings as presented by counsel, the Panel makes the following disposition:

Findings

Respondent Attorney Erika M. Frank (Frank) of Windham, County of Cumberland, State of 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 Frank was admitted to the Maine bar in 1995 and the bulk of her practice as a Maine Attorney has been as a solo practitioner.

First Count

On March 26, 2007, Attorney Martica S. Douglas filed a grievance complaint against Attorney Frank. The complaint alleged violations of the Code of Professional Responsibility related to Attorney Frank's involvement in a real estate closing between Victor Bernier and Robert Hanson. On April 23, 2007, Attorney Frank filed her initial response to the grievance, generally denying any Code violations. By way of background, Mr. Bernier inherited ownership of his childhood home, in Brunswick, Maine, following the death of his mother in December 2005. Mr. Bernier subsequently became unable to meet the financial obligations of maintaining the home, largely due to his impairments resulting from Myopic Dystrophy.

In August of 2006, Mr. Bernier sold the property to Mr. Hanson (the buyer) for a purchase price of $15,655, which equaled the outstanding mortgages on the family home. Mr. Bernier became aware of Mr. Hanson's possible interest through a flyer sent to him by Mr. Hanson. In the closing transaction, Attorney Frank was retained by the buyer of the property, Mr. Hanson; however, her involvement was more than that of a typical buyer's attorney. In addition to acting as closing agent, Attorney Frank prepared the Warranty Deed as well as the transfer tax documents, without Mr. Bernier's request to do so. Although Attorney Frank denied that she was representing Mr. Bernier, she procured from both buyer and seller a signed conflict disclosure rendering each party's consent to the simultaneous representation. In hindsight, Attorney Frank acknowledges Mr. Bernier's belief that she was representing his interests at the real estate closing, given the executed consent and her preparation of the seller's documents referenced above.

Based upon her actions during the 2006 closing, Attorney Frank engaged in simultaneous representation without fully informing each party of the limits of her representation, thus violating the Code of Professional Responsibility. Even with her disclosure and consent document, Attorney Frank was required to maintain the appropriate standard of care and judgment in the discharge of her professional duties.

Attorney Frank agrees that she should not have allowed the transaction to go forward with the documentation relating to Mr. Bernier's lease rights and ability to stay in the home remaining undocumented and unresolved. She should have paid more attention to the circumstances surrounding the somewhat unusual sale, and if the parties had not resolved all of the issues she should have referred them to independent counsel to resolve those issues. Attorney Frank's conduct in her essentially simultaneous representation of Mr. Bernier and Mr. Hanson, in a transaction in which they had competing interests, resulted in her violations of Rules 3.4(c)(2) and 3.6(a)(2).

Second Count

On or about January 9, 2009, Bar Counsel docketed a sua sponte complaint against Attorney Frank based upon her conduct in the case of Merrifield v. Hadlock, 2009 ME 1(ME 2009). Attorney Frank's failure to submit a required filing (notification of ADR or Report ADR conference) resulted in the dismissal with prejudice of her client's civil case in Cumberland County Superior Court. In her response to that complaint, Attorney Frank has acknowledged her resulting violations of M. Bar R. 3.1(a); and 3.2(f)(4).

Conclusion and Sanction

Due to Attorney Frank's above-outlined misconduct, Mr. Bernier's interest in his home was not fully protected, resulting in actual harm and additional litigation. Moreover, due to Attorney Frank's involvement in Merrifield, her client's legal matter was dismissed with prejudice.

Since these incidents, Attorney Frank has accepted responsibility for her lapses and admitted to her violations of the above-outlined sections of the Code of Professional Responsibility. Although Attorney Frank has no history of discipline, she did receive a warning sanction following her 2006 public disciplinary hearing concerning a lapse similar to what occurred in the Merrifield case. Following the issuance of that warning, the case against Attorney Frank was dismissed.

M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Frank agrees that she did in fact violate the Code of Professional Responsibility, it appears that a public reprimand serves those purposes.

Therefore, the Panel accepts the agreement of the parties, including Attorney Frank's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of each of these matters is a reprimand of Erika M. Frank, Esq. as provided by M. Bar R. 7.1(e)(3)(C).


For the Parties

J. Scott Davis, Esq.
James M. Bowie, Esq.


For the Grievance Commission

Victoria Powers. Esq., Chair
James E. McKenna III, Esq.
Joseph Reisert, Ph.D

Board of Overseers of the Bar v. Sidney H. Geller

Download Decision (PDF)

Docket No.: GCF 08-132

Issued by: Grievance Commission

Date: August 31, 2009

Respondent: Sidney H. Geller, Esq.

Bar Number: 000218

Order: Reprimand

Disposition/Conduct: Conduct During Representation: Preserving Identity of Funds and Property


STIPULATED REPORT OF FINDINGS M. Bar R. 7.I(e)(4); M. Bar R. 7.1(e)(2)


On August 31, 2009, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Sidney H. Geller, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on May 7, 2009.

At the hearing, Attorney Geller was pro se and the Board was represented by Assistant Bar Counsel Aria Eee. The complainant, Gary Jordan, was present and participated in the disciplinary hearing. Prior to the hearing, the parties had submitted a proposed, stipulated Report of Findings and Order for this Grievance Commission Panel's review and consideration.

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

Findings

Respondent Sidney H. Geller (Geller) of Waterville, 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 Geller was admitted to the Maine bar in 1963 and he is currently registered with the Board of Overseers of the Bar as an active Maine Attorney.

On April 12, 2008, Mr. Jordan filed a grievance complaint against Attorney Geller. The complaint alleged violations of the Code of Professional Responsibility by Attorney Geller involving neglect, lack of communication, and Geller's conversion of settlement funds related to Mr. Jordan's boundary dispute cases. On or about June 5, 2008 Attorney Geller filed a response with the Board, providing information regarding his representation of Mr. Jordan.

By way of background, Mr. Jordan hired Attorney Geller to represent him in two cases against the Town of St. Albans Town), both involving a boundary line dispute. One case was a claim of trespass, and the other was an objection to the Town of St. Albans taking the parcel in dispute under eminent domain. After trial, Mr. Jordan did not prevail on either case. Attorney Geller represented Mr. Jordan during his appeal of the eminent domain case before the Law Court. The Law Court affirmed the lower court's ruling, and remanded the case back for a jury determination of damages. The jury returned a verdict of $6,700.19 plus costs for Mr. Jordan.

In post-judgment activity, counsel for the Town filed a table of costs. Attorney Geller filed no response to the Town's costs, as he was staying in Florida at the time. In December 2006, to satisfy the judgment awarded to Mr. Jordan, the Town delivered a $5,048.64 check to its attorney to forward to opposing counsel, Attorney Geller. The Town's check reflected the judgment of $6,700.19, less the Town's costs of proximately $2,000.00. The Town was entitled to reduction of the judgment because the judgment was less than the Town's Offer of Judgment (see M.R. Civ. P. 68). On or about September 25, 2007, Attorney Geller received the $5,048.64 check from the town's attorney.

Attorney Geller acknowledges that his attempt to notify Mr. Jordan of Geller's receipt of the funds apparently proved unsuccessful. Attorney Geller reports that upon the firm's receipt of the town's check, he instructed his secretary to notify Mr. Jordan of that receipt, with a request that Jordan contact the office to discuss the disposition of the money. According to Attorney Geller the firm did not receive a response from Mr. Jordan, so they sent a second letter in December 2007. That letter informed Mr. Jordan that if Attorney Geller received no response by a certain date, the firm would apply the check to Mr. Jordan's outstanding legal fees. Ultimately, Attorney Geller applied the funds to Mr. Jordan's outstanding legal bill.

The Panel notes that throughout the investigation, Mr. Jordan has repeatedly disputed Attorney Geller's reported notification of the receipt of the check. Likewise, Mr. Jordan disputes that he received any requests from the firm to claim that check before relinquishing the funds to pay down his legal bill. Regardless of the divergent views, the Panel accepts Attorney Geller's concession that his failure to explicitly receive consent from Mr. Jordan violated Rule 3.6(e)(2) of the Code of Professional Responsibility.

After the representation had concluded, Mr. Jordan retained successor counsel to file a claim against the Town for non-payment of the awarded judgment. Upon the filing, the town's attorney informed successor counsel that the Town had paid the judgment. During its investigation, the Board of Overseers discovered the payment to Attorney Geller. Thereafter, Attorney Geller acknowledged his failure to send Mr. Jordan those funds.

Conclusion and Sanction

The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Geller's above-outlined failures, his client's post-judgment interests were not adequately protected. Attorney Geller also impermissibly retained costs recovered from an opposing party, with no agreement from his client to apply those funds to the client's legal bill.

The Panel notes that Attorney Geller has taken responsibility for applying the check to Mr. Jordan's legal bill without having obtained specific authority from Mr. Jordan to do so. During this hearing, Attorney Geller expressed remorse for his serious violations of the Code of Professional Responsibility.

M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Geller agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.

Therefore, the Panel accepts the agreement of the parties, including Attorney Geller's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Sidney H. Geller, Esq. which is now hereby issued and imposed pursuant to M. Bar R.7 1(e)(3)(C), (4).


For the Grievance Commission

Benjamin P. Townsend, Esq., Chair
William E. Baghdoyan, Esq.
David Nyberg, Ph.D.

Board of Overseers of the Bar v. Jon A. Languet, Esq.

Download Decision (PDF)

Docket No.: GCF 08-295

Issued by: Grievance Commission

Date: July 28, 2009

Respondent: Jon A. Languet, Esq.

Bar Number: 004236

Order: Reprimand

Disposition/Conduct: Conduct Unworthy of an Attorney; Conflict of Interest: When Lawyer May Be Called as Witness; Withdrawal from Employment


Stipulated Report of Findings M. Bar R. 7.1(e)(2)(4)


On July 28, 2009, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Jon A. Languet, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on March 31, 2009.

At the hearing, Attorney Languet appeared pro se, and the Board was represented by Bar Counsel J. Scott Davis. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration. The complainant, Judge Valerie Stanfill, did not participate in the Stipulated Hearing but had previously received a copy of the Proposed Report and informed Bar Counsel that she did not object to the issuance of such a Report.

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

Findings

Respondent Jon A. Languet (Languet) of Topsham, County of Sagadahoc, State of 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 Languet was admitted to the Maine Bar in December 2007 and he is currently registered as an active Maine attorney.

On August 12, 2008, Farmington District Court Judge Valerie Stanfill filed a Grievance Complaint against Languet. The court's Complaint included a copy of its Findings of Fact and Conclusions of Law dated August 11, 2008 in the matter of Kenneth Burek v. Belgrade Concrete Cutting, Inc. Docket No. FARDC-CV-06-110. By incorporation of those Findings and Conclusions, the court's Complaint claimed Languet had violated the Code of Professional Responsibility by his continued representation of his client (a closely held corporation in which he was the sole shareholder), despite the fact that he intended to testify at the trial of that underlying litigation.

By way of background information, Languet's corporation, Belgrade Concrete Cutting, Inc. (BCC) became the defendant in civil litigation regarding a concrete cutting project that it had performed. Languet was a key participant in the dispute, having had discussions with the plaintiff regarding the work to be performed. A friend and fellow attorney represented BCC during the early stages of litigation. Languet assisted that attorney in a lesser capacity until Languet was admitted to the Maine Bar in January 2008. At that point, Languet took over as lead counsel in the litigation. Languet subsequently filed all of the pre-trial submissions, including ones that listed himself as the only witness for the defendant corporation, BCC. While Languet discussed this conflict with co-counsel, he failed to ever seek assistance from an experienced trial attorney not connected to the litigation.

It is clear that Languet failed to timely analyze the conflict question inherent in his remaining as lead counsel while also appearing as a witness in the litigation. Judge Stanfill brought the obvious conflict to Languet's attention and proposed two options for him: to either represent the corporation and therefore not testify; or to withdraw and then testify as BCC's lead witness. Even after Languet exercised his option to remain as BCC's counsel, he failed to appreciate the purpose behind M. Bar R. 3.4(g)(1)(i). Specifically, in his initial response to Bar Counsel concerning the court's Complaint against him, he still claimed that various exceptions to Bar Rule 3.4(g)(1)(i) applied and therefore he did not really have a conflict under that Bar Rule. In addition, he appealed the District Court's judgment in favor of the Plaintiff to the Law Court claiming the court had committed judicial error in refusing to allow Languet to testify during his representation of BCC. Languet's appeal resulted in the Law Court's Memorandum of Decision dated March 24, 2009 affirming the District Court's judgment. In hindsight, Languet now agrees that the exceptions in Bar Rule 3.4(g)(1)(i) did not apply to his handling of the BCC litigation and that Judge Stanfill made the proper findings and conclusions concerning his improper trial conduct.

As a result, Languet's failure to appropriately appreciate and resolve the conflict related to his actions in BCC's litigation constituted his violation of M. Bar R. 3.1(a), 3.4(g)(1)(i), and 3.5(b)(1). Upon further reflection, Languet has now accepted and expressed his understanding and regret for those violations by him.

Conclusion and Sanction

The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. As a result of Attorney Languet's actions, his corporation was unable to present a defense in its litigation, and as such was prejudiced in the underlying litigation. Attorney Languet failed to take affirmative steps to resolve the serious conflict issue with which he was presented. A review of all of the circumstances leads this Panel to find that Attorney Languet violated M. Bar R. 3.1(a), 3.4(g)(1)(i), and 3.5(b)(1).

The Panel notes that Attorney Languet has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Languet expressed his remorse for his violations of the Code of Professional Responsibility. The Panel notes that the injury his client suffered was, in fact, injury only to Attorney Languet, as he is the sole shareholder in BCC. The Panel also expects that there is little likelihood of repetition of such misconduct by Languet.

M. Bar R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Languet agrees that he did, in fact, violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.

Therefore, the Panel accepts the agreement of the parties, including Attorney Languet's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand of Attorney Jon A. Languet which is now hereby issued and imposed upon him pursuant to M. Bar R.7.1(e)(3)(C), (4).


For the Grievance Commission

Victoria Powers, Esq., Chair
James A. McKenna III, Esq.
Joseph R. Reisert Ph.D.

Board of Overseers of the Bar v. Gerald S. Cope

Download Decision (PDF)

Docket No.: BAR-09-6

Issued by: Single Justice, Maine Supreme Judicial Court

Date: July 14, 2009

Respondent: Gerald S. Cope, Esquire

Bar Number: 001801

Order: Resignation

Disposition/Conduct: Resignation by Attorney Under Disciplinary Investigation


Order M. Bar R. 7.3(g)(3)


Attorney Gerald S. Cope was admitted to practice in Maine in 1955. This matter is before the Court to consider his voluntary resignation, dated April 15, 2009, that has been tendered by him pursuant to M. Bar R. 7.3(g). Attorney Cope's letter of resignation is supported by his Affidavit dated April 15, 2009. On April 22, 2009, the Board of Overseers of the Bar considered this matter and unanimously recommended that the Court accept Attorney Cope's resignation from the Maine bar.

Therefore, after hearing on this date at which Attorney Cope appeared and was represented by counsel, it is hereby ORDERED:

Pursuant to M. Bar R. 7.3(g)(3), Gerald S. Cope's resignation from the Maine Bar is accepted. Thirty (30) days from the date of this Order his name shall be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine. Mr. Cope shall also comply with his remaining notification reporting requirements under M. Bar R. 7.3(i)(1) within that same thirty-day (30) period.

As required by M. Bar R. 7.3(g)(3), Gerald S. Cope's supporting Affidavit dated April 15, 2009, is hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. Should Mr. Cope seek reinstatement to the Maine Bar, that Affidavit may then be made public without further order of the Court. This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).

The Court hereby Orders that the Board of Overseers of the Bar shall take no steps to initiate publication of this decision through any releases to the press.


For the Court

Hon. Ellen A. Gorman, Associate Justice - Maine Supreme Judicial Court

Board of Overseers of the Bar v. Gary H. Reiner

Download Decision (PDF)

Docket No.: BAR-05-9

Issued by: Single Justice, Maine Supreme Judicial Court

Date: June 16, 2006

Respondent: Gary H. Reiner, Esq.

Bar Number: 000230

Order: Resignation

Disposition/Conduct: Resignation by Attorney Under Disciplinary Investigation


Order Accepting Resignation


Pursuant to M. Bar R. 7.3(g), after hearing and upon recommendation of the Board of Overseers, the Court accepts the resignation of Gary H. Reiner. In compliance with M. Bar R. 7.3(g)(3), this order is matter of public record, but the supporting affidavit and documents are impounded.


For the Court

Hon. Susan Calkins, Associate Justice - Maine Supreme Judicial Court

Board of Overseers of the Bar v. Stephen E. Langsdorf

Download Decision (PDF)

Docket No.: GCF 08-007

Issued by: Grievance Commission

Date: June 29, 2009

Respondent: Stephen E. Langsdorf, Esq.

Bar Number: 003500

Order: Reprimand

Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice


Stipulated Report of Findings M. Bar R. 7.1(e)(2)(4)


On June 29, 2009, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.I(e)(2)(E), concerning misconduct by the Respondent, Stephen E. Langsdorf, Esq. This disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on March 18, 2008.

At the hearing, Attorney Langsdorf was present and represented by Attorney Peter J. DeTroy. The Board was represented by Assistant Bar Counsel Aria Eee. Complainant Jonathan S. Piper, Esq. of Preti Flaherty Beliveau & Pachois, LLP, also attended the hearing. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration.

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

Findings

Respondent Stephen E. Langsdorf (Langsdorf) of Augusta, County of Kennebec, State of 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 Langsdorf was admitted to the Maine Bar in 1987 and he is currently registered as an active Maine attorney.

On January 2, 2008, Attorney Jonathan S. Piper (Piper) of Portland, filed a grievance complaint against Attorney Langsdorf. Attorneys Piper and Langsdorf are members of the same law firm. The Complaint involved the firm's Central Maine Power (CMP) utility account which had been affected by Attorney Langsdorf's actions. The complaint alleged violations of the Code of Professional Responsibility due to Attorney Langsdorf's use of the law firm as a guarantor (in lieu of a cash deposit to CMP) for a personal business enterprise owned by Langsdorf and his wife.

By way of background information, in June 2003 Attorney Langsdorf purchased an Augusta, Maine business with his wife and renamed the business as "Top Form Gym and Racquet Club" (Top Form Gym). On July 24, 2003, without his law firm's knowledge or consent, Attorney Langsdorf committed the firm to act as guarantor for Top Form Gym's utility service through CMP. Although Langsdorf had four years in which to terminate the firm's exposure as a guarantor, he failed to do so. In July 2007, Attorney Langsdorf and his wife sold Top Form Gym and liquidated its assets to pay outstanding debts. During the liquidation process, Top Form Gym's CMP bill remained delinquent as did debts to other creditors and vendors. CMP made further requests of Attorney Langsdorf for payment, which he referred to his wife in her capacity as Top Form Gym's general manager. Apparently Attorney Langsdorf had never handled any of the financial matters for Top Form Gym. In hindsight, Attorney Langsdorf concedes that his failure to take affirmative steps to ensure that his business obligations were appropriately discharged constituted a violation of M. Bar R. 3.l(a) and 3.2(f)(4).

On October 25, 2007, given the outstanding delinquency, CMP billed the law firm for the $6,575.44 owed by Top Form Gym. Thereafter, the law firm's office administrator sent an email to Attorney Langsdorf, notifying him of the firm's receipt of the bill owed to CMP. The administrator requested that Attorney Langsdorf make an immediate payment to resolve the firm's obligation. After notification, Attorney Langsdorf made payment in full and subsequently emailed the firm's "Equity Partners" admitting he had wrongfully and without authority used the firm's business account to guarantee his business' debt.

Thereafter, the firm met to review Attorney Langsdorf's actions. Following that meeting, the firm instituted various restrictions and protocol to ensure that Attorney Langsdorf had not engaged in any other bar violations.

Conclusion and Sanction

The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. As a result of Attorney Langsdorf's actions, his law firm was exposed to financial liability for Attorney Langsdorf's personal business enterprise. Thereafter, Attorney Langsdorf failed to take affirmative steps to remove the firm's exposure. A review of all of the circumstances results in this Panel finding that Attorney Langsdorf engaged in violations of M. Bar R.3.1(a) and 3.2(f)(4).

The Panel notes that Attorney Langsdorf has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Langsdorf expressed his remorse for his violations of the Code of Professional Responsibility.

M. Bar.R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Langsdorf agrees that he did, in fact, violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.

Therefore, the Panel accepts the agreement of the parties, including Attorney Langsdorf's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Stephen E. Langsdorf, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).


For the Grievance Commission

William E. Baghdoyan, Esq., Acting Panel Chair
David Nyberg, Ph.D.

Board of Overseers of the Bar v. David A. Soley

Download Decision (PDF)

Docket No.: GCF 02-198

Issued by: Grievance Commission

Date: December 20, 2004

Respondent: David A. Soley, Esq.

Bar Number: 006799

Order: Reprimand

Disposition/Conduct: Conduct Unworthy of an Attorney; Illegal Conduct that Adversely Reflects on the Lawyer's Honesty, Trustworthiness, or Fitness as a Lawyer in other Respects


Report of Findings of Panel D of The Grievance Commission


On December 20, 2004, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning the Respondent, David A. Soley, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on May 28, 2004.

Present at the hearing were Assistant Bar Counsel Nora Sosnoff representing the Board, and Attorney Peter J. DeTroy representing the Respondent, Attorney David A. Soley.

The Panel heard testimony from the respondent, David A. Soley, pursuant to questioning by Assistant Bar Counsel Sosnoff and Attorney DeTroy. Having heard that testimony and having reviewed the proposed findings presented by the parties, the Panel makes the following disposition:

Findings

Respondent David A. Soley, of Freeport, County of Cumberland, State of Maine, 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. Attorney Soley was admitted to the Maine Bar in 1989. He is an attorney with the law firm of Bernstein, Shur, Sawyer & Nelson, having offices in Portland, Maine and elsewhere. Attorney Soley has no record of prior discipline or sanction under the Maine Bar Rules.

On September 24, 2002, Attorney Soley was arrested by the Freeport Police. His arrest followed a heated argument with his wife. During that argument he threw kitchen utensils. Attorney Soley denies that the utensils were aimed at his wife or thrown with intent to injure her, but admits they caused damage to a kitchen appliance near where she was standing.

On March 11, 2003, Attorney Soley plead guilty to two counts of Class D reckless conduct. The conditions of probation associated with Attorney Soley’s convictions included: counseling and attending a batterer’s intervention education program.

Attorney Soley acknowledges and in his own words states that his “actions were part of a lifestyle and pattern of behavior that was both wrong and unhealthy.” He asserts that “I…take full responsibility for my wrongful behavior.” Further, in his words: “I recognize that the practice of law, for me, had become an all consuming passion. I spent most of the last twenty years engrossed in trials, litigation, and all of the intense anxiety emanating from this lifestyle. I limited my sleep, I spent long hours at work, and I lived for the ‘high’ created by the excess stress.... ”

The conduct by Attorney Soley that resulted in his conviction was unworthy of an attorney in violation of M. Bar R. 3.1(a) and conduct in violation of Maine’s Criminal Code, thus constituting a violation of M. Bar R. 3.2(f)(2).

Attorney Soley has abided by the conditions of probation, including attending and completing a 48 - week state certified batterer’s intervention program. Attorney Soley informs the Panel that he is engaged in insight-based counseling and that he has adopted significant lifestyle changes.

Having made findings of misconduct subject to sanction under the Bar Rules, M. Bar R. 7.1(e)(3)(C) directs this Grievance Commission Panel to consider certain factors in determining the appropriate sanction. These factors are:

  • whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
  • whether the attorney acted intentionally, knowingly, or negligently;
  • the amount of actual or potential injury caused by the attorney's misconduct; and
  • the existence of any aggravating or mitigating factors.

The panel has accordingly considered the foregoing factors and finds: Attorney Soley has violated duties owed to the legal system and the profession. While the injury caused by the misconduct did not directly impact a client, nor did it involve the practice of law per se, it does, as Attorney Soley acknowledges, damage the public perception of the profession. The panel further concludes that the misconduct found warrants a public reprimand.

Sanction

Therefore, this Panel does hereby issue a public reprimand to Attorney Soley as sanction for his misconduct in violation of M. Bar R. 3.1(a) and 3.2(f)(2).


For the Grievance Commission

Patricia Ender, Esq.
David Nyberg, Ph.D
Benjamin Townsend, Esq.

Board of Overseers of the Bar v. Kathleen T. O'Boyle

Download Decision (PDF)

Docket No.: BAR-09-8

Issued by: Single Justice, Maine Supreme Judicial Court

Date: June 18, 2009

Respondent: Kathleen T. O'Boyle, Esq.

Bar Number: 008752

Order: Temporary Suspension

Disposition/Conduct: Conduct Unworthy of an Attorney; Unauthorized Practice; Conduct Prejudicial to the Administration of Justice; Standards of Care and Judgment: Neglect of a Client's Matter; Inadequate Preparation; Registration Requirements


Order of Suspension


Background

On June 17, 2009 the Board of Overseers of the Bar petitioned this Court for an immediate Order temporarily suspending Attorney Kathleen T. O'Boyle from the practice of law in the State of Maine. Included with the Board's petition were related exhibits and an Affidavit of Assistant Bar Counsel.

Upon consideration of the Board of Overseers of the Bar's Petition for Temporary Suspension and after providing Attorney O'Boyle an opportunity to be heard, it is hereby ORDERED as follows:

For good cause shown by the Board of Overseers of the Bar that Attorney Kathleen T. O'Boyle appears to have committed numerous violations of the Code of Professional Responsibility, thereby serving as a threat to clients, the public and to the administration of justice, this Court hereby orders that she be temporarily suspended from the practice of law in Maine until the conclusion and resulting disposition of all disciplinary matters now pending before the Grievance Commission or the Court or such other time as the Court may direct.


For the Court

Hon. Jon D. Levy, Associate Justice – Maine Supreme Judicial Court

Board of Overseers of the Bar v. Charles G. Williams

Download Decision (PDF)

Docket No.: BAR-02-5

Issued by: Single Justice, Maine Supreme Judicial Court

Date: April 7, 2004

Respondent: Charles G. Williams, III

Bar Number: 008827

Order: Disbarment

Disposition/Conduct: Neglect of a Client's Matter; Conduct Involving Ddishonesty, Fraud, Deceit, or Misrepresentation; Excessive Fees


Order


In this bar disciplinary proceeding there are three Informations before the Court involving twenty-eight complaints. A hearing was held before the Court at Bangor on April 5 and 6, 2004. The Board of Overseers of the Bar was represented by Bar Counsel J. Scott Davis, Esq. Although Charles Williams had notice of the scheduled hearing, Mr. Williams did not appear. The Court proceeded in his absence.

The Board offered evidence in connection with eighteen of the complaints contained in the three Informations filed against Mr. Williams. The evidence offered by the Board established a pattern of client neglect, excessive fees, incompetency, unauthorized disclosure of confidential information, failure to respond to orders of the Fee Arbitration Commission, and the failure to respond to inquiries from Bar Counsel. The record indicates that Mr. Williams failed to communicate with his clients, missed appointments both with his clients and with the courts, and failed to respond to telephone messages from his clients, opposing counsel, and the courts. The testimony from one former client established on three separate occasions that Mr. Williams forced her to engage in an unwanted sexual act.

The Court notes that the Lawyers' Fund for Client Protection has to date paid ten claims against Mr. Williams totaling $24,275.89 and as of March 31, 2004, the Board of Overseers of the Bar has incurred witness fees, transcription charges, and civil process service fees upon Mr. Williams and witnesses totaling $5,457.84.

The record establishes that Mr. Williams presents a danger to the public and has demonstrated an inability to follow the clear mandates of the Code of Professional Responsibility. Disbarment enforces the purpose of discipline in that the public is protected from the further practice by the lawyer and taking appropriate action against lawyers who fail to follow the professional and ethical precepts enunciated by the Code of Professional Responsibility protects the reputation of the legal profession. The record clearly demonstrates that Mr. Williams has repeatedly violated M. Bar R. 2, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.13, 6, and 9.

It is ordered and adjudged that Charles B. Williams III be and hereby is disbarred from the practice of law in the State of Maine effective this date. Should Mr. Williams seek reinstatement, a condition of his reinstatement shall be reimbursement to the Board of Overseers of the Bar of all expenses it has incurred in the prosecution of this disciplinary proceeding and reimbursement to the Lawyers' Fund for Client Protection for all payments made by it on claims made against Mr. Williams.


For the Court

Hon. Paul L. Rudman, Associate Justice - Maine Supreme Judicial Court

Board of Overseers of the Bar v. Thomas Acker

Download Decision (PDF)

Docket No.: BAR-05-08

Issued by: Single Justice, Maine Supreme Judicial Court

Date: April 7, 2006

Respondent: Thomas R. Acker

Bar Number: 003381

Order: Receiver Appointment

Disposition/Conduct:


Order on Motion for Appointment of Receiver to Protect Former Clients' Interests (M. Bar R. 7.3(f); and to Permit Limited Discovery


This matter having come before the undersigned Associate Justice of the Maine Supreme Judicial Court upon petition of the Board of Overseers of the Bar for an order appointing a Receiver to protect the interests of the former clients of suspended attorney Thomas R. Acker, the Court makes the following Order:

Findings of Fact

  1. Prior to the initiation of this disciplinary proceeding, Thomas R. Acker of Denmark, Maine, was engaged in the practice of law as a sole practitioner with an office in Gorham, Maine. Mr. Acker was suspended from the practice of law by this Court on December 23, 2005. Mr. Acker's suspension renders him unable to continue his legal practice.

  2. Based on the Board's offer of proof, there are recent, former clients of Mr. Acker whose legal documents and business records remain in Mr. Acker's possession. Despite their repeated efforts, these former clients have been unable to retrieve their respective materials from Mr. Acker.

  3. Mr. Acker failed to appear for a hearing on the Board's motion seeking the appointment of a receiver held on March 29, 2006. Beginning on or about February 27, 2006, Mr. Acker was hospitalized for a period of approximately seventeen days. His current physical and mental condition is unknown to the Court.

  4. Mr. Acker’s suspension from the practice of law, his failure to return documents to his former clients, and his failure to appear at scheduled hearings in this disciplinary proceeding, make it necessary for a Receiver to be appointed to protect the interests of Thomas R. Acker's former clients.

    THEREFORE, pursuant to Maine Bar Rule 7.3(f), it IS ORDERED as follows:

  5. Receiver Wayne E. Tumlin, Esq., of Portland, Maine, is appointed as Receiver and directed to:

  • Secure any and all professional records and files in the possession or control of Thomas R. Acker related to his clients which were active as of January 1, 2002, or opened subsequent thereto. All of these client-related records and files are to be provided by Mr. Acker to the Receiver regardless of Mr. Acker’s characterization of a particular client as a legal, tax, financial, investment or some other type of professional client. Hence, if the records and files were maintained by Mr. Acker in any business or professional capacity during the above-outlined time period, they are to be included in the turnover to the Receiver.

  • Make an inventory of such records and files, and file the inventory with the Court under seal. Copies of the inventory shall be provided to the Board and to Mr. Acker.

  • Take such further appropriate action as the Receiver, in the exercise of his discretion, deems necessary to protect the interests of such former clients including, but not limited to, reporting to this Court; contacting former clients to inform them how to obtain their files; informing clients of the need to obtain new legal counsel; and/or referring clients to new counsel in the appropriate cases.

  • Advise the Court and the Bar Counsel when the purposes of this appointment appear to have been completed.

Compensation: The Receiver shall be reimbursed for reasonable expenses and compensated for professional services at the rate of $50.00 per hour plus expenses by the Board of Overseers of the Bar. The Board may, by a motion filed with the Court, seek reimbursement of the same from Mr. Acker.

  1. Delivery of Professional Records

Mr. Acker shall deliver the above-described records and files to the Court-appointed Receiver as directed by the Receiver and, in any event, no later than 10 days from the date of this Order. Upon his delivery of the records and files to the Receiver, Mr. Acker shall file with the Court under seal a written statement that confirms that he has delivered all of the records and files required by this Order, and identifies the records and files delivered by client name and address. A copy of the same shall be provided to the Board and the Receiver.

IT IS FURTHER ORDERED AS FOLLOWS:

The Board shall be permitted to perform limited discovery regarding Thomas R. Acker's mental condition and status. Within ten days of the entry of this Order, Mr. Acker shall either produce complete copies of the admission and discharge reports, and the reports of any psychiatric or psychological diagnostic evaluations, associated with his treatment by M. Ed. Kelley, M.D. and St. Mary's Regional Hospital in February and March 2006. In the alternative, Mr. Acker shall sign such releases and authorizations deen1ed necessary by the Board to enable the Board to obtain the records directly from Dr. Kelley and St. Mary's Regional Hospital. Upon the Board's receipt of the records, it may move the Court for permission to conduct additional discovery that it believes is necessary. All records and court-filings associated with Mr. Acker's mental condition and status shall be deemed confidential, shall not be shared with third-parties absent prior approval of the Court, and copies of the same shall be filed Under seal with the Clerk of Court.

  1. Maine Assistance Program for Lawyers and Judges (MAP)

    At his own expense, Mr. Acker shall immediately contact and enter into a contractual relationship with MAP, to the satisfaction of the Director of MAP. The Director of MAP shall report to the Court on the need for the appointment of a guardian ad litem or other representative pursuant to M.R. Civ. P. 17(b) to represent Mr. Acker's interests in this proceeding. The Director of MAP may also, at his discretion, report to the Court fron1 time-to-time on the status of Mr. Acker's involvement with MAP.

The Clerk is directed to forward copies of this Order to the Receiver, Wayne E. Tumlin, Esq., and to David Kee, Esq., Director of the Maine Assistance Program. The Clerk is further directed to forward copies of this Order to Thomas R. Acker at the following addresses: (1) 177 West Shore Road, Denmark, Maine 04022, and (2) c/o Elihu J.U. Acker, 184 Hilton Road, Denmark, Maine 04022.


For the Court

Hon. Jon D. Levy, Associate Justice - Maine Supreme Judicial Court

Board of Overseers of the Bar v. Thomas M. Mangan

Download Decision (PDF)

Docket No.: BAR 99-5

Issued by: Single Justice, Maine Supreme Judicial Court

Date: February 28, 2000

Respondent: Thomas M. Mangan, Esq.

Bar Number: 001743

Order: Findings

Disposition/Conduct: Neglect; Conflict of Interest; Preserving Identity of Funds and Property; Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation


Judgment and Findings


This matter came on for trial before a single justice of the Supreme Judicial Court, pursuant to Maine Bar Rule 7.1(e)(3)(C) and 7.2(b)(1), upon the information filed by the Board of Overseers of the Bar alleging that Attorney Thomas Mangan has, among other things, conducted himself in a manner unworthy of an attorney. Trial was held over three days, January 11 through 13, 2000. The Board was represented by Attorney J. Scott Davis. Mr. Mangan was represented by Attorney Leonard Sharon. The Board presented six: witnesses: Thuy Thi R., Officer Randy Haussman, Barry R., Attorney Richard Berne, Sgt. Michael McGonagle, and Be Tucci-Gagne. In addition to his own testimony, Mr. Mangan presented six: witnesses: Officer Lee Jones, Thuy Thi R., John Violette, James D. Amerault, Roland Berry, and Leo Soucy.

The Board alleges multiple violations of the Code of Professional Responsibility, but at the heart of the Board's allegations are its contentions that Mr. Mangan engaged in a sexual relationship with a client, Thuy Thi R. The Board must prove its allegations by a preponderance of the evidence. See Maine Bar Rule 7.2(b)(4).

1. The Allegations

The Board has alleged four specific instances or courses of conduct undertaken by Mr. Mangan in violation of the following provisions of the Code of Professional Responsibility: 3.1(a); 3.2(f)(2), (3), (4); 3.4(b)(1); 3.4(f)(1); 3.6(a)(3); 3.6(e)(l), (2); and 3.7(d). The specific allegations may be summarized as follows:

  1. Mr. Mangan made inappropriate use of his client escrow account to pay a retainer on Ms. R.'s behalf to Attorney William Cote.

  2. Mr. Mangan neglected legal matters entrusted to him and failed to account for receipts related to his work on behalf of Ms. R. regarding payment of certain medical bills and his search for the fathers of two of her daughters.

  3. Mr. Mangan physically forced Ms. R. to have sex with him against her will. (This allegation does not turn on the existence of an attorney-client relationship.)

  4. Mr. Mangan engaged in a sexual relationship with Ms. R. at a time when Ms. R. was a client of Mr. Mangan, the relationship adversely affected his representation of her, and Mr. Mangan abused the attorney-client relationship in the context of the sexual relationship.

II. Findings of Fact

One of the most important issues for determination by the court is the credibility of the two primary witnesses to the events at issue: Ms. R. and Mr. Mangan. Although both individuals were credible in part, neither were credible on all issues. Having considered their testimony as well as the testimony of all other witnesses along with the documentary and other evidence offered by both parties, I make the following findings.

Mr. Mangan is an attorney licensed to practice law in the State of Maine. He has been practicing in the Lewiston area since approximately 1975. He maintains a relatively small private practice and is a sole practitioner. He is subject to the provisions of the Code.

Ms. R. was born in Vietnam. She came to America in 1972. She has three daughters. The oldest, Sue, is now 30 years old. Sue's father is Donald A., an American serviceman. Ms. R. did not marry Donald A. Cathy, now 28, is the daughter of Robert B., also an American serviceman. Ms. R. was not married to Robert B. Ms. R. married Keith N. sometime in 1972, and he adopted Cathy and Sue. Ms. R. was later divorced from Keith N. Ms. R. married Barry R. in 1978, and they have one daughter, Marie. Ms. R. and Barry R. are now separated.

Ms. R. has been in this country for approximately 28 years. She understands English quite well and speaks relatively clearly except when she is under pressure. She also reads English relatively well, but does not write well. She has a history of psychological fragility and depression. She has been treated by a number of physicians and has been prescribed antidepressant medication. She has intentionally overmedicated herself upon occasion.

Sometime in the early eighties, probably 1983, Ms. R. approached Mr. Mangan to seek his legal assistance in obtaining child support from Keith N. He agreed to assist her, but shortly thereafter he received a letter from Attorney John Hamilton, indicating that Hamilton had been asked to take over Ms. R.'s representation and asking that Mr. Mangan turn over Ms. R.'s file. Mr. Mangan did so.

Mr. Mangan had no further contact with Ms. R. until she sought him out again in 1990. She had been prosecuting a worker's compensation claim through Attorney John Sedgewick. Although she had been less than successful in her claim, she had received $4000 for the payment of medical bills. Because her medical bills exceeded that amount, she asked Mr. Mangan if he would negotiate with the medical providers in order to pay her obligations at less than the outstanding amount due. Mr. Mangan agreed to take her case. He did not enter into a fee agreement with Ms. R. and expected to do the work pro bono. He took the check, deposited it in his client escrow account, and paid a number of her medical bills. He was successful in obtaining a reduction in the debt on several of the bills. By sometime in July of 1992, Mr. Mangan had paid out approximately $4100 on behalf of Ms. R. Nonetheless, Ms. R. continued to receive phone calls from creditors and was never clear on what had been paid and what had not.

Mr. Mangan did not tell her when he had concluded that work, he never gave her an accounting of the payments he made on her behalf, and he never sought payment from Ms. R. for his work. Although the exact dates are uncertain, Ms. R. next approached Mr. Mangan about locating the fathers for her two older girls. Her first contact with Mr. Mangan's office regarding this issue was with Mr. Mangan's secretary. It is probable that this occurred in the summer of 1992. Ms. R. wanted to find the fathers for the girls' peace of mind and for medical history information even though the adoption by Keith N. meant that the fathers would have no legal obligation to Ms. R. or the girls. Mr. Mangan told her that he was good at such searches and that he would undertake the search for her. He expected the search would take approximately six months, and he told her that she could pay him when the search was completed. Again, he did not specify his expected compensation, and he did not enter into a fee agreement of any kind. Ms. R. expected that she would pay somehow, but did not know when or how much.

Sometime after agreeing to undertake the search for the fathers, in 1992 or 1993, Mr. Mangan began having a consensual sexual relationship with Ms. R. Mr. Mangan initiated that relationship, and Ms. R. was, for a while, a willing participant. At the time the sexual relationship began, Mr. Mangan had given her no final accounting on the medical bills,1 and he was still searching for her daughters' fathers. He did not ever clarify the completion of the medical bills work, nor did he tell her that he should not act as her lawyer while they were having a relationship. He did not ever formally notify her that he had ceased his work on the search for the fathers, and he did not attend to it diligently.

The two met for sex regularly over several years. During part of this time Mr. Mangan was separated from his wife, and he made that known to Ms. R. He was not honest with Ms. R., however, about the length of that separation, and Ms. R. later learned that Mr. Mangan had reconciled with his wife and returned to the home.

Ms. R. was still living with Mr. R. and their daughter when the relationship with Mr. Mangan began. One evening when Ms. R. was at Mr. Mangan's law office for a sexual encounter, her husband appeared at the office. After an unpleasant moment or two, Ms. R. left and went home. Mr. R. did not explicitly accuse Mr. Mangan of having an affair with Ms. R., and the pair was not sure what he knew. Ms. R. eventually separated from her husband.

Sometime after the relationship began, Mr. Mangan began giving Ms. R. money. This occurred primarily after her separation from her husband. Ms. R. felt that her husband was not giving her enough money to run the household, and Mr. Mangan gave her the money to help her with extras. In the beginning, Mr. Mangan gave her cash, but later wrote checks. Frequently, he gave her $150 a week. He continued to give her money throughout most of the relationship.

After Ms. R. and her husband separated, Ms. R. wanted to obtain a court order to require him to pay child support for Marie. Mr. Mangan understood that he might become a witness in the proceeding because of the incident at his office. He referred Ms. R. to Attorney Bill Cote. Although Mr. Mangan points to that referral as evidence that he knew he could not act as her attorney and have a relationship with her, I conclude that he referred her to Mr. Cote because of the potential embarrassment to himself if he continued representing her and was called as a witness.

In order to pay Mr. Cote's retainer, Mr. Mangan put his own money into his client escrow account. He then wrote a check to Mr. Cote from that account in the amount of $2000 on Ms. R's behalf. Mr. Cote undertook the representation.

The Board's first allegation regarding forced sex relates to an incident on December 5, 1993. Ms. R. testified that on that day, she went to meet Mr. Mangan at his office; that he wanted to have sex; that even though Ms. R. did not want to have sex, she "did anyway;" and that Mr. Mangan did not wear a condom, as he usually did. Afterwards, Ms. R. began to be afraid that she might have contracted a disease or become pregnant. Eventually that afternoon, she drove to the sexual assault unit of Central Maine Medical Center. She did not disclose the person with whom she had sex, but she did indicate her fear of pregnancy and she received an oral contraceptive to prevent pregnancy.2 She indicated that she had been assaulted in the early afternoon.

On the day that Ms. R. received that treatment, Mr. Mangan went with his wife and several members of the Lions Club to a Lions Club meeting in Kittery. The group left at approximately 8:00 A.M. and returned in late afternoon. Ms. R. went to the hospital at 3:40 in the afternoon after having waited several hours while deciding what to do. It isn’t likely that Mr. Mangan spent any time with Ms. R. on December 5, 1993. I cannot conclude that it is more likely than not that this incident occurred as Ms. R. said it did. In any event, the relationship continued, and Ms. R. continued to have consensual sex with Mr. Mangan.

Eventually the relationship between Mr. Mangan and Ms. R. became strained. Ms. R. was continuing to struggle with depression. In approximately October of 1996, she demanded more money than Mr. Mangan was willing to give her.3 She began calling his office incessantly when he did not give her what she asked. Many of those calls were "trapped," with the assistance of the phone company, by Carol Mangan, Mr. Mangan's wife, who worked at that time as a secretary in his office. The police investigated, and Ms. R. initially blamed the calls on her daughter. She later admitted she had made the calls herself.

Mr. Mangan attempted to convince Ms. R. to stop making the calls and told her that he would continue giving her money for several weeks. She pressed him for information on the fathers and for more money.

The second allegation of forced sex relates to an incident in January of 1997. Late in that month, Mr. Mangan took a trip to see his son in Florida. He told Ms. R., inaccurately, that he would be going to Boston and that he would be bringing back good news about his search for the fathers. When he arrived at her house, he did not have any news, he just told her, as he had previously, that he was "getting close." While at her house, Mr. Mangan had sex with Ms. R. Although she did not want to have sex, she did not object. She was acutely disappointed that he did not have new information regarding the fathers.4

After he left, she became very upset and took too much of her prescribed medication and called the police. A Lewiston police officer was dispatched to Ms. R.'s house to deal with a possible drug overdose. Ms. R. handed the officer three pill bottles-Ativan, Trazadone, and Effexor. She was tearful and distraught and was taken to the hospital by ambulance. At the hospital, she alleged that she had been forced to have sex against her will. She indicated that she had not physically resisted, but had not wanted to have sex. She repeatedly refused to identify the man involved. A rape kit was use to collect evidence, including fluids. The detectives investigating the case sought Ms. R. out at a later date, again asking her to identify the man. She said that he was an important member of the community and consistently refused to disclose his name. After making persistent efforts to obtain the name of the man in question, the police determined that Ms. R. would not provide the name and closed their investigation. The rape kit was eventually destroyed.

Months later, Ms. R. called the detective and reported that Mr. Mangan was the man she had referred to on January 24, 1997. Although I do find that Mr. Mangan went to her house that day, had sex with her, and continued to promise progress on the search for the fathers, I cannot find that the Board has met its burden in demonstrating that Mr. Mangan raped Ms. R on the date in question. The account Ms. R. gave on the date of her admission provides the best description of the occurrence. As recorded by Officer McGonagle, Ms. R. told the hospital staff that "this male came over to her residence and had sex with her. She did not want intercourse but did not resist. She feels that not providing the sex will result in her never finding her children."5 I conclude that although Ms. R. did not personally want to have sex with Mr. Mangan, she did so nonetheless, in an attempt to avoid Mr. Mangan's displeasure, and she did not communicate her feelings to him.

As the relationship deteriorated, both parties began to threaten each other. Ms. R. threatened to expose Mr. Mangan, and Mr. Mangan threatened to "take her down with him." He also told her that no one would believe her stories.

In February of 1997, Ms. R. again sought money from Mr. Mangan reminding him that she had been abandoned by both her husband and Mr. Mangan. He gave her another $210. In May, after a trip to visit family in Kansas, she again threatened him if he failed to give her more money. At that point he declined to give her any more money and told her to "do what she had to do." On June 9, 1997, that she called the police and told them that it was Mr. Mangan who had sex with her against her will on January 24, 1997. She then sought out another attorney, Richard Berne, intending to sue Mr. Mangan for his actions. Mr. Mangan did not carry malpractice coverage, and she did not pursue the action.

I am convinced that when Ms. R. came to understand fully that Mr. Mangan had abused his relationship with her, she attempted to obtain a financial advantage through that knowledge. Her repeated phone calls and her demands for money from October of 1996 through June of 1997 belie her assertion that she just wanted to end the relationship completely in the fall of 1996. I am also convinced that the sexual relationship between Mr. Mangan and Ms. R., spanning several years, was, at least initially, consensual. I am not persuaded that she originally had sex with him only, as she said, because "he [sic] my lawyer." Nor do I believe that she asked him about his search for the fathers "every day," over the course of the relationship, thereby keeping the attorney-client relationship foremost in his mind.

I am convinced, however, that Mr. Mangan began the sexual relationship with Ms. R. during a time when he was acting as her attorney. I am also convinced that Mr. Mangan used information gained in his attorney-client relationship to initiate the sexual relationship and in so doing took advantage of her personal situation as well as her desire to find the fathers.6 Further, I am persuaded that he used that information to manipulate Ms. R. in order to maintain a continuing sexual relationship at a time when she would have chosen to cease her contact with him. That Mr. Mangan used his search for the fathers to manipulate Ms. R. became clear through his own testimony to that effect that, although he did find Sue's father, Donald A., he did not tell Ms. R., choosing instead to “hold onto it" until he had news about both fathers. When he became angry with her, probably in late January of 1997, he “chucked it all," thereby destroying any important information he had obtained during the search. It is evident then that he misled Ms. R. regarding the success of his search, and he destroyed or made unavailable to her whatever results he had obtained when their personal relationship became difficult.

In sum, Mr. Mangan allowed his personal relationship with Ms. R. to affect his work for her, he took advantage of knowledge gained in his attorney-client relationship with Ms. R. in order to pursue and continue that sexual relationship, and he used his search for the fathers to coerce a continuing sexual relationship with her.

III. Conclusions

Based on all of the evidence presented and the above findings, I draw the following conclusions regarding the Board's allegations.

Allegation 1: Mr. Mangan made inappropriate use of his client escrow account in order to pay a retainer on Ms. R.'s behalf to Attorney William Cote. See M. Bar R. 3.1(a) and 3.6(e)(1),(2).

“No funds belonging to the lawyer or law firm shall be deposited" in a client escrow account. See M. Bar R. 3.6(e)(1),(2). I conclude that the Board has met its burden of proving that Mr. Mangan placed his own funds into his client escrow account, and that from those funds he wrote a check to Attorney Cote on behalf of Ms. R. Whether he did so in order to obscure his personal relationship with Ms. R. or in order to avoid the appearance of a violation of M. Bar R. 3.7(d) is not important. This use of his client escrow account for this purpose constituted an unmistakable violation of Rule 3.6(e)(1), and was conduct unworthy of an attorney for purposes of Rule 3.1(a). I further find that this incident was not a simple accounting error or misunderstanding, but represented Mr. Mangan's failure to keep himself conversant with the rules regarding the use of his client escrow account.

Allegation 2: Mr. Mangan neglected legal matters entrusted to him and failed to account for receipts related to his work on behalf of Ms. R. regarding payment of certain medical bills, and his search for the fathers of two of her daughters. See M. Bar R. 3.1(a), 3.6(a)(3), and 3.6(e)(2)(iii).

"A lawyer shall not ... neglect a legal matter entrusted to the lawyer." M. Bar R. 3.6(a)(3). “A lawyer shall. .. maintain complete records of all funds, securities and other properties of a client coming into possession of the lawyer and render prompt and appropriate accounts to the client regarding them." M. Bar R. 3.6 (e)(2)(iii) .

Mr. Mangan failed to keep Ms. R. aware of his efforts and progress both with regard to the payment of her medical bills and the search for the fathers. He did not diligently pursue the search for the fathers. Although his willingness to undertake certain work pro bono is laudable, Mr. Mangan never made clear to Ms. R. his intent to work on a pro bono basis. Moreover, regardless of his own decision not to charge a client, Mr. Mangan must comply with the Code of Professional Responsibility. He is not relieved of his duties under the Code merely because he expects that he may never receive compensation. While the client's resources may restrict the amount of services that may be obtained from an attorney, an attorney is not free to accept a client, to promise that work will be done and then fail to attend to the task in a reasonable period of time.

I also conclude that Mr. Mangan failed to account for the expenditures from the $4000 check given to him by Ms. R. He failed to inform her of the creditors' positions as the work progressed, and he failed to inform her when he had completed the work. He further failed to diligently pursue the search for the fathers. He was neither punctual in his commitments nor did he take reasonable measures to keep his client informed on the status of her affairs. He failed to keep her informed of progress, telling her regularly that he was "getting close," and, when she threatened to complain about his work to the authorities, he "chucked it all" apparently destroying any records he had gathered to date.7

I conclude, therefore, that Mr. Mangan violated M. Bar R. 3.6(a)(3) and 3.6(e)(2)(iii), and that these violations were conduct unworthy of an attorney pursuant to M. Bar R. 3.1(a).

Allegation 3: Mr. Mangan physically forced Ms. R. to have sex with him against her will. See M. Bar R. 3.l(a), 3.2(f)(2), or (4).

Although I conclude, as found both in the specific factual findings and the conclusions set out below, that Mr. Mangan made inappropriate use of his attorney-client relationship with Ms. R. to obtain and continue a sexual relationship with her, I find that the Board has not met its burden with regard to the two specific incidents of alleged physically forced sexual activity. Therefore, I conclude that the Board has not proven a violation of M. Bar R. 3.1(a) or 3.2(f)(2) or (4) on that basis.

Allegation 4: Mr. Mangan engaged in a sexual relationship with Ms. R. at a time when Ms. R. was a client of Mr. Mangan, the relationship adversely affected his representation of her, and Mr. Mangan abused the attorney-client relationship in the context of the sexual relationship. See M. Bar R. 3.1(a); 3.2(f)(2), (3)(4); 3.4(b)(1); 3.4(f)(1);8 and 3.6(a)(3).

No rule starkly prohibits a sexual relationship between an attorney and a client. The Code of Professional Responsibility makes clear, however, that the "prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned." M. Bar R. 3.1(a). Moreover, the Code does expressly prohibit conduct that may redound to the detriment of a client's legal interests.9 A lawyer shall not ... continue representation of a client if the representation would involve a conflict of interest . . .. Representation would involve a conflict of interest if there is a substantial risk that the lawyer's representation of [the] client would be materially and adversely affected ... by the lawyer's own interests." M. Bar R. 3.4(b)(1). "A lawyer shall not ... neglect a legal matter entrusted to the lawyer." M. Bar R. 3.6(a)(3). Therefore, although a sexual relationship between an attorney and client will not constitute a per se violation of the Code, any such relationship that puts the client's legal interests at a disadvantage or prevents the attorney from diligently pursuing the client's causes will constitute a violation of the cited sections.

Thus, the questions presented are: (1) did Mr. Mangan have a sexual relationship with Ms. R.; (2) did Mr. Mangan have an attorney-client relationship with Ms. R. during that time, and, more specifically, did the search for the fathers, on the facts of this case, constitute the practice of law; and (3) if so, did his sexual relationship with a client result in the violation of any rule contained in the Code of Professional Responsibility. The Board has met its burden in proving that Mr. Mangan engaged in a sexual relationship Ms. R. Indeed, Mr. Mangan does not dispute that relationship although he has minimized the time during which the relationship existed, and the effects of the relationship on Ms. R. Mr. Mangan does, however, dispute the existence of an attorney-client relationship with Ms. R., claiming that he undertook the search for her daughters' fathers as part of a “hobby." I reject his analysis.

Mr. Mangan has cited multiple cases from other states addressing the definition of the practice of law. Any number of different formulations can be cited.10 As attorneys' roles increase in complexity and overlap with other professions, the answer to that question will continue to evolve. Ultimately, the question will turn on the specific facts of the work undertaken and the understanding of the parties. In determining whether Mr. Mangan was engaged in the practice of law, I have looked to, among other things, the understanding of both Ms. R. and Mr. Mangan, the trust and confidence reposed in Mr. Mangan by Ms. R., the context in which the request for services arose-both physical and conceptual, the skills necessary to the completion of the services, the "need for discretion and confidentiality in rendering the services, and the nature of the services themselves.

Mr. Mangan's agreement to assist Ms. R. in finding the girls' fathers occurred entirely in a setting that would lead a reasonable person to conclude that he accepted the task as her attorney, and Ms. R. did reasonably believe that he was her attorney for that purpose. Ms. R. came to Mr. Mangan as a result of his previous legal work for her. He undertook the work in the same fashion as he had previously undertaken other legal work for her-with little written record, no fee agreement, no contract for services, and financial arrangements that were vague at best.

The requested assistance, although not in the nature of litigation services, falls well within the broad range of issues upon which an attorney may be expected to provide legal assistance. Contrary to Mr. Mangan's argument, the search for the fathers was not a task wholly distinct from the role of an attorney. While it is possible for the same task to be undertaken, albeit in a different manner and with fewer protections for the confidentiality of the "client," by one not schooled in the law, the same can be said for many services provided to clients by their lawyers.11 Ms. R. sought out an attorney to assist her in the search, and could reasonably assume that an attorney would have skills not otherwise available in a nonlawyer, that is, that an attorney who agreed to undertake the search would be conversant with a variety of methods used to locate people and could undertake the search, using his legal skills, in a confidential and discreet manner.

Furthermore, Ms. R. provided Mr. Mangan with intimate, personal information regarding her past which she had every reason to expect that he would keep confidential. He did not tell her that he would not be acting as her attorney in this endeavor. He met with her at his office to discuss the issues. He asked for and she brought to his law office a picture of one of the men for whom Mr. Mangan had agreed to search.

I conclude, therefore, that the facts point compellingly toward the practice of law and an attorney-client relationship. The putative client sought Mr. Mangan out at his office, made contact through his secretary, gave him detailed personal information regarding her past, and was assured that he would undertake the search. In undertaking the search, Mr. Mangan could be expected to bring to bear his knowledge and skills as an attorney, his ability to communicate persuasively, his understanding of the recordkeeping capacities of governmental agencies, and his knowledge of the distinctions between confidential information and information made public by law. Mr. Mangan was acting in the capacity of an attorney when he undertook the task of finding the fathers, and Ms. R. would have been warranted in assuming that he undertook to find the fathers in his capacity as an attorney.12

Because the mere fact of a sexual relationship with a client does not, in itself, constitute a violation of any specific bar rule, it is necessary to address the specifics of the relationship with regard to Mr. Mangan's representation of Ms. R. I am persuaded that the relationship adversely affected Ms. R.'s legal interests and that Mr. Mangan did not pursue the search for the fathers with the same diligence he would have applied had he not gained an advantage in his relationship with Ms. R. by deferring resolution of the quest. I therefore conclude that Mr. Mangan's own interests adversely affected his representation of Ms. R. He did not diligently pursue the search for the fathers, and he ultimately destroyed all progress on the search when he became angry at her in late 1996 or early 1997. These actions constituted a violation of M. Bar R. 3.4(b)(1) and 3.6(a)(3).13

In addition, the facts in this case demonstrate another significant yet subtle detriment of a sexual relationship between an attorney and client. When an attorney enters into a sexual relationship with a client, the client may feel pressured into continuing that relationship for reasons directly related to the attorney's role. Although, again, no rule expressly addresses these results in terms of forbidding a sexual relationship with a client, I conclude that M. Bar R. 3.2(f)(3) and (4) apply to this aspect of Mr. Mangan's conduct. "A lawyer shall not engage in conduct involving . . . misrepresentation [or] ... conduct that is prejudicial to the administration of justice." Id. The abuse of the trust and confidence that a client places in an attorney and the abuse of confidential information gained in the attorney-client relationship would constitute violations of those provisions as would misrepresentation of the progress of legal work undertaken.

Here, Ms. R. had little or no money with which to pay Mr. Mangan for his work in locating the fathers. He was well aware of her limited finances. He used his knowledge of her private life, gained through representing her, to his own advantage and to her disadvantage. He knew her to have had a difficult past with men; he knew that she was seeing a psychiatrist and was heavily medicated; and he knew that she had difficulties with written English.14 He gained most or all of that information through his representation of her. He continued to press her for sex, while continuing to assure her that he was getting close in his efforts to find the two men. Ms. R. felt "trapped." She had limited emotional strength to draw upon, and she believed Mr. Mangan to be an important member of the legal community. He manipulated her by stringing out his search for the fathers, and by assuring her that no one would believe her if she chose to stop seeing him and disclose his misdeeds.

In sum, the facts lead inescapably to the conclusion that Mr. Mangan took advantage of a client. I conclude that Mr. Mangan's use of information gained through the existence of an attorney-client relationship and the abuse of the trust and confidence obtained through that relationship to obtain and coerce a continuing sexual relationship with Ms. R. was conduct unworthy of an attorney, conduct involving misrepresentation, and conduct that is prejudicial to the administration of Justice. See M. Bar R. 3.1(a) and 3.2(f)(3), (4).

IV. Judgment

The Board having met its burden of proof, it is hereby adjudged that Mr. Mangan has violated M. Bar R. 3.1(a); 3.2(f)(3), (4); 3.4(b)(1); 3.6(a)(3); and 3.6(e)(1), (2)(iii). Based on these conclusions, sanctions are warranted.

A hearing on sanctions will be scheduled at the earliest opportunity.


For the Court

Hon. Leigh I. Saufley, Associate Justice – Maine Supreme Judicial Court


Footnotes

1He was called upon by Ms. R. in 1993 to assist her in understanding her credit report as it related to the payment of the medical bills.

2Ms. R.'s husband found the "Aftercare Instructions," regarding the treatment and medications she received crumpled on the floor of the garage and became angry when Ms. R. would not disclose the man involved. The marriage fell apart after that incident.

3Ms. R.’s supervisor testified that Ms. R. had lost her job at Caswell's Food Liquidation Center as a result of her frequent medication overusage. It is not clear whether she obtained other employment.

4In fact, by that time, Mr. Mangan did have information regarding Donald A., but did not pass it on to Ms. R.

5The hospital apparently misunderstood her search for her daughters' fathers.

6Ms. R. was embarrassed about having had three daughters with three different men, only one of whom she had married.

7Although he testified that he threw away all of his search efforts, some documents remained and appear in the record.

8M. Bar R 3.4(f)(1) speaks only to the commencement of representation where there is a conflict of interest. Mr. Mangan had already undertaken representation of Ms. R. when he began to have a sexual relationship with her.

9It is important to distinguish between bad judgment or bad behavior generally in sexual relationships and bad behavior that finds its source in the attorney's profession.

10Not surprisingly, the Code does not attempt to define the "practice of law" because the definition must be determined in the context of facts unique to each situation. The existence of the relationship will be dependent in great part on the understanding of the putative client and, to a certain extent, the attorney. It may be "implied from the conduct of the parties." Board of Overseers of the Bar v. Dineen, 500 A2d 262, 264-65 (Me. 1985). Accordingly, I have not attempted herein a more precise definition of the practice of law, nor have I included a review of those cases, nationwide, where courts have struggled with the definition in other contexts.

11An example is the work that Mr. Mangan undertook on Ms. R.'s behalf to convince the medical service providers to accept less than full payment on each bill. Although a nonattorney could have assisted her in that task, it cannot be disputed that she became Mr. Mangan's client when he agreed to negotiate on her behalf.

12Even if Mr. Mangan's services to Ms. R in the search for the fathers constituted only "law-related services," Mr. Mangan would still be subject to the Code of Professional Responsibility. See M. Bar R 3.2(h)(1)(i).

13Because the only matters properly before the court for adjudication are the alleged violations of the Code of Professional Conduct, this opinion does not address related concepts of breach of fiduciary duty.

14“The factors leading to the client's trust and reliance on the lawyer also have the potential for placing the lawyer in a position of dominance and the client in a position of vulnerability. . . . Thus, the more vulnerable the client, the heavier the obligation of the lawyer to avoid engaging in any relationship other than that of attorney-client." ABA Comm. On Ethics and Professional Responsibility, Formal Op. 92-364 (1992).

Board of Overseers of the Bar v. Thomas M. Mangan

Download Decision (PDF)

Docket No.: BAR 99-5

Issued by: Single Justice, Maine Supreme Judicial Court

Date: March 10, 2000

Respondent: Thomas M. Mangan, Esq.

Bar Number: 001743

Order: Disbarment

Disposition/Conduct:


Final Judgment

Findings and conclusions were entered in this matter on February 28, 2000, and are incorporated herein. A hearing on sanctions was scheduled for Wednesday, March 1, 2000. At the request of Mr. Mangan and Attorney Sharon, the matter was continued to March 8, 2000, to allow Mr. Mangan further time to prepare to address the Court. Having heard from counsel, Mr. Mangan, and Ms. R., sanctions are entered, pursuant to M. Bar R. 7.2(b)(5), based on the following analysis.

The primary focus of the Court in determining the appropriate sanction must be Mr. Mangan's conduct in abusing his relationship with a client to gain and continue a sexual relationship with her. This does not mean, however, that his conduct in misusing his client trust account, failing to account for his client's moneys and failing to diligently pursue his client's request that he locate the fathers of her daughters can be lightly dismissed. Nonetheless, my analysis will focus primarily on the most egregious behavior, the misconduct involved in the sexual relationship with a client.

I. Authorities

Any analysis of the appropriate sanction to be imposed must necessarily begin with the purpose of the rules. See M. Bar R. 2(a). A proceeding of this nature constitutes "an inquiry to determine the fitness of an officer of the court to continue in that capacity." Id. It is important for all parties to keep in mind the admonition in the rules that the goal of the Court today "is not punishment but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties." Id. Thus, in determining whether the sanction, if any, for the conduct at issue should consist of a reprimand, a suspension for a definite period, or disbarment, see M. Bar R. 7.2(b)(5). I look to the efficacy of each sanction in helping to assure that Mr. Mangan would not conduct himself in a similar fashion in the future.

In determining the appropriate sanction in this matter, I have looked to the following sources for guidance: M. Bar R. 7.1(e)(2)(D);1 Standards for Imposing Lawyer Sanction promulgated by the American Bar Association;2 and sanctions imposed on other attorneys as a result of prior decisions of the Board, single justices, and the Law Court in Maine. I have also considered decisions from other jurisdictions provided to me by counsel, particularly those addressing sanctions imposed on attorneys who have taken advantage of clients through sexual relationships. To organize the facts considered, I have used the framework suggested by the ABA Model Standards and M. Bar R. 7. 1(e)(2)(D).

II. Factors Considered

A. What duties were breached?

As noted in the findings entered earlier in this case, the mere fact that an attorney has a sexual relationship with a client does not, in itself, violate the provisions of the code. Whether an attorney may ever enter into a sexual relationship with a current client without being found to have violated a duty to that client is not before this Court. Despite Mr. Mangan's protestations to the contrary, the facts at bar do not demonstrate a sexual relationship that just happened to coexist with an attorney-client relationship. Instead, it is evident that Mr. Mangan used his role as an attorney to obtain and continue a sexual relationship with a vulnerable client. His use of confidential information gained through his legal work for Ms. R. and his manipulation of the search for the fathers to coerce her continuing compliance were actions that violated his primary duty to his client; that is, to conduct himself in a manner that is not "adverse" to his client. See M. Bar R. 3.4(b)(1). The abuse of the confidence and trust of the client in such a fashion is entirely counter to the duties owed to a client.

Separately, Mr. Mangan violated his duty to account to his client for the expenditure of her funds, and violated his duty of diligence in pursuing the assistance she sought. He also violated his duty to the public and his clients in general by misusing his client trust fund. These errors would be of less concern to the Court had Mr. Mangan not been subject to disciplinary proceedings for similar conduct in the past.

B. What was Mr. Mangan's mental state at the time of his breach of duty?

The question presented by this inquiry is whether Mr. Mangan acted intentionally, knowingly, recklessly, or negligently. This question highlights the difficulty presented by the particular facts of this case. I conclude that Mr. Mangan did intentionally seek out a sexual relationship with a woman he knew, through his law practice, to be vulnerable-emotionally, financially, and culturally. I further conclude that he gained this knowledge through his representation of her. More seriously, this is not the first time Mr. Mangan made sexual advances to a similarly vulnerable client. Thus, it appears that Mr. Mangan takes advantage of women in need of assistance. To the extent that two women can constitute a pattern, this would be a dangerous pattern.

The fact that Mr. Mangan wrongly used the knowledge, power, and control he obtained through his profession in order to obtain an intimate personal relationship is clear. What is much more complex is his state of mind in doing so. I believe that Mr. Mangan's assertions that he was, for a time, in love with Ms. R. are genuine. He did attempt to assist her financially, and thought of himself as taking care of her. Unfortunately, the result is the same whether he developed a real affection for her or not. His behavior constituted a breach of trust and manipulation for his own personal advantage. I must conclude that his conduct was knowing and reckless at the same time.

With regard to his misuse of the client trust fund, I have no doubt that Mr. Mangan was aware that he should not place his own funds in that account and that he did so nonetheless, assuming that it was "not a big deal." Given his past reprimand for this same conduct, even though that reprimand occurred many years ago, it was a big deal.

I also conclude that he knowingly and intentionally delayed work on finding the fathers to gain an advantage over Ms. R., that he did so to her detriment, and that he negligently failed to attend to an accounting of the medical bill payments.

C. What was the extent of the injury caused by Mr. Mangan's misconduct?

The injuries are somewhat unusual in the context of an attorney discipline case. Ms. R. has not likely suffered any significant financial injury due to Mr. Mangan's conduct. Indeed, he gave her money when she was in difficult financial circumstances. Nor did he neglect a litigation matter such that she has lost a right to an adjudication. It is likely that the search for the fathers can be completed through others. Although the, passage of time is, in itself, a loss for her daughters, it is unlikely that irreparable harm has occurred.

The harm is in the nature of emotional harm to Ms. R.3 and harm to the "administration of justice." More precisely, Mr. Mangan's conduct emotionally injured a client and has injured the profession. Ms. R. is still struggling with the aftermath of a multi-year relationship in which she was not always a willing participant. Whether the troubled relationship might have occurred even in the absence of the attorney-client relationship cannot be known. The fact is that Mr. Mangan used his profession and abused the unique trust and confidence placed in him by his client to meet his own needs.

D. What are the aggravating and mitigating circumstances?4

I find these facts in mitigation:

  1. Mr. Mangan has regularly provided many hours of pro bono service to people in need of legal assistance. He has consistently been willing to represent those who may have found no other assistance in the legal community because of their financial, and occasionally language and educational, limitations.

I find the following aggravating factors:

  1. Mr. Mangan has been the subject of five previous disciplinary proceedings resulting in the imposition of sanctions.

(i) He received a private reprimand in 1983 for violation of the bar rules related to the misuse of his client trust account.

(ii) He received another private reprimand in 1985 for failing to account to a client as to the specific manner in which he claimed to have earned his fees.

(iii) He was reprimanded by the Grievance Commission in 1987 for failing to punctually and diligently attend to a client's litigation responsibilities.

(iv) He received a public reprimand in 1997 for violating the requirement that he attend to written contingency fee agreements, and that he account to a client's medical providers in a timely fashion. At least in part, that reprimand addressed issues similar to those presented by the Board in this proceeding. Mr. Mangan's office practice and lack of timeliness in accounting appear not to have improved significantly.

(v) He was suspended from practice for thirty days in 1997 as a result of, a single justice's determination that he had subjected a vulnerable female client, who was also his employee, to unwanted sexual advances.

  1. Mr. Mangan placed his own funds into his client trust fund in order to pay Ms. R.'s retainer with another attorney, notwithstanding a prior reprimand for placing his own funds into that account. In that prior reprimand, the Commission noted concerns similar to those of this Court that Mr. Mangan's decision to place his personal funds into the client trust account was for purposes of deception of a third party (in that case creditors and the IRS; here, Attorney Cote or Barry R.).
  2. Mr. Mangan's conduct with Ms. R. involved the abuse of the trust and confidence of a client and occurred over many months and years. He did not, at any time, explain that he could no longer provide legal services to her. He did not cease the relationship upon evidence that Ms. R. wished to do so. He threatened to "take her down with him" if she exposed him. He reminded her of his esteemed position in the legal community. At no time did he recognize the coercive nature of his conduct and cease that conduct.
  3. Mr. Mangan's 1997 suspension for making improper sexual advances to a client/employee related to incidents in 1995 that occurred during the time that his relationship with Ms. R. was ongoing. In that matter, in findings strikingly similar to those at bar, the single justice (Clifford, J.) found that the client was vulnerable to Mr. Mangan's advances, and that she "had little money and was dependent on Respondent to represent her as an attorney and to provide some part-time employment to her." The justice found that the client may have had a financial motive for filing her complaint against Mr. Mangan, but was credible nonetheless, and that Mr. Mangan "has not acknowledged that his conduct was improper in any way." The justice also found that "although Mr. Mangan used no force, the woman was "very vulnerable and should not have been subjected to sexual advances."
  4. Finally, Mr. Mangan does not acknowledge, or even appear to recognize, that his conduct with Ms. R. was unacceptable. While he is very sorry that the complaint has led to protracted litigation with the Board and that it has caused many problems with his own personal life, he is not in the least contrite for the harm done to Ms. R. or to the profession. He remains angry and feels misunderstood. He has not even begun to grapple with the difficulties caused by entering into a relationship with a client. If he believed he would not get caught, it is highly likely that he would engage in the same or similar behavior again.

III. Conclusions

I conclude that the Board has demonstrated more than an unintended violation of the rules and has proved that Mr. Mangan's misconduct was neither isolated nor inadvertent. He has taken advantage of two vulnerable women who came to him for legal assistance, he has been lax in accounting for the use of clients' funds, and he has knowingly misused his client trust fund.

I also reject his argument that, until my ruling in this case, he could not have known that his conduct with Ms. R. would constitute a violation of the rules. To the contrary, any reasonable attorney would understand that taking sexual advantage of a vulnerable client in these circumstances is conduct that cannot be condoned. Nor is the determination that Mr. Mangan actually took advantage of Ms. R. identifiable only in hindsight.

In instigating the relationship, he was well aware that she had had a troubled history with men, that she suffered from depression and was emotionally fragile, that she was financially limited, that she had suffered an injury and received little compensation, and that English was not her first language. To be sure, Ms. R. is an adult who had previously been represented by other attorneys. Had she understood the situation better and had she been able to assert herself, she could have said no to Mr. Mangan in no uncertain terms and could have attempted to obtain legal assistance elsewhere. That she did not, however, does not excuse his behavior.

Public confidence in the profession is crucial to the administration of justice. People seeking the assistance of an attorney are, by definition, often in circumstances that render them more vulnerable to exploitation. They must trust that placing their confidence in the hands of a member of the bar will not subject them to further exploitation, and certainly they must trust that confidential information conveyed will not be used to the personal advantage of the attorney. An attorney must be vigilant not to allow his or her own interests to work to the disadvantage of a client. Mr. Mangan failed to do so with Ms. R.

IV. Sanctions

Any sanction imposed must assure that Mr. Mangan does not have access to vulnerable female clients unless and until he comes to understand that his conduct was unacceptable and, more importantly, why it was unacceptable. His previous thirty-day suspension for similar behavior has had no effect on his understanding of the wrongfulness of his conduct.5 Thus, any sanction must remove Mr. Mangan from the practice of law for a significant period of time and must preclude reinstatement until he has demonstrated the necessary insight into his misconduct. It must also address his misuse of the trust fund and his lax accounting practices.

Mr. Mangan asks that the Court impose no more than a public reprimand. I conclude that a reprimand would completely fail to address the need to protect the public. The Board seeks a full disbarment. Mr. Mangan's attorney suggests that a suspension for a specific period could serve the purposes of the rules.

As a result of Mr. Mangan's failure to address his misconduct in any way, I have reluctantly concluded that disbarment is the appropriate sanction for the multiple violations demonstrated by the Board. Although I have considered whether a suspension with conditions might accomplish the same result in a less draconian manner, any such suspension would have as its goal the opportunity for Mr. Mangan to meet certain identified conditions before returning to practice. On the facts before me, I would have to construct those conditions out of whole cloth.

Mr. Mangan does not acknowledge that he committed any mistake. He was reluctant even to admit that his misuse of his client trust fund was wrong and did so only by indicating that his attorney told him he must admit that he should not have done it. He has never apologized to Ms. R. or, to my knowledge, to the woman addressed by Justice Clifford in the 1997 suspension. He does not suggest any conditions under which he could more expeditiously be returned to the practice of law.6

Given his lack of remorse, his lack of concern regarding his accounting responsibilities, the absence of a plan to avoid future misconduct,7 the history of previous sanctions, and the significant risk to the public should he continue to practice law, I find that I have no choice but to disbar Mr. Mangan. Reinstatement will not be considered unless and until he has taken significant action to address the violations set out in the findings and conclusion of February 28, 2000, and can demonstrate a real understanding of his misconduct as well as an ability to avoid the misconduct in the future.

Pursuant to M. Bar R. 7.3(I)(1)(A), the disbarment shall take effect thirty days after entry of this judgment. Mr. Mangan shall immediately take steps to wind up his legal responsibilities with any remaining clients and shall comply with M. Bar R. 7.3(I)(1).

The entry is:

It is hereby ordered that Thomas Mangan is disbarred from the practice of law. His name shall be removed from the roll of attorneys authorized to practice law in the State of Maine. Notice of disbarment shall be given pursuant to the Maine Bar Rules.

Consistent with the terms of this judgment and the findings and conclusions previously entered, Mr. Mangan is authorized, pursuant to M. Bar. R. 7.3(j)(1), to petition for reinstatement after the expiration of two years from the date of this judgment.


For the Court

Hon. Leigh I. Saufley
Associate Justice
Maine Supreme Judicial Court


1This provision of the rules directs a panel to consider, inter alia, four specific factors when determining the sanction for an attorney's misconduct. They include consideration of the duty owed, the attorney's mens rea, the injury caused by the misconduct, and the existence of aggravating and mitigating factors. Although no similar provision is found in the section addressing sanctions imposed by the Court, I conclude that these are appropriate factors for consideration by the Court.

2The model standards require inquiry on the same four issues addressed in M. Bar R 7.1(e)(2)(D). See ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS, Model Standard 3.0 (1992).

3Emotional harm in the context of attorney discipline matters ordinarily accompanies the clients distress at learning that his or her rights have been compromised by the attorney's misconduct.

4See ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS, Standards 9.1,9.22,9.32.

5That suspension was imposed at or after the end of his relationship with Ms. R. It cannot be expected, therefore, that it could have changed his behavior with Ms. R. It can be expected, however, that the Court's action in 1997 would have led Mr. Mangan to consider his behavior with Ms. R. in a different light and begin to understand why it constituted a violation of the code. That does not appear to have occurred.

6A separate sanctions hearing was scheduled in order to allow the parties, and particularly Mr. Mangan, the opportunity to argue for a more specifically tailored sanction. That hearing was then continued to allow Mr. Mangan additional time to present his argument more constructively. Despite his attorney's best efforts, however, Mr. Mangan declined the tacit invitation of the Court.

7Although I would have considered requiring individual counseling to assist Mr. Mangan in understanding the existence of, and harm caused by, his abuse of his role as an attorney, there is no evidence before me to indicate that such counseling could be effective.

Board of Overseers of the Bar v. Seth T. Carey

Download Decision (PDF)

Docket No.: BAR-08-04

Issued by: Single Justice

Date: February 12, 2009

Respondent: Seth T. Carey, Esquire

Bar Number: 009970

Order: Suspension

Disposition/Conduct: Communication with Adverse Party; Competency


This matter was initially presented to the Court upon a Petition for Temporary Suspension and Expedited Hearing dated May 21, 2008, submitted pursuant to Maine Bar Rule 7.3(c). The petition was merged and consolidated by agreement of the parties1with an Information dated September 10, 2008. An evidentiary hearing was held on October 7 and 8, 2008. The Plaintiff was represented by Assistant Bar Counsel Aria Eee and the Defendant (hereinafter "Mr. Carey") was represented by Stephean C. Chute, Esq. At the close of the evidence, the parties were invited to submit memoranda addressing Mr. Carey's motions to strike and motions in limine. After this Court entered its order of November 25, 2008, the parties were invited to submit written closing arguments. Oral argument was held on February 6, 2009.

Findings of fact

The Plaintiff offered evidence of a number of circumstances which it suggests constitute violations of specific bar rules. In some instances, the parties agree upon the facts. The testimony of the witnesses, however, included some significantly irreconcilable accounts of the events at issue. The Court addresses the events separately and finds as follows.

The Burgess Divorce

Mr. Carey represented Brandon Burgess in a divorce action against Tara Roy. The evidence suggests that the parties had a protection from abuse order pending at the time of the divorce. An interim order required Brandon to pay child support to Tara and to deliver a jeep to her for use during the divorce proceedings. When the jeep was not delivered to Tara in a timely fashion, Tara's attorney, David Austin, Esq., wrote to Mr. Carey demanding its delivery. When he received no response, Austin commenced an action against Brandon for contempt.

In the meantime, Brandon approached Mr. Carey and suggested that an agreement had been worked out between Tara and himself to resolve all issues (including the pending contempt action). Brandon asked Mr. Carey to reduce the agreement to writing in appropriate legal terms and he (Brandon) would present it to Tara.

Mr. Carey produced the document for the parties' signatures. Brandon presented it to Tara for her consideration. While Brandon was urging Tara to sign the document, he was speaking with Mr. Carey by using the speakerphone function of his cellular telephone. Tara was able to hear Mr. Carey. Because Tara felt that Brandon and Mr. Carey were pressuring her to sign the document, she refused to do so and later telephoned her attorney to report the incident.2

Attorney Austin confronted Mr. Carey shortly thereafter with a sharp admonition that he must not "go behind [his] back" to get his client's signature on the document. Mr. Carey did not acknowledge any wrongdoing to Attorney Austin.3 Shortly thereafter, Attorney Austin learned that there were two settlement documents (Board Exhibits 6 and 7) in his client's possession, one of which was apparently prepared by Mr. Carey after Austin's admonition.4

The issue of the settlement proposal documents was addressed briefly during the divorce trial. District Court Judge McElwee confirmed that Austin was surprised by the existence of the settlement documents. Despite Mr. Carey's claims that the documents were presented to Attorney Austin prior to submission to Tara, this Court finds that the evidence resoundingly suggests they were not.

Michelle Gagnon v. Joshua Gagnon

Mr. Carey testified that he signed some paperwork prepared by his father and transported it to the Rumford District Court for filing.5 The paperwork included an entry of appearance and a motion to continue on behalf of Michelle Gagnon. After arriving at the courthouse, he noticed Joshua Gagnon (the defendant in the matter involving Michelle Gagnon) sitting in the waiting area. Mr. Carey approached him and engaged him in conversation.6 The conversation clearly concerned substantive matters involving the pending proceeding. When Joshua's attorney noticed Mr. Carey speaking with Joshua, he admonished him to avoid contact.

Mr. Carey testified that he was unaware of the fact that Joshua was a party to the proceeding that was the subject of the paperwork he had signed and was filing with the court. He further testified that he was not aware that the subject matter of their conversation was germane to contested issues. While Mr. Carey's professed ignorance of these facts is arguably possible, it is not plausible.

The Judge Complaints (Judge McElwee)

District Court Judge John McElwee testified regarding the circumstances that lead to his filing of a complaint against Mr. Carey with the Board of Overseers of the Bar. During the course of the trial in the Burgess case, Mr. Carey offered the unsigned settlement agreement, noted above, into evidence despite the fact that it was completely inadmissible and improper. Judge McElwee noted additional inappropriate actions by Mr. Carey during the trial, including the mention of facts not in evidence during closing argument, and the use of inflammatory language (e.g., "lied" or "lies") that was simply not justifiable or appropriate in the context of the actual evidence. When Judge McElwee asked Mr. Carey to show opposing counsel the document he was using to question a witness, Mr. Carey refused and said he would show it to him later.

In order to avoid embarrassing Mr. Carey in the presence of his client, Judge McElwee called a recess to instruct Mr. Carey in chambers on the proper procedure for using documents to examine a witness (and the requirements of M.R. Evid. 106). Rather than accepting that gentle tutelage, Mr. Carey responded to the effect of, "How would you expect me to know that? You don't give me enough court appointments to learn these things."

The Judge Complaints (Judge Stanfill)

Judge Valerie Stanfill of the Maine District Court filed a complaint with the Board of Overseers of the Bar as a result of two circumstances that caused her to question Mr. Carey's core competence to handle representation in criminal matters. The first instance occurred during a trial on a motor vehicle offense. Diane Ronin was charged with operating after suspension. Although the Judge suspected some fundamental weaknesses in the State's case, Mr. Carey remained oblivious to them and undertook ineffective examination strategies.

During cross-examination of a police officer, his questions were primarily of the "Are you sure?" variety. During the direct examination of his own client, he repeatedly used leading questions despite repeated objections by the State's attorney, and the Judge's sustaining of those objections. Judge Stanfill was left with the clear impression that Mr. Carey was unaware of the nature and structure of leading questions and, equally as important, how to proceed without using them. The Assistant District Attorney who prosecuted the case testified that Mr. Carey "just froze" and could not question effectively.

The second event that prompted Judge Stanfill's concern occurred during a bail hearing in Farmington. After the prosecutor presented a request for cash bail, Mr. Carey responded that the bail requested for his client seemed a little high, but offered nothing else. Judge Stanfill inquired about his client's circumstances and other matters that might be germane to setting bail. Mr. Carey made no effort to offer circumstances that might mitigate the State's cash bail request.

Both the Assistant District Attorney and defense attorney Leonard Sharon, Esq., an expert called by Mr. Carey, testified that a competent defense attorney is not required to offer generic or gratuitous comments during a bail hearing, but that some manner of advocacy on behalf of the client is demanded.

Although Judge Stanfill testified that she did not believe any transgressions of constitutional magnitude occurred at the hearing, she sincerely believed that they could in the future, and she directed the Clerk of Court to refrain from appointing Mr. Carey to any future criminal defense matters.

Statements at Grievance Commission Proceedings

Assistant Bar Counsel cites two statements made in conjunction with the Grievance Commission proceedings that implicate violations of the Maine Bar Rules. First, when asked if he had had any contacts with law enforcement since an earlier incident that apparently occurred during a town meeting, Mr. Carey responded in the negative. In fact, he was charged by police with unrelated conduct that allegedly occurred in the interim.7

Mr. Carey rejects Assistant Bar Counsel's assertion. He argues that the question that prompted his denial was posed in the context of, or following, a question relating to his problems with law enforcement at town meetings. He argues that his answer was given in that limited context, i.e., that he had no subsequent contact with law enforcement at town meetings. The Court finds his answer and argument to be blatantly disingenuous. If his denial was intended to be made in a limited context, it should have been so stated. His unqualified answer clearly represented that he had had no contact with public safety officials in any circumstance. Counsel and the tribunal reasonably accepted it as such, and were thus misled.

As the Grievance Commission proceedings were concluding, the Commission received the complaints from Judges McElwee and Stanfill, prompting Assistant Bar Counsel to commence a "fast track" Motion for Temporary Suspension and Expedited Hearing. During the course of the hearings, Mr. Carey stated that he was going to wind down his practice and possibly undertake some additional study. On the strength of this representation, Assistant Bar Counsel assumed that the public would be protected by the fact that Mr. Carey would be voluntarily withdrawing from the active practice of law. In reliance upon Mr. Carey's statement of intent, Assistant Bar Counsel did not press forward with the motion, and focused her efforts on bringing the dispute to an agreed-upon resolution. In fact, Mr. Carey has continued to practice law and now characterizes his earlier representations as being merely "aspirational." Again, the Court finds his actions disingenuous.

Statements During Testimonial Hearing

During the course of his sworn testimony before this Court, Mr. Carey referred to Assistant Bar Counsel as "the most unethical lawyer I have ever met." He also suggested that there was a conspiracy, or at least complicity, between Attorney Austin and Judge McElwee in making the complaints against him and testifying at the hearing before this Court.8

Mr. Carey's testimony at the hearing was evasive, combative, and accusatory. He acknowledges no misconduct or deficiency on his part, and asserts that he will be a fine trial lawyer some day. During closing argument, his counsel pointed out that a disciplinary hearing can be a stress-inducing experience, and suggested that his client succumbed to the pressure and made some inappropriate statements, for which he apologized on behalf of Mr. Carey.

Conclusions

The Maine Bar Rules provide standards for attorneys with respect to their practice of the profession of law. When formal proceedings are commenced against an attorney pursuant to these rules, the purpose is not punishment, but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to properly discharge their professional duties. M. Bar R. 2(a). All attorneys in the State of Maine are subject to the oversight and supervision of the Maine Supreme Judicial Court. M. Bar R. l(a).

Rule 3.6(f) of the Maine Bar Rules governs communications with adverse parties, and provides as follows:

(f) Communicating With Adverse Party. During the course of representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.

This rule articulates the long-recognized principle that a lawyer will not seek to communicate, in any fashion, with another lawyer's client on matters germane to the subject of the representation. If Lawyer A seeks to interact with Lawyer B's client on any issue related to Lawyer B's representation, he must go through Lawyer B. Any effort to avoid the requirements of this rule threatens to undermine the essence of the lawyer/ client relationship.

Mr. Carey seeks to excuse his involvement in the presentation of the settlement documents to Tara Burgess by claiming that it was not him doing the contacting, it was his client, and litigants always have the prerogative of talking to each other. While he is correct on the second point, his involvement was not passive. His client may have provided him with the elements of the alleged agreement, but Mr. Carey actually prepared the legal document, complete with jurat and appropriate legal language. He was not a passive bystander, rather he actively facilitated, furthered, and participated in the process. Indeed, when the document was presented to Tara by Brandon, Mr. Carey was in communication with the parties through the speakerphone function of Brandon's cellular telephone.

Mr. Carey's failure to route the settlement documents that he prepared through opposing counsel constituted a clear violation of Rule 3.6(f). His conduct became all the more egregious when the second document was apparently presented to Tara after Attorney Austin expressed his disapproval over Mr. Carey's handling of the first one.

Mr. Carey's involvement in Brandon's machinations implicates another troubling violation of the rules. The District Court ordered Brandon to deliver the Jeep to Tara during the pendency of the proceedings. When Brandon refused to do so-perhaps as leverage to induce Tara to settle-Mr. Carey had a clear, solitary obligation: to advise Brandon to comply with the order forthwith. Indeed, Mr. Carey asserts that he did so advise Brandon. However, when he assisted in preparing the settlement proposal documents (which included dismissal of the contempt action against Brandon as a central objective), he facilitated his client's ongoing violation of the District Court's order in violation of Rule 3.6(d).

Mr. Carey's contact with Joshua Gagnon, which occurred shortly after the Burgess hearing, demonstrates his continuing disregard of the "no contact" rule. Again Mr. Carey seeks to minimize his transgression by asserting a lack of knowledge of the fact that Joshua was the opposing party on the case he was attending that day. The record clearly demonstrates that Mr. Carey signed the pleading entering his father's appearance. The parties' names appear on the pleading. The question of whether Mr. Carey's transgression was occasioned by ignorance or design concerns only the degree of his misconduct. His attendance at court on the date of the Gagnon hearing, while representing a party to that proceeding, charges him with the knowledge of the name of the opposing party. Mr. Carey's conversation with Joshua regarding matters clearly germane to the contested issues constituted a clear violation of Rule 3.6(f).

Mr. Carey's answer during the Grievance Panel hearing that he had no contact with law enforcement is simply a false statement. His efforts to distinguish it by invoking the "context" of the statement simply lacks credibility. His "cat and mouse" approach to Assistant Bar Counsel's questioning discloses a profound lack of candor and a clear willingness to mislead counsel and the tribunal. His statement constitutes a violation of Rule 3.7(b).

The purpose of Mr. Carey's statement of intent to withdraw from the practice of law, while troubling, is less clear and falls short of a violation of the Maine Bar Rules. The Court is unable to determine on this evidence whether his statement was merely a momentary, fleeting thought or an intentional effort to divert Assistant Bar Counsel from the expedited procedures provided in Maine Bar Rule 7.3.

No judge expects a new lawyer to arrive at the practice of law with the same finely-honed skills that come only after years of experience. However, the rules clearly require (and judges and the public expect) all lawyers to demonstrate an understanding of, and competency in, the core skills required for representation. M. Bar R. 3.6(a)(1),(2). The deficiencies identified by the complaining Judges in this matter illuminate a lack of fundamental skills, competencies, and preparation in trial work in general, and criminal defense in particular. Accordingly, this Court finds that the Plaintiff has sustained its burden in proving violations of the aforementioned rules.

Finally, Mr. Carey's intemperate remarks suggesting unethical conduct on the part of the Board's counsel, and collusion between a Judge and an attorney, border on violations of Rule 3.7(b). However, this rule requires proof of a false statement knowingly made. In this instance, the element of a knowing misstatement may be missing because it appears Mr. Carey may actually, sincerely believe these assertions-an equally disturbing possibility, but not actionable under the rules.

Order

Upon this Court's finding of the violations of the Maine Bar Rules as noted above, it is hereby ORDERED that Seth T. Carey be SUSPENDED from the practice of law for a period of six months and one day commencing March 30, 2009. Pursuant to Rule 7.3(j)(1), he must thereafter petition for reinstatement. As a condition for reinstatement, he must demonstrate that he has undertaken further education in trial advocacy and professional ethics.9 He must also demonstrate that he has obtained the services of an established trial attorney, not a relative or a member of his firm, with demonstrated expertise in trial and criminal defense advocacy to monitor and mentor him for a period of one year following reinstatement.

It is also ORDERED that Seth T. Carey pay the reasonable expenses of the Board incurred in the investigation and hearings necessitated in this matter. The Board's certification of costs and expenses will be considered separately from this proceeding.

The Board is authorized in its discretion to file additional Informations directly with the Court concerning any new complaints of professional misconduct allegedly committed by Mr. Carey during the year following his reinstatement to practice.

The Clerk may enter this Order upon the docket by reference.


For the Court

Hon. Andrew M. Mead, Associate Justice - Maine Supreme Judicial Court


Footnotes

1Although Mr. Carey agrees with the procedural aspects of this consolidation, he has consistently objected to the submission of any factual allegations that were not expressly presented to the Grievance Commission as part of the earlier proceedings. See this Court's order dated November 25, 2008.

2Mr. Carey apparently has some manner of an ongoing relationship with Brandon; the subpoena to testify at the October 7, 2008, disciplinary hearing was personally served upon Tara by Brandon.

3Mr. Carey testified that he told Austin that he thought he was "off the case" at that time an unsupportable assertion given the pendency of the contempt motion filed earlier by Austin.

4The second document purports to dismiss the contempt motion.

5Mr. Carey is engaged in a law practice partnership with his father.

6Mr. Carey testified that he knew Joshua from high school, but did not have a particularly good relationship with him as they traveled in different social circles. He testified that their conversation was just "killing time."

7Apparently the charge (assault) has since been dismissed.

8Mr. Carey testified that, "It's unfortunate that this [complicity] has not been explored further in this matter," and that he had seen Judge McElwee and Austin talking in the courthouse during the proceedings. When asked if he had any substantive evidence to support his complicity suggestions, he stated, "I have no evidence, but in this case, nothing would surprise me."

9This education must be undertaken in a meaningful and formal instructional environment, not through self-study or prerecorded instructional videos.

Board of Overseers of the Bar v. Donald F. Brown

Download Decision (PDF)

Docket No.: GCF #05-252

Issued by: Grievance Commission

Date: August 1, 2006

Respondent: Donald F. Brown

Bar Number: 008541

Order: Reprimand

Disposition/Conduct: Standards of Care and Judgment; Commencement


Report of Proceedings, Findings, Conclusions and Disposition


The above matter was heard by the Grievance Commission Panel A, with Tobi L. Schneider, Esq. serving as a substitute on July 11, 2006, at the Key Bank Building, offices of Vafiades, Brountas & Kominsky, in Bangor, Maine 04402. Pursuant to a disciplinary petition dated April 14, 2006, with proper notice being provided, a disciplinary hearing open to the public was conducted on this date pursuant to Maine Bar Rules 7.1 (e) (1), (2) to determine whether the grounds exist for the issuance of a reprimand or whether probable cause exists for the filing of an information with the Court. The Board of Overseers was represented by Attorney Bar Counsel Aria eee, Esq. and Respondent, Donald F. Brown, Esq. represented himself. Witnesses included Attorney Brown and the complainant, Muriel E. Dinsmore, of Brewer, Maine.

Background

The pleadings consisted of a Petition filed by the Board and Response filed by the Respondent. In the course of the proceedings Exhibits 1 through 9 were admitted without objection. The panel considered Exhibits 1 through 9 as well as the oral testimony of Muriel E. Dinsmore and the Respondent Attorney Brown.

On August 9, 2004, Muriel Dinsmore had a consultation with Attorney Brown at his office. The purpose of the consultation was to discuss personal injuries she sustained when she slipped on ice when entering the Jo Ann Fabrics Store in Bangor, Maine, on February 2, 2004, resulting in an injury to her right elbow and wrist. As a result of that injury, she sustained a fracture and received medical attention. Mrs. Dinsmore sustained another injury on May 12, 2004, when she apparently fainted and fell, while at work, reinjuring herself. This second incident resulted in additional medical treatment. After receiving treatment for the second incident on June 28, 2004 Mrs. Dinsmore was released to return to work by her doctor. She presented her employer Pro Tea with a form stating that she could return to work with no restrictions, but her employer refused to reinstate or rehire her or otherwise allow her back to work. At the consultation with Attorney Brown on August 9, 2004, both injuries were discussed. Pursuant to the consultation, Attorney Brown agreed to investigate two potential causes of action, to wit:

  1. A slip and fall claim against Jo Ann Fabrics regarding the February 2, 2004 incident;
  2. An employment discrimination claim against ProTea regarding the June 28, 2004 refusal to allow her to return to work;

Mrs. Dinsmore testified that over the next several weeks she made numerous efforts to contact Attorney Brown to provide him with additional information. Attorney Brown denied that he ever received any additional phone calls from Mrs. Dinsmore, other than having spoken with her on one occasion, perhaps in November of 2004.

By a letter dated November 2, 2004, Mrs. Dinsmore wrote to Attorney Brown (Exhibit #9). In that letter, some additional information was provided. It is noted, however, that prior to that date numerous documents had previously been provided to Attorney Brown, which contained much of the factual background information regarding the identity of Mrs. Dinsmore's employer and the dates and sequence of events.

By a letter dated December 7, 2004, Attorney Brown wrote to Mrs. Dinsmore regarding the two matters. At that time he specifically stated to her that he did not believe she had a case regarding her slip and fall claim against Jo Ann Fabrics. Regarding the employment case against ProTea, however, he indicated to her that her claim "may have some merit". In the letter he asked Mrs. Dinsmore to provide, in writing, additional information. He concluded the letter by stating "Once I have received this information, I will then write a letter to your former employer asserting a claim on your behalf” (See Exhibit #3).

By a letter dated December 14, 2004, Ms. Dinsmore wrote to Attorney Brown providing the additional information he had requested. After December 14, 2004, there was apparently no additional communication between Attorney Brown and Mrs. Dinsmore until February 9, 2005. By a letter dated February 9, 2005, Attorney Brown wrote to Mrs. Dinsmore indicating he was declining to represent her in either of the claims against Jo Ann Fabrics or ProTea.

By February 9, 2005, the statute of limitations to assert a claim against ProTea with the Maine Human Rights Commission had expired. Attorney Brown testified that he at no time had considered or become cognizant of the running of the six month statute to file a claim with the Maine Human Rights Commission. There was never any communication from Attorney Brown to Mrs. Dinsmore advising her of the statute or to take necessary steps to protect her interests.

Findings

After consideration of all the evidence submitted at the Hearing, the Panel makes the following findings:

  1. Pursuant to the August 9, 2004 meeting, Attorney Brown did agree to investigate various matters on behalf of Ms. Dinsmore. It is not entirely clear whether at that time he undertook formal representation as defined by Rule 3.4. The Panel agrees that it is appropriate under certain circumstances to conduct an investigation prior to agreeing to representation. Unfortunately, at the time Attorney Brown agreed to undertake investigation of Mrs. Dinsmore's claims he failed to appreciate or acknowledge the applicable statute of limitations specifically the six month statute of limitations applicable to the commencing of a claim with Maine Human Rights Commission, Title 5, MRSA §4622;
  2. Mrs. Dinsmore wrote to Attorney Brown on November 2, 2004. In that letter she began the communication with "I want to thank you for trying to help me with the problems". She concluded her correspondence with "I will be so relieved when this case is settled as it is causing a hardship". (See Exhibit #9) <.li>
  3. After receipt of the November 2, 2004, correspondence from Mrs. Dinsmore, Attorney Brown did not respond, correct, or clarify for Mrs. Dinsmore the scope or limitations of his representation. Rather, Attorney Brown wrote to Mrs. Dinsmore on December 7, 2004. In the December 7, 2004, correspondence he clearly indicated he did not believe she had a claim regarding her fall at Jo Ann Fabrics. He did, however, indicate that her wrongful termination claim against her former employer, ProTea, "may have some merit". He requested additional information and closed his letter by stating "Once I have received this information, I will then write a letter to your former employer asserting a claim on your behalf” (See Exhibit #3). At no time did Attorney Brown advise Mrs. Dinsmore of the looming and potential expiration of the statute of limitations to assert and file a claim with the Maine Human Rights Commission.
  4. Based upon that exchange of correspondence, Mrs. Dinsmore could objectively believe that legal representation had been commenced by Attorney Brown regarding the employment termination case against ProTea, as commencement of employment is defined by Rule 3.4(a) (2).
  5. On February 9, 2005, Attorney Brown communicated to Mrs. Dinsmore that he was not going to represent her regarding her employment termination case against Pro Tea. By the time of February 9, 2005, the Statute of Limitations to pursue a claim before the Maine Human Rights Commission had expired.
  6. Allowing the Statute of Limitations to expire without either protecting Mrs. Dinsmore's rights or advising her of the looming deadline constitutes conduct which is neglectful of a legal matter entrusted to him, which is prohibited by Rule 3.6 (a)(3). At the hearing, Attorney Brown fully acknowledged that he missed the applicable Statute of Limitations regarding the Maine Human Rights claim.
  7. None of Attorney Brown's conduct was done intentionally or knowingly, but it does rise to a level of negligence.
  8. Attorney Brown's conduct did not result in any damage to Mrs. Dinsmore's claim against Jo Ann Fabrics, as the Statute of Limitations has not expired for that claim. His conduct did, however, result in damage regarding her employment termination claim against Pro Tea. Specifically, the conduct resulted in her being barred from commencing a claim before the Maine Human Rights Commission and further barred her from making a claim for attorney fees, pursuant to Title 5, MRSA §4614 or any of the other statutory damages, which may have been applicable pursuant to Title 5, MRSA §4613. Although his conduct did not deprive her from still asserting a civil action in the Superior Court, pursuant to Title 5, MRSA §4625, his conduct did result in her being barred from asserting the aforesaid claims before the Maine Human Rights Commission and deprived her from seeking attorney fees, etc.
  9. Attorney Brown's failure to communicate or clarify the scope (or limitations thereof) of his employment for Ms. Dinsmore may have been only "minor" misconduct. When coupled, however, with his failure to identify or communicate to Mrs. Dinsmore the looming expiration of the Statute of Limitations to assert a claim before the Maine Human Rights Commission, it cannot be said his conduct was minor. Similarly, in cannot be said that Mrs. Dinsmore suffered "little or no injury" as his conduct deprived her of the right to assert those claims before the Maine Human Rights Commission.

Discussion

Based upon the above findings, the Panel finds that Bar Rules 3.4(a)(2) and 3.6(a)(3) were violated by Attorney Brown. Those rules state:

3.4 Identifying Commencement, Continuation, and Termination of Representation

(a) Disclosure of Interest, Commencement, and Termination: General Provisions.

(2) Commencement. Representation of a client shall be deemed to have commenced when the lawyer and the client, by conduct or communication, would each reasonably understand and agree that representation commences. Commencement of representation shall be judged by an objective, not a subjective, standard. It is the obligation of the attorney to clarify whether representation has commenced. If the client reasonably believes that representation has commenced and the attorney has failed to clarify that it has not, then representation shall have commenced.

3.6 Conduct During Representation

(a) Standards of Care and Judgment. A lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the client's affairs. A lawyer shall not

(3) neglect a legal matter entrusted to the lawyer.

The facts require a finding that she believed legal representation had commenced by the time of the exchange of the November 2, correspondence from Mrs. Dinsmore and the December 7, 2004, correspondence from Attorney Brown. Once legal representation commenced, the standards of care and judgment required by Rule 3.6 are applicable. In this case, Attorney Brown was neglectful of the legal matter entrusted to him by his failure to identify the expiring Statute of Limitations and by his failure to either take action to preserve her claim or otherwise advise Mrs. Dinsmore of the Statute so that she could take appropriate action. Missing the Statute of Limitations which deprived Ms. Dinsmore of her rights to assert a claim before the Maine Human Rights Commission is not minor; we could not find that it resulted in little or no injury.

Accordingly, based upon the evidence and the record before it, Panel A determines that the appropriate disposition of this Petition is that the Respondent, Attorney Brown, should and hereby is reprimanded.


For the Grievance Commission

Harold L. Stewart II, Esq.
Tobi L. Schneider, Esq.
Raymond J. Cota

Board of Overseers of the Bar v. Lenore Anderson (f/k/a Lenore Grant)

Download Decision (PDF)

Docket No.: BAR-01-04

Issued by: Single Justice, Maine Supreme Judicial Court

Date: November 12, 2002

Respondent: Lenore Anderson (f/k/a Lenore Grant)

Bar Number: 003071

Order: Disbarment

Disposition/Conduct: Conduct Unworthy of an Attorney; Misconduct involving Illegal Conduct, Deceit and Misrepresentation; Excessive Fees; Withdrawal from Employment; Standards of Care and Judgment; Neglect; Preserving Identity of Funds and Property


Order of Disbarment


This matter is before the Court pursuant to M. Bar R. 7.2(b)(1) by an information filed by the Board of Overseers of the Bar against the Defendant Lenore Anderson (f/k/a Lenore Grant). Ms. Anderson (f/k/a Grant) has been served with a copy of the information and summons at her current residence in Rochester, New York. She failed to file an answer or any responsive pleadings to it or to the Board's Motion for Default of October 21, 2002. She is therefore hereby defaulted.

Ms. Anderson (f/k/a Grant) is a former Maine attorney who practiced law in Maine until approximately July 2001, and was subject to the Maine Bar Rules. The Board's information charges, and the Court hereby finds:

  1. In the Fall of 2000 and into the Spring and Summer of 2001, Anderson failed to follow through on her attorney obligations to many clients concerning their respective real estate transactions. In some cases, she would close the sale, but fail to record the deed. She collected many premiums from clients for title insurance for both buyers and lenders, deposited the funds in her client trust account, wrote out checks for the premiums, but failed to forward the premium amounts. As a result, many of the owners and lenders were unknowingly without title insurance they had purchased, and Anderson received and kept more money than she was entitled to which she then purportedly placed in her client trust account.
  2. At some point in 2001, Anderson made arrangements with an attorney to lease her law office building in Blue Hill to him from which he would operate a title insurance company. Anderson stayed on as an employee of that title company for a time, but in approximately July 2001 she left for Rochester, New York and left no forwarding address. At the time of her departure, Anderson left many clients' work unfinished and provided no notice to those clients that she had closed her office or that she had left Maine.
  3. As a result of information received by the office of the Board's Bar Counsel as to the unfinished status and often missing client files, upon the Board's motion, the Court issued an Order for Appointment of Counsel on January 18, 2002 under M. Bar R. 7.3(f). Pursuant to that Order, Attorney Ellen Best was so appointed and therefore visited. Anderson's former office and undertook the very time-consuming task of trying to restore the chaotic state of Anderson's former clients' files and real estate matters. Best's Interim Report of May 15, 2002 was submitted to the Court on that date. As a result of the very arduous work and services of Best, many of Anderson's former clients were notified of her misappropriation of their funds, and of the existence of the grievance complaint process of the Board of Overseers of the Bar.
  4. The Board initially received at least eight (8) grievance complaints from former clients claiming that Anderson had misappropriated their funds. Although notified by the Board of those complaint matters, Anderson failed to file any responses to any of them.
  5. Effective October 25, 2001, Anderson received a non-disciplinary summary suspension under M. Bar R 6(b) and 10(c) for failure to register with the Board or pay the annual fee as required under the Maine Bar Rules. That suspension remains in effect at present.
  6. In separate but related proceedings before the Fee Arbitration Commission, Anderson was ordered to refund unearned fees in four (4) of those same client complaint matters, totaling $2,050, but has failed to make any refunds in violation of M. Bar R. 9(i).
  7. As a result, the Court finds that Anderson violated M. Bar R 2(c) (Grounds for Discipline); 3.1(a) (Conduct Unworthy of an Attorney); 3.2(f)(1)(2)(3)(4) (Other Misconduct involving illegal conduct, deceit and misrepresentation); 3.3(a) (Excessive fees) 3.5(a) (Withdrawal from Employment); 3.6(a)(2)(3) (Conduct During Representation - Standards of Care and Judgment; Neglect); 3.6(e)(2) (Preserving Identity of Funds and Property and 9(i) (Enforcement of Fee Award).

Because Ms. Anderson (f/k/a Grant) has not filed an answer or otherwise responded to the information, the Court takes the Board's allegations including those rule violations as being admitted by her.

Accordingly, it is hereby ORDERED that the Executive Clerk of the Maine Supreme Judicial Court enter the Defendant's default pursuant to M. R. Civ. P. 55(a). It is further ORDERED that Lenore Anderson (f/k/a Grant) be, and she hereby is disbarred from the practice of law in the State of Maine effective the date of this order. Lenore Anderson (f/k/a Grant) shall comply with the notification and reporting requirements of M. Bar R. 7.3(i) within 30 days of this date.


For the Court

Hon. Paul L. Rudman, Associate Justice - Maine Supreme Judicial Court

Board of Overseers of the Bar v. Leonard I. Sharon

Download Decision (PDF)

Docket No.: GCF 07-295

Issued by: Grievance Commission

Date: December 23, 2008

Respondent: Leonard I. Sharon, Esq.

Bar Number: 003291

Order: Reprimand

Disposition/Conduct: Standards of Care and Judgment; Responsibilities Regarding Non-Lawyer Assistants


Report of Findings Panel E of the Grievance Commission M. Bar R. 7.1(e)(2)M. Bar R. 7.1(e)(4)


On December 23, 2008, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7. 1 (e)(2)(E), concerning misconduct by the Respondent, Leonard I. Sharon, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on July 17, 2008.

At the hearing, Attorney Sharon was represented by James F. Martemucci, Esq. and the Board was represented by Bar Counsel, J. Scott Davis. The complainant, the Honorable Andrew Morton had been provided with a copy of this Report (in its proposal form) but was not present for the stipulated hearing. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration.

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

Findings

Respondent Leonard I. Sharon (Sharon) of Auburn, County of Androscoggin, State of 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 Sharon was admitted to the Maine bar in 1986 and he is a member in good standing.

On September 14, 2007, Justice Horton filed a complaint against Attorney Sharon. The complaint alleged that Sharon may have violated the Code of Professional Responsibility through his office's post-verdict, juror contact in an Androscoggin County Superior Court criminal matter. Earlier in the case, the Superior Court had issued specific orders which imposed detailed limitations on the use, retention and dissemination of confidential juror information. After the trial and in response to the law firm's inquiry, the Superior Court advised Sharon's office to file a request and affidavit in order to obtain access to juror names and contact information. According to the grievance complaint, neither the firm nor any of its agents submitted such a request.

By way of background, following the Superior Court trial, Sharon's jury consultant contacted at least two of the jurors involved in the murder case. The consultant informed the jurors that she had the trial Justice's permission to make such contact. By June 2007 a juror had alerted the Superior Court who subsequently complained to the Board of Overseers. Throughout these events, it appears that the consultant believed she had Sharon's authorization to undertake the post-trial communication with the jurors. This is apparent despite the Superior Court's previous direction to Sharon's office about the proper procedures required before such contact.

On September 17, 2007, the Superior Court issued an Order notifying the parties that the court was considering sua sponte, an initiation of contempt proceedings for sanctions against Attorney Sharon and or his jury consultant. As the court later noted, "Those matters center[ed] on two concerns: the unauthorized retention of juror names by or under the direction of [Attorney] Sharon, former defense counsel, and a misleading letter to jurors from the defendant's jury consultant working under the direction of former defense counsel." Ultimately, the Superior Court elected not to pursue a contempt proceeding. Instead, the court imposed a $2000 civil sanction against Sharon who, by then, had accepted responsibility for the actions outlined within the court's complaint. The resolution of that matter was memorialized in the Superior Court's January 18, 2008 Order.

On behalf of Attorney Sharon, Attorney James Martemucci submitted an initial response to the grievance complaint filed by the court. In that response, counsel provided background information about Sharon's representation of Mr. Roberts, the defendant in the murder case. Counsel also provided information related to Sharon's supervision of the juror consultant who initiated the post-trial juror contact. Within that response, Sharon denied any intent to violate the Superior Court's Orders.

Prior to the Board's filing of the Disciplinary Petition, Assistant Bar Counsel and counsel for Respondent agreed that Attorney Sharon engaged in misconduct, having violated specific portions of the Code of Professional Responsibility for which he should receive a reprimand.

In that regard, there clearly was a miscommunication between Sharon and his consultant concerning the Superior Court's requirements following the conclusion of the murder trial. At the least, the miscommunication resulted in Attorney Sharon's unintentional violation of the Bar Rules and the Superior Court's specific orders. Attorney Sharon has accepted responsibility for the apparent miscommunication and for his failure to ensure the consultant's compliance with the orders and the Bar Rules. To that end, Attorney Sharon acknowledges his specific violations of Maine Bar Rules 3.6(a) [Standards of Care and Judgment) and 3.13(c) [Responsibilities Regarding Non-lawyer Assistants]. As a result, Attorney Sharon also engaged in conduct prejudicial to the administration of justice. See M. Bar R. 3.2(1)(4).

Conclusion and Sanction

The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Sharon's above-outlined failures, at least one of the upset jurors expressed her/his concern to the trial justice that the Superior Court had freely disclosed that juror's confidential information, a fact which proved somewhat frightening to the juror.

The panel notes that Attorney Sharon has taken responsibility for his firm's actions and the distress it caused the jurors involved in the murder case. During this hearing, Attorney Sharon expressed his remorse for his unintentional violations of the Code of Professional Responsibility.

M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Sharon agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.

Therefore, the Panel accepts the agreement of the parties, including Attorney Sharon's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a reprimand to Leonard I. Sharon Esq. which is now hereby issued pursuant to M. Bar R. 7. 1 (e)(3)(C), (4).


For the Parties

J. Scott Davis, Bar Counsel
James F. Martemucci, Esq.


For the Grievance Commission

Victoria Powers, Esq., Chair
John C. Hunt, Esq.
Joseph R. Reisert, Ph.D.

Board of Overseers of the Bar v. Gary Karpin

Download Decision (PDF)

Docket No.: BAR-05-05

Issued by: Single Justice

Date: October 23, 2007

Respondent: Gary Karpin

Bar Number: 003618

Order: Disbarment Reciprocal Discipline

Disposition/Conduct: Illegal Conduct


Order


On October 17, 2007 the Board of Overseers of the Bar petitioned this Court for an Order of Default in the reciprocal discipline matter filed by the Board in September 2005. Attached to the Board's Petition for Reciprocal Discipline was a certified copy of the Vermont Supreme Court's Order adopting the Vermont Professional Conduct Board's recommendation to disbar Mr. Karpin.

The Court notes that after several attempts by the Board, Mr. Karpin was finally served with a copy of the Board's pleadings and this Court's Order & Notice dated November 15, 2005. It appears from the return of service that Mr. Karpin was served through acceptance by his AZ counsel on or about July 17, 2007. Thereafter, Mr. Karpin had thirty days in which to notify this Court of any claim by him that identical discipline in Maine would be unwarranted. Attorney Karpin has defaulted by failing to file any response to this Court's order.

Upon consideration of the Board of Overseers of the Bar's Motion for Default and Petition for Reciprocal Discipline; and after providing Mr. Karpin an opportunity to be heard, it is hereby ORDERED as follows:

  1. The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
  2. Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Gary J. Karpin is disbarred for his violations of those portions of Maine's Code of Professional Responsibility that are analogous to his violations of Vermont's Rules of Professional Conduct as found in the Supreme Court of Vermont's Order dated May 21, 1993.

For the Court

Hon. Jon D. Levy, Associate Justice – Maine Supreme Judicial Court

Board of Overseers of the Bar v. Sean M. Farris, Esq.

Download Decision (PDF)

Docket No.: GCF #06-371; 07-066; 08-070

Issued by: Grievance Commission

Date: June 24, 2008

Respondent: Sean M. Farris, Esq.

Bar Number: 008168

Order: Reprimand

Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Conduct Unworthy of an Attorney


Report of Findings of Panel E of the Grievance Commission M. Bar R. 7.1(e)(2) M. Bar R. 7.1(e)(4)


On June 24, 2008, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7. 1(e)(2)E, concerning misconduct by the Respondent, Sean M. Farris, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseer's of the Bar (the Board) on October 26, 2007. Additionally, on March 25, 2008 the Board filed a second Disciplinary Petition which was stipulated to by the parties as it derived from a self-report through counsel for Attorney Farris. By agreement, the two Petitions were consolidated for this public disciplinary hearing before Panel E of the Commission. Prior to the disciplinary proceeding today, the parties submitted a stipulated, proposed sanction order for the Grievance Commission Panel's review and consideration.

At the hearing, Attorney Russell Pierce substituted for Attorney Peter DeTroy, Esq. on behalf of his client, Sean Farris, Esq. The Board was represented by Assistant Bar Counsel, Aria eee. The complainants, David Clark and Rhonda Hamilton, were each provided with a copy of this Report (in its proposal form) but neither appeared for the hearing. Mr. Clark did file a response to the proposed Report and the same has been distributed to the parties.

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

Findings

Respondent Sean M. Farris (Farris) of Gardiner, County of Kennebec, State of 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 Farris was admitted to the Maine bar in 1995 and he is a member in good standing.

On November 1, 2006 David Clark filed a complaint against Attorney Farris. The complaint detailed the representation provided by Attorney Farris during a civil suit involving Clarks' family-owned real estate in Maine. In his filing, Mr. Clark alleged that Attorney Farris neglected the case, failed to adequately communicate and failed to notify Clark that in January 2005 the Kennebec County Superior Court dismissed the case.

Subsequently, in January 18, 2007 another client, Rhonda S. Hamilton also filed a complaint against Attorney Farris. Ms. Hamilton alleged that Farris accepted representation of her in an area of law in which he was not competent. Ms. Hamilton further alleged that Attorney Farris failed to communicate with her about the case and inadequately responded to her inquiries.

Initially and then through counsel, Attorney Farris responded to the complaints filed by Ms. Hamilton and Mr. Clark. The Board conducted investigations and afterward, separate Panels of the Grievance Commission preliminarily reviewed the matters. The Panels found probable cause for disciplinary action against Attorney Farris based upon the investigated allegations of misconduct. Therefore, pursuant to M. Bar R. 7. 1(d)(5) the Grievance Commission Panels directed Assistant Bar Counsel to prepare and present a formal disciplinary petition before a different Panel of the Grievance Commission.

After the filing of the Board's Disciplinary Petition, Attorney Farris engaged counsel who subsequently disclosed an additional incident of self-reported misconduct. Based upon that self-report, the Board opened a third complaint against Farris, sua sponte. That complaint became the subject of a stipulated Disciplinary Petition filed on March 25, 2008. The two Petitions were then consolidated for hearing before this Panel of the Grievance Commission.

Since that time, Attorney Farris has generally agreed that he engaged in misconduct, having violated specific portions of the Code of Professional Responsibility for which he should receive a Reprimand. To that end, Attorney Farris acknowledges that he failed to appropriately prosecute Mr. Clark's case, often struggling to meet deadlines and pre-trial obligations. He agrees that his delayed and/or inaccurate responses to Clark's requests for information left his client without sufficient information to discern the status of his legal matter. Attorney Farris also acknowledges his failure to adequately prepare for Ms. Hamilton's litigation and to regularly inform her of the status of that matter while he served as her attorney. Farris agrees that in his handling of both Mr. Clark's and Ms. Hamilton's civil cases, he violated Maine Bar Rule 3.6(a)(1)(3) (requiring a lawyer to keep the client informed and not neglect the client's legal matter.)

In the matter in which Attorney Farris self-reported, he acknowledges he failed to timely respond to court deadlines and adequately advise his client of developments. He agrees his failure to do so was a violation of M. Bar R. 3.6(a)(1)(3).

As a mitigating factor, Attorney Farris acknowledges that his stressful practice, file management deficiencies, and significant personal stressors negatively impacted these former clients. Without meaning to do so, Attorney Farris violated M. Bar R. 3.1(a) (conduct unworthy of an attorney).

Conclusion and Sanction

The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Farris' above-outlined misconduct, Mr. Clark's case was unknowingly dismissed with prejudice; Ms. Hamilton incurred additional costs and legal exposure within the course of her litigation; and in the self-report matter the case was also dismissed without a decision on the merits. Both Mr. Clark and Ms. Hamilton endured Attorney Farris' lack of response to their inquiries.

However, since that time, Attorney Farris has accepted responsibility for his lapses and has sought help with his personal stressors. At the hearing, he expressed his remorse to the complainants and his decision to voluntarily engage in mentoring with Kennebec County Attorney Michael J. Levey.

M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Farris agrees that he did in fact violate the Code of Professional Responsibility, it appears that a public reprimand serves those purposes.

Therefore, the Panel accepts the agreement of the parties, including Attorney Farris' waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of these cases is a public reprimand to Sean M. Farris, Esq. as provided by M. Bar R. 7. 1(e)(3)(C).


For the Parties

Russell B. Pierce, Esq.
Aria eee, Assistant Bar Counsel


For the Commission

John Hunt, Esq., Chair
Peter Fessenden, Esq.
Joseph Reisert, Ph.D

Board of Overseers of the Bar v. Brian E. Swales

Download Decision (PDF)

Docket No.: BAR-01-8

Issued by: Single Justice

Date: May 22, 2002

Respondent: Brian E. Swales

Bar Number: 000163

Order: Suspension

Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Illegal Conduct; Conflict of Interest; Inadequate Preparation; Neglect


Order


This matter is before the Court pursuant to M. Bar R. 7.2(b)(1) and (2). The Board filed an Information against the Respondent, Brian E. Swales, an attorney with an office in Houlton, alleging that Swales engaged in violations of M. Bar R. 2(c); 3.1(a); 3.2(f)(2), (3), (4); 3.4(b); 3.4(c); 3.4(d)(l); 3.6(a)(2), (3); 3.6(e)(2)(iv); 3.6(h)(1); 3.7(d); and 3.7(e)(1)(i). Bar Counsel J. Scott Davis represented the Board and Mr. Swales was represented by Stephen Y. Hodsdon, Esq. A hearing was held at which time the Court heard testimony from the complaining witnesses and Mr. Swales. In his pretrial memorandum, Mr. Swales admitted that he violated the Code of Professional Conduct in regard to his representation of Magnar Ramjor; that he was occasionally improperly uncommunicative with clients; and that he was too often tardy for court thereby admitting that he engaged in "conduct unworthy of an attorney" within the meaning of M. Bar R. 3.1(a). During the course of the hearing, the Court heard testimony from Suzanne Russell Lilley, an Assistant District Attorney, which testimony the Court found to be a credible description of numerous incidents of Mr. Swales' conduct in District Court. Mr. Swales admits he has been lax, negligent, and indicative of his failure to "focus attention on what he needed to focus upon." Mr. Swales further admitted that he allowed minors to consume alcohol in his home.

The Court finds that the evidence clearly supports Mr. Swales' violation of M. Bar R. 3.2(f)(2) by engaging in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; that he violated M. Bar R. 3.2(f)(4) by engaging in conduct that is prejudicial to the administration of justice; that he violated M. Bar R. 3.4(b) & (c) by representing parties with conflicts of interest; that he violated M. Bar R. 3.6(2) & (3) by handling legal matters without preparation adequate in the circumstances and by neglecting legal matters entrusted to him; and that he violated M. Bar R. 3.6(e)(2)(iv) by mishandling client funds.

By his admissions, Mr. Swales evidences that he now recognizes that his actions demonstrate numerous instances of unprofessional conduct. The Court has considered the purpose of this bar disciplinary proceeding in imposing a sanction in this case. Having found these violations of the Maine Bar Rules, and agreeing with the parties that they are serious, the Court must now consider an appropriate sanction. It is well established that the main purpose of attorney discipline is not punishment, but protection of the public. In addition, in imposing discipline, the Court should not only examine the facts of the case at bar, but also the prior record and experience of the attorney involved. Taken individually, Mr. Swales’ failings would warrant reprimands. The number and nature of the incidents of his unprofessional conduct demands a more serious sanction and conditions upon his continued practice as a lawyer.

Accordingly, the Court HEREBY ORDERS that Brian E. Swales be and hereby is suspended from the practice of law in Maine for a period of one (l) year commencing June 1, 2002, with that suspension itself being suspended for one year subject to the following terms and conditions:

  1. The Court appoints Robert F. Ward, Esq. as Monitor for Mr. Swales for a period of one year commencing June 1, 2002, unless terminated earlier as herein provided or by other order of this Court;

  2. Mr. Ward shall review Mr. Swales' office procedures and help Mr. Swales establish appropriate procedures for the handling of client funds, the calendaring of appointments to insure Mr. Swales prompt attention to client matters, and prompt attendance for scheduled court matters;

  3. During the period of supervision, Mr. Ward shall receive monthly written reports from Mr. Swales concerning the current status of matters in which he has been retained to act as counsel;

  4. Mr. Ward is a volunteer who shall receive no compensation and who shall be expected to incur no expense;

  5. Mr. Swales will meet with Mr. Ward within ten (10) days of the date of this Order and thereafter at the call and convenience of Mr. Ward on a monthly basis, unless Mr. Ward should determine more frequent meetings are appropriate;

  6. Mr. Ward shall have the right to withdraw and terminate his service at any time for any reason he deems sufficient, including for reasons set forth in paragraph seven below. In the event of a withdrawal, he shall notify the Court and Bar Counsel, and Mr. Swales shall then cooperate to obtain the services of an alternate Monitor to complete the remainder of the original Monitor's term;

  7. If any aspect of the monitoring procedure creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Bar Rules (for example, if Mr. Swales is or becomes opposing counsel concerning a matter involving Mr. Ward), then Mr. Ward may adopt anyone of the following courses with the proposed result:

    1. Mr. Ward shall cease to act as such and a potential conflict is avoided;
    2. Mr. Ward shall continue as Monitor but totally exclude Mr. Swales' client and matter in question from the monitoring process, so that no conflict is deemed to exist:
    3. Mr. Ward shall continue as Monitor, and obligate his firm to withdraw from the conflicting matter; or
    4. Mr. Ward shall continue as Monitor, and obligate Mr. Swales not to participate in the matter and to obtain new counsel for his client(s).

  1. If, in Mr. Ward's judgment, it is appropriate, he shall have the right to contact clerks of court, judges, or opposing counsel to determine the accuracy of Mr. Swales' reports to him;
  2. Mr. Ward shall have no contact with any of Mr. Swales' clients and his only contact in the performance of his duties shall be with Mr. Swales or other persons contemplated by this Order. Mr. Ward's participation in the monitoring of Mr. Swales' practice shall be deemed not to create an attorney-client relationship between Mr. Ward and Mr. Swales or between Mr. Ward and Mr. Swales' clients;
  3. Mr. Ward shall file a confidential report with the Court on or before July 15, 2002, and quarterly thereafter or sooner if Mr. Ward deems it necessary, with copies to Mr. Swales and Bar Counsel concerning any professional assistance Mr. Ward has provided to Mr. Swales;
  4. Mr. Ward will have the duty to report to Bar Counsel and to the Court any apparent or actual professional misconduct by Mr. Swales of which Mr. Ward becomes aware or lack of cooperation by Mr. Swales in the performance of this Order;
  5. In the event a grievance complaint is received by Bar Counsel concerning alleged conduct occurring on this date or thereafter, such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as appropriate, but in the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1(d)(5), the matter shall then be filed directly before the Court under Bar Rule 7.2(b); and
  6. Any apparent violation of the conditions of this Order shall be filed by Bar Counsel directly with the Court.

It is further ORDERED that Mr. Swales reimburse the Board of Overseers of the Bar for its out-of-pocket expenses incurred for the prosecution of these proceedings to be paid within thirty (30) days of the date upon which Bar Counsel shall have notified Mr. Swales of the amount of those expenses.


For the Court:

Hon. Paul L. Rudman, Associate Justice – Maine Supreme Judicial Court

Board of Overseers of the Bar v. William S. Wilson, Jr.

Download Decision (PDF)

Docket No.: BAR-03-7

Issued by: Single Justice, Maine Supreme Judicial Court

Date: September 15, 2004

Respondent: William S. Wilson Jr., Esq.

Bar Number: 001862

Order: Suspension

Disposition/Conduct: Neglect; Failure to Respond to Bar Counsel


Disciplinary Order


This matter came before the Court on September 15, 2004, pursuant to the Stipulated Waiver of Grievance Commission filed by the Board of Overseers of the Bar approved by the Court's Order of November 13,2003. Bar Counsel J. Scott Davis, Esq. represented the Board and Douglas B. Chapman, Esq. represented Defendant William S. Wilson, Jr., Esq. who was also present at that time. The following facts and resulting ethical violations were admitted by Mr. Wilson as follows:

Teresa Knight

In February 2001 Mr. Wilson represented Teresa Knight before the Workers' Compensation Board for serious injuries she had sustained while employed at Cappy's Chowder House in Camden. That employer's insurance company filed a Petition for Review resulting in a February 2001 hearing held before the Board. Mr. Wilson was negligent in his representation of Knight by failing to file medical evidence at the conclusion of that hearing despite repeated telephone calls from the Board to Mr. Wilson. Those medical records were in Mr. Wilson's possession and available to him to so file but he failed to do so for reasons which he now claims were related to substance abuse involving alcohol.

As a result of Mr. Wilson's negligence in the Knight matter, the Board issued an Order granting the Employers' Petition, whereupon Ms. Knight lost her workers' compensation benefits, including loss of income benefits.

In July 2001 Ms. Knight filed a legal malpractice action against Mr. Wilson for which Mr. Wilson defaulted by his failure to respond to the summons and complaint that had been served upon him.

On September 11, 2002, the Waldo County Superior Court (Atwood, J.) issued a default judgment against Mr. Wilson awarding Ms. Knight her lost workers' compensation benefits (including loss of income benefits) of $341,037.84 and lost medical benefits for medical expenses totaling $1,930,500.00, for a total judgment against Mr. Wilson of $2,271,537.84.

Mr. Wilson acknowledged in his response to Bar Counsel's inquiry in the Knight matter that he "missed a critical filing deadline in the matter involving Ms. Knight's claim for workers' compensation ... and caused Ms. Knight very significant loss and damage ...." Shortly before today's hearing, Mr. Wilson commenced settlement of Ms. Knight's default judgment against him. Mr. Wilson had no malpractice insurance coverage to address that judgment amount.

Norman Chevalier

In February 2002 Norman Chevalier retained Mr. Wilson for a fee of $1,500.00 to handle a number of legal matters relating to Mr. Chevalier's claimed allegations of wrongful employment termination and related difficulties with a local school department.

Mr. Wilson failed to move those matters forward and also ignored his client's many inquiries as to the status of his cases, including Mr. Chevalier's letter informing Mr. Wilson that he was quite displeased and would be notifying the Board of Overseers of the Bar if action was not taken. Despite that "warning," Mr. Wilson continued to ignore Mr. Chevalier resulting in his filing of both a complaint before the Grievance Commission and a petition before the Fee Arbitration Commission.

In early 2003, nearly a year after being retained by Mr. Chevalier, Mr. Wilson fully refunded that $1,500.00 fee to his client.

Mr. Wilson failed to ever submit any response to Bar Counsel concerning Mr. Chevalier's grievance complaint, and now admits he violated M. Bar R. 2(c) (failure to respond to Bar Counsel), 3.2(f)(1) and 3.6(a)(3) (neglect).

Summary Suspensions

Mr. Wilson was admitted to the Maine bar in 1979 and has no prior disciplinary or sanction record on file with the Board, but due to his failure to properly register or pay the required annual fee to the Board of Overseers of the Bar, effective November 8, 2002, he was summarily suspended from practice by the Board and has remained so suspended since that date. He also failed to meet his continuing legal education (CLE) requirements under M. Bar R. 12, which resulted in his being likewise summarily suspended for that failure, effective October 7, 2003. As a result of these failures by him and the resulting suspensions, Mr. Wilson has had no clients and has not practiced law since November 2002.

Disposition

Mr. Wilson's misconduct in these matters was serious, and proper protection of the public requires a significant disciplinary sanction, which will also allow and reinforce his current attempts—as he and his attorney each expressed to the Court—to appropriately address personal issues and deficiencies which played a major part in his ethical violations.

"The purpose of bar discipline is not punishment, but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties." M. Bar R. 2(a). Mr. Wilson has admitted his misconduct and agreed that with assistance and counseling he is capable of changing his behavior and practice habits.

Therefore, upon consideration of all the facts and evidence and by stipulated agreement of the parties, the Court imposes the following sanction: Pursuant to M. Bar R. 7.2(b)(5) William S. Wilson, Jr. shall now receive a disciplinary suspension from the practice of law in the State of Maine for a period of two (2) years commencing this date, September 15, 2004, with all but the period from September 15, 2004, through January 1, 2005, of that disciplinary suspension itself being suspended, subject to the following conditions:

  1. On or before December 27, 2004, Mr. Wilson shall take all the necessary steps to remove the two current summary suspensions now in place against him under M. Bar R. 6(b) and 12(c), including payment of all arrearage registration fees and completion of at least twenty-two (22) hours of approved continuing legal education (CLE) with at least two (2) hours being primarily concerned with issues of professional responsibility or ethics;

  2. The Court deems Mr. Wilson's settlement of the underlying Knight judgment to be a mitigating factor in this matter. Therefore, on or before September 24, 2004, Mr. Wilson shall complete settlement of the Knight matter and complete payment to Ms. Knight at least in the amount that was disclosed to Bar Counsel by Mr Wilson’s attorney;

  3. At his own expense, Mr. Wilson shall continue his current participation in the Maine Assistance Program for Lawyers and Judges (MAP) and shall undergo assessment, testing, and treatment as well as enter into a contractual relationship with MAP, all to the satisfaction of the Director of MAP;

  4. Mr. Wilson shall continue being treated by Dr. Benjamin Grasso for major depression to the satisfaction of both Dr. Grasso and the Director of MAP;

  5. Prior to returning to active practice any time after January 1, 2005, Mr. Wilson must first receive and provide to Bar Counsel the separate written agreements and approvals of both the Director of MAP and Dr. Grasso that Mr. Wilson is appropriately prepared to so return to active practice, and must also proceed under M. Bar R. 7.3(j) (reinstatement) and file the required fee and completed Petition for Reinstatement with the Court and Board for appropriate processing and investigation by Bar Counsel, with any hearing thereof to be conducted directly before this Court, not the Grievance Commission; and

  6. Bar Counsel may file a disciplinary information directly with the Court without any Grievance Commission review or hearing concerning either any apparent violation by Mr. Wilson of any of the conditions of this Order or any new complaints of professional misconduct allegedly committed by Mr. Wilson and received by the Board after this date.


For the Court

Hon. Susan Calkins, Associate Justice – Maine Supreme Judicial Court

Board of Overseers of the Bar v. Robert H. Avaunt

Download Decision (PDF)

Docket No.: GCF 98-141

Issued by: Grievance Commission

Date: August 22, 2000

Respondent: Robert H. Avaunt, Esq.

Bar Number: 001436

Order: Reprimand

Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty and Deceit


Report of Proceedings, Findings, Conclusions and Disposition


Procedure

On June 21, 2000 and July 19, 2000, Panel D of the Grievance Commission conducted a public disciplinary hearing in this matter at the offices of the Board of Overseers of the Bar, Augusta, Maine. Oral argument was held by conference call on July 28, 2000. The panel was composed of Patricia M. Ender, Esq. of Augusta, chair; Theodore K. Hoch, Esq. of Bath; and F. Celeste Branham, of Lewiston. There were no objections to the composition of the panel. The Board was represented by assistant bar counsel, Geoffrey S. Welsh, Esq. The respondent appeared pro se.

Board Exhibits 1-42, 44-48, 59-63, and 65-79 were admitted. Respondent's Exhibits 1 and 6-15 were admitted. The following witnesses were duly sworn and testified before the panel: Mary B. Devine, Esq., Herbert C. Kontio, Lawrence J. Zuckerman, Esq., and respondent Robert H. Avaunt, Esq.

The amended petition alleges that Respondent violated the Maine Bar Rules 3.1(a), 3.2(f)(1), 3.2(f)(2), 3.2(f)(3), 3.2(f)(4), 3.6(e)(2)(iii), 3.6(e)(4)(iv), and 3.7(b). The Board alleges that Mr. Avaunt paid himself from accounts he managed as conservator/guardian of four veterans without performing work, that he wrongfully failed to disclose receipt of these funds to the firm for which he worked, Zuckerman, Avaunt & Devine, and that he wrongfully withheld fees from the firm. Mr. Avaunt filed an amended answer denying these allegations. No litigation, nor any proceeding before another tribunal, is currently pending regarding claims among Mr. Avaunt, Mr. Zuckerman and Ms. Devine.

Findings of Fact

The Respondent, Robert H. Avaunt, Esq., was at all relevant times an attorney admitted to the practice of law in the State of Maine.

Mr. Avaunt was a partner in the firm of Zuckerman & Avaunt, which was formed in 1978. In 1983, Ms. Devine joined the firm as an associate. Other attorneys joined the firm as associates. In due course, some associates, including Ms. Devine, became partners. In June 1994, one partner departed from the firm. In March, 1998, Mr. Avaunt resigned from the firm and became "of counsel” until May 11, 1998. Mr. Zuckerman and Ms. Devine continue to practice together, as Zuckerman & Devine.

At all times, Mr. Zuckerman was the managing partner of the firm, and had supervisory responsibility for the support staff. Mr. Zuckerman became personally involved with both the firm's bookkeeper and with Ms. Devine. In 1993, Mr. Zuckerman discovered that the bookkeeper had made unauthorized charges on the firm's credit card. He later determined that she had embezzled at least $56,722.53 between 1986 and 1993. Mr. Avaunt negotiated an agreement with the bookkeeper and her family for the return of the identified embezzled funds, minus $2722.53.

In 1990, 1992, and twice in 1995, Mr. Avaunt borrowed money from the firm, at interest. After the bookkeeper was dismissed in 1993, Mr. Avaunt unsuccessfully sought from Mr. Zuckerman the return of the interest he had paid during the period of embezzlement. In December 1996, after many years of significant financial difficulties, Mr. Avaunt filed for chapter 13 bankruptcy.

In March 1998, Mr. Avaunt resigned from the firm and became "of counsel" until May 11, 1998. Mr. Zuckerman, Mr. Avaunt, and Ms. Devine engaged in protracted negotiations for a withdrawal agreement. The parties continue to have disputed claims about what Mr. Avaunt is owed, or what he owes to the firm.

Mr. Avaunt's legal practice has included the representation of veterans. He has been appointed guardian, conservator, and personal representative of the estates of various veterans. As such, he has prepared legal papers to formalize his appointments, paid bills, made medical decisions, and conducted other business on behalf of his clients. In the course of such work, he has prepared regular and detailed accountings to the Veterans' Administration (VA) and to Maine probate courts. He anticipated close scrutiny of such accountings by the Veterans Administration, whose agents did indeed examine and occasionally question minor charges to the accounts. In all instances, any questions by the VA were promptly and simply resolved.

Beginning on November 24, 1994, and occasionally thereafter, Mr. Avaunt wrote checks to himself on the accounts of four veterans, Mr. Gregor, Mr. LaCasse, Mr. McCartney and Mr. Gildard, which checks he charged as guardianship and conservator fees on the accountings to the VA and probate courts, but which he did not disclose to the firm.

In the Gregor case, Mr. Avaunt paid himself guardianship/conservator fees of $737.50 on check #160 dated November 25, 1994, without disclosure to the firm. He disclosed to the firm similar fees of $537.50 on check # 174 dated March 6, 1995. On July 25, 1995, however, he again collected guardianship/conservator fees of $1000, on check # 194, which he failed to disclose to the firm.

Similarly, in the LaCasse case, Mr. Avaunt paid himself $625.00 on check # 141, dated November 25, 1994 for guardianship/conservator fees which he did not make known to the firm. He disclosed to the firm fees of $362.50 paid on check #146 dated February 25, 1995; failed to disclose fees of $187.06 paid on check # 164 dated January 6, 1996; disclosed fees of $800 paid two days later on January 8, 1996 on check # 165; and also disclosed fees of $100 paid on April 6, 1996 on check # 170 dated April 6, 1996.

In the McCartney matter, Mr. Avaunt paid himself guardianship/conservator fees of $625.00 on check # 381 dated November 25, 1994 which he failed to disclose to the firm. He further failed to disclose fees of $168 he paid himself on check # 387 dated March 6, 1995, and of $295.81 on check # 397 dated September 5, 1995.

In the Gildard case, Mr. Avaunt advised his firm of guardianship/conservator fees he paid himself on check # 121 for $62.50 dated January 18, 1996, on check # 127 for $50 dated February 12, 1996, and on check # 135 for $125 on March 16, 1996. On April 16, 1996 at Maine Tire, however, he negotiated check # 140 to himself for $100 for guardianship/conservator fees, which he did not disclose to the firm. He disclosed to the firm fees of $1215 on check # 170 dated November 14, 1996.

The six checks issued between November 24, 1994 and April 16, 1996 which Mr. Avaunt paid to himself for guardianship/conservator fees, but which he did not disclose to the firm before July 1998, total $3274.56.

After Mr. Avaunt gave notice of his resignation in March 1998, the firm began negotiating a withdrawal agreement. Through several drafts, Mr. Avaunt insisted on modifying a clause regarding earned fees, to the puzzlement of the remaining partners. In July 1998, Mr. Avaunt revealed to Mr. Zuckerman that his insistence was because he had not previously disclosed to the firm certain payments he had made to himself for guardianship/conservator fees. The particular files and checks involved were reviewed and compared to the fees listed on the VA and probate court accountings.

After consulting with counsel, Ms. Devine reported Mr. Avaunt's conduct to the Board, which conducted an investigation and held a case review before a panel of the grievance commission. That panel found probable cause to believe that misconduct subject to discipline under the bar rules had occurred, resulting in the public hearing before this panel.

Conclusions

I. Jurisdiction and Deferral

Respondent requests that the panel determine it lacks jurisdiction in this case, or, at least, that it defer its decision until after he, Mr. Zuckerman, and Ms. Devine have litigated their claims. The panel has jurisdiction over the matter pursuant to Maine Bar Rule 7(e).

The panel, at the outset of the hearing, asked if any litigation was pending in this matter. There being no pending case before another tribunal in this matter, Bar Regulation 12 does not apply and the panel cannot justifiably delay or defer a decision in this matter.

II. Regarding allegations of collecting unearned fees

Mr. Kontio, of the Veterans Administration, testified regarding the usual and customary standard of reasonableness for guardianship/conservator fees in Maine, for cases such as those handled herein by Mr. Avaunt. Mr. Avaunt's fees are within these standards. Mr. Avaunt testified that he reported all his fees in detail to the Veterans Administration and the probate courts. The Veterans Administration examined and approved the accountings, and, in some instances, forwarded them to the appropriate probate court. The Veterans Administration did not disapprove any fee which is the subject of this case. Therefore, the panel finds that the evidence does not support the Board's allegation that Mr. Avaunt did not earn the fees charged in these four cases.

III. Regarding allegations of dishonesty in dealing with the firm

The panel finds that Mr. Avaunt's failure to timely disclose to his firm the fees he paid himself on the four accounts, in six checks between November 24, 1994 and April 16, 1996, totaling $3274.56, violates Maine Bar Rule 3.1(a) regarding conduct unworthy of an attorney, and Maine Bar Rule 3.2(f)(3) regarding conduct involving dishonesty and deceit.

Despite the personal conduct at the firm in the years preceding and during the period Mr. Avaunt failed to disclose these fees to the firm, Mr. Avaunt's nondisclosure was not justified. Mr. Avaunt continues to rationalize his behavior based upon the misery he experienced in his work environment and the financial consequences to him of the bookkeeper's embezzlement, which he attributes in large part to Mr. Zuckerman's failure to supervise and confront a subordinate with whom he was conducting an affair. Yet Mr. Avaunt's own inconsistency in advising the firm of some fees on these accounts, but not others, shows that he was aware of his duty to disclose the fees to the firm and that he knowingly failed to do so. Mr. Avaunt practices a profession which encourages self-restraint, and eschews self-help remedies. His nondisclosure of the fees he collected violated these fundamental principles.

Although Mr. Avaunt retains the fees he initially failed to disclose from the firm, the current partners of the firm and Mr. Avaunt have unresolved financial claims among themselves. The panel also finds that, but for Mr. Avaunt's revelations to Mr. Zuckerman in July, 1998 that he had withheld the funds from the firm, his failure to disclose the fees would not have come to light. Mr. Avaunt's belated disclosure will facilitate more accurate resolution of the financial claims among him and the complainants.

Disposition

The respondent has no prior disciplinary record. Panel D determines that the appropriate disposition is that the respondent should be and hereby is reprimanded for failing to make timely disclosure to the firm of his receipt of six checks for guardianship/conservator fees between November 1994 and April 1996. The remaining allegations are dismissed.


For the Grievance Commission

Patricia M. Ender, Esq., Chair
Theodore K. Hoch, Esq.
F. Celeste Branham

Board of Overseers of the Bar v. James L. Audiffred

Download Decision (PDF)

Docket No.: GCF 05-286

Issued by: Grievance Commission

Date: September 1, 2006

Respondent: James L. Audiffred, Esq.

Bar Number: 002382

Order: Reprimand

Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice


Report of Findings of Panel D of the Grievance Commission


On August 28, 2006, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning the Respondent, James L. Audiffred, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on April 26, 2006, alleging misconduct in violation of M. Bar R. 3.1(a), 3.2(f)(2), 3.2(f)(4), 3.6(a), and 3.7(a).

At the hearing, Assistant Bar Counsel Aria eee represented the Board, and the Respondent was represented by James M. Bowie, Esq.1 The Board's exhibits marked Board Exh. 1 through Board Exh. 9, the Respondent's exhibits marked Resp. Exh. 11 through Resp. Exh. 13, and a transcript marked as Joint Exh. 1, were all admitted without objection. The Panel heard testimony from the following witnesses:

Capt. Patrick M. Lehan
James L. Audiffred, Esq.
Herschel M. Lerman, Esq.

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

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. At all times relevant hereto, Respondent was representing Sterling Sawmill, LLC, in a collection matter against Kevin Bedard and Raymond Bedard, individually and doing business as Bedard Roofing and Construction. Respondent obtained an order permitting the attachment of the defendants' property. Becoming frustrated with defendants' concealment and movement of the property subject to attachment, Respondent engaged in a series of communications with the York County Sheriff's Department in which Respondent spoke in an overbearing and abusive manner, one of those communications being a message left on Capt. Lehan's home answering machine. (Joint Exh. 1.)

On Friday, September 20, 2002, Capt. Lehan located a construction trailer clearly marked "Bedard Roofing and Construction" and attempted to execute the attachment on it. The defendants produced a registration purporting to show that the trailer was actually owned by Raymond Bedard's son, Coco Bedard, who was not a named defendant.2 Capt. Lehan contacted Respondent to inform him that he would not be able to attach the trailer. Respondent then came to the site where the trailer was located. He used grossly abusive language against Capt. Lehan, who thereupon advised him to leave.3

After Respondent got into his car, Raymond Bedard approached the car window and interacted with Respondent in some manner, following which a physical scuffle ensued outside the car. The two were separated by Raymond Bedard's sons, and Respondent then departed the scene.

Conclusions and Sanction

The Panel concludes that Respondent conducted himself in a manner unworthy of an attorney in this matter. "Attorney behavior, particularly in the context of representation of a client, must be worthy of our profession .... 'Any verbal abuse of an adversary is unworthy of an attorney regardless of the circumstances. ' " Board of Overseers v. Neal L. Weinstein, GCF 03-252 (July 30, 2004) (quoting Board of Overseers v. Richard B. Slosberg, BAR 92-13, 93-3, and 95-9 (Mar. 21, 1996). " 'The zeal employed by an attorney in guarding the interests of his clients must always be tempered so as not to inject his personal feelings or display a demeanor that subjects parties to a proceeding or opposing counsel to certain indignities.' " Id (quoting Office of Disciplinary Counsel v. Jackson, 84 Ohio St. 3d 386,387-388,704 N.E.2d 246 (1999). In the Weinstein matter, Panel E of the Grievance Commission concluded that the respondent's verbal abuse and physical confrontation was "conduct prejudicial to the administration of justice, a dramatic failure to exercise reasonable care and skill, and a grievous shortage of 'lawyer's best judgment' in the performance of professional services," and appeared to be "action on behalf of the client which the lawyer knows, or should know, would merely serve to harass or maliciously injure another.” Id.

In this case, the testimony was inconclusive as to who was more at fault in the physical altercation, although Respondent admitted that in hindsight, he should not have come to the scene at all. It was undisputed, however, that Respondent did come to the scene and was verbally abusive not only to the defendants, but also to the deputy sheriff. Of great concern to the Panel was Respondent's testimony that in doing so, he was not out of control in any way. The Panel therefore concludes that in Respondent's view, verbal abuse of others, including a law enforcement officer in the performance of his duties, is an ordinary and accepted course of conduct. The Panel finds this behavior to be inconsistent with the office of an attorney. Under the circumstances at Issue in this matter, Respondent's behavior was, at minimum, conduct prejudicial to the administration of justice in violation of M. Bar. R. 3.2(f)(4).

Respondent testified that in his view, the definition of "conduct unworthy of an attorney" is limited to actions specifically proscribed by the Attorney's Oath, 4 M.R.S.A. § 806. The Panel finds Respondent's view of the scope of sanctionable misconduct to be unduly constrained. The Maine Bar Rules specifically state that they are "intended to provide appropriate standards for attorneys with respect to their practice of the profession of law, including, but not limited to, their relationship with their clients, the general public, other members of the legal profession, the courts and other agencies of the State," M. Bar R. 2(a), and that "the prohibition of certain misconduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned." M. Bar R. 3.1(a). Accordingly, the Panel concludes that Respondent has engaged in misconduct subject to sanction under the Maine Bar Rules. Respondent violated a duty owed to the legal system, to the profession, to the courts and other agencies of the State, and to the public.

While the injury caused by Respondent's misconduct was minimal, the Panel is unable to conclude that there is little likelihood of repetition by the Respondent. To the contrary, while the likelihood of another similar physical altercation may be remote, the evidence before the Panel demonstrated, at minimum, a pattern on the part of Respondent of verbal abuse and harassment of Capt. Lehan. Respondent's behavior appeared to be intentional and knowing. With regard to aggravating and mitigating factors, Respondent denied any anger management problem, and testified that he was in complete control of himself in using abusive language to others; the sole mitigating factor presented by Respondent was the pressure exerted by his client to achieve a favorable result in the collection matter, a factor that the Panel concludes is foreseeable in similar matters and could be expected to lead to a repetition of similar behavior.

In light of the foregoing findings and conclusions, the Panel concludes that the appropriate disposition is a public reprimand to Respondent, and he hereby is so reprimanded.


For the Grievance Commission

Benjamin P. Townsend, Esq., Chair
David Nyberg, Ph.D.
David S. Abramson, Esq.


Footnotes

1The Panel denied a request by Richard B. Slosberg, the initial complainant in this matter, to participate as a party.

2Confusingly, Raymond Bedard is nicknamed "Coco," whereas Coco is apparently his son's given name.

3Although Respondent denied using the specific obscenities and other epithets attributed to him by Capt. Lehan, the Panel found Capt. Leahan's account credible. However, the Panel notes that even the abusive language toward Capt. Lehan that was actually admitted to by Respondent would support the Panel's disposition of this matter.

Board of Overseers of the Bar v. Thomas M. Mangan

Download Decision (PDF)

Docket No.: BAR 99-5

Issued by: Single Justice, Maine Supreme Judicial Court

Date: April 19, 2001

Respondent: Thomas M. Mangan

Bar Number: 001743

Order: Motion for Relief from Judgment

Disposition/Conduct:


Order on Motion for Relief from Judgment


Thomas Mangan has filed a Motion for Relief from Judgment seeking to have the judgment of disbarment entered on March 10, 2000, set aside, pursuant to M.R. Civ. P. 60(b). For the reasons set out below, that motion must be denied.

1. Motion to Recuse the Law Court

Preliminarily, because there has been some confusion regarding the procedural posture of this matter, clarification is necessary. The original judgment was entered on March 10, 2000. On January 16, 2001, that judgment was affirmed by the Law Court. On February 27, 2001, an Order of Contempt was entered requiring Mr. Mangan to comply with certain responsibilities set forth in the Code of Professional Responsibility.

After the affirmance of the judgment by the Law Court, Mr. Mangan filed the now pending Motion for Relief from Judgment on February 7, 2001. The Board responded to the motion on February 28, 2001. Shortly thereafter, Mr. Mangan filed a Motion to Recuse the Law Court from hearing the pending matter. The Board responded briefly on March 9, 2001. On March 20, this Court received Mr. Mangan's bound version of his Motion for Relief from Judgment with attachments and appendices. The confusion regarding Mr. Mangan's Motion to Recuse the Law Court has now been cleared up. The parties understand that the Motion for Relief from Judgment was presented to this judge as the trial court in the matter, and that the Law Court does not have jurisdiction to entertain a motion for relief from this Court's judgment pursuant to Rule 60(b). Therefore, it is ORDERED that the Motion to Recuse the Law Court is dismissed.

2. Motion for Relief from Judgment

Mr. Mangan has sought relief from judgment based on claims of fraud, newly discovered evidence, mistake, and excusable neglect. As the party seeking relief from judgment, Mr. Mangan "bears the 'burden of proving that the judgment should be set aside.'" Keybank Nat'l Assoc. v. Sargent, 2000 ME 153, ¶ 13, 758 A.2d 528, 533 (Citation omitted).

Mr. Mangan has presented multiple theories upon which he argues that the judgment should be set aside. I have not endeavored to address every argument, and in several instances I have summarized or paraphrased his arguments.

a. Newly Discovered Evidence

I address the matter of newly discovered evidence first. Mr. Mangan asserts that, if he were given the opportunity for the presentation of testimony, he would present witnesses who would testify, among other things, that Ms. R. was having affairs with other men at the time of his relationship with her. He would also present testimony regarding her credit worthiness following his services to her in paying the medical bills. Mr. Mangan’s request for a hearing on those matters was deferred pending the parties' argument on each of the issues.

Having now heard Mr. Mangan's offer of proof on the issues of newly discovered evidence, I conclude that presentation of the facts offered would have no effect on the conclusions drawn in the original judgment. Whether Ms. R. was having relationships with men other than Mr. Mangan is not relevant to his own breach of his responsibilities as an attorney. Similarly, the findings regarding his work for her in paying medical bills would not be changed upon a presentation of evidence that she was credit worthy and sought or obtained other loans following his work. In the original judgment I concluded that Mr. Mangan in fact paid each of the bills and may have paid more to her medical services providers than she gave to him for distribution. Nonetheless, he failed to provide her with a final and complete accounting. The fact that she was able to obtain credit and therefore should have understood that he had completed his work for her does not substitute for his own responsibility to account for the funds she gave him. 1

b. Fraud

Mr. Mangan alleges several areas of fraud upon which he bases his argument that the judgment should be set aside. I have not herein attempted to repeat all such allegations. I address them generally in groups.

Inherent in all of Mr. Mangan's claims of fraud is his insistence that Ms. R. lied during the trial of this matter and lied in many other contexts outside of the trial. In essence, Mr. Mangan alleges that the Board committed a fraud upon the Court when it (1) presented the rape allegations notwithstanding inconsistencies in Ms. R.'s statements regarding those allegations, and (2) attempted to obtain an advantage in the litigation by including the egregious rape claims, thereby attempting to taint the proceedings and sway the Court. Mr. Mangan also alleges that Ms. R. committed a fraud upon the court because her testimony was so incredible.

It should be noted that with regard to the rape allegations, I found that the Board did not prove the claims. Any belief on Mr. Mangan's part that the mere existence of the allegations by the Board somehow tainted the proceedings or pressured me into finding for the Board on other matters is simply wrong.

Ms. R.'s credibility was an issue throughout the trial. The Board itself pointed out to the court inconsistencies in some of her prior statements. Mr. Mangan, through very competent counsel, had an opportunity to challenge all of her testimony, and did so effectively in many instances. Ultimately, I found her testimony not to be credible on a number of points. I conclude that Bar Counsel's decision to present Ms. R. as a witness did not constitute a fraud on the court. I further conclude that Ms. R.'s inaccurate or inconsistent testimony, whether intentional or unintentional, did not deprive Mr. Mangan of a fair trial given his opportunity to challenge her testimony at trial and my conclusion that Ms. R. was not a fully credible witness. I further reject Mr. Mangan's argument that Ms. R.'s lack of credibility in some areas required me to reject her testimony in its entirety.

c. Excusable Neglect

Mr. Mangan next argues that the failure on the part of Attorneys Davis and Sharon to object to Ms. R.'s inaccurate or inconsistent testimony was "excusable neglect." This is just another method of arguing that Ms. R. lied at trial and that her lies prejudiced Mr. Mangan. Once again, I reject that argument as a basis for setting aside the judgment. Moreover, Attorney Davis, as noted above, took pains to point out to the Court one particular area of inconsistency in her testimony, and Attorney Sharon representing Mr. Mangan, cross-examined Ms. R. extensively on issues related to credibility.

d. Mistake, Errors in Factual Determination

In this argument, Mr. Mangan primarily asserts that the judgment contained errors in its factual findings regarding Ms. R.'s psychological condition. These matters were cognizable on direct appeal and have been resolved by affirmance in that appeal. Moreover, Mr. Mangan's disagreements with the factual findings do not justify setting aside the original judgment.

e. Summary of Argument

Mr. Mangan continues to search for reasons why he should not have been sanctioned for his relationship with Ms. R. and his violations of the Code in related matters.2 Mr. Mangan himself admits to having had a sexual relationship with Ms. R. over a period of years. Although he continues to disagree with the legal conclusion, he did so at a time when he was acting as her attorney. He took advantage of information learned in the course of his representation of her in initiating the relationship, and when that relationship went sour, he destroyed any of the work that he had completed regarding the search for her children's fathers.

Mr. Mangan does not dispute the fact of the relationship, the inappropriate use of his client account related to Ms. R., or the ultimate destruction of the materials related to the search. New or more compelling evidence that Ms. R. lied about a number of aspects of their personal relationship, or that she was the "scorned woman" who used the Code of Professional Responsibility to attempt to manipulate Mr. Mangan, or to punish him, cannot change these facts.3 Nor does Mr. Mangan's challenge to Ms. R.'s character alter my conclusion that he violated the Code of Professional Responsibility and refused to accept responsibility for his own conduct.4

Conclusion

Having considered all of the arguments presented in Mr. Mangan's Motion for Relief from Judgment, including his offers of proof regarding newly discovered evidence, I conclude that Mr. Mangan has not presented a basis to set aside the original judgment and that no evidentiary hearing is necessary.

Wherefore, the entry will be:

Motion for Relief from Judgment DENIED.


For the Court

Hon. Leigh Saufley, Associate Justice - Maine Supreme Judicial Court


Footnotes

1. Mr. Mangan's violation of the bar rule regarding an accounting as to the medical bills did not play a significant part in the sanction ultimately imposed in this case.

2. In support of his argument that he should not have been sanctioned, Mr. Mangan refers to Ms. R as the "Base Hooker"; he has offered evidence that she has been charged but not convicted of shoplifting; he suggests that her daughters are not employed in the professions she testified to but are engaged as strippers or prostitutes; and he finally asks "Doesn't anyone see through this woman?" None of these allegations, if true, would excuse his serious errors in professional judgment.

3. The original judgment contained findings that she threatened him and that she attempted to obtain a financial advantage when she understood that he would be in trouble with his professional oversight Board because of his relationship with her.

4. Before the imposition of sanctions, Mr. Mangan was given the opportunity to present options short of disbarment that would assure protection of the public while allowing him to work toward regaining a professional standing. No such presentation was made at the hearing on sanctions.

Board of Overseers of the Bar v. Peter K. Mason, Esq.

Download Decision (PDF)

Docket No.: GCF 08-017 and GCF 08-197

Issued by: Grievance Commission

Date: April 16, 2009

Respondent: Peter K. Mason, Esq.

Bar Number: 000433

Order: Reprimand

Disposition/Conduct: Conduct Unworthy of an Attorney; Illegal Conduct


Stipulated Report of Findings and Order of Panel B of the Grievance Commission M. Bar R. 7.1(e)(2) and M. Bar R. 7.1(e)(4)


On April 16, 2009 after due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(c)(2)(E) concerning misconduct by the Respondent, Peter K. Mason, Esq. in the above two docketed grievance complaints. The disciplinary proceeding was commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the "Board") on February 19, 2009.

Prior to the disciplinary' hearing, the parties submitted a Stipulated Report of Findings and Order for the Grievance Commission Panel's review and consideration. Present at the hearing were Attorney Mason, his counsel, Karen G. Kingsley, Esq. and Bar Counsel J. Scott Davis for the Board. The complainants, Keirsten Wyman and Tammy Tracey, were provided with a draft copy of the Report by the Board, attended the hearing and were provided the opportunity to address the Panel.

Having reviewed the Stipulated Disciplinary Petition and heard comments of counsel, the Panel makes the following disposition:

Findings

Respondent Peter K. Mason, of Searsport, County of Waldo, State of Maine, has been 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. Attorney Mason was admitted to the Maine bar in 1972 and is currently registered with the Board of Overseers of the Bar as an attorney engaged in the active practice of law.

On or about January 12, 2008 Keirsten Wyman filed a grievance complaint against Attorney Mason. Ms. Wyman's complaint alleged that on October 17, 2007, Attorney Mason had exposed his genitals to her as they each were at the gas pumps and parking area of the On the Run Gasoline Station and Convenience Store in Winterport, Maine.

Attorney Mason was prosecuted and convicted after a jury-waived trial for the crime of Indecent Conduct concerning that incident involving Ms. Wyman.

By her complaint letter dated May 25, 2008, Tammy Tracey filed a similar grievance complaint against Attorney Mason. Her complaint likewise alleged that Attorney Mason had exposed himself on more than one occasion from 2004-2007 in public locations, including at both the parking lot of and inside her place of employment, a convenience store in Stockton Springs. Ms. Tracey was a former client of Attorney Mason.

Attorney Mason was charged by a second criminal complaint with engaging in Indecent Conduct concerning Ms. Tracey's allegations. That second complaint has been filed with prosecution deferred by the prosecutor responsible for handling it.

In his initial written response letter to each grievance complaint, Attorney Mason disputed the charges. Attorney Mason now agrees, however, and the Panel so finds that his conduct referenced in each of these two complaint matters violated Maine Bar Rules 3.1(a)(conduct unworthy of an attorney) and 3.2(f)(2)(illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness in other respects). Attorney Mason has entered into a contract dated February 5, 2009 with the Maine Assistance Program for Lawyers and Judges (MAP) and has commenced an assessment, evaluation and treatment program as recommended by his clinical psychologist.

Conclusion and Sanction

The Maine Bar Rule 2(a) specifically requires attorneys to comply with the Code of Professional Responsibility at all times, notwithstanding the fact there may be no specific current attorney/client relationship or pending court matter at issue. The Rule further provides that 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, or likely to be unable, to discharge properly their professional duties.

The Panel notes that Attorney Mason has taken responsibility for his misconduct in each instance and has commenced a treatment program. During this hearing, Attorney Mason expressed his remorse for his violations of the Code of Professional Responsibility and the discomfort and upset his actions obviously caused to both Ms. Wyman and Ms. Tracey. Attorney Mason further agrees, as a condition of Panel approval of this Stipulated Report and Order, to comply with the terms of his three (3) year contract with MAP. Bar Counsel has confirmed that Attorney Mason has no prior public professional sanction record on file with the Board.

The Panel accepts the proposed disposition and the waiver by Attorney Mason of his right to file a Petition for Review as evidenced by his signature below.

Panel B hereby issues a Public Reprimand to Attorney Peter K. Mason pursuant to M. Bar R. 7.1(e)(3)(C)(4).


For the Grievance Commission

John R. Bass II, Esq. Chair
Maurice A. Libner, Esq.
Susannah White

Board of Overseers of the Bar v. Daniel L. Lacasse, Esq.

Download Decision (PDF)

Docket No.: GCF 08-085

Issued by: Grievance Commission

Date: April 30, 2009

Respondent: Daniel L. Lacasse, Esq.

Bar Number: 002433

Order: Reprimand

Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct that is Prejudicial to the Administration of Justice


Stipulated Report of Findings and Order of Panel D of the Grievance Commission M. Bar R. 7.1(e)(4) M. Bar R. 7.1(e)(2)


On April 7 2009 with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E) concerning misconduct by the Respondent Daniel L. Lacasse, Esq. The disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on February 25, 2009.

At the hearing Attorney Lacasse was pro se and the Board was represented by Assistant Bar Counsel Aria Eee. Although the complainant, Philip Hunt, Esq. did not attend, his client, Ann Dyer, was present and she participated in the disciplinary hearing. Prior to the hearing, the parties had submitted a proposed, stipulated Report of Findings and Order for this Grievance Commission Panel’s review and consideration.

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

Findings

Respondent Daniel L. Lacasse of Calais, Maine ("Attorney Lacasse") 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 Lacasse was admitted to the Maine bar in 1981 and he is a currently registered with the Board of Overseers of the Bar as an active Maine Attorney.

On March 12, 2008, Attorney Hunt, on behalf of Ms. Dyer, filed a grievance complaint against Attorney Lacasse. The complaint alleged violations of the Code of Professional Responsibility by Attorney Lacasse during his representation of the Personal Representatives in a Washington County Probate Court action.

On or about April 28, 2008 Attorney Lacasse filed a response with the Board, providing background information regarding his involvement in the Beckett estate matter. Of note, the former Personal Representatives are now deceased and Attorney Lacasse appeared to have adopted a "hands off” approach during his representation of them.

Ms. Dyer is the granddaughter of Clarence B. Beckett. Mr. Beckett died in 2001 and his sizeable estate was informally administered in the Washington County Probate Court. Prior to her service as successor Personal Representative, Ms. Dyer occasionally checked on the estate's administration through the original Personal Representatives, her cousin and Attorney Lacasse's then secretary. Regrettably, Attorney Lacasse delegated most, if not all, of his responsibilities related to the estate to his secretary. According to Attorney Lacasse, once his secretary became ill, she performed much of her duties as Co-Personal Representative from her home. The firm's file on the Beckett estate was also maintained at her home. Attorney Lacasse acknowledges that due to his secretary's involvement, he failed to remain informed and properly monitor the administration of the Beckett estate, despite his obligation to do so. Likewise, Attorney Lacasse delayed the preparation of the estate accounting. In that regard, due to his eventual inability to locate the estate files, Attorney Lacasse ultimately failed to prepare such an accounting or to finalize the closing of the estate.

Moreover, according to the Beckett Will, Mr. Beckett intended that the estate would create a Trust designed to benefit the Calais school system. During the early estate administration, Attorney Lacasse petitioned the Court which subsequently appointed Trustees for that purpose. However, the evidence confirms and Attorney Lacasse agrees that he never concluded the necessary work to establish the Trust. From the parties' submissions it appears as though much of the estate administration was completed in 2003. Nonetheless, by summer 2007 the estate remained open and there was no concentrated effort to finalize the work and close the estate. The same was true for the funds designed to benefit the Calais school system as those funds remained in savings accounts with three (3) local banks. Finally, Attorney Lacasse failed to file the estate's income tax returns, which has caused additional work and expense to the estate.

As a consequence, Ms. Dyer repeatedly contacted Attorney Lacasse to urge him to wind down and close the estate. Perhaps unrealistically, Attorney Lacasse anticipated that he could finalize the closure and on August 27, 2007 he filed a signed, sworn statement by the surviving Personal Representative, Mr. Haley. Attorney Lacasse has stated that he witnessed Mr. Haley's signature on the document. However, Attorney Lacasse has stated that Mr. Haley's sworn statement was lost sometime after he signed it, and that it was Attorney Lacasse who actually signed the statement that was ultimately filed with the Court, not Mr. Haley who was by then deceased. That statement was filed by Attorney Lacasse with the Probate Court. Attorney Lacasse has acknowledged the gravity of such a dishonest action. He agrees that having done so demonstrates a severe lapse in judgment which reflects poorly on the profession. Attorney Lacasse has assured this Panel of the Grievance Commission that he will never repeat such a serious transgression. His actions in total constitute violations of M. Bar R. 3.1(a) and 3.2(f)(3), (4).

As noted above, Ms. Dyer attended the disciplinary hearing. She explained to this Panel her distress about the impact Attorney Lacasse's actions have had upon the family and the Beckett estate as a whole. Ms. Dyer ultimately sought the appointment as successor Trustee based upon her concerns regarding Attorney Lacasse's failure to properly discharge his professional duties. It is clear that Mr. Beckett's family relied on Attorney Lacasse and because of the above-mentioned lapses, have endured unnecessary delays and expenses to wind down the estate.

Conclusion and Sanction

The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Lacasse's above-outlined failures, his client's estate was not timely administered, the family and charitable beneficiaries endured losses and the process has proved exceedingly frustrating.

The Panel notes that Attorney Lacasse has taken responsibility for his failures in representing the interests of the Beckett estate. During this hearing, Attorney Lacasse expressed remorse for his serious violations of the Code of Professional Responsibility.

M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Attorney Lacasse has no history of prior discipline although the Panel notes that in 1999 and 2001, Lacasse was informally sanctioned for similar lapses. Attorney Lacasse has agreed to submit for Bar Counsel's approval a suitable plan to improve his office management practices.

Since the evidence supports a finding and Attorney Lacasse agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves the purpose of protection of the public. Therefore, the Panel accepts the agreement of the parties, including Attorney Lacasse’s waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Daniel L. Lacasse Esq. which is now hereby issued and imposed pursuant to M. Bar R.7.1(e)(3)(C) (4).


For the Parties

Aria Eee, Assistant Bar Counsel
Daniel L. Lacasse, Esq., Respondent


For the Grievance Commission

Benjamin P. Townsend, Esq., Chair
James McKenna, Esq.
David Nyberg, Ph.D.

Board of Overseers of the Bar v. John M. Whalen

Download Decision (PDF)

Docket No.: GCF 98-109

Issued by: Grievance Commission

Date: October 3, 3001

Respondent: John M. Whalen, Esq.

Bar Number: 000827

Order: Reprimand

Disposition/Conduct: Conduct Unworthy of an Attorney; Conflict of Interest; Confidentiality; Standards of Care and Judgment


Report of Findings


This matter was before Panel E of the Grievance Commission on the petition of Bar Counsel alleging numerous violations of the Maine Bar Rules against the Respondent, John M. Whalen, in connection with his representation of the Maine Rural Workers’ Coalition (MRWC). On May 1, 2001, a public hearing was conducted to determine whether a bar rule violation had occurred and whether probable cause exists for the filing of an information pursuant to Maine Bar Rule 7.2(b).

At the hearing, the Board of Overseers was represented by Geoffrey Welch, Esq. Respondent was represented by Jennifer Ferguson, Attorney at Law.

The Board examined and Ms. Ferguson cross-examined the complainant, Jose Soto; Rebecca Webber; Audrey Morra; Paul Christian; John Whalen, Esq. Andrea Rodriguez and Mary Henderson. Mr. Whalen called and the Board cross-examined Andrea Rodriguez.

The Board offered into evidence Board Exhibits 1 through 47, which were admitted without objection with the exception of Board Exhibits 3, 4, 5, 8 and 31. Respondent’s Exhibits 13, 14 and 15 were substituted for the Board Exhibits 3, 4 and 8. Respondent’s Exhibits 1 through 15 were all admitted without objection.

Based upon the evidence, the Panel finds the Mr. Whalen has violated the Maine Bar Rules. For the reasons stated herein, it issues this public reprimand of Mr. Whalen.

Summary of Facts

In the fall of 1997, John M. Whalen, Esq. served as chair of the Social Justice and Peace Commission of St. Phillips Parish in Auburn, Maine. Mr. Whalen serves his parish and it’s Social Justice and Peace Commission as a volunteer. As such, Mr. Whalen learned of the efforts of Hispanic migrant workers employed by the Decoster Egg Farm to organize. That organization took the form of The Maine Rural Workers’ Coalition (MRWC). MRWC is lead by its director, Jose Soto. It is one of the few advocacy groups in Maine for Hispanic laborers. Its activity focuses upon fair employment practices, health insurance coverage and immigration issues. With Mr. Whalen’s assistance, MRWC aligned itself with St. Phillips. The church provided space to MRWC and served as a vehicle for MRWC to access grants available through various Catholic charities. One of several initiatives conceived for MRWC was a child care facility for the children of its members/constituents. Mr. Whalen volunteered to provide legal advice to MRWC with respect to the formation of that day care facility, including the establishment of a tax exempt organization. Mr. Whalen worked hard and with a generous heart.

However, his conduct in the face of conflict between MRWC and St. Phillips – on the one hand, and between MRWC and its source of funding on the other, ran counter to the best interests of his client, MRWC and, thus, the bar rules.

At the outset, Mr. Whalen assembled a grant application to establish a day care center. Though MRWC was active in the organization of migrant workers, it had not developed procedures for handling the proceeds of grants. As a result, representatives of the Department of Human Services and of the charitable arm of the Catholic Diocese of Maine sought to assure themselves that money granted to MRWC was administered consistent with DHS regulations and in accordance with diocesan criteria. Mr. Whalen took exception to the procedures followed by Catholic Charities Human Development (CCHD) in applying its criteria and let his disdain for those procedures be known in a strongly worded statement to CCHD.

Ultimately, MRWC voted to abandon the child care grant application after it learned that the diocese had actually sponsored a competing application for the same DHS grant.

Mr. Whalen became frustrated by MRWC’s failure to satisfy CCHD criteria, as well as the perceived competition from Catholic Charities. These developments caused Mr. Whalen to resign both as counsel to MRWC and as Chair of the Social Justice and Peace Commission on April 15, 1998.1

Following his purported withdrawal, Mr. Whalen e-mailed CCHD representatives on April 28, 1998 and stated, among other things, that:

  1. MRWC improperly segregated itself from the church community at St. Phillips, and wrongly looked at matters from only the vantage point of their limited self interest;
  2. “Many people” actively questioned MRWC’s practice of taking a percentage of the recoveries DeCoster workers received from their lawsuits against their employer;
  3. MRWC’s chairperson, Mr. Soto was not working to build community relations, but was seen as lining his own pockets from the misery of the DeCoster workers he claimed to represent. See Board Exhibit 29.

The record reveals no authorization for a communication of this sort. Mr. Whalen characterized the e-mail as intemperate. It is more than intemperate. It is harmful to the reputation of MRWC and the relationships among MRWC, CCHD and St. Phillips. It is not clear whose interests Mr. Whalen intended to advance in his message. He clearly acted contrary to the best interests of MRWC.

Thereafter, MRWC obtained substitute counsel, Rebecca Webber. On or about May 27, 1998, Attorney Webber wrote Mr. Whalen informing him that MRWC decided to appoint one person through whom all communications must run. This letter directed Mr. Whalen to run all o f his communications by and through Mr. Soto until MRWC named another contact person.

In Mr. Whalen’s reply e-mail to Ms. Webber, he informed her that he would not agree to the restrictions placed on his speaking out concerning the MRWC.

In Ms. Webber’s follow up e-mail to Mr. Whalen of May 28, 1998, she repeated MRWC’s instructions to him that he not speak on its behalf without first going through MRWC’s contact person.

In Mr. Whalen’s second e-mail to Ms. Webber of May 28, 1998, Mr. Whalen stated the he “stood by” his last correspondence to her and warned that “with my work for the church I am in frequent contact with the others. To date, my contact has allowed the space to stay available. I seriously feel if I indicate a reluctance to talk to them they will back away from supporting this project.” Mr. Whalen, thus, put himself squarely in the middle of a potential conflict between MRWC, as tenant, and St. Phillips, as landlord, - a conflict over which Mr. Whalen suggested he was in a position to exercise significant influence.

On or about May 29, 1998, Mr. Whalen, again, e-mailed Ms. Webber stating that:

  1. In the last several months he had discussed with other members of the St. Philips’ Parish MRWC’s apparent wish to end its cooperative relationship with St. Philips;
  2. MRWC had rejected every offer to work with St. Philips except to use the Church’s spaces; He and others at St. Philips were concerned that MRWC had lost sight of the ecumenical spirit and purpose of MRWC and that instead MRWC wanted to create a separate community within St. Philips, which conduct constituted reverse racism; and
  3. He discussed MRWC’s alleged improper relationship with St. Philips and that it appeared to the majority of the persons with whom he had considered matters that MRWC was working directly against church ideals. See Board Exhibit 36.

On or about June 8, 1998, Mr. Whalen e-mailed Ms. Webber alleging that:

  1. MRWC’s failure to adopt proper accounting and bookkeeping procedures had put the tax-exempt status of MRWC and that of St. Philips at risk;
  2. MRWC chose to establish a segregated community instead of integrating itself with the St. Philips community at large;
  3. The practice of some MRWC and DeCoster workers of accepting free eggs from DeCoster was morally corrupt; and
  4. He intended to ask St. Paul’s to revoke its earlier decision sponsoring MRWC. See Board Exhibit 38.

Bar Rule Violations

Mr. Whalen’s manifest hostility towards MRWC, particularly his threats of eviction and his allusions to conversations with third persons on the subject of MRWC activity amounts to a fundamental breach of duty. As noted recently by the Maine Supreme Judicial Court, the primary duty of an attorney to his client is to conduct himself in a manner that is not “adverse” to his client. In re: Mangan, Supreme Judicial Court Docket No. Bar 99-5 (4/13/1080) citing Maine Bar Rule 3.4(b)(1).

Bar Counsels cites Bar Rule 3.1 and urges this Panel to conclude that Mr. Whalen’s conduct is “unworthy of an attorney.” The Panel agrees, mindful of the qualification in Rule 3.1 that nothing in the Code of Professional Responsibility is “intended to limit or supercede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation.”

As for specific rule violations, Bar Rule 3.4(b) contains the general admonition against conflicts of interest.

3.4(b) Conflict of Interest: General Provisions.

1) Basic rule.
A lawyer shall not commence or continue representation of a client if the representation would involve a conflict of interest except as permitted by this rule. Representation would involve a conflict of interest if there is a substantial risk that the lawyer’s representation of one client would be materially and adversely affected by the lawyer’s duties to another current client, to a former client, or to a third person, or by the lawyer’s own interest.

Mr. Whalen’s representation of MRWC was materially and adversely affected by what Mr. Whalen regarded as his duties to St. Phillip’s Church.

Maine Bar Rule 3.6(a) governs conduct during representation and requires that a lawyer “employ reasonable care and skill and apply the lawyer’s best judgment in the performance of professional services.” Mr. Whalen’s communications lacked judgment. They were polarizing, gratuitous and fulfilled no discernable purpose other than to embarrass MRWC.

Finally, Maine Bar Rule 3.6(h) prohibits a lawyer “without the informed written consent of the client” from revealing “a confidence or secret of the client to the disadvantage of the client.” Mr. Whalen’s e-mail correspondence is tantamount to an admission that he shared sensitive information pertaining to MRWC with third parties. He shared with representatives of CCHD, on April 28, 1998 scandalous allegations with respect to MRWC. On May 29, 1998, Mr. Whalen advised Ms. Webber that he had discussed matters pertaining to MRWC with members of St. Phillip’s Parish. The potential disadvantage to MRWC is clear from Mr. Whalen’s June 8, 1998 allusion to a course of action which would have removed MRWC from St. Phillip’s facilities and terminate the relationship.

Determination

Maine Bar Rule 7.1 provides that if the Panel finds that misconduct subject to sanction under these rules has occurred, the Panel may either dismiss the petition with a warning, issue a public reprimand, or direct Bar Counsel to commence an attorney discipline action. Dismissal with a warning is appropriate when the Panel concludes that the violation is minor, that there is little or no injury to a client, the public, the legal system or the profession, and that there is little likelihood of repetition by the attorney. The Panel finds that the misconduct cited above is, indeed, serious because Mr. Whalen’s communications carried with them the potential for significant harm to MRWC. Mr. Whalen offered no justification for his intemperate remarks and the record reveals no instance when such remarks were authorized by MRWC.

Giving due consideration to the fact that Mr. Whalen’s representation of MRWC was a charitable undertaking , that his initial motivation was to promote the social justice mission component of his church, and the absence of evidence that Mr. Whalen’s conduct actually harmed MRWC, this Panel reprimands John M. Whalen, Esq. for his violation of Maine Bar Rules 3.1(a), 3.4(b)(1), 3.6(a) and 3.6(h)(1) in connection with his representation of MRWC.


For the Grievance Commission

Stephen G. Morrell, Chair Panel E
Harriet Dawson
Charles W. Smith Jr.


Footnotes

1The Board urged the Panel to conclude that Whalen, having undertaken the responsibility to complete the DHS grant application, violated the bar rules by withdrawing in the manner he did. In this aspect of the grievance, the Panel disagrees. The Panel notes that it was the MRWC membership who voted on April 13, 1998 to abandon the DHS application. The failure of MRWC to file a completed DHS application prior to an April 24, 1998 deadline cannot be attributed to Mr. Whalen. On the contrary, Mr. Whalen made it clear to all those involved that despite his decision to resign, he would do everything within his power to see that the process was completed on a timely basis.

Board of Overseers of the Bar v. Franklin A. Poe, Esq.

Download Decision (PDF)

Docket No.: BAR-08-6

Issued by: Single Justice, Maine Supreme Judicial Court

Date: February 9, 2009

Respondent: Franklin A. Poe, Esq.

Bar Number: 002305

Order: Disbarment

Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Standards of Care and Judgment; Preserving Identity of Funds and Property


Decision and Order


This matter came on to be heard before the undersigned Justice on December 15, 2008, pursuant to M. Bar R. 7.2(b)(1), (2). Pursuant to M. Bar R.7.2(b)(3), the matter was heard de novo. The Board was represented by Assistant Bar Counsel Aria Eee. Respondent Franklin A. Poe, an attorney, despite being notified of the hearing, did not appear, and was not represented by counsel.

There have been three separate grievance complaints filed against Poe, resulting in two separate informations which are the subject of the December 15 hearing before this Court. The first information resulted from the Grievance Panel proceedings conducted in June of 2007, which arose from the grievance complaints filed by Marian Chioffi on July 5, 2006, and Cecil Day on November 2, 2006. Poe did not respond to that information. The second information, to which Poe did file an answer, arose out of the grievance complaint filed by attorney Thomas Berry on July 18, 2008. The information arising from the Berry complaint was consolidated with the prior information arising from the Chioffi and Day grievance complaints. Because Poe failed to appear at the hearing held on both informations, he is defaulted on both informations.

Factual Background

A. First Information

Poe was appointed Trustee of the Josephine Day Revocable Trust and served in that capacity until he was suspended as Trustee by the Lincoln County Probate Court on January 2, 2008. The Trust's primary asset is the Trailing Yew Inn, a seasonally operated inn located on Monhegan Island. The Inn's operation accounts are controlled by the Trustee, and profits from the operation of the Inn, after expenses, are to be distributed to the beneficiaries of the Trust. The Trust provides that quarterly distribution of profits be made to the beneficiaries, and that the Trustee make an annual accounting.

Poe, as Trustee, failed to abide by the provisions of the Trust. He failed to make distributions on a quarterly basis. He made distributions to the beneficiaries for a period of time, but on an annual basis only. His accounting was insufficient. Poe provided no explanation for the ever-increasing miscellaneous expenses listed in his accounting, and the accounting did not provide sufficient detail to allow the beneficiaries to understand what the administrative and miscellaneous expenses represented. The profits distributed to the beneficiaries steadily declined, and the administrative expenses steadily increased, even though the gross income of the Trust remained essentially the same.1

Since March 28, 2003, Poe, as Trustee, has not made any distribution of profits or Trust assets to the beneficiaries, has not provided any accounting to the beneficiaries, and has not offered any satisfactory explanation to account for what happened to the Trust income. Poe has not communicated with the beneficiaries, despite many attempts by some of them to communicate with him. Poe has written several checks to himself in substantial amounts from Trust funds. The Inn's staff, including Marian Chioffi, the Inn's manager, has had great difficulty locating Poe, and has not been able to communicate with him, making operation of the Inn very difficult.

Moreover, the terms of the Trust provide that Chioffi has an option to purchase the Inn, which could be exercised as of May 11, 2007. Chioffi, who desires to exercise the option, has been unable to do so because Poe has not responded to her many attempts to contact him.

The Lincoln County Probate Court suspended Poe from the position as Trustee, and appointed James E. Day as special fiduciary, with full power to take possession of the property and to administer the Trust. Day's review of the Trust records indicates that Poe wrote checks to himself from Trust accounts between 2004 and 2007, totaling $70,000. Based on that evidence, which the Court accepts as credible, the Court finds that Poe has violated the following rules: M. Bar R. 2(c), 3.1(a), 3.2(f), 3.3(a), and 3.6(a).2

B. Second Information

The second of the two consolidated matters before the Court arises out of the complaint filed by Attorney Berry. Poe, in his role as an attorney, was in possession of files belonging to Berry's client. Poe failed to respond to Berry's requests for Poe to turn those files over to Berry. Poe was the clerk of a corporation of which Berry's client is a shareholder, and Poe has failed to file the corporation's annual report to the Secretary of State, resulting in the corporation being administratively dissolved. Poe also failed to respond to direct requests made to him by the client.

Based on that evidence, which the Court accepts as credible, the Court finds that Poe has violated Bar Rules 3.1(a), 3.2(f)(4), 3.6(a)(3), and 3.6(e)(2)(iv). 3

Sanctions

The Board has proved the allegations in both informations. The violations of the Bar Rules by Poe are very serious and flagrant. For the protection of the public, the only sanction appropriate for Poe's egregious conduct is disbarment pursuant to M. Bar R. 7.2(b)(5), effective immediately.

Accordingly, the Court orders that Franklin A. Poe is hereby disbarred from the practice of law in the State of Maine.


For the Court

Hon. Robert W. Clifford, Associate Justice – Maine Supreme Judicial Court


Footnotes

1Poe provided the following information to Cecil Day, one of the Trust's beneficiaries, concerning the finances of the Tailing Yew Inn for the years 1997-2000.

  Beneficiary Distributions "Misc. Expenses" Gross Income
1997
$8,484.82
$ 4,475.66
$226,058.72
1998
$3,835.62
$15,700.04
$215,716.66
1999
$4,460.10
$25,146.98
$222,276.19
2000
$ 952.86
$18,260.02
$236,940.66

2Maine Bar Rule 2(c) provides:

(c) Grounds for Discipline. Each act or omission by an attorney, individually or in concert with any other person or persons, which violates any of these rules shall constitute misconduct and shall be grounds for appropriate discipline notwithstanding that the act or omission did not occur in the course of an attorney-client relationship or in connection with proceedings in court. The failure without good cause to comply with any rule, regulation or order of the Board or the Grievance Commission or to respond to any inquiry by the Board, the Grievance Commission or Bar Counsel shall constitute misconduct and shall be grounds for appropriate discipline.

Maine Bar Rule 3.1(a) provides:

(a) This Code shall be binding upon attorneys as provided in Rule 1(a). Violation of these rules shall be deemed to constitute conduct "unworthy of an attorney" for purposes of 4 M.R.S. § 851. Nothing in this Code is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation; and the prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned.

Maine Bar Rule 3.2(f) provides that a lawyer shall not:

(1) directly or indirectly violate, circumvent, or subvert any provision of the Maine Bar Rules;

(2) engage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;

(3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(4) engage in conduct that is prejudicial to the administration of justice.

Maine Bar Rule 3.3(a) provides:

(a) Excessive Fees. A lawyer shall not enter into an agreement for, charge, or collect an illegal or excessive fee. A fee is excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.

Maine Bar Rule 3.6(a) provides:

(a) Standards of Care and Judgment. A lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the client's affairs. A lawyer shall not

(l) handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without first associating with another lawyer who is competent to handle it;

(2) handle a legal matter without preparation adequate in the circumstances, provided that, with respect to the provision of limited representation, the lawyer may rely on the representations of the client and the preparation shall be adequate within the scope of the limited representation; or

(3) neglect a legal matter entrusted to the lawyer.

3Maine Bar Rule 3.6(e)(2)(iv) provides that a lawyer shall "[p)romptly payor deliver to the client, as requested by the client, the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive."

Board of Overseers of the Bar v. Jeffrey Pickering, Esq.

Download Decision (PDF)

Docket No.: GCF 07-319

Issued by: Grievance Commission

Date: March 25, 2009

Respondent: Jeffrey Pickering, Esq.

Bar Number: 001644

Order: Reprimand

Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Standards of Care and Judgment


Report of Findings on Stipulation and Agreed Sanction Order of Panel B of the Grievance Commission


Panel B of Grievance Commission conducted a disciplinary hearing on the Petition of the Board of Overseers of the Bar (the "Board") against Jeffrey Pickering, Esquire ("Attorney Pickering") pursuant to Maine Bar Rule 7.1 (e) on March 19, 2009. The Board was represented by Jacqueline L.L. Gomes, Esquire, Assistant Bar Counsel, and Jeffrey Pickering, Esquire was present with his counsel, Brian E. Swales, Esquire.

Prior to opening arguments of counsel, the parties confirmed that they had no objection to the composition of the Panel and advised the Panel regarding the pleadings and exhibits. Materials considered by the Panel were the Board's disciplinary petition dated December 2, 2008, the Answer of Attorney Pickering dated December 5, 2008, the Board Exhibits 1 through 15 as supplemented by the Board under cover letter of March 10, 2009 and Board Exhibit 16, Stipulations, signed by counsel for Attorney Pickering and by Assistant Bar Counsel. Neither party offered live testimony.

After presentation by both parties with respect to the several violations of the Bar Rules as alleged by the Board and conference of counsel, the parties presented an agreed disposition for consideration by the Panel. Panel B accepted the agreed disposition and issues the following determinations and action.

Findings and Determinations

  1. The Panel accepts and adopts as its findings the Stipulations entered into by the parties as set forth on Board Exhibit 16 attached hereto as an exhibit and incorporated herein.
  2. Paragraph 20 of Board Exhibit 16 states as follows:
    Attorney Pickering admits that he violated Bar Rule 3.6 (a)(3) in three separate instances by (1) failing to search the Registry of Deeds indices for Ronald Lycette prior to closing the transactions from Kripps to Lycette to Realty Trust; (2) neglecting to record the deed from Realty Trust to Ruoss in a timely manner; and (3) neglecting to record the mortgage from Ruoss to Realty Trust in a timely manner.
  3. Panel B further finds that Attorney Pickering violated Maine Bar Rule 3.6 (a)(2) by his failure to devote adequate preparation for the closings required under the contemplated transaction.
  4. The Panel therefore finds that as a result of the violations of Rule 3.6 (a)(2) and (3), Attorney Pickering has committed conduct deemed unworthy of an attorney within the meaning of M. Bar R. 3.1(a).

Action and Agreed Sanction Order

M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Pursuant to M. Bar R. 7.1(e)(3)(C), the Panel concludes that Attorney Pickering did not act in knowing violation of his duties under the Bar Rules and that he has taken responsibility for his actions and the delays occasioned to Mr. Connolly, Trustee and the buyer, Mr. Ruoss. Attorney Pickering has addressed the various lien claims against the real estate arising out of debts of Mr. Lycette, leaving only the allocation between the IRS and the Maine Revenue Services unresolved at this point.

Panel B hereby finds on the Stipulations that Attorney Pickering has violated the Maine Bar Rules and hereby issues a Public Reprimand to Jeffery Pickering, Esquire as provide by Maine Bar Rule 7.1 (e)(3)(c). The Panel further adopts the additional condition required by the Board and accepted by Attorney Pickering that Attorney Pickering complete an evaluation under the Maine Assistance Program for Lawyers guidelines and provide the results to Bar Counsel. Assistant Bar Counsel shall make a referral to the Maine Assistance Program for Lawyers within ten days of the date of this Order. Attorney Pickering shall complete the evaluation within ninety days of the date of this Order.

By signature of his counsel, Attorney Pickering hereby waives the right to a further hearing under Maine Bar Rule 7.1(e) and further waives the right to file a petition for review under Maine Bar Rule 7.2(a).


For the Parties

Jacqueline L.L. Gomes, Esq. Assistant Bar Counsel
Jeffrey Pickering, Esq.


For the Grievance Commission

John R. Bass II, Esq. Chair
Susannah White
Maurice A. Libner, Esq.

Board of Overseers of the Bar v. John P. Frankenfield, Esq.

Download Decision (PDF)

Docket No.: GCF 99-135

Issued by: Grievance Commission

Date: September 22, 2000

Respondent: John P. Frankenfield, Esq.

Bar Number: 008176

Order: Reprimand

Disposition/Conduct: Neglect


Report of Findings of Panel D of the Grievance Commission

On September 22, 2000, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), to determine whether there were grounds for the issuance of a reprimand or whether probable cause existed for the finding of an information concerning alleged misconduct by the Respondent, John P. Frankenfield, Esq., (Frankenfield), as described in a Petition dated and filed by the Board of Overseers of the Bar (Board) on June 13, 2000.

Assistant Bar Counsel, Karen G. Kingsley, Esq., represented the Board, and Frankenfield was pro se, and both were present at the hearing. The complainant, James E. Quimby, Jr. (Quimby) having been provided with notice and an opportunity to be present, did not attend the hearing. He had, however, been notified and understood that the parties had stipulated to the following facts and agreed upon disposition of this matter by a reprimand, which the Panel now so finds and adopts:

  1. In February 1997 Quimby contacted the Law Offices of Anthony P. Shusta, II, in Madison, Maine for the purpose of filing a bankruptcy.
  2. Frankenfield was an associate in the law offices, and he spoke to Quimby about his bankruptcy matter.
  3. Quimby paid a retainer of $600 to the law firm for the purpose of filing a bankruptcy for him.
  4. Frankenfield told Quimby that the matter would take approximately four to five months to finalize.
  5. Frankenfield told Quimby to refer any creditors to him.
  6. Approximately a year passed and Quimby received no information about the status of his bankruptcy.
  7. Creditors continued to contact Quimby directly.
  8. At some point Quimby received notice a creditor was taking him to court for a disclosure hearing on an amount owed.
  9. Quimby consulted with Frankenfield who told him that he would be in court that day and would try to resolve matters with the creditor.
  10. Quimby did not attend court that day and a civil order of arrest was issued for his failure to appear in court.
  11. After the premature birth of his son in November 1998 Frankenfield was infrequently in the office and was not available for appointments and to return telephone calls from Quimby.
  12. In July 1999 Frankenfield met with Quimby in his office and had him sign papers to initiate the bankruptcy process telling him he would file the paperwork to finalize the matter.
  13. As time went by and Quimby heard nothing on the bankruptcy from Frankenfield, in September of 1999 Quimby called the Bankruptcy Court in Bangor only to learn that no bankruptcy petition had ever been filed.
  14. Frankenfield has been a Maine attorney since 1995, and he has no prior disciplinary record.

Conclusion

The Panel concludes that the appropriate disposition of this case is a reprimand as Frankenfield neglected the filing of Quimby's bankruptcy petition although his law office had accepted a retainer for him to perform those services for Quimby. Frankenfield has no prior disciplinary record. A reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. ABA Standards for Imposing Lawyer Sanctions§ 4.43.


For the Grievance Commission

Patricia Ender, Esq., Chair
Theodore K. Hoch, Esq.
Celeste Branham

Board of Overseers of the Bar v. Laurie Anne Miller

Download Decision (PDF)

Docket No.: BAR-03-08

Issued by: Single Justice, Maine Supreme Judicial Court

Date: March 21, 2005

Respondent: Laurie Anne Miller

Bar Number: 003231

Order: Resignation

Disposition/Conduct: Resignation by Attorney Under Disciplinary Investigation


Opinion and Order


After consultation with and by stipulation of counsel for the parties on March 10, 2005, it is HEREBY ordered pursuant to M. Bar R. 7.3(g) that Laurie Anne Miller's resignation from the Maine bar dated February 8, 2005 is hereby accepted and as of this date her name is now removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine. Ms. Miller may not seek reinstatement to practice law in Maine under M. Bar R. 7.3(j) until March 21, 2010.

It is further ordered pursuant to M. Bar R. 7.3(g)(3) that Ms. Miller's supporting affidavit of February 8, 2005 is now impounded and shall not be available for inspection unless otherwise ordered by the Court. Should Ms. Miller seek reinstatement to practice law, her affidavit shall then be made public.

This resignation is expressly conditioned upon Ms. Miller's timely compliance with the Award and Determination of the Fee Arbitration Commission Panel in Dispute No. 04-365 dated February 24, 2005, whereby Ms. Miller is required by M. Bar R. 9(i) and this Order of Resignation to pay the attorney fee refund amount of $172.50 to her former client in that matter by no later than April 5, 2005.

Ms. Miller has certified to the Court and to the Board of Overseers of the Bar, and it is so found that she has complied with the notification and reporting requirements of M. Bar R. 7.3(i).

This order is a matter of public record under M. Bar R. 7.3(g)(3).


For the Court

Hon. Jon D. Levy, Associate Justice – Main Supreme Judicial Court

Board of Overseers of the Bar v. David N. Fisher, Jr., Esq.

Download Descion (PDF)

Docket No.: Bar 09-1

Issued by: Single Justice

Date: March 10, 2009

Respondent: David N. Fisher, Jr., Esq.

Bar Number: 000750

Order: Resignation

Disposition/Conduct: Resignation by Attorney Under Disciplinary Investigation


Order


Attorney David N. Fisher was admitted to practice in Maine in 1966. This matter is before the Court to consider his voluntary resignation, dated December 2, 2008, that has been tendered pursuant to M. Bar R. 7.3(g). Attorney Fisher's letter of resignation is supported by his Affidavit dated December 10, 2008. On February 5, 2009 the Board of Overseers of the Bar considered this matter and unanimously recommended that the Court accept Attorney Fisher's resignation from the Maine bar.

Therefore, after hearing at which Attorney Fisher appeared and was represented by counsel, it is hereby ORDERED:

Pursuant to M. Bar R. 7.3(g)(3), David N. Fisher's resignation from the Maine bar is accepted. Thirty (30) days from the date of this Order his name shall be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine. Mr. Fisher shall comply with the notification reporting requirements of M. Bar R. 7.3(i)(I) within thirty (30) days of this date.

As required by M. Bar R. 7.3(g)(3), David N. Fisher's supporting Affidavit dated December 10,.2008 is hereby impounded, and shall not be available for inspection unless otherwise ordered by the Court. Should David N. Fisher seek reinstatement to the Maine bar, that Affidavit may then be made public without further Order of the Court. This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).


For the Court

Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court

Board of Overseers of the Bar v. Elizabeth A. Morrow, Esq.

Download Decision (PDF)

Docket No.: BAR-07-09

Issued by: Single Justice, Maine Supreme Judicial Court

Date: October 16, 2007

Respondent: Elizabeth A. Morrow, Esq.

Bar Number: 007809

Order: Reprimand Reciprocal Discipline

Disposition/Conduct:


Order


This Court has received a certified copy of the Order of Public Reprimand by the Commonwealth of Massachusetts' Board of Bar Overseers of the Supreme Judicial Court dated June 21, 2007, publicly reprimanding Attorney Elizabeth A. Morrow for her violations of the Supreme Court's Rules of Professional Conduct. Attorney Morrow has defaulted by failing to file any response to this Court's Order and Notice dated August 30, 2007 for her to show cause why the Court should not impose identical discipline to that imposed upon her in Massachusetts, as requested by Maine's Board of Overseers of the Bar.

Therefore, based upon that default, this Court hereby ORDERS:

  1. The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
  2. Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Attorney Elizabeth A. Morrow is reprimanded for her violations of those portions of Maine's Code of Professional Responsibility that are analogous to those violations of Massachusetts' Rules of Professional Conduct by her as found in Massachusetts' Order of Public Reprimand dated June 21, 2007.

For the Court

Hon. Donald G. Alexander, Associate Justice – Maine Supreme Judicial Court

Board of Overseers of the Bar v. Wayne R. Murphy, Esq.

Download Decision (PDF)

Docket No.: BAR-07-3

Issued by: Justice, Maine Supreme Judicial Court

Date: July 10, 2007

Respondent: Wayne R. Murphy, Esq.

Bar Number: 008226

Order: Reprimand Reciprocal Discipline

Disposition/Conduct:


Order


Commonwealth of Massachusetts' Board of Bar Overseers of the Supreme Judicial Court dated May 1, 2007, publicly reprimanding Attorney Wayne R. Murphy for his violations of the Supreme Court's Rules of Professional Conduct. Attorney Murphy has defaulted by failing to file any response to this Court's Order and Notice dated May 18, 2007 for him to show cause why the Court should not impose identical discipline to that imposed upon him in Massachusetts, as requested by Maine's Board of Overseers of the Bar.

Therefore, based upon that default, this Court hereby ORDERS:

  1. The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;

  2. Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Attorney Wayne R. Murphy is reprimanded for his violations of those portions of Maine's Code of Professional Responsibility that are analogous to those violations of Massachusetts' Rules of Professional Conduct by him as found in Massachusetts' Order of Public Reprimand dated May 1,2007.


For the Court

Hon. Warren M. Silver, Associate Justice – Maine Supreme Judicial Court

Board of Overseers of the Bar v. Jennifer R. Raymond, Esq.

Download Decision (PDF)

Docket No.: BAR 08-02

Issued by: Single Justice, Maine Supreme Judicial Court

Date: November 3, 2008

Respondent: Jennifer R. Raymond, Esq.

Bar Number: 008540

Order: Suspension Reciprocal Discipline

Disposition/Conduct: Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation; Inadequate Preparation; Neglect


Order M. Bar R. 7.3(h)


On October 31, 2008 the Board of Overseers of the Bar petitioned this Court for an Order of Default in the reciprocal discipline matter filed by the Board in March 2008. Attached to the Board's Petition for Reciprocal Discipline was a certified copy of the Order Of Term Suspension as issued by the Commonwealth of Massachusetts Supreme Judicial Court adopting the Massachusetts Professional Conduct Board's recommendation to suspend Ms. Raymond.

The U.S. Postal Service's certified return receipt of service confirms that on May 3, 2008, Ms. Raymond received and signed for a copy of this Court's Order and Notice dated April 25, 2008. Thereafter, Ms. Raymond had thirty (30) days in which to notify this Court of any claim by her that identical discipline in Maine would be unwarranted. Attorney Raymond has defaulted by failing to ever file any response to this Court's Order and Notice.

Upon consideration of the Board of Overseers of the Bar's Motion for Default and Petition for Reciprocal Discipline, in light of Ms. Raymond's opportunity but failure to ever respond, it is hereby ORDERED as follows:

  1. The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;

  2. Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Jennifer R. Raymond is indefinitely suspended from practicing law in Maine for her violations of those portions of Maine's Code of Professional Responsibility, namely, Bar Rules 3.2(f)(3) and 3.6(a)(2)(3), that are analogous to her violations of Massachusetts Rules of Professional Conduct as found in the Massachusetts Court's Order dated February 6, 2008. Ms. Raymond may not return to practice in Maine until she has petitioned for and achieved reinstatement pursuant to M. Bar R. 7.3(j).


For the Court

Hon. Jon D. Levy, Associate Justice – Maine Supreme Judicial Court

Board of Overseers of the Bar v. Richard A. Lord, Esq.

Download Decision (PDF)

Docket No.: BAR-01-01

Issued by: Single Justice, Maine Supreme Judicial Court

Date: July 10, 2001

Respondent: Richard A. Lord, Esq.

Bar Number: 000664

Order: Suspension

Disposition/Conduct: Excessive Fees; Identifying Commencement, Continuation, and Termination of Representation


Stipulation of Facts and Agreed Upon Order


This matter comes before the Court pursuant to M. Bar R. 7.2(b)(1)(2) and the Court's order of March 15, 2001 whereby the Defendant, Richard A. Lord, Esq., consented to and the Court authorized the Board to file an Amended Information directly with the Court without the necessity of hearing by the Grievance Commission under Maine Bar Rules 7.1 (d), (e).

The Board was represented by Assistant Bar Counsel, Geoffrey S. Welsh, Esq., and the Defendant was represented by Philip P. Mancini, Esq. As recited below, the parties stipulate to the facts, and agree to the entry of an order disposing of this case as follows:

I. Findings of Fact

A. Count I-McCourt

For many years the Defendant was the personal attorney for Denise Cloutier (Cloutier), and he drafted her Last Will and Testament, which she executed on April 2, 1997 when she was then 70 years old. Under the terms of her Will, Cloutier left all of her property to James A. McCourt (McCourt), and she nominated the Defendant to be the Personal Representative (PR) of her estate.

Cloutier's Will also included the following provision:

I hereby nominate and appoint RICHARD A. LORD of Brunswick, Maine to be the sole Personal Representative of the MY LAST WILL AND TESTAMENT; and I direct that no bond be required of him the performance of his official duties in that said capacity, and that he solely shall determine the reasonableness of his fees in his capacity as both Personal Representative and as attorney for the estate.

Inserting this language into Cloutier's Will was the Defendant's idea, not Cloutier's, and the Defendant did so in keeping with his practice of including such a provision in a Will only when he is the PR named in the instrument. The Defendant explained his estate PR fee arrangement to Cloutier by analogy to a real estate broker's percentage fee, and he claimed that he had intended to charge Cloutier's estate a flat fee instead. Significantly, the Defendant did not have Cloutier's separate written consent to or other written confirmation of this unusual compensation arrangement.

On October 12, 1998 Cloutier died, and on October 20th the Defendant filed an Application for Informal Probate of Will and Appointment of Personal Representative with the Cumberland County Probate Court (the Probate Court). Shortly thereafter, the Probate Court appointed the Defendant as PR of Cloutier's estate, and informally admitted Cloutier's Will to probate. As an experienced probate attorney, based upon the relevant provisions of the Maine Probate Code, 18-A M.R.S.A. §1-101, et seq., and because of Estate of Davis, 509 A.2d 1175 (Me. 1986), and Harrington v. Lord, 704 A.2d 1211 (Me. 1997), the Defendant knew or should have known before he sought or accepted appointment as PR of Cloutier's estate that: 1) Determining the PR's compensation, and that of any attorney employed by the PR, based upon a percentage of the estate was a violation of M. Bar R. 3.3(a); and 2) Lord's total combined fees as the PR and as the PR's attorney were required to be reasonable.

Cloutier's estate totaled approximately $110,000.00 of liquid assets, and the Defendant initially charged the estate legal fees of $5,500.00, the Defendant deducting that sum from the McCourt bequest and claiming two separate legal fees: i.e., one for being the PR and one for being the PR's attorney. The Defendant concedes and acknowledges that it was improper and unreasonable for him to be compensated in two capacities from the assets of Cloutier's estate and to base that compensation upon the aforementioned provision, which he had drafted. Such misconduct constituted entering into an agreement for and charging an illegal and excessive fee in violation of M. Bar R. 3.3(a), Davis and Harrington, supra. When, however, McCourt later complained through separate legal counsel about the amount of the fees, the Defendant immediately agreed to a reduction of these charges to the sum of $3,300.00, and promptly refunded the difference to him. On July 11, 1999 a Panel of the Fee Arbitration Commission confirmed the $3,300.00 charge as fair and reasonable.1

B. Count II-Currier

On March 3, 1995 Lynn M. Currier (Currier) hired the Defendant to represent her in a divorce from her then husband, Richard Currier (Richard)2 and on June 28th the Sagadahoc County District Court granted her divorce. During their marriage, the Curriers had one child, Darren A. Currier, who was born on August 20, 1987. On March 14, 1997 the Defendant began representing Currier in post divorce litigation concerning child support, and on that date he filed a Motion for Contempt against Richard. On October 28, 1997 the District Court mediator filed her child support worksheet showing Richard's weekly child support obligation to be $54.00.

Sometime after the divorce, Richard was charged with having committed a number of criminal offenses, and he sought out the Defendant to represent him in them. Although the Defendant agreed to represent Richard in at least two of those criminal matters, he neither disclosed to Currier nor obtained her informed written consent to his representation of Richard. In fact, Currier did not become aware of the Defendant's representation of Richard until she herself checked with the District Court Clerk's Office in Lewiston. The Defendant's simultaneous representation of Richard and Currier was problematic for Currier since the Defendant repeatedly had informed her that he could not collect the past due child support because he could not locate Richard. By simultaneously representing Currier and Richard without Currier's knowledge and consent, the Defendant thereby violated M. Bar R. 3.4(a), (b), (c).

C. Richard A. Lord

The Defendant has been a practicing Maine attorney in good standing for over 35 years. During the course of that time he has devoted numerous hours to public service and pro bono work. He is now 65 years of age. Several years ago he and his wife were granted custody of their 12 year old grandchild who has numerous health problems, and the Defendant and his wife have devoted an inordinate amount of time to her care. Because of the time and attention necessary to assist in the care of his grandchild, focusing sufficient attention on his sole practice has been difficult. These violations are the culmination of that situation.

II. Stipulated Discipline

Bearing in mind the nature of the substantive misconduct described above and the aggravating and mitigating circumstances surrounding that misconduct, the parties hereby stipulate and agree to the entry of a decision and order disposing of this case as follows:

It is hereby ORDERED: That the Defendant is suspended from the practice of law in Maine for a period of sixty (60) days, thirty (30) days of that suspension itself being suspended for a period of one year subject to the following terms and conditions:

  1. The Defendant shall obtain the informed written consent of his clients in all cases where M. Bar R. 3.4(c)(2) otherwise permits simultaneous representation of clients;

  2. The Defendant's fee agreements with all of his clients shall be in writing;

  3. If after due notice and hearing the Court finds that the Defendant violated or failed to comply with any provision of this order, the Court may enter any additional order necessary or appropriate to protect the public, including but not limited to imposing the unsuspended portion of his suspension;

  4. Bar Counsel may file an information against the Defendant directly with the Court concerning any professional misconduct occurring subsequent to the date of this order without the necessity of a Grievance Commission hearing, provided however that any such misconduct is first reviewed by the Grievance Commission pursuant to M. Bar R. 7.1(d);

  5. The Defendant's thirty (30) day unsuspended portion of his suspension shall begin on September 1, 2001, and he shall comply with the notification and reporting requirements of M. Bar R. 7(i) by that date; and

  6. With the exception of the Defendant's unsuspended portion of his suspension, all provisions of this order shall be effective on the date of this order.


For the Parties

Geoffrey S. Welsh, Esq.
Philip P. Mancini, Esq.


For the Court

Hon. Leigh I. Saufley, Associate Justice- Maine Supreme Judicial Court


Footnotes

1After authorizing his attorney to settle the fee dispute with the Defendant, McCourt filed a Petition to arbitrate the dispute with the Fee Arbitration Commission. Thus, the Fee Hearing Panel ratified the agreement earlier reached by McCourt's attorney and the Defendant.

2Currier has since remarried, and now goes by her married name of Lynn M. Quillen.

Board of Overseers of the Bar v. Vanessa A. Bartlett, Esq.

Download Decision (PDF)

Docket No.: GCF 04-079

Issued by: Grievance Commission

Date: December 10, 2004

Respondent: Vanessa A. Bartlett, Esq.

Bar Number: 008873

Order: Reprimand

Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Neglect


Report of Findings of Panel E of the Grievance Commission


On December 10, 2004, pursuant to due notice, Panel E of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Vanessa A. Bartlett, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on August 19, 2004.

Present at the hearing were Assistant Bar Counsel Nora Sosnoff, representing the Board; and Attorney Karen G. Kingsley representing Attorney Vanessa A. Bartlett, who was also present. The complainant, Alan J. Wells, was unable to be present, but communicated to Assistant Bar Counsel Sosnoff that he agreed with the proposed Report of Findings.

The Panel heard testimony from the respondent, Vanessa A. Bartlett, pursuant to questioning by Assistant Bar Counsel Sosnoff and Attorney Kingsley. Having heard that testimony and having reviewed the proposed findings presented by the parties, the Panel makes the following disposition:

Findings

  1. Respondent Vanessa A. Bartlett (Attorney Bartlett) of Brunswick, County of Cumberland, State of Maine, is and was 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 Bartlett was admitted to the Maine bar in 1999. She is in private practice, having an office at 173 Park Row in Brunswick, Maine.

  2. On April 21, 2003, Alan J. Wells (Mr. Wells) retained Attorney Bartlett to handle two family matters in District Court. One matter was a divorce; the other matter was a post-judgment motion for modification of child support obligations.

  3. On March 12, 2004, Mr. Wells complained to the Board of Overseers concerning Attorney Bartlett’s performance as his counsel.

  4. Upon its review of Bar Counsel’s investigation of that complaint, on July 1, 2004, Panel C of the Grievance Commission found probable cause that misconduct by Attorney Bartlett subject to sanction under the Bar Rules had occurred and directed Bar Counsel to prepare and present a formal petition for disciplinary action.

  5. Attorney Bartlett’s conduct violated the Maine Bar Rules in two ways:

  1. Neglect: Attorney Bartlett neglected one of the two matters she was handling for Mr. Wells, in violation of M. Bar R. 3.6(a)(3) (neglect of a legal matter entrusted to the lawyer). Specifically, on August 6, 2003 Attorney Bartlett filed a post- judgment motion for modification of child support, but she failed ever to have that motion served upon the opposing party.
  2. Obligations concerning the client file: Attorney Bartlett mishandled the transfer of Mr. Wells’ legal matter to successor counsel. When Mr. Wells retained successor counsel to handle the post-judgment motion for modification of child support, Mr. Wells asked Attorney Bartlett to provide him with a copy of his client file. Mr. Wells made his first request for his file in January 2004. After Attorney Bartlett discovered that she had misplaced the file and was unable thereafter to locate it, Attorney Bartlett avoided explaining these circumstances until March 2004, despite interim follow up requests from Mr. Wells and successor counsel. This conduct violated M. Bar R. 3.6(a) (a lawyer must employ reasonable care and skill; apply best judgment; be punctual in professional commitments; keep the client informed) and M. Bar R. 3.6(e)(2)(iv)(as requested by a client, a lawyer shall promptly deliver the property in the lawyer’s possession that the client is entitled to receive).

    1. Attorney Bartlett’s misconduct as described above occurred during a time period when she had no support staff, was moving her office and was changing the plan of management of her law practice. Since opening her new office on Park Row in Brunswick in May 2004, Attorney Bartlett has effectively and significantly improved her law practice management, as described below.
    2. Since May 2004, Attorney Bartlett has employed full-time, experienced clerical staff; her files are maintained on location; client financial records are updated on a reliable computer data base designed to support a law practice; internal law office communications are regular; client communications are regular; and continuing legal education is planned in advance through membership in the Maine State Bar Association’s CLE Club.

    Conclusion and Sanction

    Attorney Bartlett’s above cited violations of the Maine Bar Rules resulted from inexperience in law practice management and lack of mentoring by an experienced practitioner. These issues were aggravated by a change of law office location and file storage sites. Attorney Bartlett has corrected the former flawed systems of law practice management. Her new protocols are time tested and are being strictly followed, as a result of which it is unlikely that there will be any recurrence of the misconduct that understandably led to Mr. Wells’ grievance complaint.

    The Panel concludes that the following violations occurred:

    1. Attorney Bartlett engaged in professional misconduct during her representation of Mr. Wells in 2003. On August 6, 2003 Attorney Bartlett filed a post-judgment motion for modifications of child support, but she failed ever to have that motion served upon the opposing party. This conduct violated M. Bar R. 3.6(a)(3) (neglect of a legal matter entrusted to the lawyer).
    2. Attorney Bartlett engaged in professional misconduct during her representation of Mr. Wells in 2004. When Mr. Wells obtained successor counsel to handle the post-judgment motion for modification of child support, Mr. Wells asked Attorney Bartlett to provide him with a copy of his client file. Mr. Wells made his first request for his file in January 2004. After Attorney Bartlett discovered that she had misplaced the file and was unable to locate it, Attorney Bartlett avoided explaining these circumstances until March 2004, despite interim follow up requests from Mr. Wells and successor counsel. This conduct violated M. Bar R. 3.6(a)(a lawyer must employ reasonable care and skill; apply best judgment; be punctual in professional commitments; keep the client informed) and 3.6(e)(2)(iv) (as requested by a client, a lawyer shall promptly deliver the property in the lawyer’s possession that the client is entitled to receive).

    The Panel concludes that the appropriate disposition of this case is a public reprimand to Attorney Vanessa A. Bartlett and the Panel does hereby impose same, effective this date.

    For the Grievance Commission

    Stephen G. Morrell, Esq., Chair
    Charles W. Smith, Esq.
    Harriet R. Tobin

    Board of Overseers of the Bar v. Alice E. Knapp, Esq.

    Download Decision (PDF)

    Docket No.: GCF 06-248; GCF 06-358

    Issued by: Grievance Commission

    Date: November 10, 2008

    Respondent: Alice E. Knapp, Esq.

    Bar Number: 007017

    Order: Reprimand

    Disposition/Conduct: Conflict of Interest: Simultaneous Representation; Threatening Prosecution


    Report of Findings M. Bar R. 7.1(e)(2)(E) and M. Bar R. 7.1(e)(4)


    On November 10, 2008, with due notice, Panel C of the Grievance Commission conducted a public, stipulated disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Alice E. Knapp, Esq. The disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on September 19, 2008.

    At the hearing, the Board was represented by Assistant Bar Counsel, Aria Eee and the Respondent appeared pro se. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction order for the Grievance Commission Panel's review and consideration. The complainant, John Hurley, was provided with a copy of this Report (in its proposal form) and appeared / did not appear for the hearing on November 10, 2008.

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

    Findings

    Respondent Alice E. Knapp (Knapp) of Richmond, County of Sagadahoc, State of Maine, has been at all times relevant here to 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 Knapp was admitted to the Maine bar in 1989 and she is in private practice.

    On June 20, 2006 Bar Counsel docketed a sua sponte (GCF# 06-248) complaint against Attorney Knapp resulting from a previously issued District Court family matter decision forwarded to Bar Counsel. That decision considered Attorney Knapp's Motion to Remove Opposing Counsel For Conflict of Interest ('Motion") and ordered opposing counsel to remove himself from the pending divorce case at issue. Nine months after Attorney Knapp filed her Motion and subsequent to the District Court's decision on the Motion, opposing counsel's then client, John Hurley, Jr., filed a related complaint against Attorney Knapp. Mr. Hurley's October 18, 2006 complaint (GCF# 06-358) and Bar Counsel's sua sponte complaint both concerned Attorney Knapp's initial involvement in the Hurley divorce. That involvement included a period in which Attorney Knapp improperly represented both parties.

    By way of background, Attorney Knapp explained in her initial response to the Board that the joint representation had been made at the request of one of the parties and was agreed to by both of the Hurleys. Apparently, the couple had expressed their wish to save money on legal expenses and at that time, they believed that they were generally in agreement on the terms of their divorce. Attorney Knapp had her initial reservations about the propriety of such a joint representation. Those reservations led her to consult with a colleague prior to forwarding a proposed joint representation agreement to the parties. Based on the colleague's advice, Attorney Knapp did send such an engagement letter to advise the parties of their need to retain separate counsel should they at any time find they were no longer in agreement regarding the terms of their divorce. Attorney Knapp asserted that until she was notified otherwise by Bar Counsel's letter, she had been unaware that the Bar Rules prohibit counsel from jointly representing divorcing parties. Attorney Knapp now knows such joint representation is prohibited by M. Bar R. 3.4(c)(1) even when the representation is intended for the limited purpose of drafting a settlement agreement. Prior to the sua sponte docketing, Attorney Knapp did not understand that the parties to a divorce are considered to be involved in litigation, no matter how the status of the proceeding is characterized. According to Attorney Knapp, after she drafted a settlement agreement on behalf of the parties, Mr. Hurley advised her that he had decided to engage his cousin, opposing counsel, to represent him in the divorce. According to Attorney Knapp, Mr. Hurley stated that he had no objection to Knapp's continuing representation of Ms. Hurley.

    Attorney Knapp also explained that in an attempt to level the playing field and to avoid an unnecessary disruption of the pending divorce proceeding, she implored opposing counsel to withdraw from representing his cousin in the divorce. Attorney Knapp did so by letter and she likewise offered to withdraw from representing Ms. Hurley based upon opposing counsel's assertion that Mr. Hurley would no longer agree to waive her conflict. Attorney Knapp's letter advised opposing counsel of Ms. Hurley's strenuous objection to his continuing representation of Mr. Hurley unless both parties were prepared to waive their respective counsel's conflicts. That letter cited and excerpted the Bar Rules and Advisory Opinion #2 of the Professional Ethics Commission of the Board of Overseers of the Bar. The letter also threatened to file a complaint with the Board of Overseers if opposing counsel declined to either withdraw from Mr. Hurley's representation or alternatively, to instruct his client to sign the once promised waiver of conflict. When opposing counsel declined both options, Attorney Knapp withdrew from the case and filed a motion to disqualify to protect Ms. Hurley's interests while she helped transition her client to new counsel.

    Following the Grievance Commission's authorization for a disciplinary hearing, Attorney Knapp acknowledged that she engaged in misconduct, having violated her duties under the Code when she undertook the representation of both Hurleys for their contested divorce pursuant to a "Joint Spousal Representation Engagement Letter" That "cost saving" effort resulted in a violation of M. Bar R. 3.4(c)(1). Additionally, while Attorney Knapp believes that the language of M. Bar Rule 3.6(c), prohibiting lawyers from threatening or suggesting that disciplinary charges will be brought "solely to obtain an advantage in a civil matter," bears clarification, she accepts the determination that her letter to opposing counsel was improper under that Rule. The combined violations ultimately resulted in a finding that Attorney Knapp likewise violated M. Bar R. 3.1(a) (conduct unworthy of an attorney).

    Conclusion and Sanction

    The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Under normal circumstances, Attorney Knapp's above-outlined and agreed upon misconduct would have to some extent delayed Ms. Hurley's case while she obtained new counsel. It may also have caused Ms. Hurley to incur additional, duplicative legal expenses. However, we acknowledge Attorney Knapp's argument that the delay in moving the divorce forward may have arisen as a result of opposing counsel's refusal to withdraw as Mr. Hurley's counsel.

    Attorney Knapp has accepted responsibility for her violations of the Code. At the hearing, she expressed her remorse regarding those violations. Attorney Knapp has no history of prior discipline and she reiterates her desire to ensure that other colleagues learn from her mistakes.

    Maine Bar Rule 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Knapp agrees that she did in fact violate the Code of Professional Responsibility, a public reprimand serves those purposes.

    By their signatures below, the parties hereby waive their right to a contested hearing and the formalities therein, pursuant to M. Bar R. 7.1(e)(2)(C),(E). Attorney Knapp further waives the right to file a Petition for Review under Maine Bar Rule 7.2(a).

    Therefore, the Panel accepts and approves the Stipulated Report of Findings and concludes that for her violation of the above-referenced Bar Rules, the appropriate disposition of this case is a public reprimand to Alice E. Knapp, Esq. as provided by M. Bar R. 7.1(e)(3)(C) which is now issued and is now imposed upon her effective this date.


    For the Grievance Commission


    David Abramson, Esq., Chair
    Martha Gaythwaite, Esq.
    Christine Holden, Ph.D.

    Board of Overseers of the Bar v. Thomas F. Adams, Esq.

    Download Decision (PDF)

    Docket No.: BAR-04-5

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: March 15, 2005

    Respondent: Thomas F. Adams, Esq.

    Bar Number: 003986

    Order: Suspension

    Disposition/Conduct: Disclosure of Interest; Conflict of Interest; Successive Representation; Confidentiality of Information


    Decision and Order


    This matter was heard by the Court on January 19, 2005, on an information filed by the Board of Overseers of the Bar against Thomas F. Adams, Esq. alleging professional misconduct both during and following his representation of Christopher V. and Mariah Lancaster and their business, Presque Isle Glass, Inc., a sub-chapter S corporation. The Board was represented by Assistant Bar Counsel Geoffrey S. Welsh and the defendant was represented by Kevin M. Cuddy, Esq. Board Exhibits 1-12, 14-15, 17, 19-20, and 22-30 and Defendant Exhibits 1, 2 and 15 were admitted without objection.

    At the hearing, the Court heard testimony from Mr. Adams, Mr. Lancaster, Mr. Lancaster's former father-in-law, James F. Pritchard, and Galen Rockwell, a Certified Public Accountant practicing in Caribou. Based on its review of the exhibits admitted and the testimony of the above witnesses and after review of the post-trial briefs submitted by counsel, the Court finds the following facts and draws the following conclusions:

    I. Findings

    Thomas Adams, Esq. has a bachelor's degree in accounting and a master's degree (LLM) in taxation. He is a member of the Maine Bar. Since approximately 1995, one of his clients has been James F. Pritchard of Chapman, Maine, for whom Adams has been preparing tax returns and doing real estate closings. In 1999 Pritchard suggested that his son-in-law, Christopher V. Lancaster, also seek Adams advice. Thereafter Adams began advising Christopher V. and Mariah P. Lancaster in connection with first acquiring from Portland Glass, where Christopher had been working, their Presque Isle facility. When that did not happen, Adams helped them establish their own business, Presque Isle Glass. Adams reviewed Christopher's employment contract with Portland Glass and formed Presque Isle Glass, Inc. (a sub-chapter S corporation owned by the Lancasters). After Christopher negotiated a loan commitment of $25,000 from First Citizens Bank secured by personal guarantees from the Lancasters and Mariah's parents, the Pritchards, a second mortgage on the Lancasters' home and a mortgage on rental property owned by the Pritchards, Adams drafted the loan documents and the guarantee documents, and closed the loan. Adams assumed without discussing or memorializing that his clients’ consented to any conflicts he might have in connection with this loan transaction. Later Adams represented Presque Isle Glass in a trademark infringement claim by Portland Glass. As a result of that claim, Presque Isle Glass ceased doing business on August 16, 2000 after forty-two days of operation.

    In early 2001 Lancaster asked Adams to prepare both the corporation's and his and Mariah's 2000 personal income tax returns and to put them through bankruptcy. Presque Isle Glass, Inc. had a 2000 operating loss of $28,198 which, Adams advised, could be flowed through to the Lancasters' personal return, resulting in a $7000 tax refund. Among other debts, the Lancasters intended to reaffirm the First Citizens Bank debt because Mariah's parents had guaranteed it. The plan that Adams had devised was to use the tax refund to restructure the $25,000 First Citizens Bank loan.

    Before filing the bankruptcy petition, Mariah privately confided to Adams of her marital unhappiness generally and also her specific unhappiness with the prospective bankruptcy filing. Adams counseled Mariah not to divorce Christopher.

    Adams thereafter prepared and submitted a Chapter 7 Bankruptcy Petition on behalf of both the Lancasters and Presque Isle Glass, Inc. A Chapter 7 Bankruptcy is:

    a liquidation proceeding available to consumers and businesses. Those assets of a debtor that are not exempt from creditors are collected and liquidated (reduced to money), and the proceeds are distributed to creditors. A consumer debtor receives a complete discharge from debt under Chapter 7, except for certain debts that are prohibited from discharge by the Bankruptcy Code.

    U.S. Trustee Program/Department of Justice website.

    The Chapter 7 Petition, which Adams prepared and the Lancasters signed, indicated that the Lancasters intended, after filing, to reaffirm their debt to Adams ($4700) and their guarantee of the First Citizens Bank loan ($25,000). Lancaster independently negotiated with the Bank hoping to restructure the loan i.e., stretch out the payments, in exchange for the anticipated $7000 tax refund.

    In a letter to Bar Counsel, Adams explained his position on Lancaster reaffirming the debt that his other client, Pritchard, had guaranteed.

    When Lancaster first filed chapter 7 Bankruptcy through my office, it was Mr. Lancaster's instruction to reaffirm the debt to Citizen's bank and to his father-in-law, Pritchard. Lancaster was not then divorced and it was clearly in his best interest to reaffirm the debt. There was no pressure on him by my office to reaffirm. Obviously, I could not have represented Lancaster as bankruptcy counsel in the event he chose not to reaffirm the debt to Pritchard.

    Almost immediately the Trustee demanded that the Lancasters turn over to him for the benefit of the unsecured creditors the $7000 refund when received. On April 20, 2001 Adams wrote Lancaster:

    I think we have to withdraw your bankruptcy - It is imperative to refinance the $25,000 Loan over a Longer term.

    Snowmachines should be sold.

    Refile after the [refund] is with Citizens and the note is refinanced over Long Term. Must allow min of 90 days after refinancing. Blow away all credit cards.

    The following day, the Lancasters sought a second opinion and "decided to switch to" Alan Harding for future counsel. The Lancasters immediately advised Adams of their decision and Adams, plainly miffed, promptly wrote the Pritchards as follows:

    Dear Jim and Martha,

    The attached is self explanatory, without further comment. It is given to you simply for the purpose of being alerted to the possible need to obtain legal counsel for yourselves in the Lancaster/Presque Isle Glass bankruptcy. I realize that Mariah is "protecting" your interests, but not to be unkind, I don't think she is fully aware of what is going on. Things seem to have come unglued when I suggested selling the snowmachines.

    Attorneys are used to such client re-actions and it is certainly Lancaster's prerogative to seek other counsel. Harding will be free of the interrelationship constraints, and possibly can do something for Lancaster that I could not. I don't mind him seeking a second opinion but it would have been nice to be paid for the first one, or at least discuss the problems. I simply will not represent him again on any issue. He has blown away the best friend he ever had.

    Unfortunately, having represented Lancaster, I know too much, all now sealed in concrete. The ethics of our profession further prevent me from representing your interest against him, specifically in recovery of your $25,000 loan guaranty. I highly recommend that you consult with Hal Stewart Jr, who takes ethics and equity as seriously as I do.

    The only interest I have in the bankruptcy outcome is to seek some recovery on my own legal fees for the past year. In pursuing those interests, I am entitled to be heard in a Chapter 7 creditors meeting or to file objections to any chapter 13 workout proposal. To that extent, we both have our own axes to grind, separately, as injured creditors.

    Mariah's interests are her own and yours. I can no longer give her grandfatherly advice and with hindsight, probably never should have.

    Regards, Thomas F. Adams

    In due course successor counsel converted the pending Chapter 7 Bankruptcy into a Chapter 13 Bankruptcy which is:

    often called wage-earner bankruptcy, is used primarily by individual consumers to reorganize their financial affairs under a repayment plan that must be completed within three or five years. To be eligible for Chapter 13 relief, a consumer must have a regular income and may not have more than a certain amount of debt, as set forth in the Bankruptcy Code.

    U.S. Trustee Program/Department of Justice website.

    The following week, Mariah and Christopher separated and soon thereafter Mariah filed for divorce. In November 2001 the Bankruptcy Judge ordered that the Chapter 13 be converted into two separate Chapter 7 cases. New counsel recommended that the two cases be dismissed because the tax refund had been spent (apparently to reduce the First Citizens Bank debt). The Chapter 7 cases were dismissed in January 2002, and the divorce became final in June 2002. In the divorce, Christopher was ordered to pay to Mariah as alimony forty-one monthly payments of $541 per month. He could make these payments directly to First Citizens Bank if he chose.

    After the divorce and before the next bankruptcy filing, Adams sued Christopher for the $4700 in counsel fees that remained unpaid.

    On September 9, 2002, Attorney Bernard O'Mara filed a Chapter 7 Bankruptcy Petition for Christopher alone. In the petition Christopher listed, among others, his debts to Adams for $4700 and to First Citizens Bank for $18,500 and did not indicate that he intended to reaffirm either. Adams received a notice for a meeting of creditors scheduled for 9:00 A.M. on October 28, 2002, and attended.

    Adams testified that he attended the October 28, 2002 creditors meeting only in his own behalf, i.e., the $4700 debt for his fees. The Court does not accept his testimony on this point. First, Adams signed the "341 Hearing Signature Sheet" as counsel for James Pritchard. Second, in a January 13, 2003, letter to the Board, Adams admitted attending the meeting in two capacities:

    Nor does my appearance before the bankruptcy trustee on behalf of myself and Mr. Pritchard present a conflict of interests. This appearance constituted nothing more than inquiry and disclosure of fact, which is the very purpose of a creditor hearing. No attempt at collection for myself or Pritchard was even suggested, let alone threatened.

    And later in the same letter, he wrote:

    I appeared on 10/28/02 before Trustee Richard Cleary at a creditors hearing, both as a personal creditor with unpaid fees of approximately $4350, and also for James Pritchard, who had guaranteed a Citizens bank loan for Lancaster in the amount of 25,000. Pritchard ha[d] not received notice of the hearing, so I presumed that he was not listed as a creditor.

    My appearance before the trustee was simply to inquire if Lancaster's debt to Pritchard would be reaffirmed.

    Again, in his letter of January 13, 2003 Adams wrote:

    "Representation" of Pritchard and myself at Lancaster's most recent bankruptcy creditors hearing revealed neither secrets nor confidences.

    Then in a letter dated March 24, 2003 Adams further explained that his:

    "Representation" of Pritchard and myself at the creditors hearing consisted simply of communicating to Lancaster in the presence of his counsel, the very severe consequences of not reaffirming his debt to Citizens Bank, i.e. the creation of a federal tax liability that could not be forgiven in bankruptcy.

    From notes produced from his file that he prepared prior to the creditors' meeting, Adams was aware that pursuant to the divorce decree Christopher had been ordered to make monthly alimony payments to Mariah exactly equal to the debt that Mariah was paying to First Citizens Bank, and that alimony was not dischargeable in bankruptcy.

    Even though Mariah continued to be liable for and was paying off the loan to First Citizens, Adams appeared at the creditors' meeting and advised Christopher, his lawyer, 0’Mara, and the Trustee that if Christopher did not reaffirm the debt to First Citizens Bank, he would advise the IRS of this fact and the IRS would disallow much of the 2000 tax refund.

    My only purpose was to make them both aware that failure to reaffirm that debt created what I believe to be a significant tax liability for Lancaster that would not be dischargeable in bankruptcy. I advised them of the rational for the tax liability was founded on the effective cancellation of an at risk basis which is required to claim the tax loss previously reported. I further advised the Trustee that if the debt to Pritchard was not reaffirmed, it was my duty as a matter of law to report the fact to the Internal Revenue Service. There was no reaction or response from Lancaster's counsel, Lancaster or the Trustee. I interpreted the silence to confirm my assumption that Lancaster's petition did not reaffirm the debt. I notified the Internal Revenue Service of the error the following day.

    Indeed, two days after the creditors' meeting Adams wrote the following letter to the Internal Revenue Service in which the lawyer described one of his former clients as "innocent" and the other as "solely responsible," referenced "allegations of fraud" and "mischievous economic conduct" and all but suggested that the Service should consider imposing fraud penalties against Christopher. 1

    The Board argues that Adams:

    1. should not have counseled one client not to divorce another client, and/or, after doing so, should have immediately withdrawn;

    2. incorrectly analyzed the tax refund issue;

    3. incorrectly analyzed the right of the Lancasters to retain vis-a-vis the Trustee in Bankruptcy their tax refund;

    4. failed to discuss with his clients that he had indicated in their petition that they would be reaffirming their $4700 debt to him;

    5. inappropriately appeared at Christopher's Creditors' Meeting on October 28, 2002 representing Christopher's former father-in-law (Pritchard); and

    6. inappropriately wrote to the IRS on October 30, 2002 repeating allegations of fraudulent conduct by Christopher and characterizing Mariah as an "innocent spouse."

    II. CONCLUSIONS

    The Court is satisfied that Adams incorrectly analyzed the Lancasters' legal right to flow through to their 2000 personal tax return the $28,000 loss experienced by Presque Isle Glass, Inc.; and that he incorrectly analyzed the Lancasters' right vis-a-vis the Trustee in Bankruptcy to retain any income tax refund to be received while in a Chapter 7 Bankruptcy. Whether these judgments amount to a violation of Me. Bar Rule 3.6(a) ("A lawyer must employ reasonable care and skill ... in the performance of professional services.") is a much closer question, a question I do not resolve.

    The Court is also satisfied that Adams drafted the Lancasters' 2001 Bankruptcy Petition to indicate they intended to reaffirm their debt to him without first discussing that decision with them in violation of Me. Bar Rule 3.4(a)(1) ("Before commencing any professional representation, a lawyer shall disclose to the prospective client any ... interest of the lawyer ... that might reasonably give rise to a conflict of interest .... ").

    Further, Adams violated Me. Bar Rule 3.4(b)(1) ("A lawyer shall not commence or continue representation of a client if the representation would involve a conflict of interest .... ") by counseling one client not to divorce another client and violated both Me. Bar Rule 3.4(b)(1) and 3.4.(d)(1)(i) ("[A] lawyer shall not commence representation adverse to a former client . . . if such new representation is substantially related to the subject matter of the former representation or may involve the use of confidential information obtained through such former representation.") in undertaking to represent James F. Pritchard at Christopher Lancasters' Creditors' Meeting in 2002. That representation was, in fact, related to the subject matter of the former representation and did, in fact, result in the use of confidential information obtained through his prior representation of the Lancasters (i.e., the, at least, "aggressive" deduction taken in the Lancasters' 2000 tax return).

    Finally, Adams' letter to the IRS on October 30,2002 was a violation of Me. Bar Rule 3.6(h) ("Except as permitted by these rules or as required by law or by order of court, a lawyer shall not ... knowingly reveal a confidence or secret of the client; use such a confidence or secret to the disadvantage of the client; or use such confidence or secret to the advantage of the lawyer or a third person."). Believing that Christopher was being relieved of a debt to the detriment of his client, Pritchard, and former client, Mariah, Adams used "a confidence or secret," i.e., the fact that Christopher and Mariah had previously claimed a personal deduction for a Subchapter S corporate loss, to "the disadvantage of' Christopher and to the advantage of Adams, Pritchard, and perhaps Mariah. As Adams wrote to the Board on January 13: "My disclosure of fact will indeed cost Lancaster substantial additional taxes, negating [a] refund to which he was not entitled."

    For many reasons the disclosure was not authorized by Me. Bar Rule 3.6(b) ("A lawyer who receives information clearly establishing that a client has during the representation perpetrated a fraud upon any person or tribunal shall ... reveal the fraud to the affected person or tribunal .... "). First, the section relates to information acquired during representation, not thereafter. Second, the information must reveal that the client has committed a fraud "during the representation" and here the conduct Adams was complaining about had just occurred.2 Third, with Mariah continuing to be liable, and Christopher through his alimony obligation indirectly liable, fraud certainly had not been "clearly established." Fourth, it is doubtful that the IRS is either a "person or tribunal" within the meaning of this rule. Fifth, although he uses the word "fraud" twice, and the phrase "mischievous conduct" and "innocent spouse" once each, Adams does not claim that he was reporting a fraud.

    Adams argues that in 2002 he had a legal obligation under the Internal Revenue Code or Regulations to disclose his understanding of the tax consequence of Christopher's bankruptcy filing on the continuing viability of a tax refund Christopher had claimed for the tax year 2000 in a return prepared by Adams in 2001. He could point to no authority in the IRS Code or Regulations to support his view and his expert witness at the hearing could not either.

    To be specific, none of the authority cited by Adams or his counsel support the notion that a tax preparer has a continuing obligation to the IRS to report conduct of a former client that might call into question the efficacy of a tax return prepared when the former client was the client. This is especially the case when, in Adams' view, the return was correct when prepared and remained correct as long as he was counsel.

    III. Sanction

    Because Thomas Adams has violated several Bar Rules, the Court believes that discipline is in order. Because he has an unblemished professional record, the Court HEREBY ORDERS that Thomas F. Adams be and hereby is suspended from the practice of law in Maine for a period of six (6) months commencing July 1, 2005, with that suspension itself being suspended for six (6)months on the condition that Thomas F. Adams attends, before December 31, 2005, twelve (12) hours of continuing legal education approved by Bar Counsel on the subject of professional ethics.


    For the Court

    Hon. Howard H. Dana, Jr., Associate Justice - Maine Supreme Judicial Court


    Footnotes

    1Adams’ letter to the IRS is set out in full below:

    October 30, 2002

    Internal Revenue Service 36 North Street Presque Isle, Maine 04769

    Re: Christopher and Mariah Lancaster, Form 1040, Understated Income Year 2000

    Gentlemen,

    This office prepared a tax return for Christopher and Mariah Lancaster, which is enclosed (page 1 only).

    I was dismissed as legal counsel immediately following the filing of the year 2000 Form 1040, and cannot therefore prepare the necessary 1040X for this client. It has come to my attention that losses claimed on schedule E, for which the client was at risk at the time of the return was prepared, no longer qualify as an offset to the parties income. At the time of return preparation, taxpayer was at risk for the full amount of loss claimed, and in his simultaneous Bankruptcy (Chap 7) petition reaffirmed the debt which formed the basis for his at-risk qualification.

    The original Chapter 7 filing was changed to a chapter 13 by other counsel, and that filing was dismissed, all without timely notice to me. Taxpayer has again filed a Chapter 7 petition and does not now reaffirm the debt that formed the necessary basis for claiming the sub chapter S loss originally reported. To my knowledge Mr. Lancaster never made any payments toward reduction of that debt.

    It is my opinion, that Mariah Lancaster qualifies as an innocent spouse in this matter; that it is Christopher Lancaster who was solely responsible for the loss of the Sub S corporation. Allegations of fraud by Mr. Lancaster through his S Corporation, were made in litigation involving Mr. Lancaster, and also a subsequent divorce judgment rendered for Mariah Lancaster, required restitution to Mrs. Lancaster, based upon that mischievous economic conduct.

    Under 11 USC 523 (a), the current bankruptcy filing does not, of course, result in a discharge of the tax liability that will arise under any voluntary amended return or assessment made by the Service. I offer no opinion as to whether Title 11 section 523(s)1(c), or Title 26 Section 6662 regarding Accuracy Related and Fraud Penalties apply.

    Sincerely, Thomas F. Adams

    cc: Bernie O'Mara, Attorney at Law

    2Adams argues that the fraud may have occurred during his representations of the Lancasters if they (or perhaps one of them) never intended to pay the debt to First Citizens Bank. Thus, he argues, his license to practice before the IRS was at risk and he had the right to protect his license. The court is unpersuaded that this was Adams' motivation for reporting Christopher to the IRS. Consistent with Adams' plan, the Lancasters used their tax refund to reduce the debt to the Bank and, notwithstanding Christopher's pending bankruptcy, Mariah remained liable to the Bank and was making payments. Further, the divorce court had fashioned an approach that required Christopher to mitigate any loss by Mariah. All this was known by Adams when he wrote the IRS.

    Board of Overseers of the Bar v. Ralph W. Brown, Esq.

    Download Decision (PDF0

    Docket No.: BAR-01-06

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: October 25, 2002

    Respondent: Ralph W. Brown, Esq.

    Bar Number: 002704

    Order: Suspension

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Excessive Fees; Standards of Care and Judgment


    Order


    Counts I and II of this matter are before the Court on an information by the Board of Overseers of the Bar, pursuant to Maine Bar Rules 7.2(b) (1), (2) and the Court's Order of December 4, 2001, which authorized the Board to file an information without the necessity of any further review or hearing by the Grievance Commission under Maine Bar Rules 7.1(d),(e). The Court's Order of December 4th resulted from a Stipulated Waiver of Grievance Commission Review and Hearing signed by the parties. Additionally, the parties have agreed and stipulated that the Court also is disposing of three other grievance complaints as Counts III, IV and V (GCF # 02-92 / Andrew Germaine, GCF #02-140 / Vincent Son and GCF #02-182 / Juli Hughes), without the necessity of any Grievance Commission review and hearing under M. Bar R. 7.1 (d),(e).

    I.

    STIPULATIONS

    The parties have stipulated to the following material facts:

    COUNT I

    Sua Sponte I GCF#99-66

    1. On or about May 21, 1999 in a Per Curiam decision, the Maine Law Court decided Worrey v. Fournier, et al., 1999 Me. 78, 729 A.2d 907 (Me. 1999).

    2. Brown was the attorney for the Plaintiff-Appellant, Wayne B. Worrey, and the case was a collection matter brought by Worrey against Fournier for electrical work performed.

    3. In Worrey, the Law Court:

    1. Affirmed an order entered in the Cumberland County Superior Court dismissing Worrey's case against Fournier for want of prosecution pursuant to M. R. Civ. P. 41(B)(1);
    2. Held that a trustee's disclosure under oath pursuant to M. R. Civ. P. 4 (B)(e) was insufficient to prevent dismissal of an action pursuant to M. R. Civ. P. 41(B)(I);
    3. Ruled that Worrey’s appeal was a frivolous, egregious abuse of the appellate process, that it had been instituted primarily for the purpose of delay and was taken with no reasonable likelihood of success; and
    4. Awarded treble costs to Fournier plus $200.00 towards his counsel fees.

    1. In representing Worrey, Brown:

    1. Neglected Worrey's case against Fournier by allowing it to be dismissed by the Superior Court for want of prosecution pursuant to M. R. Civ. P. 41(B)(1); and
    2. Did not adequately and sufficiently communicate with Worrey about his case including failing to inform him of the Superior Court's prospective and ultimate dismissal of his case and of Brown's later frivolous appeal of that dismissal.

    1. Brown's neglect of Worrey's case, his later frivolous appeal of the Superior Court's dismissal of the matter, and his failure to timely communicate with Worrey about case developments violated M. Bar R. 3.1(a); 3.2{f)(4J; 3.3(a}; 3.6(a)(2),(3).

    COUNT II Chief U.S. Bankruptcy Judge Goodman - Standing Chapter 13 Trustee Fessenden I GCF #00-46

    1. On or about 1989 Bernard Carson (Bernard) and his wife Nancy Carson (Nancy) opened Carson's Family Restaurant (The Restaurant) in Scarborough, Maine.
    2. In the fall of 1995, the Carsons retained Brown to advise them about the operation of the Restaurant, which then was experiencing financial problems.
    3. On or about November 16, 1995 Brown filed a Chapter 13 Bankruptcy Petition for Nancy and Bernard, the Standing Chapter 13 Assistant U.S. Trustee being Peter C. Fessenden, Esq. (Fessenden).
    4. On or about September 29, 1998 the Bankruptcy Court ordered that the Carsons' Chapter 13 proceeding be converted to a Chapter 7 case effective September 11th.
    5. On or about January 15, 1999 Fessenden filed an adversarial proceeding to deny the Carsons a discharge from their debts.
    6. During the course of Brown's representation of Bernard and Nancy in the Chapter 13, 7 and Adversarial matters he violated M. Bar R. 3.1(a}; 3.2(1)(4); 3.3(a); 3.4(1)(1), (2)(i)(A),(B) & (C); 3.5(b)(2)(ii)-(iii); 3.6(a)(I),(2) & (3); and 3.6(1) by engaging in multiple misconduct including but not limited to the following:
    1. Brown failed to monitor the Carsons' accumulation of post petition debt, including unpaid sales taxes, and he was unaware in the late summer, early fall of 1998 that the Carsons had accrued approximately $100,000.00 in post petition trade debt and post petition sales tax liability of $20,000.00 to $30,000.00.
    2. Brown never advised the Carsons that as debtors in possession, they had fiduciary responsibilities to both their pre-petition and secured creditors.
    3. Brown failed to monitor the Carsons on their obligation to submit regular, periodic reports to Fessenden, a failure caused by Brown's sloppy office procedures.
    4. Brown drafted and prepared a will for Bernard, presided over its execution, and then later billed Bernard $364.00 for those legal services without ever disclosing any of these matters to Fessenden or to the Bankruptcy Court as he should have done under Federal Rule of Bankruptcy Procedure 2016 and Maine Bankruptcy Rule 2016-1.
    5. At the same time Brown drafted Bernard's will, he also drafted a promissory note in the amount of $50,000.00 payable to Brown, which Bernard also signed, Brown again never disclosing any of this to the Bankruptcy Court or to Fessenden as he was required to do under Federal Rule of Bankruptcy Procedure 2016 arid Maine Bankruptcy Rule 2016-1.
    6. Several times during his handling of the Carsons' Bankruptcy cases, he had communications with a creditor of the Carsons, which were not known by or consented to by the attorney representing that creditor.
    7. Although Fessenden later orally withdrew motions that he made in the adversarial proceeding for a Default and Default Judgment pursuant to Federal Rule of Bankruptcy Procedure 7055, Brown never timely answered or otherwise responded to the motions.
    8. On May 13, June 17, 1999 and on two other occasions the Bankruptcy Court held pretrial conferences in the adversarial proceeding, but Brown did not attend or participate in them despite being timely informed of the conferences in advance. Additionally, neither Bernard nor Nancy appeared for the conferences because Brown never notified the Carsons of them.
    9. Brown did not file any stipulations or premarked exhibits pursuant to the Bankruptcy Court's scheduling order, and he also failed to file any objections to Fessenden's stipulations and exhibits.
    10. Neither Brown nor the Carsons ever appeared for trial, which was set for September 16, 1999, Brown having failed ever to advise the Carsons of that trial crate or the earlier scheduled one, August 25th.
    1. On or about September 24, 1999 the Bankruptcy Court entered an order denying the Carsons a discharge, that discharge later being set aside upon motion by the Carsons' successor counsel, Richard P. Olson, Esq.

    COUNT III

    Andrew Germaine I GCF#02-92

    1. In the year 2000 Beatrice E. Robenson (Robenson) was diagnosed with cancer, and her nephew, Andrew Germaine (Germaine) assisted her in putting her personal affairs in order.
    2. Robenson also hired Brown to revise her will and draft other related documents for her eventual signature. Because of her illness, Brown's work for Robenson was time sensitive.
    3. Because of Brown's neglect of Robenson's matters and his multiple failures to timely communicate with her and Germaine about them, Robenson did not execute her new will and related documents until on or about February 9, 2001.
    4. The will Brown drafted for Robenson and had her sign bequeathed a significant amount of her property directly to her sister, Rita A. Litton (Litton), who then resided in a nursing home.
    5. The federal and state governments' Medicaid Program (Medicaid) paid for either all or a substantial amount of Litton's nursing home care.
    6. On or about May 29, 2001 Robenson died.
    7. The amount of property Litton directly received through Robenson's will caused or will cause her to exceed, at least temporarily, Medicaid's eligibility criteria for income or assets. This effect, unanticipated or provided for by Brown, resulted or will result in Litton's having to "spend down" the property Robenson left to her so that she again could qualify for Medicaid assistance.
    8. Alternatively, Brown could and should have drafted a "Supplemental Needs Trust" for Robenson, thereby avoiding the Medicaid spend down effect on Litton as long as Litton could not have compelled any trustee of such a trust to spend trust funds for her own support.
    9. Robenson's will named Germaine as the Personal Representative (PR), and shortly after her death, he retained Brown to assist him in his duties as Robenson's PR.
    10. In the middle of November, 2001 Germaine discharged Brown and hired other counsel because of Brown's chronic and continuing failures to communicate with him about Brown's work on Robenson's estate.
    11. By engaging in the above described misconduct during the course of his representation of Robenson and Germaine, Brown violated M. Bar R. 3.1(a); 3.2(f)(4); 3.3(a) & 3.6(a)(1),(2) & (3).

    COUNT IV

    Vincent Son I GCF#02-140

    1. In late 2000 or early 2001 Vincent Son (Son) entered into an agreement to buy some land in Old Orchard Beach, Maine, and paid the prospective seller a deposit in the amount of $15,000.00.
    2. The seller later either refused to timely close the real estate transaction, could not satisfactorily close it or failed to return Son's deposit of $15,000.00.
    3. On or about January 22, 2001 Brown began representing Son in the matter to try to recover his $15,000.00 deposit.
    4. Son paid Brown an initial retainer of $2,600.00.
    5. Brown neglected his legal work for Son, failed to complete it and he has not timely communicated with Son about it.
    6. Son still has not had his deposit returned to him or otherwise adequately resolved his legal problems over the failed real estate transaction.
    7. By engaging in the above described misconduct during his representation of Son, Brown violated M. Bar R. 3.1 (a); 3.2(1)(4); 3.3(a) & 3.6(a)(1),(2) & (3).

    COUNT V

    Juli Hughes I GCF#02-182

    1. On or about June 4, 2001 Juli Hughes (Hughes) retained Brown, and paid him $700.00 to file a Chapter 7 Bankruptcy Petition for her, which he did not file until November 14th (Chapter 7- Case No. 01-21800).
    2. On or about March 14, 2002 Brown filed an adversary proceeding against the U.S. Department of Education on behalf of Hughes, and that proceeding remains pending (Adversary Proceeding Case No. 02-2026).
    3. On April 3, 2002 Hughes received a discharge concerning her Chapter 7 Bankruptcy Petition.
    4. During the course of his representation of Hughes, Brown neglected his work for her, failed to timely complete it and he did not adequately communicate with her about it, including the adversary proceedings. He also did not appear with her at the Meeting of Creditors scheduled under Federal Rule of Bankruptcy 2003.
    5. By engaging in the above described misconduct during his representation of Hughes, violated M. Bar R. 3.1(a); 3.2(f)(4); 3.3{a) & 3.6(a)(1),(2) & (3).

    II.

    Sanctions

    Having found these violations of the Maine Bar Rules, and agreeing with the Board and the Defendant that they are serious, the Court must now consider an appropriate sanction. By the stipulations herein, Brown has admitted his ethical misconduct, and acknowledged its wrongfulness. The Court also notes Brown's prior disciplinary record: a previous suspended suspension in 1992 and two prior reprimands in 1989 and 1995. Therefore, keeping in mind that the main purpose of attorney discipline is not punishment, but protection of the public, the Court hereby ORDERS the following sanction in this matter as proposed by the parties:

    1. Attorney Ralph W. Brown is suspended from the practice of law in the State of Maine for a period of six (6) months effective the date of this order;
    2. The Court does not intend to suspend Brown for longer than six months or to impose on him full reinstatement provisions and procedures of M. Bar Rule 7.3(j). After his six month suspension, however, Brown may elect at any time to be placed on inactive status. Regardless of any change in his status as a Maine attorney, however, Brown shall not resume practicing law without further order of this court concerning appropriate conditions to be imposed on him and his practice, including restitution, if any, to the above referenced clients.
    3. Within 30 days of his suspension, Attorney Brown will comply with the notification and filing requirements of Maine Bar Rule 7.3(i).


    For the Court

    Hon. Robert W. Clifford, Associate Justice - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Charles R. Bean, Esq.

    Download Decision (PDF)

    Docket No.: GCF 05-405

    Issued by: Grievance Commission

    Date: November 16, 2006

    Respondent: Charles R. Bean, Esq.

    Bar Number: 002805

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Withdrawal from Employment; Conduct During Representation: Standards of Care and Judgment


    Report of Findings of Grievance Commission Panel B


    On November 16, 2006, pursuant to due notice, Panel B of the Grievance Commission conducted a hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Charles R. Bean. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar through Bar Counsel on August 29, 2006.

    At the proceeding, the Board was represented by Geoffrey S. Lewis, Esq., on behalf of Assistant Bar Counsel Aria eee, and Attorney Bean (Bean) was present and represented by Karen Kingsley, Esq. The complainant, Susan McDonald (McDonald) was present, pro se.

    Agreed Facts

    The parties stipulated to the following facts:

    On November 16, 2005 Susan McDonald filed a complaint regarding the conduct of her former attorney, Charles R. Bean. In her complaint Ms. McDonald alleged neglect and dishonesty by Attorney Bean during Bean’s 2003 representation of McDonald in a proposed probate action requested by Ms. McDonald. She alleged that Bean provided no accounting of his work and that he refused to return her full retainer. By the time she filed her November 2005 complaint, Ms. McDonald still did not have her final $500.00 refunded.

    In his answer to the complaint, Attorney Bean acknowledged his failure to pursue Ms. McDonald’s legal matter, yet he also partially blamed his client for what he characterized as ongoing changes to the proposed objectives. With that initial answer, Attorney Bean remitted Ms. McDonald’s $500.00.

    Upon further reflection, Attorney Bean realized that it was ultimately his responsibility to pursue Ms. McDonald’s probate matter and to clarify the scope of his representation, given his uncertainty about McDonald’s objectives. Specifically, Attorney Bean has acknowledged that his failure to pursue Ms. McDonald’s conservatorship action forced her to seek new counsel to pursue such action. Attorney Bean’s neglect occurred during a time which was stressful and frustrating for Ms. McDonald as her mother’s health was deteriorating and was complicated by a lack of movement on the probate action. Attorney Bean also agrees that he failed to communicate with Ms. McDonald about his inability to perform the requested services and about his failure to return her retainer. See Maine Bar Rule 3.6(a)(1)(2)(3). Finally, Attorney Bean acknowledges that he failed to ensure the proper and timely delivery of his client’s retainer, as is required by Maine Bar Rule 3.5(a)(2).

    Attorney Bean further agrees that he wholly failed to communicate with his client and though he did not intend to cause harm to her, he acknowledges that his failures caused distress to Ms. McDonald. As a result of these events, Attorney Bean has now apologized to Ms. McDonald. Attorney Bean assures the Grievance Commission that he has sought assistance from the MAP program to address his apparent avoidance behaviors so that he is able to properly respond, should a similar situation arise in his law practice.

    Findings

    Based upon the facts as stipulated by the parties, the Grievance Commission Panel finds that Attorney Bean violated provisions of the Maine Bar Rules. His failure to exercise due diligence delayed Ms. McDonald’s probate action and required her to hire successor counsel to pursue the action.

    Prior History

    Attorney Bean has the following prior disciplinary record history on file with the Board of Overseers of the Bar:

    1. GCF #05-405 Public Reprimand dated May 19, 2004.

    Sanction

    M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Bean agrees that he did in fact, violate the Code of Professional Responsibility, and given the assistance Attorney Bean has sought out from the MAP program, the Grievance Commission agrees that a reprimand is sufficient to ensure further compliance with the Maine Bar Rules.

    It is therefore ORDERED that Charles R. Bean, Esq. is hereby reprimanded for his violations of Maine Bar Rules 3.1(a); 3.5(a)(2),and 3.6(a)(1),(2),(3).


    For the Grievance Commission

    John H. Rich III, Esq., Chair
    John R. Bass II, Esq.
    Susannah White

    Board of Overseers of the Bar v. Charles R. Bean, Esq.

    Download Decision (PDF)

    Docket No.: GCF 03-233

    Issued by: Grievance Commission

    Date: May 19, 2004

    Respondent: Charles R. Bean, Esq.

    Bar Number: 002805

    Order: Reprimand

    Disposition/Conduct: Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct Prejudicial to the Administration of Justice


    Report of Findings of Panel C of the Grievance Commission


    On May 19, 2004, pursuant to due notice, Panel C of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), to determine whether there were grounds to issue a reprimand or if probable cause existed to file an information concerning alleged misconduct by the Respondent Charles R. Bean (Bean), as described in a Petition dated and filed by the Board of Overseers of the Bar (the Board) on March 8, 2004. Bar Counsel J. Scott Davis represented the Board, and Karen G. Kingsley, Esq., represented Bean. Both counsel and Mr. Bean were present at the hearing.

    Although this matter was initially brought to Bar Counsel’s attention by the court (Gunther, J.), the “factual complainants” were Attorneys Charles W. Hodsdon and Christopher D. Smith, neither of whom attended that hearing but both had been notified by Bar Counsel that the parties had stipulated to the following facts and proposed disposition of this matter by a reprimand, which the Panel now so finds and adopts as follows:

    1. The Bangor District Court (Gunther, J.) initially brought this complaint matter to the Board’s attention based upon Attorney Bean’s failure to follow through with an agreement to provide a very modest settlement amount – $250.00 – to Attorneys Hodsdon’s and Smith’s client, Concord Group Insurance Company.

    2. In the Bangor District Court matter of Concord Group Insurance Co. vs. Charles R. Bean, Esq., Concord was the insurer for Elise York and had paid $4,433.62 to her for damages caused to her motor vehicle in a motor vehicle accident caused by the negligence of Michael Totman on March 19, 1998.

    3. By its subrogation action, in January 1999 Concord Group obtained judgment in the amount of $4,433.62. In his capacity as counsel for Mr. Totman, by letter dated February 7, 2002 to Concord’s attorney, Charles Hodsdon, Attorney Bean requested a release from Attorney Hodsdon.

    4. After having a telephone conversation with Attorney Bean on February 8, 2002, Attorney Hodsdon received a letter from Attorney Bean indicating Mr. Totman was going to file bankruptcy, and enclosing a check in the amount of $250.00 as a proposed settlement offer with the explanation that his client wished to obtain his license and right to operate as soon as possible. However, that check was drawn on a personal account. As a result, on February 13, 2002, Attorney Bean spoke to Attorney Smith and indicated a $250.00 bank check or check from his trust account would replace that earlier personal check.

    5. On behalf of Attorney Hodsdon, Attorney Smith timely delivered that release to Attorney Bean by letter dated February 15, 2002 on the expressly stated condition and mutual agreement that the release would be held in escrow by Attorney Bean until he replaced that personal check with a bank check, money order or check from his office’s escrow account to Attorney Hodsdon or Attorney Smith in the amount of $250.00 to settle Concord’s outstanding judgment.

    6. Such a condition was critically important to Attorney Hodsdon and Attorney Smith, in light of the fact that they knew Totman was about to file for bankruptcy, which would cause his debt to Concord to be discharged.

    7. On June 28, 2002 Attorney Hodsdon received a copy of the Notice to Creditors regarding Mr. Totman’s bankruptcy, but Attorney Bean had still not tendered the proper $250.00 payment as promised.

    8. On July 1, 2002 Attorney Hodsdon spoke with Attorney Bean who assured him that the failure to send the check for $250.00 was an oversight that would be then corrected.

    9. On July 24, 2002, Attorney Hodsdon wrote to Attorney Bean regarding this matter, but Attorney Hodsdon received no response. On September 10, 2002, Attorney Hodsdon again wrote to Attorney Bean regarding the matter, but still received no response. On January 28, 2003, Attorney Hodsdon sent Attorney Bean an acknowledgment of service, but it was not returned to Attorney Hodsdon. On April 28, 2003, Attorney Hodsdon received an answer to the complaint he served on Attorney Bean. Thereafter, Attorney Hodsdon has received no further communication from Attorney Bean. On May 20, 2003, Attorney Hodsdon served Attorney Bean with a request for admissions. Attorney Bean did not respond. On June 25, 2003, Attorney Hodsdon filed a Motion for Summary Judgment to which Attorney Bean did not object.

    10. Concord’s Motion for Summary Judgment against Attorney Bean was granted by the court, but that judgment that was so entered has not been satisfied by Attorney Bean.

    11. Thus, Attorney Bean never followed through to pay that $250.00 settlement amount but was aware that the release had been improperly used to allow Mr. Totman to obtain his motor vehicle license back from Maine’s Secretary of State’s Office.

    12. By respective letters dated August 1 and September 19, 2003, Attorney Bean was notified and directed to respond to Bar Counsel concerning this complaint matter as filed by Judge Gunther. Attorney Bean’s response thereto was initially due to be received by Bar Counsel on or before August 22, 2003. Attorney Bean failed to so respond by that date, in violation of M. Bar R. 2(c). Bar Counsel’s subsequent certified letter of September l9, 2003 notifying him of that Rule 2(c) violation, was received by Attorney Bean.

    13. Attorney Bean still failed to timely respond to Bar Counsel, only doing so by his belated letter of October 15, 2003 (with enclosures), despite having been earlier informed that the Grievance Commission Panel’s preliminary review of this complaint matter was to occur forthwith on October 17, 2003.

    14. The underlying pleadings and resulting court action in this matter set forth misconduct by Attorney Bean involving at least misrepresentation in violation of M. Bar R. 3.2(f)(3) and conduct prejudicial to the administration of justice in violation of M. Bar R. 3.2(f)(4).

    15. Having obtained and benefited from one part of a negotiated settlement, i.e. the execution of Concord Group’s Release Document, Attorney Bean failed to comply with his obligation under that agreement and did not forward the required $250.00 payment to Attorney Smith. His conduct in that regard was again in violation of M. Bar R. 3.2(f)(3)(4).

    Conclusion and Sanction

    1. Attorney Bean now agrees and has admitted to this Panel that he engaged in professional misconduct by misrepresenting to counsel that upon receipt of that release he would remit that $250.00 bank check. His failure to do as agreed and promised was certainly conduct prejudicial to the administration of justice and conduct that involved misrepresentation and was unworthy of an attorney.
    2. Attorney Bean has no prior disciplinary record with the Board.
    3. Attorney Bean has now remitted that $250.00 and also provided restitution to Attorney Hodsdon for the costs associated with the litigation he had to initiate against Attorney Bean due to Attorney Bean’s failure to make that earlier agreed payment.
    4. Based upon his stated remorse and agreement that his grossly dilatory action in this matter did constitute serious misconduct in violation of the Code of Professional Responsibility, the Panel concludes that the appropriate disposition of this case is a public reprimand which is now hereby issued and imposed upon Attorney Charles R. Bean.


    For the Grievance Commission

    David S. Abramson, Esq. – Chair
    Valerie Stanfill, Esq.
    Christine Holden, Ph.D.

    Board of Overseers of the Bar v. Ronald L. Bishop, Esq.

    Download Decision (PDF)

    Docket No.: BAR-00-6

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: February 7, 2001

    Respondent: Ronald L. Bishop, Esq.

    Bar Number: 000886

    Order: Suspension

    Disposition/Conduct: Illegal Conduct; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct Prejudicial to the Administration of Justice

    Disciplinary Decision and Order


    This matter came before the Court on February 7, 2001 pursuant to an information filed by the Board of Overseers of the Bar. The Board was represented by Bar Counsel J. Scott Davis. The complainant, Bonnie Kerns, was present. Defendant Ronald L. Bishop, Esq. was present and appeared pro se.

    Findings

    The parties have stipulated and agreed to the following material facts:

    On or about April 12, 1997 Bonnie Kerns (Kerns) was involved in an automobile accident in Turner, Maine. As a result, a personal injury action was filed in the Androscoggin County Superior Court in the matter of Ernest Charity, Jean Charity & Bonnie Kerns v. Robert Chiasson, Docket CV-97-266. Kerns hired Bishop to handle that matter for her, and he was also counsel for Kerns' husband, Mark Kerns, and for her parents, Ernest and Jean Charity, in that same action.

    On October 26, 1998 that action was settled, with Chiasson agreeing to pay Kerns $30,000.00. From that amount, Bishop knew that Kerns had a medical payable balance totaling at least $9,266.34. He took an attorney fee of $5, 183.42, and the balance then received by Kerns from Bishop was the amount of $15,550.24.

    It was agreed and understood between Kerns and Bishop that he would make payments of Kerns’ entire outstanding medical bills. In fact, Bishop neglected those payments and failed to make timely payment of many of Kerns' medical bills.

    As a result, in June 1999 Central Maine Medical Center (CMMC) directly notified Kerns that she had an outstanding medical balance of $3,109.70. That nonpayment was a complete surprise to Kerns since from his earlier comments she had understood and believed that Bishop had already made all such payments from her settlement monies. Approximately six weeks later, on July 14, 1999, Bishop finally paid CMMC that outstanding balance of $3,109.70, and also then paid $508.00 to Otolaryngology Associates. More than a year after the settlement check had been received by Bishop, i.e., as of February 25, 2000, medical bills for Kerns totaling approximately $1,051.00 still remained outstanding and unpaid by Bishop. With respect to those amounts outstanding in February, 2000, Kerns made at least two telephone calls to Bishop, which he failed to return. As late as March 1, 2000, Kerns received an additional call from a collection agency concerning outstanding amounts.

    From the documents provided by Bishop in response to Bar Counsel's amended subpoena duces tecum, and as exemplified by Bishop's dilatory and grossly belated payment of Kerns' medical bills, he neglected his obligations to Kerns and also failed to properly segregate and account for clients' funds in his client escrow account. Bishop also failed to deliver to Kerns a balance of $3,317.64 (plus interest) owed her from the $30,000.00 settlement check.

    CONCLUSIONS

    The parties agree and the Court so finds that Bishop's conduct violated Maine Bar Rules M. Bar R. 3.2(f)(2)(3)(4); 3.6(a)(2)(3) and 3.6(e)(1)(2).

    SANCTIONS

    Having found these violations of the Maine Bar Rules, and agreeing with the Board and the Defendant that they are serious, the Court must now consider an appropriate sanction. In that regard, Bishop has admitted and acknowledged that he mishandled Kerns' case. Bishop was earlier reprimanded in 1999 for neglectful conduct concerning another client. That Grievance Commission Panel's Report stated that a sanction of suspension would be "appropriate if there were a recurrence of this kind of (neglectful) complaint" by Bishop. Therefore, keeping in mind that the main purpose of attorney discipline is not punishment, but protection of the public, the Court hereby ORDERS the following sanction in this matter as proposed by the parties:

    1. Ronald L. Bishop, Esq. is suspended from the practice of law in Maine for one-year, with all but 90 days of that suspension being suspended, to commence on June 1, 2001;

    2. By June 1, 2001, Bishop will have complied with the notification and filing requirements of Maine Bar Rule 7.3(i);

    3. On or before April 2, 2001, Bishop shall reimburse Kerns the remaining balance from her settlement check of $3,317.64, plus $525.80 interest, totaling $3,843.44;

    4. Starting upon Bishop's return to practice on September 3, 2001, his practice shall be mentored through May 31, 2002 in the following manner:

    1. There shall be a Court-approved plan for professional supervision of Bishop's law practice by an attorney mentor in order to avoid neglect of any client's affairs; and
    2. Commencing on or before September 3, 2001, a certified public accountant (CPA) shall supervise and review Bishop’s financial records on a monthly basis. Such review shall include the ledger cards, journals, and other documentation for Bishop’s law firm client trust account, including but not limited to the journals and the bank statements relating to that client trust account. In addition, such reviews shall also include the operating account and payroll account journals and related bank statements. That CPA shall issue a report to Bar Counsel within ten days from the date such records are posted each month confirming that any and all funds advanced by clients to Bishop’s law firm, whether for costs, fees, or distribution, are being properly maintained in the client trust account and that no commingling of funds from any accounts has occurred, and that all bills are paid; and

    1. On or before May 15, 2001 the parties shall provide the Court with the supervision plan required by paragraph 4(i) and verification that the agreed upon respective designated attorney and accountant mentors have been selected and will so serve.


    For the Court

    Hon. Donald G. Alexander, Associate Justice – Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Stephen C. Jordan, Esq.

    Download Decision (PDF)

    Docket No.: GCF 08-185; GCF 08-201

    Issued by: Grievance Commission

    Date: April 10, 2009

    Respondent: Stephen C. Jordan, Esq.

    Bar Number: 008745

    Order: Reprimand

    Disposition/Conduct: Illegal Conduct; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct Prejudicial to the Administration of Justice; Confidentiality


    Stipulated Report of Findings and Order of Panel Be of the Grievance Commission
    M. Bar R. 7.1(e)(2)
    M. Bar R. 7.1(e)(4)


    On April 10, 2009 after due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E) concerning misconduct by the Respondent, Stephen C. Jordan, Esq. The disciplinary proceeding was commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on February 10, 2009. Prior to the disciplinary hearing, the parties submitted a Stipulated Report of Findings and Order for the Grievance Commission Panel's review and consideration. The Board provided the complainants, District Court Judge Peter Goranites and Attorney Elizabeth Stout with a draft copy of the Report. Present at the hearing were Attorney Jordan, his counsel James M. Bowie, Esq. and Bar Counsel J. Scott Davis, Esq. for the Board

    Having reviewed the Stipulated Report of Findings and Order and heard comments of counsel, the Panel makes the following disposition:

    Findings

    Respondent Stephen C. Jordan, currently of North Berwick, County of York, State of Maine, has been 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. Attorney Jordan was admitted to the Maine bar in 1998 and is currently registered as an active practitioner, although he is not now practicing law or associated with any law firm.

    On May 20, 2008 Judge Goranites filed a complaint against Attorney Jordan. Attorney Stout did the same on June 3, 2008. Both complaints referenced being filed pursuant to the reporting requirements of M. Bar R. 3.2(e)(1). That Bar Rule mandates the reporting by written complaint of an attorney's unprivileged knowledge of misconduct "...that raises a substantial question as to another lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects..." Each complaint involved Attorney Jordan's conduct both before and during his April 2008 contested divorce proceeding between his wife, Plaintiff Darcy Jordan and himself as the pro se Defendant. Judge Goranites presided at that hearing, and Attorney Stout served as the court's Guardian ad litem. By its Divorce Judgment dated May 20, 2008, the court made specific "Supplemental Findings" describing Attorney Jordan's misconduct. Those findings included the following descriptive facts:

    1. Attorney Jordan, the Defendant, represented himself in that divorce;

    2. On December 4, 2007 an agreed Interim Order of Court had been issued giving Plaintiff Darcy Jordan exclusive possession of the marital home;

    3. After the date of that Order, Attorney Jordan remotely accessed his wife’s private personal e-mail from her computer at the marital home;

    4. That e-mail account contained many private e-mail communications between Plaintiff Darcy Jordan and her attorney, including trial preparation material;

    5. Attorney Jordan knew he had not been given permission to access his wife’s personal private e-mail; and

    6. At the contested divorce proceeding, Attorney Jordan actively sought to use Darcy Jordan’s email information in the presentation of his case to Judge Goranites, agreed under oath that he had reviewed that e-mail account including communications between Darcy Jordan and her attorney, and had copied private e-mails.

    Based on those "Supplemental Findings", Judge Goranites reported Attorney Jordan to Bar Counsel. The court also imposed immediate sanctions that directly affected and limited Attorney Jordan's trial conduct and abilities, i.e. by specifically suspending his ability to cross-examine Plaintiff Darcy Jordan, limiting his right to present evidence and requiring him to pay the remaining fees of the Guardian ad litem.

    Conclusion and Sanction

    The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to our legal system and to the courts. Attorney Jordan agrees that his emotional upset from the divorce process and hearing was no excuse for his complete disregard for the sanctity of the confidential communications between his wife and her attorney concerning that contested divorce matter. Attorney Bowie has informed the Panel that he has personally received and reviewed written confirmation that Attorney Jordan undertook and received psychological counseling to deal with the pressures and stresses of his divorce and the litigation associated with the divorce. This counseling included the analysis of how these pressures and stresses were affecting his judgment and actions and the consequences of those actions, as well as how to better deal with those stresses. We also understand that Attorney Jordan is currently in the process of relocating outside of the State of Maine for the purpose of seeking employment unrelated to law practice. He has not practiced law since March of 2008 and has not sought, nor has he any current intention of returning to the active practice of law in the immediate future.

    The panel notes that Attorney Jordan has taken responsibility for his offensive behavior and the upset it caused to his entire family, his wife's attorney, the court and the Guardian ad litem, among others. At this disciplinary proceeding, Attorney Jordan expressed his remorse for his inexcusable violations of the Code of Professional Responsibility. Specifically, he agreed that his conduct was in violation of the following portions of the Code of Professional Responsibility:

  3. Bar Rule 3.2(f)(2) (illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
  4. Bar Rule 3.2(f)(3)(conduct involving dishonesty, fraud, deceit or misrepresentation);
  5. Bar Rule 3.2(f)(4)(conduct that is prejudicial to the administration of justice); and
  6. Bar Rule 3.6(h)(conduct that violates the confidentiality of information)
  7. Maine Bar Rule 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Bar Counsel confirmed that Attorney Jordan has no prior professional sanction record on file with the Board. The Panel has considered the facts that Attorney Jordan agrees that he did in fact violate the above-referenced sections of the Code of Professional Responsibility, that the violations appear to be isolated instances of improper conduct related to his divorce and that Attorney Jordan is not longer in active practice of law in the State of Maine.

    The Panel accepts the proposed disposition and the waiver by Attorney Jordan of his right to file a Petition for Review as evidenced by his signature below.

    Panel B hereby issues a Public Reprimand to Attorney Stephen C. Jordan pursuant to M. Bar R. 7.1(e)(3)(C),(4).


    For the Parties

    J. Scott Davis, Bar Counsel
    James M. Bowie, Esq.
    Stephen C. Jordan, Esq.


    For the Grievance Commission

    John R. Bass II, Esq., Chair
    Acting for and by agreement of the Panel*
    Maurice A. Libner, Esq.
    Susannah White

    *Prior to this hearing, all three (3) members of the Panel reviewed and approved this Report. By agreement of the parties, Panel Chair John R. Bass II appeared alone at the hearing and issued this disciplinary sanction for the Panel.

    Board of Overseers of the Bar v. Peter A. Anderson

    Download Decision (PDF)

    Docket No.: BAR-00-2

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: May 23, 2000

    Respondent: Peter A. Anderson

    Bar Number: 001524

    Order: Resignation

    Disposition/Conduct: Resignation by Attorney Under Disciplinary Investigation


    Order


    Pending before the Court is Peter A. Anderson's petition pursuant to Maine Bar Rule 7.3(g)1 that he be permitted to resign from the Bar notwithstanding a pending disciplinary proceeding.

    The applicable Bar Rule provides that an attorney tendering such a resignation must also tender an affidavit in accordance with the Rule. This Mr. Anderson has done. Mr. Anderson's affidavit has been filed with the Board, together with its recommendation, that Mr. Anderson's resignation be accepted.

    The Court has read the affidavit, as well as Mr. Anderson's letter of resignation. After a hearing at which both Mr. Anderson and Bar Counsel were present and addressed the Court, the Court finds the conduct which Mr. Anderson admits to be conduct unworthy of an attorney and the Court, therefore, accepts the resignation from the Bar submitted by Peter A. Anderson dated April 5, 2000 to be effective upon the close of business as of June 2, 2000. His name is to be stricken from the list of practitioners who are permitted to practice law before the courts of the State of Maine effective June 3, 2000. Pursuant to M. Bar R. 7.3(g)(3), the affidavit submitted by Anderson with his letter is hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. His affidavit may, however, be made public and be used by the Board of Overseers of the Bar, the Board's Grievance Commission and bar counsel, in response to any reinstatement petition Anderson may later file. Mr. Anderson is further ordered to fulfill the obligations encumbered upon him as an attorney who has resigned under Rule 7.3(g) as provided in Rule 7.3(i).


    For the Court

    Hon. Paul L. Rudman, Associate Justice – Maine Supreme Judicial Court


    Footnotes

    1. Maine Bar Rule 7.3(g) provides:

    (g) Resignations by Attorneys Under Disciplinary Investigation.

    (1) An attorney who is the subject of an investigation under these rules may submit to the Board a letter of resignation, supported by an affidavit that:

    (A) the resignation is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress and is fully aware of the implications of submitting the resignation:

    (B) the attorney is aware that there is presently pending an investigation into allegations of misconduct, the nature of which allegations the attorney shall specifically set forth; and

    (C) the attorney acknowledges that the material facts, or specified material portions of them, underlying the allegations are true.

    (2) Upon receipt of such resignation, the Board shall file it, together with its recommendation thereon, with the Court, which after hearing shall enter such order as it deems appropriate.

    (3) Any order accepting such resignation under this section shall be a matter of public record unless otherwise ordered by the Court; but the supporting affidavit required under the provisions of subsection (1) shall be impounded, whether or not such resignation is accepted, and shall not be made available for use in any other proceeding unless otherwise ordered by the Court.

    M. Bar R 7.3(g)

    Board of Overseers of the Bar v. Pamela J. Ames, Esq.

    Download Decision (PDF)

    Docket No.: GCF 05-340

    Issued by: Grievance Commission

    Date: July 9, 2007

    Respondent: Pamela J. Ames, Esq.

    Bar Number: 002229

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation


    Report of Findings of Panel C of the Grievance Commission
    M. Bar R. 7.1(e)(3)(C)
    M. Bar R. 7.1(e)(4)


    On July 9, 2007, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Pamela J. Ames, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on June 4, 2007.

    At the July 9th proceeding, the Board was represented by Assistant Bar Counsel, Aria eee, and Attorney Ames was present, pro se. The complainant, Deputy District Attorney Megan L. Elam, had been provided with a copy of this Report (in its proposal form) but was not present.

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

    Findings

    1. Respondent Pamela Ames (Ames) of Waterville, County of Kennebec, State of 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 Ames was admitted to the Maine bar in 1980 and is a member in good standing. She is a solo-practitioner and her private practice includes a variety of civil and criminal law cases.

    2. On September 28, 2005 Attorney Elam filed a complaint with the Board against Attorney Ames alleging that Ames conveyed contraband to a Maine Correctional Center (MCC) inmate, "A.G.".

    3. As a juvenile, A.G. had formerly been fostered by and a client of Attorney Ames. The two had remained close and Ames occasionally visited A.G. at the MCC. Following A.G's request, Ames agreed to send and then later bring specific items to A.G. at the MCC. Those items included photographs, magazines, stamps and a personalized watch.

    4. Although the items by themselves may not have appeared to be illegal, Ames' giving them to A.G. while she was incarcerated resulted in violations of the MCC's rules.

    5. On October 24, 2005, Attorney Ames filed her response to the complaint, providing background information on her relationship with A.G. and largely admitting her actions of violating correctional center policies.

    6. Given her years of experience as an attorney, including many years as an Assistant District Attorney, Attorney Ames should have known that her gifts to A. G. would result in those violations.

    7. On February 28, 2006 the complaint and responses were reviewed by a Panel of the Grievance Commission. The panel found that probable cause existed that Attorney Ames had engaged in misconduct subject to sanction under the Bar Rules. The Panel directed Bar Counsel to prepare and file a formal Disciplinary Petition before another panel of the Grievance Commission.

    8. Attorney Ames has conceded that it was wrong for her to send and/ or convey the prohibited materials to A.G. She has acknowledged that by her actions she violated the MCC's policies and modeled inappropriate behavior for A.G.

    9. After discussion between the parties, the Board filed a Stipulated Disciplinary Petition on June 4, 2007. The parties generally agreed to a finding of misconduct as referenced in the Petition.

    10. To that end, Attorney Ames acknowledges that she violated the following provisions of the Code of Professional Responsibility:

    A. Violation of M. Bar Rule 3.1(a)

    Attorney Ames' conduct violated M. Bar Rule 3.1(a). A review of all of the circumstances suggests that Attorney Ames committed "conduct unworthy of an attorney" by failing to ascertain and adhere to the rules of the Maine Correctional Center. Although understandably sympathetic to A.G.'s requests, Attorney Ames' decision to comply with those requests rather than comply with the MCC's rules demonstrated poor judgment resulting in conduct unworthy of an attorney.

    B. Violation of M. Bar Rule 3.2(f)(3)

    Attorney Ames violated M. Bar R. 3.2(f)(3) when she engaged in dishonest behavior while visiting A.G. at the Maine Correctional Center. The MCC staff who investigated Ames' conduct determined that she violated the facility's rules. Likewise, a reviewing panel of the Grievance Commission determined that Ames acted in violation of those rules and of acceptable standards of attorney conduct. Despite Attorney Ames' earlier belief that her actions were reasonable and permitted, the result of her conduct is unchanged. The violation of the Bar Rules is clear.

    Conclusion and Sanction

    The Attorney's Oath (4 M.R.S.A. § 806) mandates that all attorneys uphold their duties as officers of the court. Due to Attorney Ames' close relationship with A.G., she exercised unprofessional judgment and jeopardized her reputation within the bar. In the course of this proceeding, Attorney Ames has taken full responsibility for her actions and the subsequent consequences to both A. G. and herself. At the hearing, Attorney Ames was remorseful and apologized for her violations of the Code of Professional Responsibility.

    M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Ames agrees that she did in fact violate the Code of Professional Responsibility, it appears that a public reprimand serves those purposes. Attorney Ames has no history of discipline and the Panel finds that it is unlikely that she will repeat the same behavior in the future.

    Therefore, the Panel accepts the agreement of the parties, including Attorney Ames' waiver of the right to file a petition for review, and concludes that the appropriate disposition of this case is a reprimand to Pamela J. Ames, Esq. as provided by M. Bar R. 7. 1 (e)(3)(C).


    For the Parties

    Aria eee, Assistant Bar Counsel
    Pamela J. Ames, Esq.


    For the Grievance Commission

    David S. Abramson, Esq., Chair
    Martha C. Gaythwaite, Esq.
    Michael K. Knowles

    Board of Overseers of the Bar v. Thomas R. Acker, Esq.

    Download Decision (PDF)

    Docket No.: BAR-05-08

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: December 23, 2005

    Respondent: Thomas R. Acker, Esq.

    Bar Number: 003381

    Order: Temporary Suspension

    Disposition/Conduct: Conduct Unworht of an Attorney; Conduct Prejudicial to the Administration of Justice; Responsibilities re: Law Related Services; Conflict of Interest; Preserving Identity of Funds and Property


    Order


    A case management conference and hearing on the Board's Motion for Temporary Suspension were conducted on December 22, 2005. Aria eee, Esq., appeared on behalf of the Board of Overseers of the Bar, and Thomas Acker, Esq., appeared on his own behalf.

    For the reasons stated on the record in open court, it is hereby ORDERED as follows:

    1. The Motion for Temporary Suspension is GRANTED. Thomas R. Acker, Esq., Me. Bar # 3881 is suspended from the practice of law pending further order of the Court.

    2. The Court takes no action with respect to Attorney's Acker's request to resign from the Maine Bar. The requested resignation will be considered together with Board's petition.

    3. Attorney Acker may file an answer to the Board's petition on or before January 6, 2006. The Board may file a written response, if it so desires, on or before January 30, 2006.

    4. The Board may file a motion for appointment of counsel pursuant to M. Bar R. 7.3(f) on or before January 6, 2006. Attorney Acker may file a written response, if he so desires, on or before January 30, 2006.

    5. A pretrial conference shall be held on February 3, 2006, at 10:00 a.m.


    For the Court

    Hon. Jon D. Levy, Associate Justice – Maine Supreme Judicial Court

    Board of Overseers of the Bar v. C. Peter Bos, Esq.

    Download Decision (PDF)

    Docket No.: GCF 07-276

    Issued by: Grievance Commission

    Date: January 2, 2009

    Respondent: C. Peter Bos, Esq.

    Bar Number: 002951

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Standards of Care and Judgment


    Report of Findings
    M. Bar R. 7.1(e)(2)
    M. Bar R. 7.1(e)(3)(C)


    On December 18, 2008, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, C. Peter Bos, Esq. The disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on September 15, 2008.

    At the hearing, the Board was represented by Assistant Bar Counsel, Aria Eee and the Respondent appeared pro se. The complainant, Michelle Miller, was also present. The Respondent and Ms. Miller testified before the Panel. The parties submitted Stipulations dated September 23, 2008. Additionally, the Panel accepted into evidence Board Exhibits Nos. 1-9 with the consent of the Respondent. Having reviewed the evidence and the relevant Bar Rules, the Panel finds the following facts and issues the following disposition:

    Findings

    Respondent C. Peter (Bos) of Bangor, County of Penobscot, State of 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 Bos was admitted to the Maine bar in 1984 and he is in private practice in a small law firm in Bangor.

    On August 28, 2007 Michelle Miller filed a complaint against Attorney Bos arising out of her retention of Attorney Bos in connection with claims for personal injury due to an assault. She alleged that Attorney Bos failed to properly manage her civil case filed in the Penobscot County Superior Court in 2001, failed to notify her that the Superior Court dismissed the case in November 2002 and failed to advise her of the status of the second case filed in the District Court in 2006.

    In both his response to the Board and his subsequent testimony at the hearing, Attorney Bos acknowledged his failure to properly monitor and manage Miller's cases. He agreed that he failed to ensure that Ms. Miller understood both his interest in and his ongoing concerns about prosecuting her case. Attorney Bos also accepted responsibility for his failure to appropriately calendar important deadlines in both of the Miller cases. Attorney Bos testified that until Ms. Miller notified him, he had been unaware that the Superior Court case had been dismissed. The second case in District Court was ultimately dismissed in September 2007 for failure to effect service. After receipt of Miller's complaint, Bos withdrew from his representation of her.

    The Panel finds that Attorney Bos has violated the Code of Professional Responsibility and has therefore committed conduct "unworthy of an attorney" within the meaning of Rule 3.1(a). The Panel finds and Attorney Bos acknowledges that he failed to appropriately prosecute Ms. Miller's original case and that his delayed and inaccurate responses to Miller's requests for information left her without adequate means to discern the status of her legal matter. Attorney Bos has therefore violated his duties to uphold proper standards of care and judgment as outlined in M. Bar R. 3.6(a) (Standards of Care and Judgment).

    Conclusion and Sanction

    The Code of Professional Responsibility establishes the duties owed by an attorney to his or her client. Attorney Bos substantially deviated from his duties in the course of his professional services to Ms. Miller.

    Attorney Bos has, however, accepted responsibility for his lapses. Bos has sought help with maintaining an accurate calendar designed to monitor all pending client matters every sixty (60) days. At the hearing, he expressed his remorse about the negative effects of his actions on Ms. Miller. Attorney Bos has no history of prior discipline, although the Panel notes that in 1992 and 2004, Bos was informally sanctioned with warnings for similar lapses.

    M. Bar R.2(a) provides that 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 Bos agrees that he did in fact violate the Code of Professional Responsibility, a public reprimand serves those purposes.

    Bar Counsel has proposed and Attorney Bos has accepted a condition that a monitor be appointed to review and assist Attorney Bos with managing his practice. The monitoring process shall be implemented for a one year period and the monitor shall evaluate all aspects of Attorney Bos' practice. Those aspects shall include but not be limited to client intake, client communications and disclosures between attorney and client and the monitoring of any personal issues, if they arise, that would affect Attorney Bos' ability to comply with his ethical duties.

    Therefore, the Panel hereby issues a public reprimand to C. Peter Bos, Esq. as provided by M. Bar R. 7.1(e)(3)(C) with the additional condition that this matter shall remain pending for a period of one year during which period Attorney Bos shall submit his practice of law to monitoring by Marvin H. Glazier, Esq. of Bangor, Maine on the following terms:

    1. Attorney Bos shall pay to the monitor reasonable compensation for his services, including reimbursement of all costs.

    2. Attorney Bos will meet with Attorney Glazier at Attorney Glazier's calling and convenience, on a bi-weekly basis, unless Attorney Glazier determines that more or less frequent meetings are appropriate.

    3. Attorney Glazier shall have the right to withdraw and terminate his services at any time for any reason he deems necessary. If he does so, he shall notify Bar Counsel and Attorney Bos of his withdrawal, whereupon this matter shall then be scheduled for further hearing as deemed appropriate by Bar Counsel.

    4. If any aspect of the monitoring process creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Bar Rules, Attorney Glazier may adopt anyone of the following courses with the proposed result:

    1. Attorney Glazier ceases to act as monitor and a potential conflict is avoided.
    2. Attorney Glazier continues as monitor, but totally excludes Attorney Bos' client's matter from the monitoring process, so that no conflict is deemed to exist.
    3. Attorney Glazier continues as monitor, but withdraws from the conflicted matter.
    4. Attorney Glazier continues as monitor, and obligates Attorney Bos not to participate in the matter and to promptly obtain replacement counsel for his client(s).

    1. If in Attorney Glazier's judgment it is appropriate, he shall have the right to contact clerks of court, judges, or opposing counsel to determine the accuracy of Attorney Bos' reports to him.
    2. Attorney Glazier shall have no contact with any of Attorney Bos' clients, Attorney Glazier's only contacts in the performance of his monitoring duties shall be with Attorney Bos or other persons contemplated by this decision.
    3. Attorney Glazier's participation in the disposition of Attorney Bos' disciplinary case and monitoring of Attorney Bos' practice shall be deemed not to create an attorney-client relationship between Attorney Bos and Attorney Glazier or between Attorney Glazier and Attorney Bos' clients. Specifically, Attorney Glazier shall be deemed not to represent Attorney Bos or any of Attorney Bos' clients or to be employed by them in any capacity and Attorney Glazier shall not have any responsibility of any nature to any of them. Moreover, the attorney-client privilege shall not apply to Attorney Glazier's monitoring of Attorney Bos' practice, and to the extent permitted by law, Attorney Glazier shall be immune from any civil liability (including without limitation, any liability for defamation) to Attorney Bos or any of Attorney Bos' clients.
    4. Attorney Glazier will have the authority to review and examine any of Attorney Bos' files, except those in which Attorney Glazier might have adverse interests under paragraph 5.
    5. Attorney Bos shall prepare and present to Attorney Glazier reasonably in advance of each meeting a list of all his current clients, showing each pending client's matter with a brief summary and calendar of the status thereof.
    6. Attorney Glazier will, as soon as practicable, have Attorney Bos establish a method of objectively identifying delinquent client matters and have him institute internal checks and controls to make his practice appropriately responsible to the needs of his clients.
    7. Attorney Glazier shall file a confidential report with Bar Counsel every three months or sooner if Attorney Glazier deems it necessary, with a copy to Attorney Bos and Bar Counsel concerning at least the following subjects:

    1. measures Attorney Bos has taken to avoid delinquencies;
    2. a description of any client matter identified as delinquent;
    3. and any professional assistance Attorney Glazier has provided to Attorney Bos.

    1. Attorney Glazier shall have the duty to report to Bar Counsel any apparent or actual professional misconduct by Attorney Bos of which Attorney Glazier becomes aware or any lack of cooperation by Attorney Bos in the performance of this disposition.
    2. ln the event that Attorney Glazier reports any apparent or actual professional misconduct or lack of cooperation by Attorney Bos, this matter shall be scheduled for further hearing on request of Bar Counsel.

    For the Grievance Commission

    John R. Bass II, Esq. – Chair
    Maurice A. Libner, Esq.
    John R. Hutchins

    Board of Overseers of the Bar v. Valeriano Diviacchi, Esq.

    Download Decision (PDF)

    Docket No.: BAR-07-06

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: October 16, 2007

    Respondent: Valeriano Diviacchi, Esq.

    Bar Number: 006975

    Order: Reprimand Reciprocal Discipline

    Disposition/Conduct:


    Order


    This Court has received a certified copy of the Order of Public Reprimand by the Commonwealth of Massachusetts' Board of Bar Overseers of the Supreme Judicial Court dated June 21, 2007, publicly reprimanding Attorney Valeriano Diviacchi for his violations of the Supreme Court's Rules of Professional Conduct. Attorney Diviacchi has defaulted by failing to file any response to this Court's Order and Notice dated August 22, 2007 for him to show cause why the Court should not impose identical discipline to that imposed upon him in Massachusetts, as requested by Maine's Board of Overseers of the Bar.

    Therefore, based upon that default, this Court hereby ORDERS:

    1. The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;

    2. Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Attorney Valeriano Diviacchi is reprimanded for his violations of those portions of Maine's Code of Professional Responsibility that are analogous to those violations of Massachusetts' Rules of Professional Conduct by him as found in Massachusetts' Order of Public Reprimand dated June 21, 2007.


    For the Court

    Hon. Andrew M. Mead, Associate Justice – Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Christopher J. Whalley, Esq.

    Download Decision (PDF)

    Docket No.: BAR-08-09

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: December 10, 2008

    Respondent: Christopher J. Whalley, Esq.

    Bar Number: 007370

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Standards of Care and Judgment


    Decision and Order


    The Board of Overseers of the Bar initiated the above attorney disciplinary proceeding on October 16, 2008 and the Court scheduled this matter for hearing on November 25, 2008. At the hearing, this Court accepted a stipulation between Bar Counsel and the Respondent which disposed of this matter.

    The Court accepts the following facts provided by the Stipulation of the parties: Ms. Graham retained Attorney Whalley to represent her in a 2007 divorce in Maine. While Attorney Whalley believed that Ms. Graham's departure date was in either November or December 2007, he failed to appreciate his client's urgency to remain on track for her impending leave. Either through his misunderstanding or misperception about Ms. Graham's constraints, the resulting breakdown in the attorney/client relationship led to Ms. Graham's termination of Attorney Whalley's services. Thereafter, Ms. Graham completed her divorce matter pro se and filed a complaint with the Board of Overseers. In that Attorney Whalley had completed his drafting of all proposed language for her divorce judgment, Ms. Graham was able to conclude her matter without any adverse impact to her case. Ultimately, Attorney Whalley acknowledges that this discrete failure of clear communications, which led to the breakdown of the attorney-client relationship, can be viewed as conduct lacking in the use of reasonable care and judgment. The Board of Overseers of the Bar agrees that the Board shall take no steps to initiate publication of this decision through any releases to the press.

    Accordingly, it is hereby ORDERED that Christopher J. Whalley, Esq. is reprimanded for his violations of Maine Bar Rules 3.1(a); and 3.6(a). It is further ORDERED that the Board of Overseers of the Bar shall take no steps to initiate publication of this decision through any releases to the press.


    For the Court

    Hon. Warren M. Silver, Associate Justice – Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Charles R. Oestreicher, Esq.

    Download Decision (PDF)

    Docket No.: GCF 96-K-181

    Issued by: Grievance Commission

    Date: May 25, 2000

    Respondent: Charles R. Oestreicher, Esq.

    Bar Number: 001060

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Identifying Commencement, Continuation, and Termination of Representation


    Report of Reprimand
    M. Bar R. 7.1(e)


    On May 25, 2000, pursuant to due notice, Panel B of the Grievance Commission conducted an attorney disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2) reference the above matter. The Board of Overseers was represented by Bar Counsel J. Scott Davis. Respondent Charles R. Oestreicher was present and represented by Gene Libby, Esq. The complainant, Nicholas Hubby, was also present at that time. Although no testimonial witnesses were presented, Mr. Hubby, was provided the opportunity to make comment to the panel, and did so. Prior to that hearing, counsel for both parties stipulated as to the following facts, and the panel now so finds:

    Findings of Fact

    1. Petitioner is the Board of Overseers of the Bar (Board).

    2. The Board avers that Respondent Charles R. Oestreicher, Esq., (Oestreicher) of Portland, County of Cumberland, and State of Maine, is and was 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.

    3. As set forth below, Oestreicher has engaged in conduct unworthy of an attorney under the Maine Bar Rules.

    4. On March 19, 1987, Nicholas Hubby (Hubby) engaged Bruce Bergen (Bergen), a partner at the law firm of Verrill & Dana, to represent him in his effort to purchase property off the Shore Road in Cape Neddick, Maine. An issue in that matter included advising Hubby as to the strength and validity of the right of way through the land that completely surrounded Hubby's prospective purchase.

    5. The adjacent land included a farm called Cucklebottom Farm (the Farm) owned by Richard and Kathryn Thornburgh (Richard, Kathryn or the Thornburghs).

    6. Hubby's access to that property is over a right-of-way along a driveway through the Farm property.

    7. As early as 1987, Hubby started to explore ways to acquire the Farm property, partly in order to protect the right-of-way to his own property.

    8. Hubby asked Bergen for legal advice, and Bergen asked for and received legal advice and information from his law partner, Oestreicher, concerning Hubby's plans.

    9. Between 1987 and 1992 Hubby learned that the Thornburghs' Wills provided for the Farm to be placed in trust for the benefit of their daughter, Margaret.

    10. During this time, Hubby continued to request and receive advice and information from Bergen about Hubby's plans to purchase the Farm when it became available for sale.

    11. In 1992 Richard died leaving his entire estate to Kathryn.

    12. In 1994 Kathryn died.

    13. Margaret became Co-Personal Representative of Kathryn's Estate along with Jed Grover (Grover).a neighbor of Hubby.

    14. A trust that was to hold title to the Farm was established in Kathryn's Will, with Margaret and Grover named as Co-Trustees.

    15. John Kugler, Esq. (Kugler) represented Margaret as Co-Personal Representative of Kathryn's Estate.

    16. During the summer of 1994, Bergen represented Hubby in his efforts to purchase the Farm, and in that context corresponded with Kugler.

    17. During that period of time, Hubby told Bergen of a request by an abutter of the Farm that Hubby sell to that abutter a small piece of the Farm for a backyard. Hubby indicated to Bergen his concern and question as to whether such a "subdivision" would be legal.

    18. In August of 1994, Hubby and Margaret agreed upon his purchase of the Farm, and each signed a separate copy of the same Purchase and Sale Agreement as prepared by Bergen.

    19. As a result of Bergen's long-standing practice of taking a vacation the first two weeks of August and his resulting absence, at Bergen's request on or about August 1, 1994 Oestreicher became directly involved and covered the transaction concerning Hubby's proposed purchase of the Thornburgh property. Oestreicher had no prior involvement in this transaction, but had been previously involved in Hubby's property matters in assistance to Bergen.

    20. Each party was to provide a copy of the Purchase and Sale Agreement to their respective attorneys, Hubby to Oestreicher and Margaret to Kugler, but the exchanges between attorneys did not actually occur, although both parties had agreed to its terms at this point.

    21. Hubby subsequently orally proposed a reduction in price of $5,000.00 to Margaret.

    22. At about that same time, i.e. during the summer of 1994, Kathryn Weare, owner of The Cliff House in York, was privately negotiating with the Kennebunk, Kennebunkport & Wells Water District (KK&WWD) and the Ogunquit Sewer District to have water and sewer line run down the Shore Road to service and benefit The Cliff House.

    23. Verrill & Dana then acted as General Counsel to The Cliff House, with Michael Healey, Esq. of that firm specifically representing Weare in those negotiations with KK&WWD and the Ogunquit Sewer District.

    24. In August and September of 1994, Hubby and some of his neighbors learned of Weare's plans and then formed a neighborhood coalition to obtain facts and information about KK& WWD's plans for the Shore Road, including the planned extension of water and sewer lines to The Cliff House.

    25. Hubby was listed as nominal head of that coalition. The coalition retained Joseph Donahue, Esq. of the Portland law firm of Preti, Flaherty, Beliveau & Pachios to represent them before the Public Utilities Commission.

    26. As a result, Healey, on behalf of Weare, served Hubby, represented by Oestreicher in Bergen's absence, with a request for information concerning his proposed purchase of the Farm. Weare thereafter became interested in purchasing the Farm.

    27. With respect to the sale transaction, in early September, Oestreicher left a telephone message for Hubby stating that Grover was objecting to any sale to Hubby.

    28. Hubby then informed Oestreicher that he was upset about the lack of direct communication as to the reversal of Margaret's intentions at this stage of the sale process.

    29. At this time, two of Verrill & Dana's current clients, Hubby and Weare, had interests adverse to each other concerning a common subject matter of simultaneous, opposing representation - purchase of the Farm.

    30. On or about September 25, 1994 Verrill & Dana attorneys properly advised each of those clients that they each needed different independent counsel from other firms on the matter of purchasing the Farm.

    31. Hubby was never able to purchase the Farm, and on February 15, 1995, Weare, represented by Bruce Leddy, Esq. did purchase it.

    32. The sale of the Farm was a component of a general refinancing for Weare which was handled by Oestreicher, e.g. he recorded the documentation that resulted from that refinancing.

    33. When Weare offered the Farm for resale in 1995, she intended to retain the title to the land over which Hubby's right-of-way passed.

    34. Weare then sold the Farm in a manner contrary to Hubby's interests and stated desires, namely, by her retention of the fee of his driveway. In that context, without the informed written consent of his former client, Hubby, from May 3 to August 28, 1995 Oestreicher provided legal services to Weare regarding the resale of the Farm, including issues having to do with the subject matter of the right of way.

    35. Hubby offered to buy the Farm or just the right of way from Weare, but she rejected his offer and instead sold the Farm to a third party, Ann Gallop.

    36. Oestreicher was Weare's attorney for that resale of the Farm to Gallop on August 28, 1995.

    37. In that regard, Oestreicher knew that one of the conditions of that sale was that Weare would reserve title to the land over which Hubby's right of way passed.

    38. Oestreicher drew up the description for the Seller's Deed, and by the terms thereof specifically reserved title to the real estate underlying Hubby's right of way.

    39. Oestreicher had assisted Bergen in his representation of Hubby in his attempts to purchase the Farm in order to preserve the right of way to his property.

    40. At the time of the resale of the Farm, another attorney at Verrill & Dana was still representing Hubby in an unrelated small subrogation matter.

    41. Oestreicher did not disclose to Hubby that he was representing Weare in the resale of the Farm, and also failed to seek Hubby's written consent to his representation of Weare as required by the conflict of interest provisions of M. Bar R. 3.4(a),(b)(1),(c)(2), and (d)(l)(i).

    42. Oestreicher's representation of Weare in selling the Farm to a third party and including provisions directly adverse to Hubby's interests, e.g. reserving title to the fee beneath Hubby's right of way, was conduct in conflict with Hubby's interest in purchasing the Farm and the right of way to his property, including representation of Weare on issues for which Oestreicher had previously represented Hubby's adverse interests.

    43. The parties agree that Oestreicher's conduct was in violation of M. Bar R. 3.1(a) and 3.4(a)(b)(c) and (d).

    44. Oestreicher has no prior disciplinary record.

    Conclusion

    This panel concludes, and Respondent admits he engaged in a conflict of interest in this instance by failing to seek or obtain Hubby's informed written consent for his representation of Weare in the resale of the Farm. The panel agrees with the parties' agreed recommendation and concludes that the appropriate disposition of this complaint is that Charles R. Oestreicher, Esq. be and hereby is reprimanded for violating the Maine Bar Rules as established in the Findings of Fact set forth in this Report.


    For the Grievance Commission

    Susan E. Hunter, Esq., Chair
    David R. Weiss, Esq.
    Marvin C. Chaiken

    Board of Overseers of the Bar v. Thomas J. Pelletier, Esq.

    Download Decision (PDF)

    Docket No.: GCF 99-26

    Issued by: Grievance Commission

    Date: July 27, 2000

    Respondent: Thomas J. Pelletier, Esq.

    Bar Number: 002651

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice


    Report of Reprimand
    M. Bar R. 7.1(e)(3)(C),(4)


    On July 27, 2000, pursuant to due notice, Panel B of the Grievance Commission conducted an attorney disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2) in the above matter. The Board of Overseers of the Bar was represented by Bar Counsel J. Scott Davis Respondent Thomas J. Pelletier, Esq., was present with his attorney, William B. Cote, Esq. The complainant, Ms. B., was notified of the parties' stipulations and proposed disposition.

    Prior to commencement of the hearing, the parties agreed without objection to the admission by the Panel of Board Exhibits #1-#6. Although no testimony or witnesses were presented, Ms. B. was provided the opportunity to attend and make comment to the Panel, but did not choose to do so. Counsel then stipulated to the following facts which the Panel now adopts and so finds:

    1. Petitioner is the Board of Overseers of the Bar (Board).

    2. Respondent Thomas J. Pelletier, Esq. (Pelletier) of Caribou, County of Aroostook, and State of Maine, is and was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine, and thereby subject to the Maine Bar Rules.

    3. As set forth below and agreed, Pelletier engaged in conduct unworthy of an attorney and violated specific portions of the Maine Bar Rules as referenced below:

    4. On or about January 26, 1999 Ms. B. filed a complaint on a pro se basis in the Caribou District Court seeking a Temporary Restraining Order against Mr. G.

    5. A hearing on that matter was scheduled for February 10, 1999 at which time Ms. B. was represented by Pelletier on a pro bono basis.

    6. Pelletier provided proper legal services and representation for Ms. B. in that matter.

    7. A related hearing occurred on February 26, 1999, at which time Pelletier appeared again and provided competent legal services for Ms. B.

    8. At a pre-trial preparation meeting at Pelletier's office on February 25, 1999, Pelletier had commented to Ms. B. that she was attractive a remark made in the context of a discussion that Ms. B's current boyfriend was creating legal difficulties for her.

    9. At the second hearing, Pelletier offered to give Ms. B. a ride to her home in Presque Isle, rather than having Ms. B's grandmother and children wait for Ms. B. in the car at the courthouse in a snowstorm.

    10. During that trip to Presque Isle, Pelletier commented to Ms. B. that she was very attractive, and made other remarks that he should have understood would be interpreted by her to be of an inappropriately casual nature beyond the scope of his representation.

    11. Pelletier has no prior disciplinary record and agrees to stipulate to the entry of this reprimand to avoid occasioning any further difficulty for Ms. B. Mr. Pelletier has expressed his sincere remorse for the difficulties experienced by Ms. B. owing to his conduct.

    Conclusion

    This Panel concludes and Respondent Pelletier admits that he engaged in conduct unworthy of an attorney by making inappropriate personal remarks to his client, Ms. B., who had just been through a family matter type court hearing. In such an attorney/client setting, he should have known and appreciated that his client would be affronted and confused as to his true allegiance to her legal problem.

    As a result, the Panel thereby finds that Pelletier violated Maine Bar Rules: 3.1(a)(Conduct Unworthy of an Attorney); 3.2(f)(4)(Conduct that is Prejudicial to the Administration of Justice).

    Accordingly, the Panel agrees with counsel's recommendation that the appropriate disposition of this complaint is that Thomas J. Pelletier, Esq. be and hereby is reprimanded for violating the cited Maine Bar Rules as established in the findings of fact set forth in this Report.


    For the Grievance Commission

    Susan E. Hunter, Esq., Chair
    David R. Weiss, Esq.
    Marvin C. Chaiken

    Board of Overseers of the Bar v. Joseph D. Moser, Esq.

    Download Decision (PDF)

    Docket No.: GCF 07-027

    Issued by: Grievance Commission

    Date: February 15, 2008

    Respondent: Joseph D. Moser, Esq.

    Bar Number: 000625

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Disclosure of Interest; Commencement; Conflict of Interest


    Report of Findings of Grievance Panel D
    M. Bar R. 7.1(e)(3)(C)
    M. Bar R. 7.1(e)(4)


    On January 28 and February 15, 2008 pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Joseph D. Moser. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar through Bar Counsel on November 2, 2007.

    At the disciplinary hearing, the Board was represented by Assistant Bar Counsel Aria Eee, and Respondent (Attorney Moser) was present and represented by James M. Bowie, Esq. Joint Exhibits 1 and 2, the Board's exhibits marked Board Exh. 1-29, and Respondent's exhibits tabbed I through 27, were admitted without objection. The Panel heard testimony from Heather Frederick, Linden Frederick, Lee Woodward, Jr., Esq., and Attorney Moser.

    On January 25, 2007, Heather and Linden Frederick filed a complaint regarding the conduct of Attorney Moser, their former attorney and neighbor. In their complaint, the Fredericks alleged conflict of interest, dishonesty, and conduct unbecoming of an attorney.

    In his answer to the complaint, Attorney Moser acknowledged having worked with the local bank and the Fredericks during his 1992 representation of them. Attorney Moser also acknowledged his 2004 demand for significant financial compensation in exchange for a release of his property interests in the land constituting Fredericks' home site, then under contract to be sold. Attorney Moser denied that he had committed any violations of the Code of Professional Responsibility, and requested that the Board dismiss the complaint.

    On January 28, 2008, the parties participated in a full day of evidentiary hearing. Thereafter, the Board and Attorney Moser elected to conclude the contested hearing and instead, negotiate a final proposed disposition of the bar complaint.

    To that end, the parties stipulate, and the Panel so finds, the following:

    1) Due to the potential conflict between him and the Fredericks, Attorney Moser should not have undertaken the 1992 representation of the Fredericks during the refinancing of their residential property. In doing so, Attorney Moser's personal interests became potentially adverse to the Fredericks due to a previous restrictive covenant in favor of Attorney Moser (which Attorney Moser had drafted in 1974) likely affecting the property.

    2) Moreover, the evidence adduced at hearing detailed Attorney Moser's work as a title insurance agent during the time of the Fredericks' 1992 refinancing. As such, he had fiduciary responsibilities toward both the Fredericks and the title company. While there are obvious differences in the manner which Attorney Moser performed his duties (as compared to the credible testimony of the Frederick's 2004 counsel) it is clear that Moser's discharge of those duties resulted in further complications for the Fredericks' 2004 sale. Based upon Attorney Moser's testimony at the disciplinary hearing, it did not appear that during his representation of the Fredericks, Attorney Moser had complied with his fiduciary duties. Nor did it appear that Attorney Moser complied with M. Bar R. 3.4(a) requiring him to disclose the potential conflict to his then clients, the Fredericks and/or Camden National Bank.

    3) Specifically, during the Fredericks' 2004 contract to sell their home, the title agents for the new buyers approached Attorney Moser in order to secure his release for the potential rights he held vis-à-vis the Fredericks' property. The Panel notes that it would have been reasonable, under the circumstances, for Respondent to agree to release his rights in the existing structure then comprising the Fredericks' home, given the fact that by 2004, that home had been in existence for nearly fourteen (14) years.

    However, Attorney Moser did not immediately respond to any request that he release his potential property rights. He did not answer the Fredericks' repeated requests for information and he did not explain why there was a delay. Attorney Moser did refer the matter to his law partner, who ultimately negotiated with the Fredericks' counsel just before their scheduled real estate closing. Following those negotiations, the Fredericks paid Attorney Moser $20,000 to release any interest he still claimed in their Northport property.

    4) At the very least, Attorney Moser should have agreed to exonerate the existing buildings on his former clients' property. Instead, for the first time, Attorney Moser vocalized an ownership interest in the Fredericks' property, and he refused to release that interest until the Fredericks paid for that release.

    5) As the parties litigated the 2008 disciplinary proceeding, Attorney Moser came to realize his error. In sum, Attorney Moser agreed that in 1992, it was his responsibility to disclose the conflict to his clients (the Fredericks and the bank) and as a consequence, obtain their consent or decline the new representation. It became clear during the proceeding that Attorney Moser's failure to define the scope of his 1992 representation, either in an engagement letter or in his subsequent bills, resulted in further confusion about the work he performed for the Fredericks, the bank, and the title insurance carrier. See Maine Bar Rule 3.4(a), (b),(c).

    6) Attorney Moser has also acknowledged that his failure in 2004 to immediately clarify what, if any, actions he intended to take with regard to releasing his interest created unnecessary stress and frustration for his former clients. See Maine Bar Rule 3.2(f)(4).

    Based upon the above-outlined facts and the parties' proposal, the Panel finds that Attorney Moser violated Maine Bar Rules 3.1(a); 3.2(f)(4); 3.4(a)(l),(2) and 3.4(f)(l).

    As a result of these events, Attorney Moser has reconsidered his actions and apologized to the Fredericks for the distress those actions caused them. Attorney Moser acknowledges that he must adhere to professional standards governing the practice of law. Attorney Moser agrees that he will participate in continuing legal education related to conflicts analysis, real estate law (including a drafting component), and fiduciary relationships.

    Prior History

    Attorney Moser has no prior disciplinary record on file with the Board of Overseers of the Bar.

    Sanction

    M. Bar R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Moser agrees that he did in fact, violate the Code of Professional Responsibility, the Panel agrees that a reprimand is sufficient to ensure Attorney Moser's further compliance with the Maine Bar Rules.

    In addition, Attorney Moser shall, within twelve (12) months of the date of this Report, participate in one or more live CLE courses that address conflicts analysis, real estate law, and fiduciary relationships. Finally, Attorney Moser has agreed and is directed to pay the expert fees/expenses associated with Attorney Paul Mills' involvement in the Board's prosecution of this proceeding.

    Therefore, the Panel accepts the agreement of the parties, including Attorney Moser's waiver of the right to file a petition for review, and concludes that the appropriate disposition of this case is a reprimand to Joseph D. Moser, Esq. as provided by M. Bar R. 7.1(e)(3)(C).

    It is therefore ORDERED that Joseph D. Moser, Esq. is hereby reprimanded for his violations of Maine Bar Rules 3.1(a); 3.2(f)(4); 3.4(a)(1),(2) and 3.4(f)(1).


    For the Grievance Commission

    Benjamin Townsend, Esq., Chair
    William E. Baghdoyan, Esq.
    David Nyberg, Ph.D.

    Board of Overseers of the Bar v. Randal E. Watkinson, Esq.

    Download Decision (PDF)

    Docket No.: GCF 07-67

    Issued by: Grievance Commission

    Date: May 27, 2008

    Respondent: Randal E. Watkinson, Esq.

    Bar Number: 000437

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Standards of Care and Judgment


    Report of Findings
    M. Bar R. 7.1(e)(2)
    M. Bar R. 7.1(e)(4)


    On May 27, 2008, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Randal E. Watkinson, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 9, 2008.

    At the hearing, Attorney Watkinson appeared, pro se and the Board was represented by Assistant Bar Counsel, Aria Eee. The complainant, Gary Mills, had been provided with a copy of this Report (in its proposal form) and was present. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration.

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

    Findings

    Respondent Randal E. Watkinson (Watkinson) of Rockland, County of Knox, State of 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 Watkinson was admitted to the Maine bar in 1975 and he is a member in good standing.

    On March 1, 2007 Gary Mills filed a complaint with the Board against Attorney Watkinson alleging that Watkinson engaged in representation of Mills' father in an area of law in which Watkinson was not competent. Mills further alleged that Watkinson failed to exercise due diligence in obtaining the information necessary to provide such representation and that Watkinson subsequently made a material misrepresentation during settlement negotiations of a probate matter involving Mills and his brother.

    On March 26, 2007, Attorney Watkinson filed his response with the Board, providing background information on his involvement with the family leading up to the filing of Mills' complaint.

    On August 7, 2007 the complaint and responses were reviewed by a Panel of the Grievance Commission. The panel found that probable cause existed that Attorney Watkinson had engaged in misconduct subject to sanction under the Bar Rules. Pursuant to M. Bar R. 7.1 (d)(5) the panel directed Bar Counsel to prepare and present a formal Disciplinary Petition for disciplinary action before a different panel of the Grievance Commission.

    Prior to the Board's filing this Petition, Assistant Bar Counsel and Attorney Watkinson generally agreed that Watkinson engaged in misconduct, having violated specific portions of the Code of Professional Responsibility for which he should receive a reprimand.

    To that end, Attorney Watkinson acknowledges that he improperly failed to confirm the accuracy of the allegations in a Knox County Superior Court lawsuit he initiated in 2000 on behalf of Mills' father. Specifically, the above referenced violations implicated Maine Bar Rules 3.1(a) (conduct unworthy of an attorney) and 3.6(a)(1)(2) (requiring a lawyer to be adequately prepared and competent while performing legal services).

    Additionally, Attorney Watkinson committed conduct unworthy of an attorney when he advised the complainant, Gary Mills and Watkinson's client, Glen Mills (brothers and heirs to their father's estate) to withhold the probate of the Mills' grandmother's Will to avoid the State of Maine's estate recovery efforts. As a result of his unsound advice, Attorney Watkinson engaged in conduct prejudicial to the administration of justice. See M. Bar R. 3.2(1)(4). Once he was informed by Mills' attorney of his error, Attorney Watkinson filed the Will with the Waldo County Probate Court.

    Gary Mills filed a motion in 2006 to remove his brother as Personal Representative of their father's estate. During a recess in the November 2006 hearing on the motion, Attorney Watkinson and the Attorney for Gary Mills discussed a possible settlement. In the course of those discussions, Attorney Watkinson relayed his understanding that the state was not intending to pursue a claim against the Mills Estate. Since Gary Mills relied on Watkinson's statements he then agreed to become Trustee of a trust created under his father’s Will.

    Consequently in May 2007, the State of Maine did in fact pursue a $163,000 claim against the Mills estate.1 Prior to the states filing Gary Mills sold the family home at a sale price significantly less than the State's subsequent claim. Ultimately, the Mills estate and the State of Maine settled the recovery action and in February 2008 the two parties stipulated to a dismissal of the same. Reviewing the totality of those circumstances, the Grievance Commission finds that Attorney Watkinson's flawed consideration of whether the State would pursue the recovery action resulted again in conduct prejudicial to the administration of justice.

    Conclusion and Sanction

    The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Watkinson's above-outlined failures, Mr. Mills incurred additional expenses, frustration, time and energy.

    The panel notes that Attorney Watkinson has taken responsibility for his actions and the unfair result to Mr. Mills and the Mills estate. During this hearing, Attorney Watkinson offered an apology to Mr. Mills for his violations of the Code of Professional Responsibility.

    M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Watkinson agrees that he did in fact violate the Code of Professional Responsibility, it appears that a public reprimand serves those purposes.

    Therefore, the Panel accepts the agreement of the parties, including Attorney Watkinson's waiver of the right to file a Petition for review, and concludes that the appropriate disposition of this case is a reprimand to Randal E. Watkinson, Esq. as provided by M. Bar R. 7.1(e)(3)(C).


    For the Grievance Commission

    Victoria Powers, Esq., Chair
    John C. Hunt, Esq.
    Joseph R. Reisert, Ph.D.


    Footnotes

    1This is so even though Watkinson had given differing reports about how he had acquired the information about the states claim.

    Board of Overseers of the Bar v. Mark Kierstead, Esq.

    Download Decision (PDF)

    Docket No.: GCF-99-37

    Issued by: Grievance Commission

    Date: July 28, 2000

    Respondent: Mark Kierstead, Esq.

    Bar Number: 001895

    Order: Reprimand

    Disposition/Conduct: Neglect of a Client's Matter; Failure to have a Written Contingent Fee Agreement


    Decision


    This matter was heard by Panel E of the Grievance Commission on the petition of the Board of Overseers against Mark Kierstead, Esq., of Waterville, Maine. On June 6, 2000, a public hearing was conducted in accordance with Maine Bar Rule 7.1(e)(2) to determine whether there were grounds for the issuance of a reprimand or whether probable cause existed for the filing of an information against Mr. Kierstead arising out of his representation of Laura Pelletier, including his failure to account timely and turnover to Ms. Pelletier the proceeds of litigation held by him on her behalf, and his subsequent conduct in the course of litigation in which he and Ms. Pelletier were parties. The petition alleges numerous violations of the Maine Bar Rules including Maine Bar Rule 3.1(a) (conduct unworthy of an attorney); 3.2 (conduct involving dishonesty and which is prejudicial to the administration of justice); 3.3(a) (excessive fees); 3.5 (withdrawal from employment); 3.6 (failure to employ reasonable care and skill); 3.6(e) (failure to maintain complete records of all funds and prompt delivery to the client ); 3.6(f) (communicating with adverse party); and 3.7 (employment of legal process for delay harassment or malicious injury).

    At the hearing, no objection was made to the composition of the panel. The Board of Overseers was represented by Assistant Bar Counsel, Geoffrey Welsh. Mr. Kierstead appeared pro se. Mr. Welsh examined Mr. Kierstead and Laura Pelletier. Mr. Kierstead also testified on his own behalf. Both parties offered written evidence in the form of exhibits. All exhibits were admitted into evidence without objection.

    Based upon the evidence, the Panel finds that Mr. Kierstead violated the Rules of Professional Responsibility in several aspects of his representation of Ms. Pelletier. Mr. Kierstead filed no answer to the petition. Pursuant to Maine Bar Rule 7.1(e)(1), the facts set forth in the petition and the misconduct alleged in that petition are taken as admitted. At the hearing, Mr. Kierstead urged the Panel to hear his evidence. He argued that his failure to answer the petition was an oversight and that he had intended to dispute certain aspects of the petition. Mr. Kierstead identified those portions of the petition he wished to dispute. Mr. Kierstead was permitted to present evidence with respect to whether his communications with his client were deceitful, whether he exercised reasonable care and skill in his representation of Ms. Pelletier, and whether his conduct in subsequent litigation violated the rules because these allegations were considered by the Panel to bear upon the question of sanctions. Mr. Kierstead was, thus, permitted to proceed on a limited basis in defense of the foregoing allegations.

    The undisputed facts are these. Laura Pelletier engaged Mark Kierstead in March of 1997 to prosecute a personal injury claim, initially commenced on her behalf by the Bangor firm of Leen & Emery. Ms. Pelletier discharged Leen & Emery in hopes that Kierstead could obtain a more valuable settlement of her claims. Leen & Emery had contracted with Ms. Pelletier for a contingent fee, consistent with Maine Bar Rule 8(d), which contained a provision for payment of one-third (⅓) of the highest settlement offer obtained by the firm from the proceeds of the ultimate recovery in the event Ms. Pelletier discharged Leen & Emery prior to recovery. On March 24, 1997, David Leen wrote to Kierstead and advised him of the firm's claim to a portion of any recovery of Ms. Pelletier's claim and its willingness to accept a compromise sum of $3,000.00. On April 30, 1997, Leen wrote again requesting payment of $3,000.00 from any recovery obtained by Kierstead on Pelletier's behalf. On June 17, 1997, Kierstead made that commitment.

    Kierstead settled Ms. Pelletier's claim for a total sum of $32,500.00, significantly higher than the highest offer obtained by Leen & Emery. Kierstead disbursed to Pelletier the sum of $13,333.33 on November 25, 1997 and another $5,000.00 on or about December 5, 1997. Mr. Kierstead calculated his fee as one-third (⅓) of the net recovery, after deduction of the fee due to Leen & Emery. Respondent produced no written contingent fee agreement in compliance with Maine Bar Rule 8. The panel finds that there was none.1

    David Leen, having been informed of the settlement, requested payment to Leen & Emery on December 5, 1997. Mr. Kierstead's response (or lack thereof) is the basis of the petition.

    The Respondent did not remit to Leen & Emery until April 6, 1998, more than four months following his receipt of settlement funds. In the interim, Leen & Emery commenced a civil action against both the Respondent and Ms. Pelletier for all sums due under their contingent fee agreement. Respondent, thus, failed in his undertaking to hold his client harmless from liability to Leen & Emery. Respondent offered no excuse other than the press of other business interests and a brief, albeit arduous, separation from his law office on account of the ice storm of January 1998.

    Once Leen & Emery commenced suit, Mr. Kierstead faced two dilemmas. He clearly had authority to settle the claim for the compromise sum. However, Leen & Emery pressed for a larger sum. In addition, Ms. Pelletier cross-claimed and refused to dismiss without satisfaction of the Leen & Emery claim, plus her damages arising out of the litigation. As a consequence, further delay and expense ensued all of which could have been avoided had Mr. Kierstead simply paid Leen & Emery as he had agreed. These dilemmas were of Respondent's own making and avail him of nothing in terms of mitigation.

    The Board characterizes this case as egregious. Indeed, Respondent's conduct should not be excused. Respondent ignored too many warnings from his fellow attorneys and neglected too many demands from his client. In fashioning an appropriate sanction we look, first to the underlying misconduct. We note that the essence of the complaint against Respondent is that he delayed payment to Leen & Emery for approximately four months. The reasons for that delay remain unclear. The Panel heard no evidence that Ms. Pelletier's money was misappropriated by Respondent. Respondent testified that the money never left his trust account. Moreover, the Panel cannot conclude on the evidence, that Respondent misled either his client or Leen & Emery. He simply ignored them for an unconscionable period of time. The Respondent violated the rules due to delay, as opposed to deceit. He has made his client whole. We believe that the absence of deceit and the fact that restitution has been made is what distinguishes this case from a case which might otherwise warrant a finding of probable cause for suspension or disbarment.

    On the other hand, a dismissal, even with a warning would require the Panel to overlook the sum of numerous other violations of the rules including Mr. Kierstead's failure to comply with Rule 8 and his lack of attention in his obligations to account. The harm done to Ms. Pelletier was not minor. She put too much expense and considerable anxiety before Mr. Kierstead was coerced into meeting his obligations to her. Mark Kierstead was the agent of Ms. Pelletier, owing to her the fiduciary duties of due care, loyalty and obedience. He failed in the performance of each of those duties. He failed to attend to the simplest of undertakings. He neglected the bill of Leen & Emery. He failed to timely respond to his client's requests for assistance in resolving the matter and her subsequent demands for performance. He testified that his personal business interests diverted his attention from client matters and, in so doing, concedes his violation of the Rules of Professional Responsibility.

    Accordingly, Mark Kierstead, Esq. is hereby reprimanded for his inattention to matters entrusted to him in violation of the Rules of Professional Responsibility in connection with his representation of Laura Pelletier.


    For the Grievance Commission

    Stephen G. Morrell, Esq.
    Charles W. Smith, Jr., Esq. .
    Harriet Dawson


    Footnotes

    1Prior to this hearing, a panel of the Fee Arbitration Commission decided the amount of a reasonable fee for Mr. Kierstead's services on Ms. Pelletier's behalf. The parties acknowledged that Mr. Kierstead had since remitted to Ms. Pelletier in compliance with that decision.

    Board of Overseers of the Bar v. Calvin E. True, Esq.

    Download Decision (PDF)

    Docket No.: BAR 08-5

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: December 2, 2008

    Respondent: Calvin E. True, Esq.

    Bar Number: 000787

    Order: Suspension

    Disposition/Conduct: Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation; Simultaneous Representation


    Disciplinary Order
    M. Bar R. 7.2(b)


    Background

    In this matter, Bar Counsel J. Scott Davis represented the Board of Overseers of the Bar, and Attorney Peter J. DeTroy represented Defendant Calvin E. True. On June 2, 2008, the Court approved counsel's Stipulated Waiver of Grievance Commission Proceedings. As a result, the Court has jurisdiction to proceed directly in this disciplinary proceeding under M. Bar R. 7.2(b) and issue a Disciplinary Order absent any earlier Grievance Commission hearing under M. Bar R. 7.1(e). At the hearing held in this matter on December 2, 2008, Attorney True expressed his remorse and apologized for his misconduct, confirmed that he waives his right to appeal this Order to the Law Court and also agreed that the sanctions imposed by this Order are effective on the date of this Order.

    Stipulations

    Counsel for the parties have stipulated to the following material facts now found and adopted by the Court.

    At all times relevant hereto, Attorney True has been an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules. He has practiced law in the estate-planning field with the law firm of Eaton Peabody in Bangor since 1972. By way of Attorney DeTroy's detailed filing letter of March 15, 2006, with several attached exhibits, Attorney True self-reported to Bar Counsel Davis his misconduct in three separate instances as summarized below.

    The December 2004 Real Estate Transaction

    On or about December 23, 2004, Attorney True represented the sellers in a substantial real estate transaction with a value of approximately $25,000,000. The land involved in that transaction was approximately 54,000 acres, all or most of which was timberland.

    There were three sellers represented by Attorney True: the Estate of Doe, Mr. A, and Mr. B, the latter two being the beneficiaries of the Estate of Doe. The Estate of Doe held a substantial portion of the property sold in the transaction.

    An accelerating force during the transaction was a new law regulating the use of timberlands. That law modified the allowable use of timberlands acquired after January 1, 2005, making the property more valuable to the buyers if it were purchased before the law's effective date. Therefore, the parties' contract required that the sale close before December 30, 2004. Accordingly, the closing was scheduled for December 23, 2004.

    On December 22, 2004, Attorney True presented his clients with a bill for legal services in the amount of $175,000. Of that amount, $115,000 was designated to cover the legal services related to the sale of the timberland interests and the remaining $60,000 was identified to cover future estate expenses. There was no written fee agreement between Attorney True and his client sellers.

    Attorney True agrees that a calculation of the hours the law firm's professionals spent in this timberlands transaction multiplied by their respective hourly rates totaled approximately $28,000. The firm's invoices to the clients reflected the actual services provided, but did not contain a breakdown of the hours spent or the hourly rates. Attorney True understood that the factors set forth in title 18-A M.R.S. § 3-721 of the Maine Probate Code would provide the basis for the fee ultimately charged to the clients.

    Before the closing, Mr. A and Mr. B had agreed that each of the three sellers would bear that portion of Attorney True's fees and expenses that mirrored that seller's proportionate payment from the sale of the timberlands. Mr. A's pro-rata share of the $115,000 fee billed in December 2004 was $42,818. The Estate of Doe's pro-rata share of the $115,000 fee billed in December was $40,326.88. Mr. B's pro-rata share of the $115,000 fee billed in December was $31,855.12.

    Although there was no written fee agreement for the sale of the timberlands, the billing pattern established during the firm's prior handling of the Estate of Doe (of which Mr. A was a personal representative and Mr. B was a beneficiary) involved monthly invoices that did not specify the time and billing rates of the various Eaton Peabody personnel involved in the representation. Before December 2004 the invoices did predominantly reflect the time and rate of the respective timekeepers.

    In early 2005, Mr. A expressed concern to Attorney True that the fees billed to him were too high. He objected both to the fees billed to the Estate of Doe and to the fees billed him individually. Although the firm's accounting system did not allow him to do so, Attorney True ultimately agreed with Mr. A's request to provide separate invoices to reflect the fees attributable to Mr. A, Mr. B, and the Estate.

    The document that Attorney True prepared and dated March 4, 2005, purported to be an invoice to the Estate of Doe. It was created by Attorney True in a word processing program outside the firm's normal billing protocol, i.e. it was not an invoice generated by computer automation from contemporaneously maintained time and billing records of the firm's employees. Attorney True agrees that Mr. A could reasonably have believed that invoice was generated by the firm's bookkeeping records when, in fact, it was not. Attorney True further admits that invoice also contained entries that did not track the specific charges in the prior firm invoices, but rather reflected his general recollection of the nature of the services. He did not make any affirmative inquiry of the firm's accounting department to determine if separate invoices could have been created.

    Mr. A requested a more detailed explanation of the legal services for which Attorney True had billed him. On May 16, 2005, Attorney True responded to Mr. A's request by generating a memo that identified the scope of work completed, included a description of the hours spent and listed the billing rate of various firm personnel who had worked on the matter. Attorney True agrees that in that memo he misrepresented to Mr. A the amount of total time and hourly rates of some of the involved professionals from his law firm.

    As he did in his self-report filing with the Board, Attorney True admits that his May 16, 2005, memo included several misrepresentations including: (1) the billing rates of several attorneys; (2) the time he had actually devoted to the matter; and (3) the amount of time a firm associate had actually devoted to the matter. In addition, Attorney True's memo also understated the time another firm associate had devoted to the matter.

    The actual billable amount of time spent by the firm on behalf of Mr. A, Mr. B, and the Estate of Doe collectively-based upon the contemporaneous entries of firm staff into a time and billing data base-totaled $27,341.50. Attorney True's May 16, 2005, memo represented that the law firm's records for the billable time for the timberlands transaction on behalf of Mr. A, Mr. B, and the Estate of Doe was collectively $35,892.50. In sum, the memo inaccurately overstated the time and hourly rate by approximately $8500.

    Attorney True initially admitted his misconduct to his firm in June 2005. At that time, the Co-Personal Representative of the Estate of Doe asked one of Attorney True's partners at Eaton Peabody for information to support the bills that had been rendered to the Estate. The information requested included the bills issued to the Estate for the timberlands transaction as well as the firm's billing records relating to the law firm's administration of the Doe Estate. When Attorney True was approached by that partner, he acknowledged his misconduct to his firm.

    The billing issues were ultimately resolved when the firm reimbursed Mr. A and the Estate of Doe for all sums they paid in excess of billing hours and attorney's hourly rates. Mr. B advised the firm that it was his position that the amount of the bill charged him was appropriate, recognizing the factors set out in title 18-A. M.R.S. § 3-721. He declined any reduction of the sums he had been billed by the firm.

    By preparing and presenting inaccurate information to a client concerning the billing information, Attorney True agrees and the Court finds that he violated M. Bar R. 3.2(f)(3).

    Misuse of Client Funds Held in Trust

    Prior to that timberlands closing, specifically on December 6, 2004, the buyers submitted a $1,000,000 earnest money deposit on the timberlands parcel. That deposit was inadvertently placed by the Eaton Peabody accounting department into a separate account at the firm and therefore was not available to be distributed at the timberlands closing on December 23, 2004.

    The "Trust Report" and narrative provided by Attorney True to Bar Counsel in his self-report confirm that on December 23, 2004, he directed the firm's accounting department to issue a $2500 check to cash to provide for distributions of cash bonuses to five of the firm's staff members who had worked on the sale of the timberlands. Attorney True also paid a law firm bill for legal services rendered to one of his sons totaling $1200. He also paid the November invoice of $11,530 for legal services to the Estate without authorization. Attorney True made these separate payments from the firm's trust account. While he had understood those payments were made from funds for the firm’s legal fees in the timberlands transaction which had been deposited in its operating account, Attorney True agrees that his having directed such payments from the firm's trust account without the clients' consent was inconsistent with the requirements of M. Bar R. 3.6(e) (Preserving Identity of Funds and Property).

    Conflict of Interest

    Attorney True represented Mrs. C in various legal matters starting in 1994. A prior stroke had left her physically incapacitated, but at all times she retained her mental acuity. In 1999 Mrs. C's son died and she made Attorney True her agent under a power-of-attorney that included the authority to handle her finances. Payment of her monthly expenses was accomplished through a trust she had established with a local bank. In 2000 Attorney True provided estate-planning services to Mrs. C. In 2001, her physical deterioration led to her decision to enter an assisted living facility. At her request, Attorney True monitored Mrs. C's homestead, to which she hoped to return. Although she briefly returned on occasion, she was never able to resume her residence there.

    Soon after Mrs. C's departure from her home, Attorney True proposed the possibility of a house sitting arrangement to defray costs. He acknowledges he advised her that his son and his son's fiancée might be interested in such an arrangement. Mrs. C spoke separately to his son and son's fiancée and reached a satisfactory arrangement for the lease of her home. As a result, in August 2001 Attorney True prepared a lease agreement between the parties at Mrs. C's request. Attorney True suggested that Mrs. C seek the assistance of separate legal counsel if she had any concerns, but acknowledges this advice was not memorialized by a written consent. In May 2005, Mrs. C entered a different nursing home and informed Attorney True that she no longer believed she would return home. At that time Attorney True's son and daughter-in-law wrote to Mrs. C expressing an interest in purchasing the home. Mr. True reviewed and edited that letter. Mrs. C and Attorney True's son and daughter-in-law then entered into direct discussions and ultimately agreed that the son and daughter-in-law would have an option to purchase Mrs. C's home for a given price, either during her lifetime should she choose to sell it, or from her estate after her death. The option price proposed by the son was $145,000. An estimate of value by a respected local broker Mrs. C had recently arranged for concluded the fair market value was $155,000. Although all substantive terms were negotiated directly by the parties, Attorney True drafted the option agreement that provided for a sales price, based on various contingencies, of $145,000 to $155,000.

    Attorney True notified Mrs. C that he was unable to represent her in the proposed contract between her and his son. Attorney True did not refer her to separate counsel. He did suggest she consult with a close friend whose son-in-law owned a large real estate firm and who provided her with the estimate of value. Attorney True did meet and discuss with Mrs. C the option contract and billed her on a single occasion for discussions relating to that contract and to unrelated matters.

    The proposed sale ultimately was not consummated.

    Attorney True agrees that by assisting in the preparation of the lease and purchase agreement he created a conflict of interest without informed written consent as required by M. Bar R. 3.4(c)(2) (Simultaneous Representation).

    Order of Sanctions

    It is agreed by the parties and now so found by the Court that Attorney True engaged in professional misconduct. Attorney True engaged in misrepresentations and misstatements to a client regarding the firm's bill directed client funds held in trust to be used for non-client purposes, and represented a client in circumstances where a conflict of interest existed and in which he failed to obtain the requisite written consent.

    Attorney True's misconduct violated specific portions of the Code of Professional Responsibility as noted above, for which Attorney True is now disciplined and/or sanctioned as follows:

    1. For his misrepresentations to Mr. A (and indirectly to the Co-Personal Representative) and resulting violation of M. Bar R. 3.2(f)(3), the Court issues a suspension from the practice of law for three months. However, due to Attorney True's remorseful attitude and actions, his filing of a self-report, his acknowledgment of his misconduct, his lack of any prior disciplinary or sanction history during many years of practice, the absence of prior or subsequent acts of misconduct, and his apology to the Court, the execution of that suspension will be stayed for two years. Although such misconduct often results in the Court's appointment of a Monitor to supervise and control the disciplined attorney's conduct during the suspended period of suspension, given Attorney True's previously mentioned remorseful attitude and performance concerning his misconduct, the Court is satisfied it is not necessary to appoint such a Monitor in this instance. Attorney True shall, however, completely comply with Maine's Code of Professional Responsibility. If he should fail to do so, upon receipt of a grievance complaint from any source (including any self-report) alleging unethical conduct by Attorney True, Bar Counsel has the authority to file that matter directly with this Court without any prior review by or hearing before the Grievance Commission and/or to petition this Court to impose a portion or all of that suspended three month suspension;

    2. For his improper payments of funds in violation of M. Bar R. 3.6(e) and for his unrelated conflict of interest violation of M. Bar R. 3.4(c)(2) the Court imposes a dismissal with a warning in each instance; and

    3. As part of its imposition of these sanctions, the Court expects Attorney True will use appropriate financial safeguards and monitoring to avoid any misconduct in the future. Therefore, within forty-five days after the date of this Order, Attorney True shall provide written notice to Bar Counsel of the manner and types of such safeguards installed in his practice. Should he fail to satisfactorily notify Bar Counsel and institute appropriate safeguards, Bar Counsel has the authority to notify the Court of Attorney True's non-compliance with this Order and to file any future claims of misconduct directly with this Court for such action as may be found appropriate.


    For the Court

    Hon. Ellen A. Gorman, Associate Justice – Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Gordon Ayer, Esq.

    Download Decision (PDF)

    Docket No.: BAR-07-10

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: December 17, 2008

    Respondent: Gordon Ayer, Esq.

    Bar Number: 001863

    Order: Reprimand

    Disposition/Conduct: Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct Prejudicial to the Administration of justice; Improper Concealment, Statement or Evidence; Adversary Conduct


    Order and Sanction


    The complicated and protracted history of this case began in October 1998 with a complaint to the Board of Bar Overseers (Board) against Attorney Gordon Ayer. The complainant, Margaret B. Spenlinhauer, alleged that, in the course of his representation of her husband, John E. Spenlinhauer Ill, during the litigation of their Massachusetts divorce, Attorney Ayer had violated multiple bar rules and should be disciplined. At Attorney Ayer's request, the investigation of his alleged misconduct was stayed for approximately seven years while the Spenlinhauers' divorce was pending. 1

    This complaint, along with a second complaint by Ms. Spenlinhauer were reviewed and litigated in Maine between 2005 and 2007. After Attorney Ayer and bar counsel agreed to waive further hearings before the Board's Grievance Commission, this Court accepted jurisdiction over the matter and now addresses three issues: (1) whether Ms. Spenlinhauer can intervene in this disciplinary proceeding; (2) whether Attorney Ayer violated the Maine Bar Rules; and (3) if Attorney Ayer did violate any rules, how he should be sanctioned.

    Procedural History2

    Attorney-Ayer first responded to Ms. Spenlinhauer's 1998 complaint in September 2005. In October 2005, Ms. Spenlinhauer filed a supplemental complaint with the Board. Although neither Attorney Ayer nor his counsel received a copy of that second filing from the Board at any time in 2005, when the Grievance Commission undertook its evaluation of the case in late 2005, it considered the assertions made by Ms. Spenlinhauer in 2005, as well as those made in 1998. Based upon its review of Ms. Spenlinhauer's complaints and Attorney Ayer's response to the first complaint, the Grievance Commission panel found probable cause to believe that Attorney Ayer had engaged in misconduct in April 1998, based on the actions he took after discovering that his client had been giving him false information. The panel found that Attorney Ayer's handling of this information warranted sanction under the Maine Bar Rules. The screening panel directed bar counsel to prepare a disciplinary petition limited to those actions in 1998 and to present it to a different panel of the Grievance Commission.

    On August 13, 2007, that second panel presided over a stipulated disciplinary hearing during which the Board and Attorney Ayer proposed a negotiated settlement. Ms. Spenlinhauer attended that hearing and made a lengthy presentation, expressing her dissatisfaction with and opposition to the proposed settlement. In September 2007, the panel informed the Board, Attorney Ayer, and Ms. Spenlinhauer that it had not accepted the proposed settlement. The panel set the matter for a supplementary hearing.

    At that time, Attorney Ayer elected to forego the supplementary hearing and requested that bar counsel consent to a stipulated waiver of further Grievance Commission proceedings, in order to proceed directly to this Court for a de novo hearing on the disciplinary complaint. Ms. Spenlinhauer notified the Board of her objection to this available procedural process. After consideration of Attorney Ayer's request, bar counsel consented, and the parties filed a request that the Court allow them to waive further Commission proceedings. The Court granted that joint request on December 19, 2007, and accepted jurisdiction over this matter.

    On July 11, 2008, Bar Counsel filed an Information against Attorney Ayer, pursuant to M. Bar R. 7.2(b), alleging that he had violated a series of bar rules after learning in April 1998 that his client had been misrepresenting the characterization of a bank account during the course of the divorce proceedings. Attorney Ayer responded to the Information on August 15, 2008. The Court met with counsel on September 3, 2008, at which time counsel indicated that Attorney Ayer recognized that his actions would support a determination that he violated the Maine Bar Rules. Counsel and the Court then established a procedural schedule. In accordance with that schedule, the Court ordered counsel to file a stipulated factual record and position letters by October 6, 2008. The Court's order also indicated that no argument would be scheduled if the written submissions were sufficient to permit the Court to determine the case.

    On October 7, 2008, Ms. Spenlinhauer filed a motion to intervene in the court proceeding. In her motion, and in the submissions she filed in support of that motion, Ms. Spenlinhauer asserts that both the Board of Bar Overseers and bar counsel have chosen to ignore most of her complaints concerning Attorney Ayer. She argues that she should be allowed to intervene in order to correct inaccurate assertions and to bring certain matters before the Court that otherwise would not be presented. Additionally, Ms. Spenlinhauer demands that the Court dismiss this proceeding and order the Board of Bar Overseers to retain independent counsel to undertake a review of all of the complaints. Both Attorney Ayer and bar counsel filed objections to Ms. Spenlinhauer's motion to intervene. For the reasons explained below, the Court denies her motion.

    Findings of Fact

    1. At all times relevant hereto, Defendant Gordon C. Ayer, Esquire of Kennebunkport, County of York, State of Maine was an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.

    2. Attorney Ayer is in private practice in Kennebunk, Maine. At the time of the conduct at issue in this case, Attorney Ayer was corporate counsel to Spencer Press of Wells, Maine.

    3. An owner of Spencer Press, 3 John E. Spenlinhauer III (John) was engaged in divorce proceedings with Margaret B. Spenlinhauer. The divorce action was commenced by Ms. Spenlinhauer in the Massachusetts Probate and Family Court in 1988.

    4. John's interest in Spencer Press, a commercial printing enterprise, was a significant marital asset; John's financial status and the valuation of his ownership interest in the enterprise were matters of dispute in the divorce proceeding.

    5. By agreement, the divorce action was referred to arbitration. The assigned arbitrator heard the case in 1991; issued a draft of proposed findings and decision in 1993; and released final findings and decision in early 1998.

    6. Thereafter, Massachusetts counsel acting for John brought a motion before the Probate Court in Massachusetts to have the arbitrator's final findings and decision adopted by the Court.

    7. After John's Massachusetts divorce counsel was suspended from the practice of law for matters unrelated to the divorce proceedings, Attorney Ayer was admitted pro hac vice with the Massachusetts Probate and Family Court.

    8. Within days after the arbitrator issued his final findings and decision, Ms. Spenlinhauer obtained additional bank documents, which she had been seeking for years, for an account that she asserted was relevant to the divorce, Account No. 01-8708-9 at Massachusetts Bank and Trust Company, referred to during the Spenlinhauer divorce litigation as the "-9 account." The funds in that account derived primarily from checks issued to Spencer Press from United Paper Stock Company, a Rhode Island waste paper processor. The documents had been tied up in an unrelated proceeding involving the Bank.

    9. The bank documents obtained supported Ms. Spenlinhauer's assertion that the -9 account was a business account owned by Spencer Press. Throughout the divorce proceedings, John had consistently maintained that the -9 account was the personal account of his brother Stephen P. Spenlinhauer (Stephen). John represented that he had no interest in and derived no benefit from the -9 account. It was not until after Attorney Ayer learned the true nature of the account from a third party that John admitted that it was a business account owned by Spencer Press and that it benefited him.

    10. On March 27, 1998, based primarily on the new information about the -9 account, Ms. Spenlinhauer filed a motion in the Probate Court to reopen and recommit the matter to arbitration.

    11. After reviewing Ms. Spenlinhauer's motion, Attorney Ayer made inquiries of John, Stephen and the Company's accountant, John Parent (Parent). At that time, all three maintained that the -9 account was Stephen's personal account. 4

    12. Attorney Ayer drafted a memorandum to the Probate Court, including supporting affidavits from John, Stephen, and Parent in opposition to Ms. Spenlinhauer's motion and in support of John's motion to confirm the arbitrator's award.

    13. In the affidavits signed by John and Stephen, and in his memorandum, Attorney Ayer described the -9 account as "owned, maintained and controlled" by Stephen.

    14. The response deadline to serve a reply to Ms. Spenlinhauer's motion was Thursday, April 23, 1998. A hearing on both parties' motions was scheduled for Monday, April 27, 1998.

    15. On April 23, 1998, Edmond Nugent, an independent director5 of Spencer Press, asked Parent about the controversy surrounding the -9 account. That afternoon, Parent and Nugent reached Attorney Ayer on his cellular phone while he was driving to Boston to serve and file John's responsive pleadings to Ms. Spenlinhauer's motion. During that call, Parent told Attorney Ayer the truth about the ownership of the -9 account.

    16. As a result of the phone call, Attorney Ayer drove to the Boston office of Attorney Walter May, who had previously represented John in the divorce. Both John and Stephen were in Florida at the time. Attorney Ayer was unable to reach John, but he contacted Stephen, who confirmed Parent's information about the account.

    17. While at May's office, Attorney Ayer altered the first page of both affidavits to remove the word "owned" from their description of the -9 account. Attorney Ayer then printed the revised pages, which indicated that Stephen "maintained and controlled" the -9 account, and substituted the revised pages for the original first pages in the previously signed affidavits. Attorney Ayer did not modify his memorandum. John subsequently confirmed and ratified the change to his affidavit.

    18. Attorney Ayer made no supplemental filings with the court during the two business days available to him before the hearing.

    19. On April 27, 1998, while arguing John's motion to confirm the arbitration award and opposing Ms. Spenlinhauer's request to reopen the case. Attorney Ayer informed the court that Stephen Spenlinhauer was not the owner of the -9 account; that it was a business account of Spencer Press. Ayer stated the following in open court:

    I would, however, like to point [out] something else[.] [T]hat it's my position for the record and hopefully for all time that this account at Mass. Bank & Trust was a corporate account. If Stephen Spenlinhauer calls it a personal account, I think he's wrong. If John Spenlinhauer calls it a personal account, I think he's wrong. It was a corporate account. It was maintained and controlled by Stephen Spenlinhauer. I don't believe he owned it. The funds that flowed into that account were the funds of Spencer Press.

    1. Attorney Ayer also argued on April 27, 1998, that the diversions to the -9 account, the total amount of which was discussed on the record, should be characterized as "insignificant" when considered in light of the gross revenues of Spencer Press for the years in question.
    2. In October 1998, 6 Ms. Spenlinhauer filed a second complaint against Attorney Ayer. Her two-part complaint was later supplemented by an additional filing through her counsel in August 2005. The August 2005 filing was not timely forwarded to counsel for Attorney Ayer; he did not receive it until October 16, 2007. However, Ayer's counsel notified the Board of Ayer's waiver of any procedural errors committed by the Board.
    3. Attorney Ayer filed brief responses to the 1998 complaint and, for several years, declined to answer the complaint more fully due to confidentiality issues relating to the pending Spenlinhauer divorce litigation. Throughout those years, and pursuant to Board Regulation #12, the Grievance Commission's preliminary review panel met and repeatedly deferred completion of its review of the Ayer complaint matter. In September 2005, Attorney Ayer retained counsel and provided a full response to the 1998 complaint. When they filed that written response, neither Attorney Ayer nor his attorney was aware of the 2005 filing.
    4. Despite the lack of response from Attorney Ayer to Ms. Spenlinhauer's 2005 filing, the preliminary review panel finalized its evaluation of both the 1998 filing and the 2005 filing. The only issue that the panel authorized for further disciplinary proceedings was related to Ayer's actions in response to the new information about the -9 account and to Ms. Spenlinhauer's motion to reopen the divorce arbitration. Accordingly, the panel directed Bar Counsel to prepare and file a formal disciplinary petition for a hearing before a different panel of the Grievance Commission. All of Ms. Spenlinhauer's other allegations were effectively dismissed.
    5. Bar Counsel filed a disciplinary petition against Attorney Ayer on April 4, 2007. Bar Counsel and Attorney Ayer negotiated a stipulated resolution and presented it to the Grievance Commission panel at a hearing in August 2007. Ms. Spenlinhauer attended that hearing, and the panel permitted her to make a presentation objecting to the parties' proposed resolution.
    6. In September 2007, the panel issued a decision declining to accept the parties' proposal. Because some panel members had lingering questions, the panel set the matter for a supplementary hearing. At that point, Attorney Ayer elected to pursue a waiver of further Grievance Commission hearings. Bar Counsel consented to his request, and this Court approved the waiver and accepted jurisdiction over the matter in December 2007.

    Conclusions

    A. Procedural Issues

    This matter is before the Court pursuant to M. Bar R. 7.2(b), by agreement of the parties to this proceeding. The parties are the Board of Overseers of the Bar and Attorney Ayer. The Maine Bar Rules permits them, as parties to the proceeding, to agree to bypass the complete Grievance Commission process and give jurisdiction to the Court. This procedural decision can be made at the commencement of the action, see M. Bar R. 7.2(b)(7), or, as is the case here, at some point in the middle, see M. Bar R. 7.2(b)(7).

    Although Ms. Spenlinhauer's complaints against Attorney Ayer initiated this action, she is not a party to this proceeding. See M. Bar R. 7.2(b)(2) ("The Board shall be treated as the plaintiff and the respondent attorney as the defendant ...."), As a non-party, Ms. Spenlinhauer's role is important, but limited. The Board's decision to consent to Attorney Ayer's request that the matter be referred to the Court was the Board's alone to make, based upon whatever information it deemed important.

    B. Motion to Intervene

    As noted above, Ms. Spenlinhauer filed a motion to intervene in this proceeding in order to correct what she alleges are false assertions and to bring forth issues that she deems important and that the parties have not addressed. In her submissions, however, she failed to provide any citation to a rule, a statute, or even a case that might support her position. The Board of Overseers of the Bar, comprising six attorney members and three lay members, is charged with enforcing attorney compliance with the Maine Bar Rules. To carry out that duty pursuant to the Rules, the Board retains bar counsel to act as its investigator and prosecutor on disciplinary matters, and creates a Grievance Commission to conduct hearings on those matters presented to it by bar counsel.

    Contrary to Ms. Spenlinhauer's assertions, all of her complaints against Attorney Ayer were investigated by bar counsel and were considered by a panel of the Grievance Commission. In fact, the 2005 complaint was evaluated without any counter arguments from Attorney Ayer. After review, the panel determined that not all of her allegations warranted additional disciplinary action. Those allegations that were found by the panel to warrant disciplinary action are now before the Court.

    As the person who brought Attorney Ayer's actions to the attention of the Board of Bar Overseers, Ms. Spenlinhauer's position is analogous to that of a named victim in a criminal proceeding. While the Court appreciates that she is not satisfied with the reviewing panel's judgment of her complaints, it is nonetheless within the Board's discretion to decide which allegations to prosecute. Ms. Spenlinhauer's motion to intervene is denied.

    C. Attorney Ayer's Actions

    As the recitation of the facts above indicates, by the time Attorney Ayer filed his responses to Ms. Spenlinhauer's motion for reconsideration, he knew that the information previously provided to him by his client about the status of the -9 account was false. He also knew that because his client had provided that same false information to Ms. Spenlinhauer and to the arbitrator who had handled their divorce, Ms. Spenlinhauer's motion to reopen and recommit the matter to arbitration had merit.

    By filing the altered-but still misleading-affidavits, and by failing to immediately notify the court of his client's falsehood in this clear case of a prior and attempted continuing fraud on the Court, Attorney Ayer violated M. Bar R. 3.2(f)(3), 3.2(f)(4), 3.7(b), and 3.7(e)(1)(i). The Court notes, however, that during the hearing on Ms. Spenlinhauer's motion two days later, Attorney Ayer did notify opposing counsel and the court of the true status of the -9 account. In so doing, he ended the fraud perpetrated by his client.

    The question, then, is how the Court should respond to Attorney Ayer's violation of the Maine Bar Rules after learning of his client's misrepresentation of a material fact.

    Sanction

    It is agreed by the parties and now so found by the Court that Attorney Ayer engaged in professional misconduct. He engaged in conduct, although short-lived, that was effectively, a misrepresentation, resulting in conduct prejudicial to the administration of justice. He did not with sufficient promptitude correct information but rather participated in the continuation of false evidence, which left unc1arified and misleading pleadings before the Court. Attorney Ayer's actions violated specific portions of the Code of Professional Responsibility as noted above. The Court notes that Attorney Ayer did, after a short delay, report the truth about the -9 account, and has accepted responsibility for his actions as part of this proceeding. Based upon Attorney Ayer's misconduct, and for the reasons explained in this Order, the Court disciplines and/or sanctions Attorney Ayer by issuing him a public reprimand.

    Sanction

    For violating M. Bar R. 3.2(f)(3), 3.2(f)(4), 3.7(b), and 3.7(e)(1)(i), Attorney Ayer is reprimanded.


    For the Court

    Hon. Ellen A. Gorman, Associate Justice – Maine Supreme Judicial Court


    Footnotes

    1At that time, the divorce proceeding had been pending in Massachusetts since 1988. Attorney Ayer was admitted pro hac vice to represent Mr. Spenlinhauer in 1996.

    2The factual findings are taken from those portions of the Information that Attorney Ayer admitted and from the Stipulation filed by the parties on October 15, 2008.

    3Spencer Press of Massachusetts, which was partially owned by John Spenlinhauer, owned the shares of Spencer Press of Maine, Inc. For convenience, both entities will be referred to as "Spencer Press." John and his brother, Stephen P. Spenlinhauer, were the principal owners of Spencer Press.

    4In later proceedings, all three admitted those representations to Ayer were untrue.

    5The Board of Directors of Spencer Press comprises three members, John, Stephen, and Edmond Nugent.

    6Ms. Spenlinhauer filed her first complaint against Attorney Ayer alleging interference with justice in 1992. The Grievance Commission dismissed that complaint in November 1992.

    Board of Overseers of the Bar v. J.P. Nadeau, Jr., Esq.

    Download Decision (PDF)

    Docket No.: GCF 07-201

    Issued by: Grievance Commission

    Date: May 26, 2009

    Respondent: J.P. Nadeau, Jr., Esq.

    Bar Number: 001020

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Adversary Conduct


    Stipulated Report of Findings and Order of Panel E of the Grievance commission
    M. Bar R. 7.1(e)(4)
    M. Bar R. 7.1(e)(2)


    On May 26, 2009, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, J.P. Nadeau, 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 February 17, 2009.

    At the hearing, Attorney Nadeau was pro se and the Board was represented by Assistant Bar Counsel Aria Eee. The complainant, Sara Meerse, Esq. also participated in the disciplinary proceeding. Prior to the hearing, the parties had submitted a proposed, Stipulated Report of Findings and Order for this Grievance Commission Panel's review and consideration.

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

    Findings

    Respondent J.P. Nadeau (Attorney Nadeau) of Portsmouth, New Hampshire 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 Nadeau was admitted to the Maine bar in 1966 and he is currently registered with the Board as an active Maine attorney.

    On July 2, 2007, Attorney Meerse filed a grievance complaint against Attorney Nadeau. The complaint alleged violations of the Code of Professional Responsibility by Attorney Nadeau related to a 2006 protective custody proceeding where Meerse served as Guardian ad litem (GAL). On or about July 13, 2007, Attorney Nadeau filed his initial response to the grievance explaining his involvement in the matters affecting his client, the mother of the children. In that initial answer to the complaint, Attorney Nadeau denied any commission of misconduct. Thereafter, the Board conducted an investigation surrounding the events described by Attorneys Meerse and Nadeau.

    Pursuant to its investigation, the Board learned that there had been a previous 2001 protective custody proceeding in Maine in which Attorney Meerse was the GAL and in which Attorney Nadeau represented the mother until his withdrawal in 2003. Following the conclusion of the prior Maine District Court protective custody case, the children lived with their father in New Hampshire and their mother continued to live in Maine. The District Court dismissed that proceeding in 2005 as the jeopardy matter had been resolved due to the entry of a family matter proceeding in which custody of the children was granted to their father. On October 18, 2006, Attorney Nadeau, acting on Affidavits from two of the children's family members, represented the mother in the filing of a New Hampshire Parenting Petition matter in the county where the children resided. The New Hampshire Court, after conducting an ex parte hearing, awarded custody of the children to their mother. On October 19, 2006, apparently following contact by the father, Maine Department of Health and Human Services (DHHS) obtained a Preliminary Child Protection Order returning custody of the children to their father due to allegations the children were at immediate risk of harm with their mother. According to Attorney Nadeau, despite those allegations, there had been no contact between DHHS and the children's mother for two (2) years.

    Pursuant to the Maine District Court's Order, the Berwick Police Department provided assistance to the DHHS to obtain custody of the children from Attorney Nadeau's client. In that regard, Bar Counsel contends that Attorney Nadeau should not have become involved in the police department's efforts to secure the children. Attorney Nadeau asserts that he was trying to understand the conflicting orders and jurisdiction issues resulting from the New Hampshire Court Order issued October 18, 2006 and the Maine Court Order that was issued the following day, October 19, 2006. Regardless of the difference in opinion, Attorney Nadeau now agrees that his involvement at the mother's family home may have intensified the attendant emotions related to the police execution of the court's order. However, after Attorney Nadeau conferred further with the New Hampshire Court the children were released to Maine DHHS as directed by that Order.

    Thereafter, continued jurisdictional concerns arose when on October 20, 2006, the New Hampshire Family Court entered a Temporary Order awarding temporary custody of the children jointly to their paternal aunt and maternal grandmother. Three days later, the Maine District Court amended its Order of October 20, 2006 and awarded custody of the children to the Maine DHHS. According to Attorney Nadeau, in December 2006 the New Hampshire court awarded temporary custody of the children to their father, then in May 2007 it awarded shared residence and thereafter in February 2008, awarded primary residence to the mother.

    While Attorney Nadeau did not act as counsel for the mother in the related Maine proceedings, it is clear that he did not immediately inform the other litigants or the Maine District Court that he had restricted his representation of the mother to only the New Hampshire proceeding. Attorney Nadeau contends that he did not think to do so because he had withdrawn from the earlier Maine proceeding before its conclusion. In hindsight, Attorney Nadeau recognizes that his communication with the Maine court could have been clearer.

    Finally, while representing his client, Attorney Nadeau filed a series of pleadings in the New Hampshire Family Court. Some of those pleadings asserted arguments or relief that in hindsight, Attorney Nadeau acknowledges were a reflection of inappropriate professional judgment due to his criticism of other litigants and the Maine court system. Accordingly, based upon the above-outlined facts, Attorney Nadeau accepts a finding that he violated M. Bar R. 3.1 (a); 3.2(f)(4); and 3.7(e)(2)(vi).

    Conclusion and Sanction

    The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to their clients and the courts. The Panel notes that Attorney Nadeau has now taken responsibility for his above actions in representing his family law client. During this hearing, Attorney Nadeau expressed remorse for his violations of the Code of Professional Responsibility.

    M. Bar R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have failed to discharge properly their professional duties. Since the evidence supports a finding and Attorney Nadeau agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes. The Panel has been informed by counsel that while dissimilar from the events in 2006, Attorney Nadeau did receive a reprimand sanction after hearing in 1987 for engaging in a conflict of interest by improperly representing two defendants in a multi-party drug criminal case.

    Therefore, the Panel accepts the agreement of the parties, including Attorney Nadeau's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to J.P. Nadeau Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1 (e)(3)(c), (4).


    For the Parties

    Aria Eee, Assistant Bar Counsel
    J. P. Nadeau, Esq., Respondent


    For the Grievance Commission

    Victoria Powers, Esq., Panel E Chair
    Martica Douglas, Esq.
    Joseph R. Reisert, Ph.D

    Board of Overseers of the Bar v. Thomas R. Acker - Hollis, ME

    Download Decision (PDF)

    Docket No.: BAR-05-08

    Issued by:

    Date: September 22, 2006

    Respondent: Thomas R. Acker

    Bar Number: 003381

    Order: Disbarment

    Disposition/Conduct: Conduct Unworthy of an Attorney; Subversion of Bar Rules; Conduct Prejudicial to the Administration of Justice; Responsibilities re: Law-Related Services; Conflict of Interest: Successive Representation; Neglect; Preserving Identity of Funds and Property


    Order of Disbarment


    This matter is before the Court pursuant to M. Bar R. 7.2(b) (1) by disciplinary pleadings filed by the Board of Overseers of the Bar, seeking the disbarment of Thomas R. Acker. The parties previously notified the Court that they were in agreement to a stipulated order, as reflected below:

    Based upon the pleadings, the record of letters and exhibits and the parties' representations, the Court makes the following findings:

    1. Thomas R. Acker (Acker), of Hollis, County of York, State of Maine was duly admitted as an attorney in the State of Maine in 1986 and subject to the Maine Bar Rules.

    2. Pursuant to M. Bar R. 7.3(j) Acker was reinstated to the Maine Bar in 1995, following his voluntary resignation in 1990.

      1. On December 23, 2005 this Court granted the Board's Motion for Temporary Suspension of Acker. At that time, Mr. Acker did not oppose the requested suspension, as he had attempted to resign due to his debilitating mental health conditions. The suspension prohibited him from continuing his legal practice.

      2. A telephonic conference was scheduled in this matter for March 16, 2006. Assistant Bar Counsel Aria eee appeared for the Board of Overseers of the Bar. On that same day, Mr. Acker filed a letter with the Clerk of the Maine Supreme Judicial Court which stated that he had been a patient in the psychiatric ward and as a result, \vas not able to manage his affairs.

      3. Beginning on or about February 27, 2006, Mr. Acker was hospitalized for a period of approximately seventeen days. His then current physical and mental condition was unknown to the Court.

      4. Following the telephonic conference, the Court issued an order which generally continued the evidentiary hearing on the merits of the Board's disciplinary pleadings. However, the Court did set two issues for limited hearing on March 29, 2006. Those issues were the Board's Petition for Appointment of Receiver and proposals for the Court's consideration of Maine Bar Rule 7.3(e) (Proceedings Where An Attorney Is Declared to be Incompetent or is Alleged to Be Incapacitated).

      5. Mr. Acker failed to appear for the March 29, 2006 hearing.

      6. Mr. Acker's suspension from the practice of law, his failure to return documents to his former clients, and his failure to appear at scheduled hearings in this disciplinary proceeding made it necessary for a Receiver to be appointed to protect the interests Mr. Acker's former clients. On April 7, 2006, the Court appointed Wayne E. Tumlin, Esq. of Portland, Maine as the Receiver in this matter. In that order, the Court also directed that Acker immediately contact and enter into a contractual relationship with the Maine Assistance Program (MAP), to the satisfaction of the Director of MAP.

      7. A substantial portion of the Board's disciplinary complaints detail Mr. Acker's alleged fraudulent dealings with his clients. That issue formed the basis for a multi-count indictment against Mr. Acker. He was arraigned on that indictment on March 21, 2006. The criminal case remains pending in the Cumberland County Superior Court and 11r. Acker has pled not guilty to those charges.

      8. While not admitting guilt for the criminal charges, Mr. Acker, for the purposes of this proceeding, does agree that he accepted various client's funds, that he mixed those funds improperly with his operating account and his investment accounts, that he has failed to return the bulk of those funds despite requests to do so, and that he generally failed in his ability to meet his fiduciary and professional obligations.

      9. Furthermore, Mr. Acker continues to be incapacitated by his chronic, major depression which renders him incapable of providing professional services. See Maine Bar Rule 7.3(e)(3).

    Based on these findings, the Court concludes that Thomas R. Acker has violated the following Maine Bar Rules: 3.1(a); 3.2(f)(1)(3), 3.2(h); 3.4(f)(2)(i); 3.6(a)(3); and 3.6(e)(1).

    1. By his failure to comply with Bar Rules and court orders and his recent failure to respond to inquiries by the Board and Bar Counsel, he has also violated M. Bar R. 2(c), engaged in conduct unworthy of an attorney pursuant to Maine Bar Rule 3.1(a), and violated Maine Bar Rule 3.2(f)(1).
    2. By his failure to take reasonable measures to assure that clients knew and understood that some of the services they were obtaining were non-lawyer related services, he violated Maine Bar Rule 3.2(h).
    3. By failing to obtain the informed written consent of his clients advising of his inherent conflict and of the financial risks of investing in the partnership, he violated Maine Bar Rule 3.4(f)(2)(i).
    4. By abandoning his clients, neglecting matters entrusted to him, and refusing or delaying requests to return files he has violated Maine Bar Rule 3.6(a) and 3.6(a)(3).
    5. By failing to preserve the identity of various clients' funds designated by those clients as "investment funds" he violated Maine Bar Rule 3.6 ( e)( 1) .
    6. By repeatedly assuring clients that their money would be refunded on dates certain and then failing to produce those refunds, he violated Maine Bar Rule 3.2 (f)(3).

    Additionally, by agreement of the parties, this order refers to and includes all of the following complaints docketed and processed as Grievance Commission Files (GCF) under Maine Bar Rule 7.1(d),(e) and/ or 7.2(b)(7) now before the Court:

    GCF 04-263 involving complainant John J. McDermott;
    GCF 05-011 involving complainants Louise and Richard Bernhardt
    GCF 05-019 involving complainant Candis and Charles Bridges
    GCF 05-418 involving complainants Robert and Laura Foster
    GCF 06-60 involving complainants William and Patricia Chasse
    GCF 06-127 involving complainants Matthew and Karen Randall
    GCF 06-140 involving complainants Peter and Harriet Robinson
    GCF 06-158 involving complainants Keith and Sharon Ingraham
    GCF 06-285 involving complainant Bette Soule

    The violation of these provisions of the Bar Rules are numerous and serious, affecting many clients and the integrity of the disciplinary process. While Mr. Acker denies any criminal wrongdoing, he agrees that his actions were harmful to his clients, himself and the legal system. He has voluntarily agreed to cease the practice of law and acknowledges the severity of his actions. Protection of the public is the primary purpose of the attorney discipline system. Bearing in mind that purpose, the parties agreement and the absence of mitigating factors, these numerous and serious violations of the Maine Bar Rules require that the sanction of disbarment be imposed as the only appropriate sanction in the circumstances.

    Order

    It is hereby ORDERED that Thomas R. Acker be, and he hereby is disbarred from the practice of law in the State of Maine effective the date of this order. It is further ORDERED that should Acker seek reinstatement in accordance with M. Bar R. 7.3(j)(1), he must do so under the following conditions:

    1. Mr. Acker shall make restitution payments in an amount at least equal to each client's payments and or investments given to Mr. Acker. Those clients include but are not limited to:

    Richard & Louise Bernhardt Charles & Candis Bridges
    Bette Soule Robert & Laura Foster
    Alfred R. Meyer III William & Patricia Chasse
    Matthew & Karen Randall Keith & Sharon Ingraham
    Peter & Harriett Robinson Robert & Linda Green

    Under Rule 3 of the Maine Rules for Lawyers' Fund for Client Protection this Court must also consider the following provision:

    "Unless the Court determines otherwise, a lawyer who has been suspended or disbarred by reason of conduct resulting in payment to a claimant shall not be reinstated to practice law in Maine until full restitution to the Fund has been made."

    In this case, there are several claims pending before the Lawyers' Fund for Client Protection (LFCP). To the extent that the LFCP partially reimburses claimants for their losses related to the conduct of Thomas R. Acker, Mr. Acker's refund to the LFCP shall be credited toward the total amount of any subsequent restitution he is obligated to pay to any of the individual claimants.

    1. Mr. Acker must provide reliable and credible proof that he has obtained appropriate and competent counseling and treatment for his Major Depressive Disorder and any other mental infirmity that would affect his capacity to engage in the practice of law upon reinstatement.
    2. Mr. Acker must provide proof that a competent psychiatrist, psychologist or clinical social worker has determined that he has addressed his mental health disorders, and that the problems no longer pose a threat to the interests of the public and any clients that Acker may serve.
    3. Mr. Acker must submit a plan by which he proposes to practice law in a manner that will minimize the possibility that the problems that resulted in his disbarment from the practice of law will reoccur. The plan shall include, but not be limited to, the establishment of a mentor relationship with a member of the Maine Bar with at least ten years of experience, with whom Acker will consult on a regular basis for a period of three years. The person serving as mention must certify in writing that he/she agrees to serve in this capacity, and that he/she will provide the Court and Bar counsel with regular status reports regarding Acker’s practice and his progress in addressing the problems that resulted in his disbarment.

    For the Court

    Hon Jon D. Levy, Associate Justice – Maine Supreme Judicial Court


    For the Parties

    Aria eee, Esquire
    Thomas R. Acker

    Board of Overseers of the Bar v. Dale L. Lavi, Esq.

    Download Decision (PDF)

    Docket No.: 08-448

    Issued by: Grievance Commission

    Date: February 8, 2010

    Respondent: Dale L. Lavi, Esquire

    Bar Number: 008848

    Order: Reprimand

    Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Conduct During Representation; Preserving Identity of Funds and Property


    Stipulated Report of Findings and Order of Panel C of the Grievance Commission



    On February 8, 2010 with due notice, Panel C of the Grievance Commission conducted a disciplinary hearing concerning misconduct by the Respondent, Dale L. Lavi, Esq. This proceeding had commenced on September 7, 2009 through the Board of Overseers of the Bar’s filing of a Disciplinary Petition. The February 8, 2010 hearing was open to the public pursuant to Maine Bar Rule 7.1(e)(2)(E).

    At the hearing, the Board of Overseers of the Bar (the Board) was represented by Assistant Bar Counsel Aria Eee and Attorney Lavi appeared pro se. Prior to the hearing date, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel’s review and consideration. The complainant, Sharon Miller, (Miller) was present at the disciplinary hearing. She was also provided with a copy of the proposed order in advance of the stipulated hearing.

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

    FINDINGS

    Respondent Dale Lavi (Lavi) of Camden, 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 Lavi was admitted to the Maine Bar in April of 1999 and he remains an actively licensed attorney.

    As explained in Ms. Miller’s complaint, Attorney Lavi began representing her in January of 2008 in a matter related to Miller’s credit card debt. During the representation, Attorney Lavi belatedly filed an answer to the creditor’s complaint, resulting in a default judgment against Ms. Miller. In hindsight, Attorney Lavi now appreciates the risk in relying on an unconfirmed date of service (as he did in Miller’s civil matter) in order to calculate a response deadline.

    Subsequently, Attorney Lavi engaged in further representation of Ms. Miller on similar but unrelated consumer credit matters. Within his responses to this grievance matter, Attorney Lavi explained that he expended a fair amount of additional time in Ms. Miller’s case (pre-filing) than many other Chapter 7 cases he has handled. That work included Attorney Lavi’s attendance at a Disclosure Hearing in Rockland District Court where he discussed the matter with opposing counsel and the presiding judge. As a courtesy, Attorney Lavi apparently did not charge Ms. Miller for that work.

    Thereafter, due to personal difficulties, Attorney Lavi became unable to perform legal services for a period of time. Coupled with the lack of a back-up plan, Attorney Lavi’s absence from practice created problems for Ms. Miller and his law office. Undoubtedly, his failure to timely communicate or meet with Ms. Miller in order to file her bankruptcy and to avoid the garnishment of her wages resulted in real harm to Ms. Miller and a violation of M. Bar R. 3.2(f)(4) and 3.6(a)(2)(3). Moreover, Attorney Lavi’s failure to promptly return Ms. Miller’s file constituted a violation of M. Bar R. 3.6(e)(2)(iv).

    Since that time, Attorney Lavi has reported to the Board a synopsis of the changes instituted within his law practice which are designed to prevent any similar problems. In that regard, Attorney Lavi has apparently instructed his wife how to access all information within his law practice. He has also created a computer-based client file list, including important dates and status descriptions of each case. Within that client list are the names and phone numbers of three local attorneys to which Attorney Lavi’s wife can make any necessary referrals.

    CONCLUSION AND SANCTION

    The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Lavi’s above-outlined failures, Ms. Miller’s legal matters were not timely addressed thereby creating unnecessary harm. The panel notes that Attorney Lavi has taken responsibility for his transgressions. He has refunded the money Ms. Miller paid to him and he has apologized for his treatment of her. At the disciplinary hearing, Attorney Lavi expressed his remorse for his violations of the then applicable Code of Professional Responsibility.

    M. Bar. R. 2(a) provides that 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 Lavi agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.

    Therefore, the Panel accepts the agreement of the parties, including Attorney Lavi’s waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Dale L. Lavi, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).


    For the Parties

    Aria Eee, Assistant Bar Counsel

    Dale Lavi, Esq., Respondent


    For the Grievance Commission

    David S. Abramson, Esq., Chair

    Martha C. Gaythwaite, Esq.

    Christine Holden, Ph.D

    Board of Overseers of the Bar v. Ronald L. Bishop

    Download Decision (PDF)

    Docket No.: BAR-00-06

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: June 6, 2002

    Respondent: Ronald L. Bishop

    Bar Number: 000886

    Order: Disbarment

    Disposition/Conduct: Conduct Unworthy of an Attorney; Ilegal Cnduct ; Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct Prejudicial to the Administration of Justice; Excessive Fees; Standards of Care and Judgment: Compentency; Neglect


    FINDINGS, CONCLUSIONS AND ORDER


    This matter is before the Court on the Board of Overseers of the Bar's Amended Motion for Contempt/Appointment of Counsel seeking further discipline of former Attorney Ronald L. Bishop. The Board's motion was filed with the Court and duly served upon Mr. Bishop. Mr. Bishop never filed any response to the motion and, after notice, failed to appear at the Court's hearing of May 6, 2002.

    At that hearing, Bar Counsel, J. Scott Davis, appeared for the Board and presented .several witnesses and exhibits. Based on review of the file and the evidence presented at the hearing, the court finds that the relevant facts are as follows:

    1. Mr. Bishop was the subject of the Court's Disciplinary Decision and Order of February 7, 2001, suspending him from practice in Maine for 90 days, June 1 through August 31, 2001.

    2. Near the conclusion of that suspension, Mr. Bishop told Bar Counsel that he would not be returning to practice, and confirmed that statement by letter of September 25, 2001.

    3. Despite his suspension and later affirmations to Bar Counsel, Mr. Bishop practiced law by accepting money from and commencing representation of at least three new clients in August of 2001, while that suspension was still in effect.

    4. Olive Jean Dalton met with and paid Mr. Bishop an initial retainer of $500.00 on August 24, 2001, to handle her divorce matter. After that meeting she was unable to find Mr. Bishop or receive any communication from him as to the status of her case. After a hearing before the Fee Arbitration Commission, Mr. Bishop was ordered to refund that total retainer to Ms. Dalton, which he has failed to do.

    5. In mid to late August 2001, Patricia Gilley hired Mr. Bishop to handle a divorce matter for her. Her father retained Mr. Bishop for legal work on probate related matters. Mr. Bishop received fees from both Ms. Gilley and her father, but they have received no performance or status information concerning either case.

    6. Prior to his suspension, Mr. Bishop had served as attorney for the personal representative, Sharon Butler, concerning the 'Estate of Marcella Kenniston. Mr. Bishop failed to respond to inquiries by Ms. Butler or Paula Bickford (the daughter-in-law of the late Ms. Kenniston) as to the status of the estate or for an accounting of the assets of the estate. After the Kenniston home had been sold, Mr. Bishop was to pay certain debts of the estate from the proceeds of the sale that were in his possession. He has failed to make the required payments including approximately $4,500.00 owed to the funeral home involved in that matter.

    7. Mr. Bishop received proceeds from the settlement of client Debra Burby's personal injury matter in order to pay Burby's medical bills. Mr. Bishop has failed to pay at least $2,500.00 that is owed by Burby to Bouchard Physical Therapy Services. Mr. Bishop was obligated to make this payment with money he received for that purpose.

    8. Mr. Bishop settled a personal injury matter for his client, Grace Burwood and received some of the settlement proceeds. From these proceeds, Mr. Bishop was required to pay Ms. Burwood's outstanding debt of approximately $8,000.00 to Dr. Eric Omsberg. Although, he told Ms. Burwood that he had paid this debt, he has failed to do so.

    9. After many requests by his former divorce client, Lewis Stillman, Mr. Bishop has failed to return Mr. Stillman's client file to him. Mr. Stillman needs his file in order to pursue certain post divorce court matters with his new attorney.

    10. Bill Buker and Shawn Mullen are additional clients on unrelated matters. Each has had difficulty obtaining any information from Mr. Bishop as to the status of his matter, and because of Mr. Bishop's non-response, each was forced to seek replacement counsel. Although Mr. Bishop indicated to Bar Counsel that Mr. Buker's file was returned to him, it was not. Mr. Buker has yet to receive the requested materials.

    11. In the case of another divorce client, Susan LaChance, Mr. Bishop failed to follow through on Court ordered requirements to finalize the order in her divorce. As a result, for several years Ms. LaChance believed she had been properly divorced. Only in 2001, did she find that Mr. Bishop had failed to prepare the divorce order as directed by the court. New counsel has now corrected the matter and finalized Ms. LaChance's divorce.

    12. In the case of at least four clients, Debra Burby, Grace Burwood, Shawn Mullen and Travis Nichols, Mr. Bishop failed to include the names of those clients within the required affidavit he filed under M. Bar R. 7.3(i)(C) concerning his 2001 suspension. He failed to inform any of them that he had been suspended from practice, effective June 1, 2001.

    13. Except for the Buker and LaChance complaints, after due' notice, Mr. Bishop failed to respond to Bar Counsel's inquires about the respective allegations of his misconduct in each of the many grievance complaints filed with the Board.

    Conclusions

    Based upon Mr. Bishop's action in: (i) agreeing to undertake representation of new clients while under disciplinary suspension ordered by this Court; (ii) accepting fees from those clients for that supposed representation; (iii) failing to perform any of the requested legal work for those clients as well as for several former clients, whom he never told that he had been suspended or left practice; (iv) either neglecting or misleading clients concerning the status of the work and their respective cases; (v) misappropriating and converting monies that actually or constructively belonged to at least three clients; (vi) abandoning several of his clients, including clients retained while he was under suspension; and (vii) failing to repay several clients their-fees after he had abandoned them without doing any legal work, the Court concludes:

    1. Mr. Bishop is in contempt of the Court's 2001 suspension order, and

    2. Mr. Bishop is in violation-of Maine Bar Rules 2(c), 3.1(a), 3.2(f)(2)(3)(4), 3.3(a); 3.6(a)(2)(3); 3.6(e)(1), (2)(IV), and

    3. The Dalton, Gilley, Butler, Burby and Burwood matters may involve violations of the criminal laws relating to theft, 17-A M.R.S.A. §§ 354 or 358.

    Mr. Bishop's conduct in undertaking and taking money from three new clients while under suspension and with no intention to return to practice is serious misconduct and a flagrant contempt of the suspension order and rules governing attorney conduct in Maine. His conduct in (i) misleading clients as to the status of their case, (ii) failing to repay funds taken from clients for which he did no work, and (iii) receiving client funds with an obligation to pay client bills and then not paying those bills, is dishonest and the type of misconduct that brings the profession into disrepute.

    As a result of his serious misconduct and contempt, disbarment of Mr. Bishop is the only appropriate remedy.

    Order

    Therefore, based on the findings and conclusions stated above:

    1. Ronald L. Bishop is disbarred from the practice of law in the State of Maine, effective this date.

    2. Michael D. Seitzinger, Esq. is appointed pursuant to M. Bar R. 7.3(f) to serve as a receiver of all current or former clients' files that are either in the actual or constructive possession of Mr. Bishop. Mr. Bishop shall cooperate with Mr. Seitzinger to locate all former and current client files, and arrange for them to be provided to him. Mr. Seitzinger is to be compensated for these services by Mr. Bishop's payment to him at the rate of $75.00 per hour, and is to be reimbursed by Bishop for all expenses incurred by his service as the receiver.

    3. Mr. Bishop shall, within 30 days of this order, account to Mr. Seitzinger as to his handling of all client fees and funds relating to clients addressed in this order and for any and all clients that had matters with him either pending or that were settled on or after January 1, 2000.

    4. Within that same 30 days, Mr. Bishop shall comply with the affidavit notification requirements of M. Bar R. 7.3(i).

    5. A copy of this order shall be forwarded to the District Attorney for Kennebec and Somerset Counties for such consideration as may be appropriate.


    For the Court

    Hon. Donald G. Alexander, Associate Justice – Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Francis P. Daughan, Esq.

    Download Decision (PDF)

    Docket No.: BAR-02-6

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: July 9, 2002

    Respondent: Francis P. Daughan, Esq.

    Bar Number: 000531

    Order: Suspension

    Disposition/Conduct: Conduct Unworthy of an Attorney; Illegal Conduct; Conduct Involving Misrepresentation; Conviction of Crimes


    ORDER


    This matter is before the Court on an information by the Board of Overseers of the Bar, pursuant to Maine Bar Rules 7.2(b) (1), (2) and 7.3(d), including Grievance Commission Vice Chair Patricia M. Ender's Consent to Commence a Disciplinary Proceeding dated February 19, 2002 authorizing the Board to file an Information directly with the Court without the necessity of hearing by the Grievance Commission under Maine Bar Rules 7.1 (d), (e).

    Stipulations

    The parties have stipulated to the following material facts:

    On or about December 7, 2000, Attorney Francis P. Daughan executed an Agreement to Plead Guilty to a one count Information charging him with loan and credit application fraud, in violation of 18 U.S.C. § 1014. By information dated December 11, 2000, the Office of the United States Attorney, District of Maine charged Attorney Daughan with having knowingly made a false statement for the purpose of influencing the action of American Investment Bank, N.A. in connection with a credit application and loan, all in violation of 18 U.S.C. § 1014. On January 4, 2001, Attorney Daughan signed a waiver of indictment concerning that underlying matter, and was thereby convicted of the federal criminal offense of making false statements on a loan and credit application. Chief Judge D. Brock Hornby imposed judgment in this federal criminal case on April 5, 2001, which included supervised release for a term of three (3) years and a fine of $2,500.

    Conclusion of Law

    The parties agree and the Court so finds that Attorney Daughan's misconduct and resulting criminal conviction is in violation of Maine Bar Rules 3.1(a) (conduct unworthy of an attorney); 3.2(f)(2) (illegal conduct); and 3.2(f)(3) (conduct involving misrepresentation) and warrants the disciplinary sanction of suspension pursuant to Maine Bar Rule 7.3(d) (Conviction of Crimes).

    Sanctions

    Having found these violations of the Maine Bar Rules, and agreeing with the Board and the Defendant that they are serious, the Court must now consider an appropriate sanction. In that regard, Attorney Daughan has admitted his criminal conduct to the U.S. District Court for his misconduct. The parties agree and this court finds that Attorney Daughan is not likely to repeat this misbehavior. He has decided to voluntarily remove himself from the active practice of law and to file as an inactive Maine attorney. Therefore, keeping in mind that the main purpose of attorney discipline is not punishment, but protection of the public, the Court hereby ORDERS the following sanction in this matter as proposed by the parties:

    1. Attorney Francis P. Daughan is suspended from the practice of law in Maine for 180 days to be effective on this date, July 9, 2002; and

    2. Within 30 days of that suspension date, Attorney Daughan will comply with the notification and filing requirements of Maine Bar Rule 7.3(i).

    This order is entered based upon the Court's express understanding that at the conclusion of that period of suspension on January 9, 2003, Attorney Daughan will then immediately file with the Board a notification of his voluntary cessation of the practice of law in Maine, and will then register on inactive status under Maine Bar Rule 6(c). In any event, Attorney Daughan shall not anytime thereafter resume the active practice of law in Maine without first having complied with all the provisions and requirements of Maine Bar Rule 6(a);(c)(3).


    For the Court

    Hon. Robert W. Clifford, Associate Justice – Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Frank B. Walker, Esq.

    Download Decision (PDF)

    Docket No.: GCF 99-42

    Issued by: Grievance Commission

    Date: January 19, 2000

    Respondent: Frank B. Walker, Esq.

    Bar Number: 000058

    Order: Reprimand

    Disposition/Conduct: Standards of Care and Judgment: Inadequate Preparation; Neglect


    REPORT OF FINDINGS AND CONCLUSIONS


    On December 7, 1999, Panel A of the Grievance Commission conducted a public disciplinary hearing in accordance with Maine Bar Rule 7(e)(2), with respect to alleged professional misconduct of Respondent Frank B. Walker, as described in a Petition dated September 29, 1999, filed by Bar Counsel of the Board of Overseers of the Bar.

    The Board of Overseers was represented by Geoffrey S. Welsh, Esq., Assistant Bar Counsel. Respondent Frank B. Walker, Esq. was represented by Phillip R. Foster, Esq., of the Foster Law Office.

    Prior to the commencement of the hearing, the parties agreed to the admission of Board exhibits 1 through 22. During the hearing Respondent moved the admission of two exhibits labeled Defendant's exhibits 1 and 2; they were admitted without objection. The following witnesses were sworn and testified before the panel: Peter K. Dressel and Frank B. Walker, Esq.

    The Petitioner contends Frank B. Walker, Esq. violated Maine Bar Rules 2(c); 3.1(a); 3.2(f)(3)(4); 3.5(a)(2); 3.6(a)(2),(3); and 3.6(e)(2)(IV) in his representation and handling of various matters for Peter K. Dressel and concerning his response to a Board inquiry.

    Findings

    Frank B. Walker, Esq. is an attorney who practices in Ellsworth, Maine. Peter K. Dressel is a resident of Ellsworth who at various times over a 20 year period retained Frank B. Walker, Esq. to handle legal matters. Mr. Dressel retained Mr. Walker's services to advise him in estate planning, corporate and personal legal matters. At times relevant to this complaint Mr. Dressel owned and operated a business known as Bill's Towing and Recovery. Mr. Walker also provided legal services to this business.

    1. Automobile Dealer Litigation

    2. Sometime before October of 1998 Peter Dressel purchased a used vehicle from Coldbrook Saab in Skowhegan, Maine. Mechanical problems arose with the vehicle that Dressel thought should have been covered under a used car warranty. The dealership was asked to repair these problems but declined to do so. Dressel had the repair work performed at another dealership and thought he could recover the costs of these repairs from Coldbrook. Dressel around the same time purchased floor mats for his car from Coldbrook for $189.44. Dressel did not pay for the mats, instead he thought he could work an arrangement with Coldbrook where he would get credit for the repairs performed by the other dealership and that credit would be applied to the mat purchase. Coldbrook rejected this arrangement and demanded payment from Dressel. When Dressel did not pay the dealership, Coldbrook in February 1998 filed a collection action against him in Skowhegan District Court. Dressel brought the complaint to Frank Walker, Esq. and asked that he represent him. They also discussed a Counterclaim for the warranty work. No Counterclaim was ever filed.

      Upon receipt of the Complaint Walker filed a Motion for Extension of Time to file an Answer and a week later filed a Motion to Dismiss. On June 12, 1998, the Motion to Dismiss and a motion filed by the Plaintiff were scheduled for argument in Skowhegan District Court. Frank Walker traveled from Ellsworth to Skowhegan to attend the motion argument. He met with Plaintiffs counsel on that day in Skowhegan and attempted to negotiate a settlement. No settlement was reached but both motions were withdrawn.

      On October 9, 1998, Coldbrook filed an Affidavit and Request for Default and Default Judgment. On October 29, 1998, no Answer having been filed a Default was entered. On or about April 6, 1999, Peter K. Dressel was served a Disclosure Subpoena ordering him to appear in Skowhegan District Court on May 20, 1999. Shortly thereafter Dressel met with Walker and learned that Walker never answered the Complaint and a Default Judgment had been entered against him. On April 16, 1999, Peter K. Dressel filed a formal disciplinary Complaint against Frank B. Walker, Esq. complaining about Walker's lack of attention and failure to keep him informed of the status of this case. Sometime thereafter Frank B. Walker using his own funds satisfied the Coldbrook judgment.

    1. Insurance Collection Claim

    2. In the early spring of 1998 two vehicles involved in a fatal accident were placed on the Bill's Towing and Recovery storage lot. The vehicles sat on the lot for many months. Dressel contacted Walker and sought advice on what he should do and who he should contact to collect storage fees for these vehicles. Around the same time Dressel was paid storage fees for one of the vehicles. Walker agreed to investigate the possibility of securing payment for the storage of the second vehicle. The owner of the second vehicle died in the accident. It was Walker's understanding that the estate had not been probated, a personal representative was not identified, and identifying a responsible party may be more timely than it was worth. He believed there was little chance of any recovery on this storage and shared that opinion with Dressel. Mr. Dressel on his own called the insurance company providing coverage on the vehicle and made a modest demand. The carrier paid the demand. Dressel complained that Walker wasted his time and should have expeditiously resolved this matter for him.

    1. Auto Storage Dispute

    2. As part of a criminal investigation the Maine State Police acting under the direction of the office of the Hancock County District Attorney seized a number of motor and recreational vehicles and stored them for preservation and safe-keeping at Bill's Towing and Recovery. Mr. Dressel made no arrangement with the authorities in advance or at the time of the storage for payment of storage fees. After the vehicles were stored for a considerable period of time Dressel asked Walker to help him collect storage fees from the State Police and/or the District Attorney's office. At this same time Dressel was attempting to establish a favorable working relationship with the local authorities so they would use his facility for storage and impounding vehicles. Dressel and Walker discussed placing liens on the vehicles and suing the District Attorney's office and /or the State Police. It is not clear from the record before the panel who drafted or attempted to place these liens; it is clear Walker advised against suing either the District Attorney's office and/or the State Police. The evidence shows that the liens were not properly prepared and no liens were placed on the vehicles. The evidence is unclear as to what Dressel expected from Walker. He complained that Walker did not protect his interests and this caused him great hardship.

    1. It is alleged by Bar Counsel that Frank Walker failed to timely return files to Peter K. Dressel and this failure violates the Bar Rules. The evidence is these gentlemen had a long professional relationship that began to deteriorate sometime in 1998. The evidence demonstrates Frank Walker handled a number of small legal matters for Peter K. Dressel, Mr. Dressel's wife and his business, Bill's Towing and Recovery. On April 9, 1999, Dressel requested the return of his files; two were promptly returned. A third was partially returned on the mistaken belief it had been returned in its entirety. Walker admitted at the hearing that he located the complete third file that had been "misfiled" and the misfiling had only been identified shortly before the hearing. Walker testified he would return the misfiled file to Peter Dressel on the day of the hearing.
    1. On April 26, 1999, Assistant Bar counsel wrote Frank Walker, Esq. enclosing a copy of Peter K. Dressel's multipage complaint letter and requested that by May 17, 1999, "you submit to me a written response for preliminary review by a Panel of the Grievance Commission." By letter dated May 21, 1999, Phillip R. Foster, Esq. entered an appearance on behalf of Peter K. Dressel forwarding a May 7, 1999 court order dismissing a disclosure hearing, and a three page memoranda from Frank Walker, Esq. explaining the history of his relationship with Mr. Dressel and his impressions of the Dressel complaint. Bar counsel asserts Mr. Walker’s lack of candor in this response violates the Bar Rules. The Board's initial inquiry was broadly written, seeking a general response. Walker's response was as broadly written. Bar Counsel sent a follow-up letter asking specific questions. In a letter dated July 8, 1999, a letter prepared in response to Bar Counsel's specific questions, Walker admitted his failings in the handling of the Dressel- Coldbrook Saab matter.

    Conclusions and Disposition

    The Board contends Frank Walker, Esq. violated a number of Bar Rules. Based on the facts recited above the Panel finds Mr. Walker violated Bar Rule 3.6 in that he did not exercise sufficient care and skill in the handling of the Coldbrook Saab matter and he failed to keep his client informed of the status of this matter. We find there is no factual or substantive basis to conclude there were violations of the Bar Rules in Frank Walker's handling of the insurance collection matter or auto storage dispute.

    We find further that Bar Counsels initial inquiry invited a general response to Dressel's complaint. There was a follow-up letter seeking more specific information and specific information was provided. We conclude a broadly worded reply to a general inquiry does not violate the Bar Rules.

    We find Frank Walker's failure to return the complete files to Peter Dressel in a timely manner is a Bar Rule violation.

    In view of the foregoing the Panel concludes Frank Walker, Esq. is reprimanded for violating Maine Bar Rules 3.6(a)(2),(3) as established in the findings discussion in this report. A public reprimand is an appropriate disposition given the nature of the violations and circumstances surrounding them.


    For the Grievance Commission

    Paul H. Sighinolfi, Esq.
    Rebecca A. Irving, Esq.
    Andrew J. Pease, Jr.

    Board of Overseers of the Bar v. Joseph R. Hunt, Esq.

    Download Decision (PDF)

    Docket No.: BAR-02-03

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: May 14, 2002

    Respondent: Joseph R. Hunt, Esq.

    Bar Number: 002926

    Order: Suspended Suspension

    Disposition/Conduct: Conduct During Representation: Neglect


    ORDER


    This matter came before the Court on May 10, 2002. Pursuant to M. Bar R. 7.1(e), disciplinary proceedings occurred before the Grievance Commission on November 19, 2001. As a result, the Grievance Commission found probable cause for these court proceedings to be initiated. The Board of Overseers of the Bar (the Board) was represented by Bar Counsel J. Scott Davis. The complainant, Kathleen Mundell, was present. Defendant Joseph R. Hunt, Esq. was present with his attorney, Richard W. Hall, Esq.

    Stipulations

    The parties have stipulated to the following material facts:

    Mr. Hunt was admitted to practice in Maine in 1984 and has been practicing in Bangor, Maine since that time.

    On or about October 9, 2000 Kathleen Mundell of Blue Hill, Maine met for an office visit with Mr. Hunt and then retained him to pursue a correction to her child support amount and a change in the visitation schedule contained within her earlier divorce decree. That meeting lasted for approximately one hour and included Hunt's review of what would need to occur, including sending an initial letter to Mundell's former spouse, Laurence Rizzio. They also discussed possible motions to modify and/or enforce the child support arrearage amount. They then agreed that Mr. Hunt would prepare and send a letter to Rizzio.

    On that date, at Hunt's request, Ms. Mundell paid a $250.00 retainer fee. After that initial meeting date of October 9, 2000, Mr. Hunt made no further contact either verbally or by letter with Ms. Mundell, and also failed to answer or respond to Ms. Mundell's repeated telephone calls to him. By letter of November 28, 2000 Ms. Mundell wrote to Mr. Hunt requesting a refund of the $250.00 retainer fee based upon his neglect of her legal matter. He never responded to that letter.

    Although Mr. Hunt claims to have "worked at drafting it" he never did actually produce or send any such letter for Ms. Mundell. He also made no attempts to advise Ms. Mundell that he was rethinking his strategy or approach as to whether any letter at all should be sent to Mr. Rizzio. He made no attempts to inform Ms. Mundell that his earlier estimate of a week or two weeks to perform legal services had changed to a longer time period.

    Conclusions of Law

    The parties have stipulated and the Court finds that Mr. Hunt's misconduct was neglectful and in violation of M. Bar R. 3.6(a) (3) (a lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the client's affairs. A lawyer shall not neglect a legal matter entrusted to the lawyer).

    Sanction

    Mr. Hunt was disciplined by the Court in 1991 for neglect of a client and then received a suspended suspension for 90 days with a very informal supervisory arrangement as approved by the Court's Order of March 6, 1995. Since that time, Mr. Hunt has sustained no further discipline. From the facts of this case and his general practice habits, Mr. Hunt agrees that he needs assistance in the management of his law practice.

    Accordingly, the Court HEREBY ORDERS that Joseph R. Hunt be and hereby is suspended from the practice of law in Maine for a period of sixty (60) days, that suspension being suspended for one year commencing June 1, 2002 subject to the following terms and conditions:

    1. On or before May 28, 2002, the parties will stipulate to an attorney being appointed by the Court to serve as the Monitor for Mr. Hunt for a period of one year commencing June 1, 2002, unless terminated earlier as herein provided or by other order of this Court;

    2. During the period of supervision, the Monitor shall receive monthly written reports from Mr. Hunt concerning the current status of matters in which he has been retained to act as counsel;

    3. The Monitor is a volunteer who shall receive no compensation and who shall be expected to incur no expense;

    4. Mr. Hunt will meet with the Monitor within twenty-five (25) days of the date of this Order and thereafter at the call and convenience of the Monitor on a monthly basis, unless the Monitor should determine more frequent meetings are appropriate;

    5. The Monitor shall have the right to withdraw and terminate that service at any time for any reason the monitor deems sufficient, including for reasons set forth in Paragraph 6 below. In the event of a withdrawal, the Monitor shall notify the Court and Bar Counsel, and Mr. Hunt shall then cooperate to obtain the services of an alternate Monitor to complete the remainder of the original Monitor's term;

    6. If any aspect of the monitoring procedure creates a situation which is, or might be interpreted to be a conflict of interest under the Maine Bar Rules (for example, if Mr. Hunt is or becomes opposing counsel concerning a matter involving the Monitor), then the Monitor may adopt anyone of the following courses with the proposed result:

    1. The Monitor shall cease to act as such and a potential conflict is avoided;
    2. The Monitor shall continue as Monitor but totally exclude Mr. Hunt's client and matter in question from the monitoring process, so that no conflict is deemed to exist;
    3. The Monitor shall continue as Monitor, and obligate her/his firm to withdraw from the conflicting matter; or
    4. The Monitor shall continue as Monitor, and obligate Mr. Hunt not to participate in the matter and to obtain new counsel for his client (s).

    1. If in the Monitor's judgment it is appropriate, the Monitor shall have the right to contact clerks of court, judges, or opposing counsel to determine the accuracy of Mr. Hunt's reports to him;
    2. The Monitor shall have no contact with any of Mr. Hunt's clients and her/his only contact in the performance of the Monitor's duties shall be with Mr. Hunt or other persons contemplated by this Order. The Monitor's participation in the monitoring of Mr. Hunt's practice shall be deemed not to create an attorney-client relationship between the Monitor and Mr. Hunt or between the Monitor and Mr. Hunt's clients;
    3. The Monitor shall file a confidential report with the Court on or before July 1, 2002 and quarterly thereafter or sooner if the Monitor deems it necessary, with copies to Mr. Hunt and Bar Counsel concerning any professional assistance the Monitor has provided to Mr. Hunt;
    4. The Monitor will have the duty to report to Bar Counsel and to the Court any apparent or actual professional misconduct by Mr. Hunt of which the Monitor becomes aware or any lack of cooperation by Mr. Hunt in the performance of this Order;
    5. In the event a grievance complaint is received by Bar Counsel concerning alleged misconduct by Mr. Hunt occurring on this date or thereafter, such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as appropriate. In the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1(d) (5), the matter shall then be filed directly before this Court under Bar Rule 7.2(b);
    6. Any apparent violation of the conditions of this Order by Mr. Hunt shall be filed by Bar Counsel directly with the Court;
    7. On or before July 10, 2002, Mr. Hunt shall refund $125.00 to Kathleen Mundell, in care of Bar Counsel, via certified bank check or money order;
    8. On or before June 10, 2002, Mr. Hunt shall arrange and make an appointment to be evaluated by Dr. Stanley Evans, or by an alternate addictionologist acceptable to Bar Counsel; and
    9. Mr. Hunt shall follow strict compliance with all aftercare requirements and recommendations that may be made for him, by Dr. Evans or other addictionologist(s) as a result of that initial or any later evaluation(s).

    For the Court

    Hon. Howard H. Dana, Jr., Associate Justice – Maine Supreme Judicial Court

    Board of Overseers of the Bar v. In Re James A. Brunelle, Esq.

    Download Decision (PDF)

    Docket No.: BAR-91-18 and BAR- 93-5

    Issued by: James A. Brunelle, Esq.

    Date: March 13, 2002

    Respondent: James A. Brunelle, Esq.

    Bar Number: 003954

    Order: Reinstatement Denied

    Disposition/Conduct:


    ORDER DISMISSING PETITION FOR REINSTATEMENT M. BAR R. 7.3(j)


    This matter having come on for review by motion of the Board of Overseers of the Bar, and by agreement of the parties, it is hereby ORDERED that James A. Brunelle's Petition for Reinstatement to the Maine Bar dated March 12, 1993, is dismissed without prejudice. Upon submission of any subsequent Petition for Reinstatement, in addition to the requirements of M. Bar R. 7.3(j), Mr. Brunelle shall be required to also submit an affidavit certifying his satisfactory compliance with all of the conditions contained in the Court's Order dated April 5, 1993, in this matter.


    For the Court

    Hon. Susan Calkins, Associate Justice -Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Andrews B. Campbell, Esq.

    Download Decision (PDF)

    Docket No.: GCF 04-185

    Issued by: Grievance Commission

    Date: March 28, 2006

    Respondent: Andrews B. Campbell, Esq.

    Bar Number: 001344

    Order: Reprimand

    Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Responsibilities of a Supervisory Lawyer


    REPORT OF FINDINGS OF PANEL E OF THE GRIEVANCE COMMISSION


    On March 28, 2006, pursuant to due notice, Panel E of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning admitted misconduct by the Respondent, Andrews B. Campbell. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on February 2, 2006.

    Present at the hearing were Bar Counsel J. Scott Davis, representing the Board, and Attorney William B. Cote with his client, Respondent Andrews B. Campbell. The complainant, Dale Wood, is currently incarcerated and was therefore not present at the hearing, but Bar Counsel had provided Mr. Wood with a copy of the Board's proposed Report in advance of the hearing.

    Attorney Campbell addressed the Panel concerning his misconduct. Having considered the comments of those present at the hearing and reviewed the agreed upon proposed findings presented by counsel, the Panel makes the following findings and disposition:

    FINDINGS

    1. Respondent Andrews B. Campbell of Waldoboro, Maine was at all times relevant hereto an attorney admitted to and engaging in the practice of law in Maine and subject to the Maine Bar Rules. He was admitted to the Maine bar in 1972, but was suspended and then disbarred from practice from 1987-1999. He was conditionally reinstated to practice in 1999 and opened his law office in Waldoboro. Upon his full compliance with those conditions in 2001, the Court (Saufley, J.) found that he had successfully returned to the practice of law and therefore ordered the removal of all remaining reinstatement conditions.

    2. On June 15, 2004 Dale Wood filed a complaint with the Board against Attorney Campbell. The complaint alleged inter alia that Campbell had agreed to handle Wood's potential case claiming he had been assaulted by correction officials, but mishandled it by failing to adequately communicate with Wood and by losing critical documents.

    3. Since his reinstatement, Attorney Campbell has accepted cases representing inmates in various Maine correctional facilities. While Campbell asserts that he had not officially accepted Wood's case as his attorney, he agrees that in 2002 he had drafted a Notice of Claim for Wood, and failed to clarify with Wood the fact of his declination of actual legal representation of Wood.

    4. Attorney Campbell agrees and admits that he failed to properly clarify to Wood that legal representation by Campbell had not in fact commenced, and that Wood could have reasonably believed that Campbell was his attorney.

    5. In addition, Campbell agrees that he and his firm failed to entirely safeguard Mr. Wood's file such that some of his original documents appear to have been lost. Ultimately, Mr. Wood came to understand that Campbell had not accepted his case, but Mr. Wood's original documents still were not returned to him in a timely fashion.

    6. On October 12, 2004 this complaint was reviewed by a panel of the Grievance Commission. The panel found probable cause to believe that Attorney Campbell had engaged in misconduct subject to sanction under the Maine Bar Rules for which appropriate discipline should be imposed as provided for in those rules.

    7. The parties have now stipulated to a finding of misconduct as outlined in this Report.

    8. Therefore, based upon the above facts and admissions, the Panel concludes and Attorney Campbell agrees that he engaged in the following Code violations:

    1. Attorney Campbell violated M. Bar R. 3.6(a); (failure to keep a client informed on the status of matters); and
    2. Attorney Campbell violated M. Bar R. 3.13(a)(1) (failure to properly supervise attorney staff).

    CONCLUSION AND SANCTION

    It is a clear violation of the minimum standards established in Maine's Code of Professional Responsibility for an attorney to fail to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility. During this proceeding, Attorney Campbell has now taken full responsibility for his actions and the subsequent distress it caused Mr. Wood.

    As Maine Bar Rule 2 outlines, the purpose of disciplinary proceedings is not punishment but rather protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable to discharge properly their professional duties. Accordingly, although the Panel knows that Attorney Campbell has a significant public disciplinary record and had been removed from practice for a significant number of years, the Panel agrees with both parties' counsel that the misconduct involved in this current matter - particularly given Attorney Campbell's candor and remorse for that misconduct - and given the particular facts of this case, a reprimand serves those purposes of the Bar Rules.

    Therefore, the Panel concludes that the appropriate disposition of this case is a public reprimand which it has now delivered to Attorney Andrews Bruce Campbell as provided by M. Bar R. 7.1(e)(3)(C).


    For the Grievance Commission

    Charles W. Smith, Jr., Esq., Chair
    Stephen Schwartz, Esq.
    Joseph Reisert, Ph.D.

    Board of Overseers of the Bar v. Karen M. Burke, Esq.

    Download Decision (PDF)

    Docket No.: BAR-99-6

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: September 15, 2000

    Respondent: Karen M. Burke, Esq.

    Bar Number: 002940

    Order: Reprimand

    Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Conduct During Representation: Standards of Care and Judgment


    FINDINGS, CONCLUSIONS and SANCTION


    This matter was heard by the court on February 23, March 1, and March 2, 2000, pursuant to an information filed by the Board of Overseers of the Bar. The Board was represented by Assistant Bar Counsel, Geoffrey S. Welsh. Karen M. Burke, Esq., Maine Bar #2940, was present and represented by Philip P. Mancini, Esq.

    The information filed by the Board alleged violations of the Maine Bar Rules occurring in the course of Burke's representation of three separate clients. Specifically, the Board charged Burke with violating Bar Rules 3.1(a), 3.2(f)(2)-(4), 3.3(a), 3.4(f)(2)(i), 3.6(a)(1), (2) & (3), and 3.7(b) & (e)(l)(i).

    During the hearing, both sides submitted a number of exhibits and the court heard testimony from Burke's former clients, Gail and Robert Beesley, Carolee Weglarz, and Stephen Weston; attorneys Waldeman Buschmann, Daniel Peterson, and Donald Gasink; Heidi Pushard; Rhonda Cook and Cheryl Cutliffe, as well as testimony from Burke, herself. Based on this testimony and the record evidence, the court finds the following facts and draws the following conclusions:

    I. FINDINGS AND CONCLUSIONS

    1. Karen Burke, a sole practitioner, operates a law practice in Winthrop, Maine.

    A. THE BEESLEYS
    1. In May 1996, Gail and Robert Beesley sought the services of Burke with regard to their financial situation.
    2. Burke was relatively experienced in the bankruptcy field having clerked for the United States Bankruptcy Court following law school.
    3. After contacting Burke and meeting with her in person, the Beesleys were under the impression that Burke would handle all matters associated with their Chapter 7 bankruptcy for a flat fee of $750, in addition to the filing fee of $175. Supporting the Beesleys' belief that a flat fee arrangement had been agreed upon is Burke's own Rule 2016(b) statement (FED. R. BANKR. P. 2016(b)) dated June 13, 1996, in which Burke represented that the $750 was to cover all the routine tasks associated with what proved to be an unremarkable Chapter 7 bankruptcy.
    4. The Beesleys paid $750 to Burke the day of their first meeting and paid the $175 filing fee roughly a month later.
    5. Burke filed the bankruptcy petition on behalf of the Beesleys in June 1996.
    6. Burke believed that the $750 was merely a retainer to be applied toward her fees and expenses, and she billed the Beesleys monthly for her services on an hourly basis. Although Burke was unable to produce a fee agreement signed by the Beesleys, she did produce an addendum to the fee agreement signed by the Beesleys agreeing to hourly charges for work done by a newly hired paralegal.
    7. Burke billed the Beesleys for $903.24 in addition to the original $750, and was paid $478.24 beyond the $750.
    8. The Beesleys paid the monthly bills for a period of time and, as the bills mounted, worked out a payment plan with Burke which allowed them to pay $25 a month and thereby avoid interest charges on the remaining balance due.
    9. The Beesleys received their bankruptcy discharge in October 1996.
    10. Eventually, however, the Beesleys retained other counsel because they felt they had been misled about the nature of their fee arrangement with Burke.
    11. Through their new attorney, the Beesleys sought to reopen their bankruptcy case and sought an order compelling Burke to disgorge the fees they had paid to her up to that point in time.
    12. As a result, it came to the attention of the Bankruptcy Court that Burke's Rule 2016(b) fee disclosure statement to the court either did not accurately state the terms of her fee arrangement with the Beesleys, or Burke had billed her clients not in accordance with that arrangement.
    13. Burke's response to the Beesleys' motion to reopen was aggressive. She claimed that the additional charges were entirely appropriate pursuant to her fee agreement with the Beesleys and that her Rule 2016(b) statement accurately disclosed this fee arrangement.
    14. The Bankruptcy Court made short but painful work of this "first line of defense.” In addition to concluding that Burke "abused her clients badly" and "misled the court" with her Rule 2016(b) statement, the Bankruptcy Court wrote:
    15. Were I to conclude, as Attorney Burke contends, that she and her clients agreed to an "hourly against retainer" fee arrangement, she would be left to explain why her Rule 2016(b) statement misrepresented that arrangement to the trustee, to creditors, and to the court. As it stands, her situation is little different. Having undertaken the Beesleys' representation for a flat fee, and having disclosed that arrangement to the court in plain English, she deliberately proceeded to bill the debtors on an altogether different basis.

      Beesley v. Burke (In re Beesley), Case No. 96-10686 (Bankr. D. Me. Aug. 15, 1997) (footnote omitted).

    1. The court granted the Beesleys relief, ordered that Burke disgorge all fees paid to her by the Beesleys ($1139.42): and determined that the Rule 2016(b) disclosure statement described a flat fee arrangement that was inconsistent with the hourly charges for which Burke had been billing the Beesleys.
    2. The court also ordered that Burke discharge the Beesleys' remaining balance ($425) and pay their attorney fees associated with the disgorgement petition ($1,776.04).
    3. Finally, the court ordered that Burke appear at another hearing, pursuant to 11 U.S.C.A. § 105(a) (1993) and FED. R. BANKR. P. 9029:
    4. to show cause why additional sanctions, including suspension from practice in this court and enjoining collection of post-petition fees from clients similarly situated to the Beesleys, should not be ordered.
      Beesley, Case No. 96-10686.
    1. Between the show cause order and the hearing, Burke softened her approach. She explained in an affidavit to the court that the inconsistencies between her billing practices and the Rule 2016(b) statement, the form for which she had borrowed from another lawyer, were the result of inattention rather than any "intent to deceive this Court or my clients."
    2. Burke wrote to all her bankruptcy clients with outstanding balances (6) and canceled their unpaid balances ($6,400).
    3. At the show cause hearing, the court determined that no further sanctions were appropriate, noting the remedial measures Burke had taken to address the issue of the accuracy of future Rule 2016(b) statements and her efforts with respect to other bankruptcy clients.
    4. The court accepted Burke's disclaimer that she did not harbor a subjective intent to mislead the court regarding her fee arrangements.
    5. The court admonished Burke, however, about her reliance on a form that she had used routinely but that did not accurately reflect her fee arrangements with her bankruptcy clients.
    6. This court concludes that the Beesley matter was caused by Burke's failure to clearly explain and document her fee arrangement with the Beesleys which resulted in their perception that they had not been treated fairly by the individual that was their advocate. Her subsequent remedial measures, however, which included revising the form in which she discloses her fee agreements to the court and discharging the balance owed by former clients, reflect a renewed attention to the details of her bankruptcy practice and her dealings with bankruptcy clients. When the shortcomings in her conduct before the Bankruptcy Court were brought to her attention, she corrected them in an appropriate manner.
    7. With respect to her specific representation to the court regarding the source of the initial $750 payment made by the Beesleys, Burke had indicated in her fee disclosure statement that the money had come from the Beesleys' wages and earnings.
    8. In their first interview with Burke the Beesleys told Burke that they had taken a cash advance the previous week.1
    9. Because the advance was not more than $1000, it was of marginal relevance on the issue of the dischargeability of the Beesleys' credit card debt. See 11 U.S.C.A. § 523(a)(2)(A) & (C) (1993) (establishing the presumption that cash advances greater than $1000 taken 60 days before filing a bankruptcy petition are extensions of credit obtained by false pretenses or fraud and therefore constitute nondischargeable debt).
    10. Burke also testified that she did not believe that the money used to pay her had come from the cash advance.
    11. The record reflects that Mr. Beesley's average weekly income at the time was in excess of $800.
    12. Notwithstanding Burke's attempt to "paint the Beesleys as bad people by pointing to credit card cash advances they supposedly took on the eve of bankruptcy," Beesley, Case No. 96-10686, this court accepts Burke's testimony that she did not believe these credit card funds were used to pay her fees.
    13. The court concludes with regard to this issue that, regardless of Burke's good faith belief, the recent credit card cash advance should have prompted more inquiry from Burke regarding the disposition of this cash advance for purposes of her Rule 2016(b) statement. While Burke may not have willfully misrepresented the source of the Beesleys' payment to her, Burke's failure to inquire further may have resulted in the court not being fully informed on matters relevant to the bankruptcy proceedings. As noted above, however, Burke has since amended her practice to provide both more accurate and more detailed disclosures regarding her fee arrangements, demonstrating an appropriate response to the problem.
    14. The court is satisfied that Burke's conduct was prejudicial to the administration of justice in violation of Maine Bar Rule 3.2(f)(4). The court is not persuaded as the Board has alleged that Burke's conduct amounted to a violation of Maine Bar Rules 3.2(f)(2-3), 3.3(a), 3.7(b) and 3.7(e)(1)(I). The court is also satisfied that Burke's bankruptcy billing practice and her representations regarding it were the product of negligence rather than venality.

    B. CAROLEE WEGLARZ
    1. In November 1992, Carolee Weglarz and Daniel Austin contacted Burke regarding the purchase of a piece of property. Burke had represented Weglarz previously in a divorce.
    2. Prior to contacting Burke, Weglarz and Austin had entered into a purchase and sale agreement with respect to the property.
    3. At their request, Burke issued a certificate of title opinion indicating that the seller of the property had marketable title to the property, free and clear of all encumbrances.
    4. The title opinion specifically excepted matters that a physical inspection or survey of the property would reveal. Burke admitted, however, that she came to the legal conclusion at the time of her title opinion that the sellers had a right of way to a nearby lake.
    5. Burke then prepared a warranty deed for transfer of the property. The deed purported to convey the property and a right of way to the lake. Additionally, the deed contained a warranty of title on behalf of the seller.
    6. When searching and certifying the title and drafting the deed, Burke made several mistakes. She did not appreciate that the deed did not convey a right of way over retained lands of the grantor, Manter; the out-conveyances referenced by Burke in the deed had conveyed the previous owner's. i.e., Haskell's, property abutting the lake; Haskell had retained only a personal (and probably) nontransferable right of way to the lake: and Haskell's deed to Manter only conveyed the first segment of Haskell's three-segment right of way to the lake.
    7. These deficiencies should have been apparent without physically inspecting the property or obtaining a survey.
    8. Two years later, Burke represented Weglarz in matters surrounding the end of her relationship with Austin.
    9. Burke prepared and Austin executed a quitclaim deed ceding his interest in the property to Weglarz.
    10. Burke's representation of Weglarz in these and other matters had been concluded by April 1996.
    11. In late August 1996, Burke received a letter from an attorney representing the owners of the land over which Weglarz believed she had a right of way.
    12. The attorney, having been informed that Burke had done the title work, indicated that before contacting Weglarz he was contacting her to provide her an opportunity to clear up the question of whether a right of way in fact existed across his clients' property.
    13. Burke testified that she believed that she forwarded a copy of the attorney's letter to Weglarz.
    14. Weglarz testified that she did not see a copy of the letter until December of 1998.
    15. The court finds that Weglarz's recollection in this regard is not reliable. A copy of the letter was sent to her directly by the attorney for the landowners in June 1997 and she references the letter in her complaints to the Board of Overseers of the Bar in July and October 1998.
    16. Additionally, Weglarz testified to a contact between herself and the property owners in the Summer of 1996 regarding the right of way. Both Burke and Weglarz testified to a conversation occurring roughly contemporaneously with the August 1996 letter in which Burke informed Weglarz that a right of way did not entitle her to keep her canoe in the vicinity of the landowners' dock.
    17. Furthermore, this court credits Burke's testimony that Burke did not formally respond to the August 1996 letter from the landowners' attorney because she had not been authorized by Weglarz to communicate with this attorney on her behalf, i.e., Weglarz had not asked Burke to represent her at that time in the dispute concerning the right of way.
    18. The attorney for the landowners sent a letter to Weglarz directly in June 1997 enclosing a copy of his earlier letter to Burke and informing Weglarz that she did not have a right of way to the lake.
    19. Weglarz and Burke communicated in the fall of 1997 about the disputed right of way. Although Weglarz did not recall specifically authorizing Burke to enlist the services of another attorney, she did recall telling Burke to take care of the problem.
    20. It was reasonable for Burke to conclude from her communications with Weglarz that she was authorized at that time to represent Weglarz in the matter, including doing what was necessary to confirm the existence of the right of way to the lake.
    21. Burke's client notes indicate that she spoke with Weglarz in the early part of November 1997 and she testified that Weglarz agreed to a retainer of $200 at that time. Burke failed to memorialize this agreement, however.
    22. Although Burke did not receive the retainer, she nevertheless pursued the right of way matter.
    23. Burke at this point admittedly had two reasons to resolve this dispute: first, she had given a title opinion arguably certifying the existence of a right of way to the lake, and second, her client had asked her to take care of the problem.
    24. Burke asked a colleague to research the existence of the right of way.
    25. Burke conceded that if the colleague found a title problem that she should have caught in her prior research, she would have taken responsibility for her colleague's charges and for resolving the dispute.
    26. The colleague, mistakenly, as it turns out, confirmed the existence of a right of way to the lake and indicated that any ambiguity could be resolved by a couple of corrective deeds from the client's grantor (Manter), and the estate of the grantor's grantor (Haskell).
    27. Burke forwarded the results of her colleague's research to both Weglarz and the attorney for the landowners contesting the right of way.
    28. The attorney for the landowners promptly responded that the twenty foot right of way referenced in Weglarz's deed did not run to the lake and Haskell's fifteen-foot right of way to the lake was personal to him (i.e., could not have been conveyed to others), had been abandoned by Haskell before his death, and in any event had not been conveyed to Manter, Weglarz's grantor.
    29. Notwithstanding opposing counsel's response, Burke, again aggressively took the position with Weglarz that the defect, if any, in the right of way conveyed by Manter was not attributable to the quality of Burke's title search or her drafting of the warranty deed.
    30. Although in this regard she was in error, based on the memorandum prepared by her colleague claiming that Weglarz had a right of way to the lake, Burke's position was not necessarily unreasonable, at least originally, and did not constitute a misrepresentation on her part.
    31. Consistent with her view that she had not erred, Burke sent her client a bill for her services and that of her colleague.
    32. When her client filed a grievance, Burke persisted in her belief that her performance was entirely appropriate.2

    33. Although Burke's actions in 1996 and 1977 were not unreasonable, the title problem was the result of Burke's inadequate title work.
    34. The court is satisfied that Burke's handling of the original title work was "without preparation adequate in the circumstances" in violation of Maine Bar Rule 3.6(a)(2). The court is not persuaded, as the Board has alleged, that Burke's conduct amounted to a violation of Maine Bar Rules 3.2(f)(3), 3.2(f)(4), 3.3(a), 3.6(a)(1) and 3.6(a)(3).
    B. STEPHEN WESTON
    1. Burke first represented Stephen Weston in a lengthy and protracted divorce.
    2. She continued to represent him in post-divorce proceedings and in a foreclosure action related to the divorce.
    3. These matters were concluded by the early fall of 1997.
    4. In the course of these proceedings, Weston incurred substantial attorney fees pursuant to two written fee agreements between himself and Burke which also provided for the accrual of interest on unpaid balances. By the fall of 1997, Weston had an outstanding balance of roughly $11,000 with Burke.
    5. Although Weston's and Burke's testimony conflict about who first proposed the arrangement they agreed that Burke would lease office space in a building owned by Weston and that the rental payments would be applied to offset Weston’s outstanding balance.3
    6. Burke moved into the space at the end of November 1997 without a written lease.
    7. Burke asked Weston repeatedly for a written lease, but he did not provide one.
    8. Weston stated in his testimony to this court that he did not do business that way.
    9. Burke eventually took the initiative and, following discussions with Weston, attempted to memorialize the terms of their rental agreement in a written lease which they both signed at the end of January 1998.
    10. Weston testified that, although he had not read the final draft of the lease at the time he signed it, the lease did not in fact reflect his understanding of the terms of his agreement with Burke.
    11. Simultaneously with these lease negotiations. Burke assisted Weston with an application to the Winthrop Planning Board that would allow Weston to make commercial use of his property, including renting space to Burke and using the remaining portion of the building for his furniture restoration business.
    12. Burke appeared before the Planning Board along with Weston.
    13. Although the parties did not have a written fee agreement specifically addressing her representation of Weston in the Planning Board matter, Burke billed Weston for her Planning Board services.
    14. The Board has failed to demonstrate that Burke's lease of office space in lieu of a collection action was tantamount to an impermissible business transaction with a client.
    15. Even if such an arrangement were a business transaction requiring the opportunity to consult outside counsel. Burke urged Weston to contact another attorney on several occasions in her efforts to secure a written lease.
    16. Although Weston testified that Burke never suggested that he see another attorney, this court credits Burke's testimony on this point.4
    17. Lastly, while Burke's monthly rental amounts were being credited against Weston's balance, interest continued to accrue on the unpaid balance as provided in the written fee agreement.
    18. Although Burke had a practice of suspending interest accrual if a client made monthly payments, Burke was not required to make this accommodation pursuant to the terms of her fee agreements with Weston.
    19. There is no evidence that the lease arrangement incorporated an agreement to suspend interest. Therefore, it does not appear that Burke's failure to suspend interest was unreasonable.
    20. The court is not persuaded, as the Board has alleged, that Burke's conduct amounted to a violation of Maine Bar Rules 3.2(f)(3) & (4), 3.3(a), 3.4(b)(f)(1) & (2), 3.5(a)(2), 3.6(e)(2)(iv), 3.7(b), 3.7(e)(1)(i) and 3. 7(h)(2).

    II. SANCTION

    The Court must consider the appropriate sanction in light of the findings and conclusions stated above and the violations found. In this consideration, the Court's determinations must be guided by the Maine Bar Rules' directive that the purpose of this disciplinary action "is not punishment but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties." See M. Bar R. 2(a).

    The Board urges the Court to briefly suspend Burke as a result of her violations of M. Bar R. 3.2(f)(4) (conduct prejudicial to the administration of justice) [Beesleys] and 3.6(a)(2) (handling a legal matter without preparation adequate in the circumstances) [Weglarz]. The Board's recommendation is based on what it considers to be aggravating factors:

    First, Burke had substantial experience in practicing law, especially doing bankruptcy work. Second, she engaged in multiple violations of the bar rules. Third, Burke did not timely acknowledge the wrongful nature of her misconduct, doing so only after she had initially and aggressively responded to those allegations. Fourth, as bankrupt clients, the Beesleys were vulnerable victims. Fifth, Burke took a particularly crabbed, indifferent view to making restitution to the Beesleys, the Bankruptcy Court completely rejecting her defense that her Rule 2016(b) statement accurately disclosed her fee arrangement with them.

    Although, not unmindful of these factors, the Court is also aware of several mitigating factors:

    Burke practices alone in a largely rural area of Maine. The breadth of her practice and perhaps that of many solo practitioners is substantial. A solo practitioner offering a large menu of legal services is going to make mistakes. Even a specialist in a department of specialists in a large law firm makes mistakes. When the State is required to provide an indigent person with a lawyer, we do not require perfection only the performance of an "ordinary fallible attorney." See Aldus v. State, 2000 ME 47, ¶ 12, 748 A.2d 463, 467. Mistakes are a fact of life. We should not suspend or disbar lawyers for garden variety negligence. I will not do so here.

    Secondly, Burke's "aggressive," "see no error," posture may have been taken on the advice of counsel.

    Third, to the extent that Burke tended to exacerbate the situation when she was challenged by clients, it may have been caused by the stress of being overworked and understaffed.

    Finally, consistent with the many written testimonials submitted in her behalf, the Court is satisfied that Burke is a thoughtful, caring, hardworking professional.

    Although Burke violated two bar rules, neither a disbarment nor a suspension is necessary to protect the public, secure compliance with the rules or acknowledge the seriousness of the violations. The violations are sufficiently serious however, that the Court will impose a reprimand.

    It is therefore ORDERED that respondent Karen M. Burke is hereby reprimanded for her violations of M. Bar R. 3.2(f)(4) and 3.6(a)(2).


    For the Court

    Hon. Howard H. Dana Jr., Associate Justice - Maine Supreme Judicial Court


    Footnotes

    1. Burke's interview notes, as well as her testimony, fixes the amount at $1000. Mrs. Beesley testified, however, that the amount was $750.

    2. Weglarz has warranty covenants from her grantor and so far as the record indicates, has chosen not to remedy her situation by pursuing them. This is particularly puzzling because, it appears, that her grantor. Mrs. Manter, is presently in a position to deed her alternate access to the lake.

    3.Also, in the course or their professional relationship, Weston provided Burke goods and services through his furniture restoration business that would be credited against his bills. Burke and Weston were eventually forced to go through fee arbitration to ultimately resolve the amount that was owed to Burke following the breakdown of their relationship. The court will not go into further detail regarding the goods and services arrangement, however, as it does not form the basis of any of the Board's allegations or misconduct.

    4The Board also alleges that the terms of the lease were unfair to Weston because of the absence of a termination and forfeiture clause for Weston's benefit. In view of Weston's debt to Burke, this deficiency does not render the lease, as a whole, unreasonable.

    Board of Overseers of the Bar v. Patrick Hunt, Esq.

    Download Decision and Amended Order (PDF)

    Docket No.: BAR-09-12

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: January 29, 2010

    Respondent: Patrick Hunt, Esq.

    Bar Number: 002707

    Order: Decision & Amended Order

    Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Communicating With Adverse Party


    Decision


    [¶1] This matter is before the Court for decision, after hearing, on a complaint regarding Patrick Hunt, brought by the Board of Overseers of the Bar. The complaint alleges eight violations of the Maine Bar Rules:

    1. Rule 3.2(f)(4)-Conduct Prejudicial to the Administration of Justice

    2. Rule 3.2(f)(3)-Dishonesty

    3. Rule 3.6(a)-Failure to Exercise Reasonable Care

    4. Rule 3.6(d)-Advising Violation of Law

    5. Rule 3.6(f)-Communicating with Adverse Party while represented

    6. Rule 3.7(a)-Improper Legal Action to Harass or Injure Litigant

    7. Rule 3.7(b)-Improper Concealment of a False Statement

    8. Rule 3.7(e)-Providing False Information to the Court

    Facts

    [¶2] Patrick Hunt has been an attorney for twenty-seven years practicing in Island Falls, Maine. On August 24, 2000, the Department of Human Services[1] (the Department) referred a case to him involving the estate of Eldora Bourgeois. Eldora died on September 15, 1996, and at the time of her death, the Department had a lien against her estate in the amount of $124,603 for funds expended on her behalf prior to her death. Her son, Ernest Bourgeois, predeceased her. Ernest's widow was Allmeda Bourgeois, and they had five children, Eric, Gail, Ann, Jane, and Cheryl.

    [¶3] Following Eldora's death in 1996, six U.S. saving bonds issued to Eldora with a face value of $5200 were found by her heirs. The savings bonds listed Mrs. Eldora Bourgeois as the owner and named Gerald E. Bourgeois and/or Ernest Gerald Bourgeois as P.O.D. (pay upon death).

    [¶4] In the spring of 2000, Eric disclosed the discovery of the bonds to Allmeda. Eric, believing that the bonds belonged to Allmeda, conferred with Attorney Melissa Hale of Ellsworth. Hale informed Eric and Allmeda that the State of Maine had a lien in the amount of $124,603 on any assets of Eldora's estate; therefore, the State had the right to claim the bonds for the purposes of reimbursement. Eric and Allmeda gave the bonds to Hale. Subsequent to this meeting, Hunt contacted Eric by phone at which time Eric informed him that the bonds had been turned over to Hale. On September 27, 2000, following his phone conversation with Eric, Hunt sent a letter to Hale acknowledging that the bonds had been turned over to her. In that letter Hunt stated: "I spoke with Eric Bourgeois earlier this week, before I knew of your involvement." He requested that Eldora's heirs assign the savings bonds to the Department so that they could close out the matter.

    [¶5] On January 17, 2001, Hale responded to Hunt's letter indicating that she had the bonds and acknowledging that the State was entitled to them. Hale explained that Ernest was Eldora's only child and that Ernest had left five children. Hale set out the names of Ernest's children and their mailing addresses. She included the bonds in the letter that was sent to Hunt.

    [¶6] Following this letter from Hale, Hunt waited approximately eighteen months, until June 2002, to try and set up a meeting with Allmeda at the Machias Savings Bank. On June 27, 2002, in addition to contacting Machias Savings Bank, Hunt sent a letter directly to Allmeda requesting that she meet him on July 8 at the savings bank to negotiate the bonds. In this letter, he mistakenly referred to the fact that Allmeda's late mother owned the savings bonds. He also enclosed an affidavit along with that letter for Allmeda to sign and the affidavit contained wrong information. The affidavit referred to Allmeda as the daughter of Eldora and Ernest and stated that she was their only heir. Allmeda did not respond. Hunt called Eric during July 2002, and followed up with a letter dated July 20, 2002, addressed to Eric at his residence in Cambridge, Massachusetts. (Ex. 3 at 3.) In this letter, Hunt referenced Eldora's estate and tried again to set up a meeting to have Allmeda sign over the bonds to the State of Maine. He set a tentative date of July 30 at Machias Savings Bank, indicating that if resolution could not take place litigation would follow. In that letter, Hunt also acknowledged that Hale was the estate's attorney by agreeing to pay her attorney fees in the amount of $739.

    [¶7] Hunt sent another letter to Eric also dated July 20, 2002, but obviously sent subsequent to the first letter, trying to set up a meeting on August 19, 2002, at Machias Savings Bank. (Ex. 3 at 2.) The letter referenced Eldora's estate and indicated that the matter had to be closed by August 19 or he would withdraw his client's offer to them of July 20, 2002, and commence litigation. He also faxed this letter to Eric.

    [¶8] Following Hunt's attempt to set up a meeting with Eric and Allmeda, Virginia Lee Holt contacted him by letter dated August 17, 2002, and informed him that she was replacing Melissa Hale as the attorney for Eldora's estate. In this letter to Hunt, she indicated that Allmeda was not the heir to the bonds that were the focus of the lien claim. Holt stated that it was her belief and Hale's belief that the five children of Allmeda and Ernest were the legal heirs entitled to the bonds. She also explained her reasoning as to why the five children of Ernest and Allmeda were the legal heirs entitled to the bonds.

    [¶9] Following this letter, on August 22, 2002, Hunt filed a two-count complaint against Allmeda in Hancock County Probate Court. The complaint alleged fraud and sought a declaratory judgment (Count I) and alleged Medicaid fraud (Count II). Holt filed an answer and counterclaim in response to this complaint. Following the filing of this complaint, there was some discussion between Holt and Hunt regarding a petition being brought in the Probate Court to resolve the issue of the proper heirs. A petition for adjudication was filed in the Washington County Probate Court. Hunt sent to Holt a stipulation of judgment to resolve the matter, but before the matter could be resolved, the parties received a letter from the Washington County Probate Court (Holmes, J.) indicating that there were jurisdictional problems because the claim was being filed three years after Eldora's death. Following this, a motion for change of venue was made to the Houlton District Court, and as of the date of the hearing in this case, the motion had not been acted upon. From March 24, 2004, until October 2006, Attorney David Fletcher was involved on behalf of the estate and tried to resolve the matter with Hunt. There were numerous letters addressing a possible settlement of this matter.

    Discussion

    [¶10] This case started out as a simple matter of getting the necessary parties to assign the savings bonds to the State of Maine to satisfy the Department's lien for medical services provided to Eldora Bourgeois. No one contested the Department's rights to receive the proceeds from the savings bonds.

    [¶11] It is unfortunate that this unconstested matter turned into such a tangled web of confusion, filings, and correspondence. This confusion was caused by Hunt's mistaken belief that Allmeda was the proper heir to assign the bonds over to the Department. This mistaken belief, plus the delay in taking the necessary legal action to resolve this problem, caused the confusion and needless litigation.

    [¶12] The U.S. savings bonds were in Eldora's name with her son Ernest designated P.O.D., meaning payable upon death. This was not a joint account giving Ernest or his estate any legal interest in the savings bonds. His interest in the bonds ended when he predeceased his mother. The fact that his widow Allmeda may have had physical possession of the bonds at the time of Eldora's death did not give her any legal or equitable interest in the U.S. savings bonds. These bonds were payable only to the named owner of the bonds and possession is of no legal significance.

    [¶13] When the Department initially referred the case to Hunt, he mistakenly believed that Allmeda was the proper heir to assign the bonds. The documents also indicate that there was some confusion as to the relationship between Allmeda and Eldora. After talking with Eric in the summer of 2000, Hunt learned that the bonds had been turned over to Attorney Hale. On September 27, 2000, Hunt wrote a letter to Hale acknowledging that she had the bonds and offering an easy settlement to this matter by having the heirs assign the savings bonds to the State of Maine. In this letter he also indicated that Allmeda was the proper heir to assign the bonds.

    [¶14] On January 17, 2001, Hale responded to Hunt and set out the family genealogy. The letter clearly indicated that Ernest was Eldora's only child, and that Ernest and Allmeda had five children. The letter included the names and addresses of the five children.

    [¶15] Hunt waited eighteen months before taking any action. Because Eldora died on September 15, 1996, Hunt had until September 15, 2002, to finalize the matter without filing any legal action. Even though Hale spelled out to Hunt the proper genealogy in her January 17, 2001, letter, Hunt still thought he had to have Allmeda rather than the five children assign the bonds to the State of Maine. On or about June 27, 2002, eighteen months after Hale's letter, which clearly referenced that she was representing Eldora's estate, Hunt contacted Allmeda by letter trying to set up a meeting at the Machias Savings Bank In that letter Hunt stated that he understood that she had agreed to assign the bonds owned by her late "mother." On July 20, 2002, Hunt sent Eric a letter, once again referring to Eldora's estate. In this letter he attempted to set up a meeting with Allmeda at the Machias Savings Bank to have her sign over the bonds. This meeting was to take place on July 30, 2002. In a follow-up letter, also dated July 20, 2002, but obviously later than the previous letter, he again tried to set up another meeting at Machias Savings Bank with Eric and his mother on August 19, 2002. These phone calls and letters to Allmeda and Eric during the month of July 2002 occurred after Hunt had received a letter from Attorney Hale clearly indicating that she was representing the estate of Eldora Bourgeois. In September of 2000, Hunt had sent a letter to Hale and in that letter he made reference to the fact that he had talked to Eric Bourgeois and said, it was "before I knew of your involvement." This clearly indicates that he knew almost two years prior to these contacts in July of 2002 that Allmeda and Eric were represented by Hale. These contacts represent a violation of M. Bar R. 3.6(f), which prohibits contacting an adverse party who is represented.

    [¶16] Nothing was resolved by these improper contacts. Hunt then learned in August of 2002 that Virigina Holt was replacing Hale as the estate's attorney. He wrote a letter to Holt on August 16, 2002. In a letter dated August 17, 2002, Holt notified Hunt that she and Hale did not believe that Allmeda was the proper heir to assign the bonds to the State of Maine. They were of the opinion that the five children of Ernest and Allmeda were the proper heirs to assign the bonds. In this letter, Holt attempted to set out the legal reasoning behind this opinion. However, she did set out a possible scenario in paragraph five of the letter where Ernest may have acquired an interest in the bonds because his mother physically gifted them to him. As stated earlier, this is a mistaken opinion of the law in this area.

    [¶17] It is obvious that Hunt was feeling the pressure of the statute of limitations coming up on September 15, 2002. This Court believes that he filed the complaint on August 22, 2002, because he had to take legal action before the statute of limitations had run. However, he failed to exercise reasonable care in that he failed to realize that Allmeda was not the proper legal party to assign the bonds. He should have researched the issue before he brought suit. Two attorneys had alerted him to the fact that Allmeda was not the heir entitled to the bonds, but that it was the five children. Nevertheless, Hunt brought suit against the wrong party when he should have known that this was not a legal cause of action. Apart from the sloppiness of the complaint that will be discussed below, the Court finds that Hunt honestly, but mistakenly, believed that, Allmeda was the proper party. If he actually knew that she was not the proper party, it does not make sense why he would not include the five children as alternative defendants to the complaint. Everyone associated with Eldora's estate was willing to sign over the bonds to the State of Maine, but Hunt did not use the various vehicles he had available to him within the eighteen month period to resolve this case. He got short on time and brought suit against the wrong party. This was a failure to exercise reasonable care and skill in the performance of his professional services. His actions were a violation of M. Bar R. 3.6(a). The Court has reviewed the conduct pursuant to an objective standard that is assessed on the standard of the judgment that would be brought to the action by a lawyer of ordinary skill and competence. Restatement (Third) of The Law Governing Lawyers, § 5 cmt. d (2000).

    [¶18] However, the Court does not find that this was done with the intent to harass or injure Allmeda. If Hunt knew what the law was in this area, as he should have known, he easily could have started a legal action against the five children to protect the DHS's rights. Therefore, the Court finds and concludes that Hunt did not commence action against Allmeda to harass or maliciously injure her in violation of M. Bar R. 3.7(a).

    [¶19] As to the complaint itself, it contains two counts. The caption erroneously refers to Declaratory Judgment Act as 14 M.R.S. §357I. Section 3571 is the Fraudulent Transfer Act, not the Declaratory Judgment Act. The caption also refers to Medicaid fraud as 22 M.R.S. §14. This is also inaccurate as section 14 is the MaineCare recovery section; section 15 is the fraud section.

    [¶20] The complaint itself also contains inaccurate references. Count I is entitled fraud and declaratory judgment. However, the allegations contained in Count I do not contain the necessary specific allegations of fraud; it is not clear what type of fraud action Hunt is bringing in Count I. In Count II Hunt makes reference to Medicaid fraud, but the complaint's statutory reference is 22 MR.S. §14, which is the MaineCare recovery section and not the fraud section.

    [¶21] The body of the complaint does not contain any specific allegations of fraud, it erroneously alleges that Eldora and Ernest Bourgeois were the owners of the U.S. savings bonds, and improperly asks for attorney fees in its demand.

    [¶22] Count II is labeled Medicaid fraud, but does not make reference to 22 M.R.S. §15. Furthermore, it does not contain any factual allegations that would refer to the fraud section.

    [23] The Court finds and concludes that Hunt failed to exercise reasonable care and skill in the preparation of this complaint by making erroneous references to statutory law, by failing to include specific facts alleging fraud, and by improperly asking for attorney fees when he was clearly not entitled to attorney fees. It is clear to this Court that Hunt hastily put this complaint together to get it filed before the statute of limitations expired.

    [¶24] Furthermore, alleging fraud against another individual by a State of Maine agency is a serious matter and Hunt should have taken the necessary steps to ensure that the complaint complied with proper legal principles. In addition, Hunt did not have any evidence that there was any fraud in this case. This case involved confusion as to who was to sign over the bonds, but this was due to Hunt's mistaken belief that Allmeda was the proper heir in this case. There is absolutely no reason for Hunt to allege fraud, common law or statutory, against Allmeda. As a result of the legal actions taken by Hunt, the Court finds that he violated M. Bar R. 3.6(a) by failing to exercise reasonable care and skill in the preparation of the complaint filed against Allmeda Bourgeois.

    Conclusion

    [¶25] This Court finds that the actions by Hunt were not intended to harass or injure anyone, rather the Court finds that this action was the result of his failure to exercise reasonable care and skill by (l) not knowing the law; (2) not preparing the complaint in proper form; (3) not taking the necessary steps to amicably resolve this issue because all of the parties agreed that the Department was entitled to receive the bonds; and (4) waiting too long to resolve this issue. Hunt was confused and erroneously believed different things at different times regarding Allmeda's position. While it is true that the fact that the attorneys representing the estate continued to negotiate with Hunt lead to the confusion, it is clear that the five children of Ernest and Allmeda were the heirs that legally had the right to assign the bonds. It is not clear why the attorneys for the estate continued to negotiate with Hunt after he filed the complaint against Allmeda and the statute of limitations had passed. These negotiations help to explain why Hunt has not dismissed this action against Allmeda. It adds some credibility to his mistaken belief that Allmeda may have had some legal or equitable right to the bonds. Whatever reasons the parties continued to negotiate, this Court finds and concludes that Hunt has mishandled this matter from the very beginning and should have known that Allmeda was not the proper party to sign over the bonds and should have found a way to resolve this matter well before the statute of limitations. His mistaken belief that she was the proper party to sign over the bonds lead to this confusing state of events in the estate of Eldora Bourgeois.

    [¶26] This Court finds and concludes that Hunt did not violate M. Bar R.3.2(f)(3), 3.7(b), or 3.7(e) because the Court is convinced that he was not dishonest in his dealings with the court and the parties, only mistaken.

    [v27] Further, the Court finds and concludes that he did not violate M. Bar R. 3.2(f)(4), conduct prejudicial to the administration of justice. This section is a catchall without any specific references to conduct that would come under this section. Because this Court finds that Hunt's violations were in the nature of negligence rather than intentional conduct, this Court concludes that Hunt did not violate this Rule.

    [¶28] For the reasons stated above the Court finds and concludes that Hunt did violate M. Bar R. 3.6(a), failure to exercise reasonable care and skill, and M. Bar R. 3.6(f), communicating with adverse party while represented.

    [¶29] The allegation that he violated M. Bar R. 3.6(d), advising violation of law, was dismissed during the trial.

    [¶30] This matter will now be scheduled for a hearing regarding sanctions that should be imposed for the violations alleged and proved.


    For the Court

    Hon. Joseph M. Jabar, Associate Justice - Maine Supreme Judicial Court


    Footnotes

    1The Department of Human Services has since been renamed the Department of Health and Human Services.





    Amended Order


    Pending before this court is the Defendant's Motion For Correction of or Relief From Decision. A hearing on said motion was held on March 1, 2010. By agreement of counsel, the affidavit of Melissa Hale (Defendant's Exhibit 1) was admitted.

    After considering the affidavit of Attorney Melissa Hale and arguments of counsel, the court hereby Grants the Defendant's motion. The court's decision dated January 29, 2010 is hereby amended to delete the court's finding and conclusion that the defendant violated M.Bar R. 3.6(f), communicating with adverse party while party is represented by counsel.


    For the Court

    Hon. Joseph M. Jabar, Associate Justice - Maine Supreme Judicial Court


    Date:

    3/10/2010

    Board of Overseers of the Bar v. L. John Castner, Esq.

    Download Decision (PDF)

    Docket No.: BAR-00-3

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: January 5, 2001

    Respondent: L. John Castner, Esq.

    Bar Number: 000940

    Order: Resignation

    Disposition/Conduct: Resignation by Attorney Under Disciplinary Investigation


    DECISION AND ORDER


    L. John Castner, a member of the Maine Bar who has been the subject of an investigation by the Board of Overseers of the Bar, has tendered his resignation from the Bar. The Board has forwarded that tender to this court along with its unanimous recommendation that the court accept the resignation. Accompanying the Board's filing is Castner's affidavit required by M. Bar R. 7.3(g)(1). Castner's resignation is the result of his admission that he violated several Bar rules in the course of his financial dealings with an elderly client.

    The family of the elderly client (she is now deceased) has moved to intervene in the proceedings for the limited purpose of augmenting the record regarding Castner's misdeeds. Specifically, the family is concerned that the rule requiring Castner's affidavit to be kept under seal, M. Bar R. 7.3(g)(3), will prevent the court from understanding the full nature of Castner's actions. The family does not, however, oppose the resignation.

    A hearing was held at which the Board was represented by Attorney Karen Kingsley, Castner was represented by Attorney Kenneth Clegg, and the Fosters were represented by Attorney James McNiff II. Castner and Jonathan Foster were both present. Except for brief questioning of Castner by the court, no testimony was presented. The court heard at length from Attorney McNiff and briefly from Jonathan Foster. Attorneys Kingsley and Clegg also spoke briefly. For the reasons set out below, the petition for extraordinary relief is granted in limited form: the court has undertaken an in camera review of the Fosters' statement under seal. L. John Castner's resignation is accepted by the court.

    BACKGROUND

    Castner is a sixty-eight-year-old graduate of Bowdoin College and Portland University1. He passed the Bar in 1957 and was admitted to practice in August of that year. He has been engaged in the practice of law since then, with the exception of a brief hiatus during the, 1960s. In recent years, he has practiced as a solo practitioner in South Berwick. His practice has dwindled over the last several years, and he represents to the court that he is, for all practical purposes, retired. He has not been the subject of any disciplinary proceeding prior to the one at bar.

    In the late 1980s, Castner became acquainted with an elderly woman named Juliette Worster. He represented her as the personal representative of her deceased sister's estate and became extensively involved in Worster's own estate planning and finances.

    After Worster died, a dispute arose between Castner and Jonathan and Philip Foster, relatives of Worster who became the personal representatives of her estate. The gravamen of the dispute centered on allegations that Castner had abused his position of trust with Worster and had thereby misappropriated her property. Eventually, the parties entered into a comprehensive settlement. Both Castner and the Fosters were represented by counsel throughout the negotiations and in entering into the settlement. The settlement was finalized on June 9, 2000. It contained a confidentiality clause prohibiting the Fosters from disclosing matters related to their dispute with Castner, unless compelled to do so by a lawful order of the court.2 The Board of Overseers of the Bar was neither a participant in, nor a signatory to, the settlement agreement. The agreement recognized that Castner "will attempt to reach an agreed on disposition of the disciplinary proceeding presently pending against Castner before the Board of Overseers of the Bar."

    II. PROCEDURAL HISTORY OF THE CURRENT PROCEEDINGS

    Castner and the Board did reach an agreed upon recommendation to the court. 3 Three months after the parties had settled their dispute, the Board forwarded to the court Castner's resignation along with its own unanimous recommendation that the court accept the resignation.

    Shortly thereafter, Attorney McNiff, on behalf of Jonathan and Philip Foster, filed a petition for extraordinary relief "for the limited purpose of introducing into the record ... their written statement of what they believe to be the facts underlying their recent settlement of all claims against L. John Castner, Esq." In essence, the Fosters sought to have the court compel them to disclose that which they had bound themselves not to disclose in the settlement agreement. They included with their petition a document under seal setting out the facts that they believe the court should be aware of in making its decision on the pending proposed resignation. In their petition, the Fosters specifically asserted that they are "not urging any particular sanction or disposition."

    Both the Board and Castner opposed the Fosters' petition, and the Fosters filed a lengthy reply, augmenting their argument that resignation pursuant to Rule 7.3 is not available to Castner and that the Maine Bar Rules' provision regarding the sealing of the resigning attorney's affidavit is outmoded. A hearing was held on December 6, 2000. At the hearing, the Fosters confirmed that they do not oppose Castner's resignation from the Bar. Rather, they seek only to augment the record regarding Castner's misconduct. Although they would prefer that the court compel them to release the information so that it will be a part of the public record, they indicated through counsel that they would be satisfied with the court's in camera review of the documents they had submitted under seal.

    III. DISCUSSION

    A. Application of Rule 7.3(g)

    Preliminarily, I reject the Fosters' argument that, because the matter had already proceeded to a probable cause finding pursuant to Rule 7.1(d), Castner may not tender his resignation pursuant to Rule 7.3(g). The phrase used in Rule 7.3(g) "[a]n attorney who is the subject of an investigation under these rules," upon which the Fosters' argument rests, was not intended to distinguish between different phases of a disciplinary proceeding. Indeed, Rule 7.3 provides the only procedure under which an attorney who is the subject of any disciplinary action by the Board may resign from the Bar.

    I also find the Fosters' argument regarding the wisdom of impounding the resigning attorney's affidavit pursuant to Rule 7.3(g)(3) to be unavailing. The rule currently in effect in Maine requires the impoundment. M. Bar R. 7.3(g)(3). Arguments that the rule should be amended prospectively may have sound reasoning behind them, but are of no efficacy here.4

    B. Augmenting the Record

    At the outset, it should be made clear that the Fosters were given a full opportunity to speak during the hearing and to provide the court with whatever information they chose. This court treated the matter as loosely analogous to a criminal sentencing, with the Fosters standing in the position of the victim. Neither the court nor the Board prevented the Fosters from offering whatever information or documents they deemed pertinent to the court's decision. Thus, it was the Fosters' own decision to enter into the settlement agreement and their concerns about the private consequences of breaching that agreement that prevented their straightforward presentation to the court in this matter.

    Moreover, it is not entirely clear what the Fosters are actually seeking from this court. Although they argue that the rules do not permit Castner to use Rule 7.3 to resign, they also assert that they do not object to his resignation.6 The Fosters' only requested relief is set forth in the alternative on page twelve of their petition: the entry into the record, in one form or another, of their attorney's affidavit filed under seal with the court. In other words, notwithstanding their agreement with Castner, they now wish to augment the court’s record regarding the nature of Castner’s misdeeds.

    In the context of the settlement agreement, the Fosters received substantial financial remuneration from Castner. They do not claim that they have not been made whole. Were the Fosters' interests the only interests at stake here, the court would conclude that the settlement agreement and Castner's resignation from the Bar would be fully sufficient to protect those interests. There is more at stake, however, than the Fosters' interests alone. The interests of the public must be considered. Ultimately, because of the overarching responsibility of this court to the public, I have concluded that the Fosters' statement must be reviewed in camera to determine' (1) whether its contents would cause me to consider rejecting Castner's voluntary resignation from the Bar or (2) whether its contents should be compelled to be released publicly. Therefore, I have reviewed the documents provided under seal, as requested by the Fosters.7

    The documents submitted by the Fosters under seal include the affidavit of Attorney McNiff, along with a series of exhibits, at least two of which are public records. The affidavit tracks the history of the dispute between the Fosters and Castner and relates in specific detail the steps and discussions of the settlement negotiations between the parties and their counsel. In particular, it sets out Attorney McNiffs thought processes and actions in the course of those negotiations. It also sets forth Attorney McNiffs understanding of the history of Juliette Worster's relationship and financial interactions with Castner as well as his understanding of the dismay and distress suffered by his clients during the process of resolving the dispute.

    The contents of the McNiff affidavit are fully consistent with Castner's final resignation from the Bar. The only remaining question then is whether the court should compel the public release of the sealed documents. A review of the important public interests at stake lead the court to conclude that no such order to compel is justified.

    Because the Bar rules are intended to protect the public, not to punish or humiliate attorneys, this court must reject any effort to augment the record based solely on a desire to achieve further public excoriation of Castner. See M. Bar R. 2(a). Nonetheless, this court does not treat lightly the Fosters' concerns that the public may be ill served by a process which allows an attorney who has been under investigation to resign without the creation of a meaningful record of the factual background resulting in the resignation. The public's interests take several forms in the context of this proceeding.

    1. Prospective Clients

    Rule 7.3(g) is written with the evident intent of protecting prospective clients of a resigning attorney should that attorney seek readmission to the Bar. See M. Bar R. 7.3(g). In the absence of a clear written record of the reasons for the resignation, an attorney could be inappropriately readmitted to practice or readmitted without sufficient safeguards for the public. That concern is not applicable to the facts before the court.

    Castner is sixty-eight years old. He has retired from practice and has assured the court that he will never again attempt to become a member of the Bar. Because Castner will not practice law again, there is no risk to the public that his impounded affidavit is insufficiently detailed to protect prospective clients should he seek reinstatement. In addition, the Castner affidavit has been reviewed by this court and does contain sufficient detail to apprise a future court of the nature of Castner's misconduct should the unexpected come to pass. Furthermore, any court asked to consider a request for reinstatement will be aware, through the contents of this order, of Castner's representations to this court that he does not intend ever to practice law again.

    2. Protection and Recompense for Victims

    The Bar rules are also generally designed to protect the attorney's current clients as the victims of the misconduct. The Fosters, standing in the shoes of Worster, had ample opportunity to present their claims to the Board and entered into a comprehensive settlement of their financial claims against Castner. They do not assert that any other action need be taken on their behalf. Thus, further public augmentation of the record will serve no purpose in protecting the Fosters.

    3. Other "Unidentified" Victims

    It is on behalf of the possible unidentified victims of other unrevealed misconduct that the Fosters assert the court must act.8 Specifically, they "raise questions of whether or not further investigation of Castner is called for and whether or not charges should issue under anyone or more of several Maine criminal statutes."

    The specific body charged by the court with the oversight of the profession is the Board of Overseers of the Bar. The Board represents that it is well aware of the Fosters' concerns in this regard. Further, the Fosters had ample opportunity to make all of their concerns and facts known to the Board. If further investigation regarding other clients is necessary' or appropriate, the Board may take that action. The Board may also make any referral to a law enforcement agency that it deems appropriate. M. Bar R. 7.3(k)(4). In the context of this disciplinary proceeding, publicly augmenting the court's record to include Attorney McNiffs understanding and conclusions regarding the specifics of Castner's misconduct relating to Worster will not advance that cause.

    4. The Public's Confidence in Bar Discipline Proceedings

    An underlying concern in any Bar disciplinary proceeding must be the public's confidence in the Bar discipline process. Here, the Board of Overseers of the Bar acted appropriately to investigate the Fosters' allegations regarding Castner's misconduct. Castner has now tendered his resignation from the Bar. He will not practice law in this state again. The Fosters have been made whole through their settlement agreement. The nature of Castner's misconduct, as well as his representation that he will not ever request readmission to the Bar, are reflected in this order, which is a public document. Attorney McNiffs recitation of his understanding of Castner's financial misdeeds would merely gild the lily. Such a purpose does not warrant the exercise of the court's authority to circumvent the agreement of the parties.

    III. CONCLUSION

    L. John Castner has admitted that he engaged in serious violations of the Maine Bar Rules. He has tendered his resignation from the Bar. He has told the court that he will not attempt to engage in the practice of law again. He has compensated the relatives of Juliette Worster and has resolved any disputes with her heirs through a settlement agreement. The court has reviewed the Castner affidavit, the McNiff affidavit, and the unanimous recommendation of the Board that the resignation be accepted.

    The court accepts the resignation of L. John Castner from the Maine Bar. The court has granted the petitioners' motion for in camera review of the McNiff affidavit and exhibits. To the extent that the petitioners also request an order compelling them, contrary to the terms of their settlement agreement with Castner, to publicly release those documents, that request is denied. Pursuant to the requirements of Rule 7.3(g)(3) the affidavit of L. John Caster shall remain impounded. The affidavit of James McNiff II submitted under seal shall remain under seal. In the unanticipated event that Castner applies for reinstatement to the Bar, the court may, in its discretion, order the release of either or both affidavits.

    This order shall be a matter of public record, pursuant to Rule 7.3(g)(3). Castner shall comply with the requirements of Rule 7.3(i).


    For the Court

    Hon. Leigh I. Saufley, Associate Justice – Maine Supreme Judicial Court

    Footnotes

    1.1. The background has been taken from Castner's affidavit which has been reviewed and approved by the Board, from Castner's statements (not under oath) at the hearing, from the arguments of counsel, and from the pleadings of the parties

    2. The Fosters also agreed that "they will take no position and make no comment for or against any effort to obtain a court order, the outcome of which would cause the disclosure of any information subject to this confidentiality agreement"; that they would "not now or at any time in the future seek. solicit or in any way encourage the criminal prosecution of Castner nor will they make any new or additional complaints to any disciplinary authority pertaining to Castner and his involvement with Juliette C. Foster and/or her Estate"; and that they "will not” express any opinion or make any statement to any Judge, prosecuting authority or disciplinary body concerning any sanction, punishment or sentence which may subsequently be assessed imposed or otherwise levied against Castner .... "

    3. Any such agreed recommendation is always subject to the approval or rejection of the court. M. Bar R 7.3(g)(2).

    4.The Fosters filed extensive arguments on this issue and included as exhibits excerpts from a 1970 report of the American Bar Association entitled "Problems and Recommendations in Disciplinary Enforcement," and excerpts from the ABA's 1992 Report on the Commission on Evaluation of Disciplinary Enforcement, entitled "Lawyer Regulation for a New Century,". The reports demonstrate an emerging philosophy that the there should be greater public' disclosure of and access to disciplinary proceedings in order to foster greater public trust in the system of lawyer discipline. The current Maine Bar Rules balance the competing interests obtaining swiftly and at the least cost the resignation of an attorney who should not be practicing law, -and the public's need to have full disclosure of the details leading to the resignation-by impounding the attorney's own affidavit but making public the court's final order accepting the resignation. Changes in that balance must be made through an amendment to the rules.

    5.At the hearing, Attorney McNiff argued that the Fosters were surprised by the agreed upon resignation recommendation. McNiff argued that the Fosters were misled by a letter from the Board, following the probable cause hearing setting out the next anticipated steps in the disciplinary procedure. That letter was sent to the Fosters on April 20. 2000. The settlement agreement was entered into on June 9. 2000. Given the settlement agreement's explicit recognition that Castner would be attempting to reach an agreed upon resolution with the Board, the current proceedings were clearly within the contemplation of the parties at the time they entered into the agreement.

    6.The Fosters apparent objection to the Rule 7.3(g) procedure is the impounding of the resigning attorney's affidavit now wish to augment the court's record regarding the nature of Castner's misdeeds.

    7.In so doing, I have neither compelled their production, nor required their release in any fashion. At the hearing with the parties agreeing that the provision of the materials to counsel for Castner would not constitute a breach of the agreement., the Fosters provided a copy of the sealed documents to Castner’s attorney at the court’s request. The court understands that the Fosters also provided a copy to counsel for the Board.

    8.The McNiff affidavit briefly references another now deceased client of Castner. The personal representatives of her estate are represented by Attorney McNiff who indicates that those matters are proceeding separately in Probate Court.

    Board of Overseers of the Bar v. Timothy M. Vogel, Esq.

    Download Decision (PDF)

    Docket No.: GCF 07-200; GCF 07-358

    Issued by: Grievance Commission

    Date: June 19, 2008

    Respondent: Timothy M. Vogel, Esq.

    Bar Number: 002700

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Neglect; Conduct Prejudicial to the Administration of Justice


    STIPULATED REPORT OF FINDINGS and SANCTION ORDER PANEL B OF THE GRIEVANCE COMMISSION


    This disciplinary proceeding was commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 25,2008.

    On June 19, 2008 after due notice, Panel B of the Grievance Commission pursuant to Maine Bar Rule 7. 1 (e)(2)(E) reviewed this Stipulated Report of Findings and proposed sanction order concerning misconduct by the Respondent, Timothy M. Vogel, Esq.

    Timothy M. Vogel, Esq. was represented by Peter J. DeTroy, III , Esq. and the Board was represented by Assistant Bar Counsel, Aria eee. The complainants Diane Clay and Stephen Sneider have been provided with a copy of this Report (in its proposal form) and have advised Bar Counsel that they did not plan to attend the hearing before Panel B. The parties have stipulated to the findings and to the sanction order set forth herein and have submitted the Report and Sanction Order for the review and consideration of the Grievance Commission Panel.

    Having reviewed the Stipulated Disciplinary Petition and the Stipulated Report of Findings, the Panel makes the following disposition:

    FINDINGS

    Respondent Timothy M. Vogel (Vogel) of Portland, County of Cumberland, State of 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 Vogel was admitted to the Maine bar in 1983 and he is a member in good standing.

    On July 5, 2007, Ms. Diane M. Clay filed a complaint with the Board against Attorney Vogel. The complaint alleged that after their initial meeting in October 2006, Attorney Vogel failed to perform any work on her legal matter. Ms. Clay further alleged that Vogel inadequately communicated with her about the matter and failed to respond to her inquiries.

    On October 29, 2007, Mr. Stephen Sneider complained about Attorney Vogel's work on a probate matter involving the estate of Mr. Sneider's father. From November 2005 until the present, Attorney Vogel has acted as Co-Personal Representative with Mr. Sneider. The complaint detailed Sneider's concerns that Vogel failed to administer the estate in a timely fashion and failed to sufficiently communicate the status of the estate to its beneficiaries.

    Through counsel, Attorney Vogel properly responded to the complaints filed by Ms. Clay and Mr. Sneider. Thereafter, separate Panels of the Grievance Commission reviewed the matters and found probable cause for disciplinary action on both matters before a third Panel of the Grievance Commission.

    As set forth in the stipulated Disciplinary Petition, Assistant Bar Counsel and Respondent by counsel, Attorney DeTroy agreed generally that Respondent engaged in misconduct in violation of specific portions of the Code of Professional Responsibility and that discipline by reprimand is appropriate.

    Attorney Vogel acknowledges that he failed to perform any further work on Ms. Clay's estate planning matter, following their initial consultation. He also agrees that his lack of communication was unprofessional and unfair to his client, given her reasonable expectations. Attorney Vogel agrees that such lack of communication was a violation of Maine Bar Rules 3.1(a) (conduct unworthy of an attorney) and 3.6(a)(1)(3) (requiring a lawyer to keep the client informed and not neglect the client's legal matter). Attorney Vogel did refund Ms. Clay's retainer and apologized for his lapses.

    Additionally, Attorney Vogel committed conduct unworthy of an attorney when he administered the Sneider estate in an untimely manner. Vogel agrees that his other commitments and at times, poor practice management procedures have negatively affected his clients. His failure to explain those circumstances to the Sneider family or to act more expeditiously caused unintended delays for the probating of the estate. As a result Attorney Vogel engaged in conduct prejudicial to the administration of justice. See M. Bar R.3.2(f)(4).

    After the filing of the complaint by Stephen Sneider, Vogel acting at Co-Personal Representative completed administration of the estate including: sending a final estate accounting to the two heirs, Stephen Sneider and his brother Jay, which they accepted and filing a closing statement with the Probate Court. To reduce costs to the estate, Vogel completed administration of the estate at no charge.

    CONCLUSION AND SANCTION

    The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Vogel's above-outlined misconduct, Mr. Sneider incurred additional expenses and frustration. Ms. Clay suffered similar frustration at Attorney Vogel's failure to perform the work or respond to her inquiries.

    M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. The panel notes that Attorney Vogel is an elder law attorney of long practice in Maine. He has taken responsibility for his actions and the delays occasioned to Ms. Clay and Mr. Sneider. Attorney Vogel recognizes his violations of the Code of Professional Responsibility and asserts his intention to refrain from future transgressions.

    By signature of his counsel, Attorney Vogel hereby waives the right to a hearing under Maine Bar Rule 7.1 (e) and further waives the right to file a petition for review under Maine Bar Rule 7.2{a).

    Panel B of the Grievance Commission hereby accepts and approves Stipulated Report of Findings and Sanction Order and issues a public reprimand to Timothy M. Vogel, Esq. as provided by M. Bar R. 7.1(e)(3)(c).


    For the Parties

    Aria eee, Assistant Bar Counsel
    Peter J. DeTroy III, Esq.


    For the Commission

    John R. Bass II, Esq., Chair
    Susannah White
    Maurice A. Libner, Esq.

    Board of Overseers of the Bar v. Thomas Hallett, Esq.

    Download Decision (PDF)

    Docket No.: GCF 06-259; GCF 07-312

    Issued by: Grievance Commission

    Date: December 4, 2008

    Respondent: Thomas Hallett, Esq.

    Bar Number: 003142

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice


    DECISION AND ORDER


    Pursuant to Maine Bar Rule 7(c).and with due notice a hearing was held in Portland, Maine on November 20, 2008 before the undersigned members of the Grievance Commission. The Board of Overseers of the Bar was represented by Bar Counsel Scott Davis, Esq. Respondent was represented by Peter DeTroy, Esq. The panel selected to hear this matter is comprised of Attorney Maurice Libner (Chair).Attorney Martica Douglas and lay member, Susannah White.

    The subject of the hearing was a Disciplinary Petition dated July 1, 2008 asserting two counts against the Respondent attorney. Count 1 asserted that Respondent transgressed Maine Bar Rules 3.1(a), 3.2(f)(4), and 3.7(a) during the course of litigation originating in Maine's federal district court, captioned Roger Edwards, LLC v. Fiddes & Sons, Ltd. United States Magistrate Judge David Cohen found that Respondents unsuccessful Rule 60(b) motion to set aside a judgment violated F.R.Civ.P. 11(b). That rule forbids attorneys from filing pleadings for any improper purpose, that are frivolous, or are without actual or potential factual support. His order was affirmed on Respondent's appeal to the First Circuit, which also found the appeal to violate F.R.A.P.38.

    Count II of the Disciplinary Petition charges that Respondent attorney violated Maine Bar Rules 3.1(a); 3.2(f)(4); 3.7(a); 3.13(a)(1), (2), (3)(i) and (ii)1 in another, unrelated case, involving a mental health counselor named Steven Danzig. At a period of time when Respondent was the exclusive owner of his law practice, an associate attorney he employed named Michael Whipple requested Mr. Danzig's treatment records for one of his clients, to use in an upcoming sentencing hearing. Danzig and Whipple were in disagreement over what was reasonable compensation for furnishing these records, with the result that Danzig received no payment at all.

    The panel considered testimony by three witnesses: Respondent, Steven Danzig, and Michael Whipple. The panel also received without objection 16 Exhibits offered by Bar Counsel, and 8 Exhibits offered by Respondent. (Due to the confidential nature of Respondent's Exhibit #8, the medical records at issue in Count II, it was stipulated that this document would be returned to Respondent following this decision.)

    With respect to the charges in Count I, the panel concludes that Respondent should be reprimanded for violating Maine Bar Rules 3.1(a) and 3.2(f)(4). However, we find that Rule 3.7(a) was not violated. Regarding Count II, the panel concludes that there was no violation of any Bar Rule, and that the charge should be dismissed. Our reasoning leading to these conclusions is explained in the following paragraphs.

    Count I

    The litigation underlying the charges in Count I ensued following the collapse of a commercial relationship between Respondent's client, Roger Edwards, LLC ("Edwards") and Fiddes & Son, Ltd., ("Fiddes") a British manufacturer of wax products. The original suit sought damages exceeding one million dollars from Fiddes for the alleged breach of an exclusive distributorship contract for Briwax, a Fiddes product. Fiddes counterclaimed for the price of products that Edwards received but had not paid for.

    Respondent Hallett and his law firm did not represent Roger Edwards, LLC until after discovery was finished. Respondent's client, Roger Edwards, LLC, was owned by Larry Mann, who hired Hallett in December 2004 to defend Fiddes' summary judgment motion. Fiddes was awarded partial summary judgment, and the remaining issues in the case were tried by jury, resulting in a verdict favorable to Fiddes on all counts, including a monetary award for the counterclaim. Edwards appealed to the First Circuit, which ultimately sustained the judgment of the lower court. Board Exhibit #3

    During the pendency of this first of its three appeals, Respondent moved to reopen the judgment of the trial court under F.R.Civ.P. 60(b), alleging that Fiddes had defrauded Edwards and the trial court by mislabeling Briwax and by offering false evidence regarding the legal sufficiency of the product labeling. Magistrate Cohen denied the Rule 60(b) motion, holding that the product labeling was apparent to Edwards from the outset of the litigation, whose failure to raise this issue earlier in the litigation was not caused by any misconduct of Fiddes and which, in any event, did not affect the outcome of the case. Board Exhibit #5. The District Court subsequently granted Fiddes' motion for its legal fees and costs in defending the Rule 60(b) motion, which the District Court held violated F.R.Civ.P. 11. Board Exhibit #16

    Edwards separately appealed the denial of its Rule 60(b) motion and the award of sanctions to the First Circuit, giving rise to a total of three different decisions from that court. Board Exhibits #1 and 4. As indicated above, the First Circuit not only upheld the original award of Rule 11 sanctions, but imposed further sanctions under F.R.A.P. for the two final appeals. Board Exhibit 1.

    Respondent testified with candor that he "crossed the line", allowing his professional objectivity to fall victim to unbridled advocacy demanded by his client. He admitted that Larry Mann was probably motivated at least partly by a desire to inflict financial damage on Fiddes when Mann furnished him with a lengthy affidavit by a newly discovered expert on the issue of product mislabeling. (Mann and/or Respondent furnished the United States Department of Transportation with this same information, in hopes of getting Briwax banned from interstate commerce in the alleged interest of "public safety". Mann urged Respondent to use the new labeling information to reopen the adverse judgment. Respondent testified that he accommodated these requests in hopes of obtaining a new trial, not for the mere purpose of damaging Fiddes by disparaging its product or frivolously dragging out the litigation. Having reviewed Respondent's substantive briefs at trial and on appeal of the Rule 60(b) motion, the panel is satisfied that Respondent's subjective intent was never malicious. Therefore, we decline to find a violation of Bar Rule 3.7(a).

    However, the Rule 60(b) motion and Respondent's final two appeals constituted conduct "prejudicial to the administration of justice" (M.B.R.3.2(f)(4)) and "conduct unworthy of an attorney" (3.1(a)), for reasons best summarized by the final court of appeals decision, Bar Counsel Exhibit # 1, pp. 9-11 :

    "So what we have are highly dubious charges of fraud which, in any event, are not effectively connected to any plausible showing of the necessary prejudice. No reasonable lawyer considering a Rule 60(b) motion could suppose that such a combination had any chance of upsetting a final judgment reached after extensive litigation ....We think that sanctions in this court are also appropriate. To the extent Roger Edwards' brief on appeal added to arguments made in the district court....(it) had no reason to think that these new arguments were preserved....to the extent the arguments were the same, Roger Edwards' insistence on rehashing its meritless claims yet again represents just the sort of vexatious behavior that Rule 38 is meant to discourage." (citations omitted)

    We need not decide whether every violation of F.R.Civ.P. 11 or M.R.Civ.P. 11 is per se a violation of the Maine Bar Rules. In this case, substantial judicial resources were expended to defend Respondent's litigation tactics, found to be frivolous both by the trial and the appellate courts. Respondent does not ask the Board to revisit these findings, and we decline to do so. This type of behavior not only needlessly aggravates and unfairly harms the opposing party, but also impairs the courts' ability to efficiently ration justice to the public by wasting scarce judicial resources. In sum, we find Respondent's conduct sufficiently egregious in scope, duration and persistence to warrant a formal reprimand.

    Count II

    Respondent's associate counsel, Michael Whipple, requested a client's treatment records from Stephen Danzig, a mental health and substance abuse counselor, to be used in an upcoming sentencing hearing. In a letter to Danzig, Whipple's paralegal promised to pay Danzig's "reasonable expenses" for these records. Bar Counsel Exhibit #8. In reply, Danzig declined to release the records unless his patient's $40 unpaid treatment charges were first paid. Bar Counsel Exhibits #9, 10. Whipple inferred that Danzig expected his office to pay for the client's treatment before the records would be released, which could violate Maine Bar Rule 3.7(d).

    Whipple then served a subpoena duces tecum on Danzig at his office, compelling the client's medical file to be produced for inspection in Portland, a half-hour drive for Danzig. Whipple did not tender any fee for attendance or mileage, in violation of 16 M.R.S.A. § 251. Danzig responded to the subpoena by mailing a copy of the records (six pages) to Whipple with a bill for $90.00. Whipple disregarded the invoice, two later faxes of the same bill, and repeated telephone calls to the office by Danzig's wife/bookkeeper. As of the hearing date, Danzig had not been paid anything for providing these medical records to Respondent's firm.

    During the course of the hearing, Danzig was asked by counsel for Respondent to explain how he arrived at the charge of$90 for providing six pages of medical records. Danzig testified that he had to drive one hour to get the records at a "remote storage site", which on further questioning turned out to be his home. Danzig was unable to offer a cogent explanation of why he would be justified in billing at a professional hourly rate in bringing records from his home to his office to be copied and mailed. Rule 3.13(a) provides that a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility. Associate attorney Michael Whipple was an experienced attorney at the time of these events. He had his own case load, and worked on the subject case without direct supervision by Respondent. Rule 3.13(a) does not require a partner to supervise every detail of each case assigned to an associate attorney. Danzig and Whipple should have resolved the billing dispute with a phone call and common courtesy. It is unrealistic to expect the managing owner of the law firm, in this instance, to be aware of every disagreement over accounts payable that may arise from the caseload of an associate attorney, and therefore we decline to hold Respondent liable for violating Rule 3.13(a).

    It is undisputed that Respondent had no knowledge of the conflict between attorney Whipple and Danzig before he received Danzig's complaint to the Board of Overseers of the Bar. The remaining Bar Rule violations alleged by Bar Counsel are predicated on Respondent's actual knowledge of prohibited conduct. For example, Bar Rule 3.13(a)(3) makes a partner or supervisory lawyer responsible for another lawyer's violation of the Code of Professional Responsibility if:

    "(i) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

    (ii) the lawyer is a partner in the law firm, in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action." (Emphasis added)

    Similarly, Rule 3.3(c) requires knowledge on the part of a lawyer charged with responsibility for non-lawyer misconduct. Since Respondent never had knowledge of any conduct alleged to be prohibited by these Bar Rules, he cannot be held responsible for any infraction. Neither do we find any of the other rules cited by Bar Counsel a basis for disciplinary action against Respondent.


    For the Grievance Commission

    Maurice Libner, Esq.
    Martica Douglas, Esq.
    Susannah White


    Footnotes

    1During the hearing, the parties agreed that the charge against Respondent also entailed a violation of Rule 3.13(c), and this was accordingly tried without objection.

    Board of Overseers of the Bar v. Brian Condon, Jr., Esq.

    Download Decision (PDF)

    Docket No.: BAR-08-7

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: October 31, 2008

    Respondent: Brian Condon, Jr., Esq.

    Bar Number: 008588

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Conduct During Representation: Standards of Care and Judgment


    DECISION AND ORDER


    The Board of Overseers of the Bar initiated the above attorney disciplinary matter on August 14, 2008. Based upon the parties' agreement at a subsequent pre-trial conference, this Court accepted their proposal to a stipulated proceeding without formal hearing. Throughout this disciplinary matter, Attorney Brian Condon, Jr. has acted pro se and the Board of Overseers has been represented by Assistant Bar Counsel Aria Eee.

    Prior to the final hearing in this case the parties notified the Court that they were in agreement as to sanctions and resolution of the disciplinary charges. The parties submitted a draft order to the Court on October 27, 2008 to memorialize that agreement. Additionally, the Board sent a copy of the proposed Order to the complainant, Ms. Julie A, Dana, who thus far, has filed no response to the proposal.

    Following a review of the record and the parties' stipulations, the Court finds the following facts: In a 2006 refinancing transaction by Ms. Dana and her husband, Attorney Condon served as counsel for the bank providing a title commitment regarding the Danas' six (6) parcels of land. Additionally, he acted as closing agent selected by both the bank and the Danas. Attorney Condon drafted the description for the mortgage deed and sold the Danas (who were pro se) an owner's title policy.

    From the start of transaction, the Danas did not intend that the new mortgage would include their three (3) separate waterfront lots. The Danas contend that they explained this to Attorney Condon and then took steps to ensure that the appraisal included only the house and the three lots on the house-side of the road. Of note, Attorney Condon did not have a copy of the appraisal at or before closing, and met the Danas for the first time at the closing.

    It is the Danas' recollection that Attorney Condon gave assurances at the closing that the deed complied with the mortgage broker's title request, which was in error as that request included all six (6) parcels of land. The Danas’ ultimately discovered that the mortgage prepared by Condon included all six of their parcels. Unfortunately, Attorney Condon did not show the mortgage documents to the Danas for their advanced review before the closing; instead he relied on the title commitment sent to the mortgage broker, which was consistent with the broker's request. It is unclear if the broker showed that title commitment to the Danas prior to the closing.

    After the closing, the Danas were required to escrow their real estate taxes. They experienced negative financial consequences resulting from the mortgaging of all six (6) parcels by having to escrow their real estate taxes for the additional three lots. While Attorney Condon provided subsequent assistance (at no charge) to the Danas to secure the removal of the three (3) lots from the mortgage, he attributed much of the resulting problems to the services provided by their mortgage broker. Of note, if Attorney Condon had included just the three (3) lots in the description, it is anticipated that the taxes would still have been escrowed due to the communication between the mortgage broker and the bank.

    Even so, Attorney Condon acknowledges that his failure to then fully appreciate his additional duty to the Danas at the closing and to recognize such a mistake resulted in conduct prejudicial to the administration of justice (See M. Bar R. 3.2(f) (4)). Attorney Condon also concedes that in hindsight, it was a lapse in his usual standard of care. (See M. Bar R. 3.6(a).

    The Board and Attorney Condon agree, and the Court so finds that it is imperative for the administrative of justice and for the protection of the public, that the legal community at large is aware of an attorney's ethical duty to borrowers in a mortgage transaction. Regardless of the attorney's representation of a bank in a given transaction, as in this case, the attorney also owes duties to the mortgagor, despite the involvement of other non-attorney professionals.

    Based on the facts set forth above, the parties agree and the Court so finds that Attorney Brian D. Condon, Jr. engaged in violations of the following Maine Bar Rules in this matter: 3.1(a); 3.2(f)(4) and 3.6(a).

    In determining the appropriate sanctions for these bar violations, the Court must consider Attorney Condon's disciplinary history, including his suspension from practice which was effective and served earlier this year. The Court notes that generally, when a lawyer has been sanctioned for the same or similar misconduct and engages in further acts of misconduct that cause injury to a client, the public, the legal system, or the profession, the appropriate sanction is suspension. ABA Standards for Imposing Lawyer Sanction §8.2 (1986). See Board of Overseers v. Bruce S. Billings, BAR-90-16 (1991). In this case however, Attorney Condon did not engage in any similar misconduct. Furthermore, the Danas were not Attorney Condon's actual clients, but he agrees that as the closing agent and title insurer, he did owe some responsibility to them within that transaction.

    Indeed, as the closing agent for the Danas and the lending institution, Attorney Condon held certain fiduciary duties to ensure that the proper standards of care were provided. The Danas did have definite, reasonable expectations of Attorney Condon's work on behalf of the bank. Given the simultaneous efforts of the mortgage broker, it cannot be said that all of the miscommunication is the fault of Attorney Condon. He has clearly stated his understanding of the scope of his responsibilities, even when he was not retained by the loan mortgagor. Attorney Condon expressed remorse for his lapse and assured the Court that he has a greater appreciation for the increased standards of care he must uphold.

    Accordingly, it is hereby ORDERED and ADJUDGED that Brian D. Condon, Jr., Esq. is reprimanded for his violations of Maine Bar Rules 3.1(a); 3.2(f)(4) and 3.6(a).

    Finally, Bar Counsel may file an information directly with the Court without any Grievance Commission review or hearing concerning any new complaints of professional misconduct allegedly committed by Attorney Condon and received by the Board after the date of this Order.


    Seen and agreed to by

    Aria Eee, Assistant Bar Counsel
    Brian D. Condon, Jr., Esq.


    For the Court

    Hon. Ellen Gorman, Associate Justice – Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Schuyler G, Steele, Esq.

    Download Decision (PDF)

    Docket No.: BAR-1O-3

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: February 17, 2010

    Respondent: Schuyler G, Steele, Esq.

    Bar Number: 002817

    Order: Receiver Appointment

    Disposition/Conduct:


    Order for Appointment of Temporary Receiver M. Bar R 7.3(f)(1)


    After Petition filed by the Board of Overseers, pursuant to M. Bar R. 7.3(f), the Court Orders the following:

    As of this date, Rebecca A. Cayford, Esq. and Michael A. Wiers, Esq. are appointed the Temporary Receivers of Attorney Schuyler G. Steele's law practice. With the cooperation of Mrs. Steele (or if necessary, with the assistance of Penobscot County Sheriff’s Department) Attorneys Cayford and Wiers shall:

    1. secure the professional riles, client property and client data of Attorney Steele

    2. obtain access to Attorney Steele's post office boxes to secure any law office or legal mail

    3. inventory the open and closed client files

    4. give priority attention to client matters which are open and time sensitive

    5. notify clients or former clients that the law practice has concluded and provide opportunity for clients to retrieve their property.

    6. Attorneys Cayford and Wiers shall also prudently access and utilize Attorney Steele's operating and IOLTA accounts to effect the formal conclusion of the practice, including the temporary retention of office staff or other personnel as necessary and appropriate.

    Attorneys Cayford and Wiers shall submit to the Court a record of hours worked and disbursements made in the event the Court allows for payment of legal fees at the State court appointment rate. The assets of Attorney Steele shall be the first choice for source of payment to the Receivers, although ultimately, they may serve in a pro bono capacity. Otherwise Attorneys Cayford and Wiers may be compensated from another source ordered by the Court.

    Attorneys Cayford and Wiers shall act as Receivers until discharged by the Court either by Motion or in accordance with paragraph 3 of M. Bar R 7.3(f).

    Attorneys Cayford and Wiers so appointed shall not disclose any information contained in any file listed in such inventory without the consent, of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f). Furthermore, Attorneys Cayford and Wiers may be engaged by any former client of Attorney Steele provided that they inform such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver's employment by the client. Attorneys Cayford and Wier are subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client's retention of the Receiver(s) as successor counsel is not a per se conflict of interest solely by reason of Attorneys Cayford and Wier's appointment by this Order.

    Attorneys Cayford and Wiers shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law. Within seventy-five (75) days of this Order, the Receivers shall file a status report with the Court, with a copy to the Board of Overseers of the Bar.


    For the Court

    Hon. Ellen Gorman, Associate Justice - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Paul A. Weeks, Esq.

    Download Decision & Monitoring Agreement (PDF)

    Docket No.: GCF# 09-073

    Issued by: Grievance Commission

    Date: February 23, 2010

    Respondent: Paul A. Weeks, Esq.

    Bar Number: 002216

    Order: Reprimand

    Disposition/Conduct: Neglect


    Stipulated Report of Findings and Order of Panel E of the Grievance Commission

    On February 23, 2010, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Paul A. Weeks, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on October 21, 2009.

    At the hearing, Attorney Weeks was represented by Attorney Peter J. DeTroy, and the Board was represented by Assistant Bar Counsel Aria Eee. Christopher Greer of Dayville, Connecticut did attend the hearing. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel’s review and consideration. Additionally, the Panel accepted and admitted into evidence by agreement of the parties all of the Board’s exhibits.

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

    FINDINGS

    Respondent Paul A. Weeks (Weeks) of Bangor, County of Penobscot, State of 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 Weeks was admitted to the Maine Bar in 1980 and he is currently registered as an active Maine attorney.

    On February 25, 2009, Christopher and Karen Greer filed a complaint with the Board of Overseers regarding a contract dispute. In 2003 the Greers employed a Maine boat builder to complete and outfit a 36-foot fiberglass hull. The work was never finished and that which was done was not satisfactory. Attorney Weeks was hired in the summer of 2005 by the Greers to recover possession of the boat and to seek damages.

    Following depositions and mediation which occurred over approximately two (2) years, a default judgment was granted in favor of the Greers. The Greers submitted information to Attorney Weeks to have him file affidavits outlining their damage claims, but no affidavit was ever filed by Weeks with the court. Hence, the deadline passed in October of 2007 and the court awarded damages to the Greers in the amount of $1.00 plus court costs.

    CONCLUSION AND SANCTION

    The then effective Code of Professional Responsibility specifically required attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Weeks’ above-outlined failures, the Greers were unable to obtain a judgment for the damages they sustained, were misled as to the status of their case and then endured a lack of response to their inquiries. The Panel notes that Attorney Paul A. Weeks has taken responsibility for his lapses. At the disciplinary hearing, Attorney Weeks expressed his remorse for his serious violation of 3.6(a)(3) of the then applicable Code of Professional Responsibility.

    M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Weeks agrees that he did in fact violate the then effective Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.

    Moreover, given the serious nature of Attorney Weeks’ neglect of his clients, the Panel agrees with counsel’s proposal that a monitor should be appointed to review and assist Attorney Weeks with managing his practice. The monitor process shall be implemented for a one year period and the intention is that the monitor shall evaluate all aspects of Attorney Weeks’ practice. Those aspects shall include but not be limited to client intake, client communications and disclosure between the lawyer and the monitor of any personal issues, if they arise, that would affect Attorney Weeks’ ability to comply with his ethical duties.

    Therefore, the Panel accepts the agreement of the parties, including Attorney Weeks’ waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Paul A. Weeks, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C)(4). Additionally, Attorney Weeks shall submit his practice of law to the monitoring of Stephen C. Packard, Esq. of Newport, Maine for a period of one year.


    For the Parties

    Jacqueline L.L. Gomes, Assistant Bar Counsel

    Paul A. Weeks, Esq., Respondent

    Peter J. DeTroy, Esq., Attorney for Respondent Weeks


    For the Panel

    Grievance Commission Panel E

    John C. Hunt, Esq., Panel Chair

    Ann M. Courtney, Esq.

    Marjorie M. Medd

    Board of Overseers of the Bar v. Kathleen T. O'Boyle

    Download Decision (PDF)

    Docket No.: BAR-09-08

    Issued by: Single Justice, Maine Supreme Judicial COurt

    Date: February 5, 2010

    Respondent: Kathleen T. O'Boyle

    Bar Number: 008752

    Order: Suspension

    Disposition/Conduct: Conduct Unworthy of an Attorney; Unauthorized Practice; Conduct Prejudicial to the Administration of Justice; Standards of Care and Judgment: Neglect of a Client's Matter; Inadequate Preparation; Registration Requirements


    DECISION and ORDER


    The Board of Overseers of the Bar initiated the above attorney disciplinary action on May 19, 2009 by the filing of a Petition for Receivership. In June 2009 the Board filed a Petition for Temporary Suspension. Based upon their discussions at a subsequent pre-trial conference, the parties notified the Court that they were in agreement to an order providing for stipulated findings and sanction. On February 3, 20 10, the parties appeared before the Court to outline their proposal for resolution of this matter. The Board of Overseers was represented at the hearing by Assistant Bar Counsel Aria Eee while Ms. O’Boyle appeared pro se.

    Ms. O'Boyle (O'Boyle) was admitted to the Maine bar in October 1998. Before moving to Pennsylvania in August 2008, she maintained two offices as a solo practitioner in Aroostook County. On June 18, 2009, this Court approved, Ex Parte, the Board's Petition and temporarily suspended Ms. O'Boyle from practicing law in Maine. That suspension remains in effect and currently there are two court-appointed Receivers who have managed the storage and delivery of O'Boyle's closed client files, following the Court's entry of an Ex Parte Order for Appointment of Temporary Receiver.1

    Following a review of the pleadings, the exhibits and the parties' proposal, the Court finds that during and after her move from Maine, Ms. O'Boyle engaged in violations of then applicable Maine Bar Rules 3.1 (a); 3.2(a)(1); 3.2(f)(1)(4); 3.6(a)(2)(3); 6(a)(1); 6(e) and 7.3(i)(1)(A)(B). Specifically, at the time of her move, Ms. O'Boyle failed to timely communicate with some of her clients, to properly monitor Ms. Prehemo's legal matter, to pay storage fees at the facility which housed her closed client files and to promptly pay a required refund as issued by the Fee Arbitration Commission. Moreover, it is clear that Ms. O'Boyle continued to communicate with opposing counsel regarding a court matter after her June 19, 2009 suspension. Although it was not her intent to advocate as the client's counsel, Ms. O'Boyle now acknowledges that her continued contact constituted a violation of M. Bar R. 3.2(a)(1).

    Based upon all of the above circumstances, the Court imposes upon Ms. O'Boyle a three (3) year suspension from the practice of law in Maine. Additionally, on or before May 25, 2010, Ms. O'Boyle shall pay for all costs ($850.00) related to the Receivers' management of her discontinued practice.

    Ms. O'Boyle is also required to pay the remaining $50 of the Fee Arbitration Commission Panel's Award to her former client, Verley Hafford by February 8, 2010. In addition, by July 1, 2010 Ms. O'Boyle shall remit the $295.00 payment owed to Salar Storage in satisfaction of her June 10, 2009 bill. Finally, on or before August 16, 2010, Ms. O'Boyle shall reimburse the Board of Overseers for its entire payment of the costs ($636) it assumed to store her client files and office equipment.

    The Court notes that many client files remain housed at the Salary Storage Facility in Caribou, Maine. By April 30, 2010, Ms. O’Boyle shall have implemented a plan to ensure the appropriate management of her client files and she shall report that plan to the Court. Any continued storage after April 30, 2010 shall be the entire financial responsibility of Ms. O’Boyle. After that date and with the Court's approval, Ms. O’Boyle may arrange for removal/transfer of any remaining files to a secure and accessible location approved by the Board. If for some reason it is necessary for the Receivers to continue managing/monitoring client files after April 30, 2010, Ms. O’Boyle shall notify the Court.

    Finally, Bar Counsel may file an Information directly with the Court without any Grievance Commission review or hearing concerning any new complaints of professional misconduct allegedly committed by Ms. O'Boyle and received by the Board after the date of this Order, regardless of whether that alleged misconduct occurred before or after that date.

    Accordingly, it is hereby ORDERED and ADJUDGED that Kathleen T. O'Boyle is suspended for a period of three(3) years for her violations of Maine Bar Rules 3.1(a); 3.2(a)(1); 3.2(f)(1)(4); 3.6(a)(2)(3); 6(a)(1); 6(e) and 7.3(i)(1)(A)(B).


    For the Court

    Hon. Jon D. Levy, Associate Justice - Maine Supreme Judicial Court


    Footnotes

    1 While the Court notes that the orders were entered before Ms. O'Boyle had an opportunity to respond, the record reflects that the Board sent Ms. O'Boyle copies of its pleadings contemporaneously with its filing of the same.

    Board of Overseers of the Bar v. Jeffery J. Clark, Esq.

    Download Decision (PDF)

    Docket No.: BAR-07-02

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: January 24, 2008

    Respondent: Jeffery J. Clark, Esq.

    Bar Number: 002240

    Order: Reprimand Suspension

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Conflict of Interest; Conflict of Interest: Lawyer's Own Interest


    Decision and Order


    This matter came before the Court upon the filing of an information by the Board of Overseers of the Bar. Hearings were held on December 5, 2007, and December 7, 2007, before the undersigned Justice of the Maine Supreme Judicial Court, pursuant to Rule 7.2(b)(2) of the Maine Bar Rules. The plaintiff was represented by Aria eee, Esq., and the defendant was represented by Karen Kingsley, Esq. The parties were afforded a full opportunity to present evidence at the hearings. Additional testimony was submitted through written transcripts by agreement. The parties submitted written memoranda in lieu of closing argument.1

    The threshold issue before the Court is whether Attorney Clark violated Rule 3.4(f)(2)(iv) when he prepared a will for his client, Eugenie B. Landry, that included an express bequest from her estate to him.2 Landry executed the will on March 29, 2004. The evidence clearly establishes, and Clark admits, that these facts constitute a per se violation of the rule. Much of the hearing focused on the context of the preparation of the will and the factors to be considered in rendering a judgment pursuant to Rule 7.2(b)(5). Clark asserts he was ignorant of the prohibitions of the rule when he prepared the will and had Landry execute it. The Board asserts that the execution of the will was the result of a knowing effort by Clark to wrongfully appropriate a client's assets to his own use.

    Attorney Phillip C Hunt, Esq., was offered by the Board as an expert witness. He testified that the rule prohibiting lawyers from drafting an instrument for a client that directly benefits the lawyer is present in all professional conduct rules.3 It is a well recognized, universal prohibition intended to protect clients from fraud and undue influence. He described it as a "very clear cut, plain rule," which protects clients and the legal profession from circumstances where a conflict of interest impinges upon a lawyer's fiduciary role. He concluded that Clark's failure to secure independent legal advice for Landry prior to the execution of her will constituted a violation of the rule.4

    Hunt confirmed the well established tenet that lawyers are presumed to be familiar with the rules governing the practice of law; Clark acknowledges as much in his answer.

    FACTS

    Jeffrey Clark has practiced law in the State of Maine since 1980. Approximately half of his legal practice involves residential real property work. The remainder consists of small entity creation, wills, and estates. He first met Landry in 1999 when he was contacted by a finance company to prepare a reverse mortgage for her. At the time, Landry owned a small but valuable oceanfront residence in York, but had little by way of cash savings. She sought the reverse mortgage as a way of obtaining funds to sustain herself through her later years.5

    Landry had previously been employed as a secretary and nurse's aide at a hospital in New Hampshire. Although she claimed in later life to have been a nurse, it appears that she did not have an educational background in nursing and was never licensed. Elizabeth Melanson, the wife of Landry's nephew Donald Melanson, also worked at the hospital as the director of social work. Landry and her husband, Rene, purchased the York property and built a small house on that site over the course of several years; they eventually retired and relocated there.

    Shortly before her husband died in 1998, Landry was diagnosed with multiple sclerosis. Following Rene's death, Landry's health deteriorated and she became essentially housebound, leaving the residence only for medical appointments. She was increasingly dependent on neighbors and friends to meet her needs.

    After Clark began his professional relationship with Landry, she apparently shifted her requests for assistance to him, and he basically met all her needs for sustenance and survival. Elizabeth Melanson and a few other family members had sporadic contact and visits with Landry, but by 2003 any contacts were few and far between. Family members were not aware of the marked deterioration in her condition. Melanson visited Landry in the summer of 2004, and attempted to contact her later in the autumn of 2004, but testified that her efforts were deflected by home health care workers that Clark had hired.

    Landry was inconsistent in taking her medications, asserting that she had been a nurse and was able to regulate her medications without interference from others. Unfortunately, when she was non-compliant with the prescribed regimen, generally by failing to take medications, her condition would significantly worsen. She would become dehydrated, weak, constipated, and mentally disoriented. These conditions necessitated periodic hospitalizations to restore her to her previous tenuous state of health. After one hospitalization, she was transported to a nursing care facility at Clark's behest. She was very angry and dissatisfied with this accommodation, and eventually returned home.

    All witnesses confirmed that Landry could be stubborn, irascible and occasionally mean spirited. Sometimes she would be quite lucid and engaging, but at other times she could be irrational, delusional, and would exhibit signs of dementia.6

    Despite Landry's difficult demands and demeanor, Clark visited her regularly and undertook tasks as mundane as shopping for groceries, and as tedious as changing soiled bedclothes. He completed the reverse mortgage transaction and undertook several drafts of wills in which Landry changed beneficiaries regularly. As Clark became more and more integrated into Landry's daily life, he obtained powers of attorney to allow him to handle her financial affairs and make decisions regarding her medical care. Specifically, Clark testified that in 2003, because Landry's condition made it "mentally beyond her" to understand her financial affairs, it was necessary for him to take over paying her bills. Clark and his wife routinely called upon Landry for friendly visits.

    Clark testified that in 2003 Landry first broached the idea of including him as a beneficiary in her will. He asserts that he was uncomfortable with this prospect and avoided the subject throughout the remainder of 2003. Clark further testified that in 2003, "She still had the capacity to make decisions when she was not in one of her downward spirals."

    Landry was hospitalized in March of 2004 after becoming dehydrated and possibly suffering a fall. Clark testified that she again raised the subject of including him as a beneficiary in her will during this hospitalization. With some misgivings Clark drafted the will and had his law partner meet with Landry in the hospital prior to its execution. He states that he never came across the rule prohibiting this type of bequest and never sought an advisory opinion from the Board of Overseers of the Bar.

    The medical notes from this hospitalization cast significant doubt on Landry's mental clarity. At various times during the hospitalization she appeared confused, agitated, rude, and abrasive. The hospital note indicates that a staff member called Clark's office and left a message regarding Landry's circumstances. Although Landry was medically authorized to be released on March 30, 2004, the day after the will including Clark as a beneficiary was executed, she did not wish to return home at that time. She was reportedly agitated and angry at everyone. The nurse's comments reflect that Landry's moods were "volatile today at times then switching to very pleasant." Shortly after her discharge, she was readmitted on April 26, 2004, presenting as "disoriented and confused," stating that she was going to "call the cops," and complaining that "the service at this hotel is terrible."

    After Landry was discharged from this hospitalization, Clark arranged for home health care services to provide workers for her daily living needs. He testified that he never instructed the workers to reject attempts by family members to contact Landry. He was in regular contact with Landry's physicians as he exercised her medical care power of attorney. In May 2004, Clark secured twenty-four hour per day home health care coverage for her. Although her condition spiraled downward during 2004, Clark did not anticipate that her death was near.

    On November 5, 2004, Landry was admitted to the hospital emergency room for a psychiatric evaluation after she physically assaulted her health care workers at home. The discharge diagnoses included" Alzheimer [sic] disease" and personality disorder, among various other physical ailments. She was apparently declared medically incompetent. Landry was hospitalized again on December 2, 2004, after slashing a health care worker's face with a knife; she was discharged the following day with a diagnosis including delirium, and "blue papered" to the Maine Medical Center for a psychiatric workup. After a final admission to the York Hospital, Landry died on January 30, 2005.7

    Clark telephoned relatives to report Landry's death, and arranged a funeral held on February 12, 2005, in Manchester, New Hampshire. He paid her bills and resolved the reverse mortgage. He moved swiftly to process Landry's estate through the informal probate process. The house was sold in June 2005; the estate received net proceeds of $524,000 from the sale. Clark ultimately took $325,000 from the estate.8 He used the money to cover his children's tuition costs and to payoff his mortgage.9

    Upon objections by several interested parties, the York County Probate Court ordered the estate to remain open and accepted Clark's resignation as personal representative. The court appointed Eileen Epstein, Esq., as the successor personal representative. Although Clark was initially resistant to the suggestion that he should refund the $325,000 to the estate, he apparently had a change of heart and has fully refunded this amount as of the dates of this hearing.

    DISCUSSION

    If Clark had not prepared a will for Eugenie Landry designating himself as beneficiary, his actions would have been reflective of the highest ideals of the legal profession. In addition to the usual legal services rendered to a client, he undertook to insure her welfare and well-being. He went far above and beyond the call of duty in ministering to a troubled and infirm elderly woman. Unfortunately, all of his otherwise noble and selfless gestures were vitiated by his blatant, per se violation of one of the most well established prohibitions against conflicts of interest. His claims of humanitarian service, based upon Christian ideals, are rendered hollow by his participation in his client's estate.

    The Board suggests that Clark's actions were indicative of a predatory, premeditated plan to ingratiate himself into Landry's affairs, and to secure a share of her estate at a time when she was utterly dependent upon him and probably not completely lucid. While that argument can be made on these facts, the Court declines to accept it entirely. The Court finds somewhat credible Clark's assertion that he became overly emotionally involved with Landry and developed a mother-son relationship with her. When the prospect of sharing in her estate arose, he likely felt some entitlement as a dutiful son might. However, as Landry's attorney his primary obligation, and only legal relationship, was a fiduciary one. This relationship clearly prohibited him from profiting as a beneficiary under the will he prepared. Hence, his stated discomfort over the prospect of being included in Landry's will was well founded.

    Regardless of Clark's motivation at the time of the act, no emotional condition can justify it and no claim of ignorance can excuse it. It was a defalcation of major proportions and cannot be taken lightly by the Court. An appropriate disposition must include some period of monitoring to make certain that Clark's claimed emotional susceptibility to elderly clients will not cloud his professional judgment in such matters in the future.

    CONCLUSIONS OF LAW

    The Court finds that Attorney Clark's conduct violated Maine Bar Rules 3.1(a) (conduct unworthy of an attorney); 3.2(f)(1) (conduct violating any provision of the Maine Bar Rules); 3.2(f)(4) (conduct that is prejudicial to the administration of justice); 3.4(b)(1) (conflict of interest); and 3.4(f)(2)(iv) (preparing an instrument giving the lawyer a substantial gift from a client including a testamentary gift).

    SANCTIONS10

    Recognizing that the primary purpose of attorney discipline is not punishment, but protection of the public, the Court hereby ORDERS the following sanctions:

    (1) Jeffrey J. Clark is reprimanded for his aforementioned violations of the Maine Bar Rules;

    (2) Jeffrey J. Clark shall be suspended from the practice of law for a period of thirty (30) days from April 1, 2008, through April 30, 2008;

    (3) Jeffrey J. Clark shall, for a one-year period commencing February 1, 2008, provide to Bar Counsel:

    (a) The names and addresses of all clients, aged sixty (60) years or more; the lists shall be provided on the first day of each month and shall include a brief

    description of the legal services rendered to the client within the month preceding the report; and

    (b) Upon specific request of Bar Counsel, Jeffrey J. Clark shall provide copies of any written instruments prepared for said clients as identified in the monthly reports;

    (4) Nothing in this Order shall constitute a judicial waiver of the attorney client privilege; Bar Counsel shall maintain complete confidentiality of any information or legal instruments produced pursuant to this Order and no aspect of said materials may be disclosed in any public fashion without prior order of the Court.


    For the Court

    Hon. Andrew M. Mead, Associate Justice – Maine Supreme Judicial Court


    Footnotes

    1The Board asserts that the defendant's rebuttal memorandum was submitted late and asks the Court to exclude it from consideration. The Court declines to do so. 2 Rule 3.4(f)(2)(iv) provides:

    2A lawyer shall not prepare an instrument giving the lawyer or a parent child, sibling, or spouse of the lawyer any substantial gift from a client, including a testamentary gift except where the client is related to the donee.

    3Hunt testified that some states have enacted statutes which expressly render such gifts void unless the donor has received independent legal counsel prior to making the gift.

    4The fact that Clark's law partner met with Landry prior to the execution of the will does not meet the rule's requirement that the legal advice be truly independent.

    5Landry was approximately seventy-two years old when she begin her association with Clark.

    6Landry frequently called the local police with various complaints including conspiracies against her (including conspiracy allegations against Clark). She attacked a health care worker with a knife and severely injured her.

    7On January 28,2005, a medical order was issued by Dr. Gagnon indicating that the hospital "will not provide hydration or alimentation as that would be against her expressed wishes."

    8Clark continued to draw funds from the estate even after a complaint was filed citing the impropriety of his participation in its distribution.

    9After paying off the mortgage on his residence, he conveyed the entire fee ownership to his present wife (whom he married in 2002), apparently over concerns of possible civil claims against himself or the estate.

    10Although Clark was the subject of one prior complaint before the Board of Overseers of the Bar, it was dismissed and will not be considered a prior violation for the purposes of these sanctions.

    Board of Overseers of the Bar v. Christopher J. Whalley, Esq.

    Download Decision (PDF)

    Docket No.: BAR-07-7

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: October31, 2007

    Respondent: Christopher J. Whalley, Esq.

    Bar Number: 007370

    Order: Suspended Suspension

    Disposition/Conduct: Conduct Unworthy of an Attorney; Withdrawal from Employment; Preserving Identity of Funds and Property; Responsibilities Regarding Non-lawyer Assistants


    DECISION AND ORDER


    This matter came before the Court pursuant to M. Bar R. 7.2(b) upon the filing of an Information by the Board of Overseers of the Bar. Assistant Bar Counsel Aria eee, Esq. represented the Board and Karen Kingsley, Esq. represented Christopher J. Whalley, Esq. at the September 28, 2007 hearing where the Court heard testimony from various witnesses.

    The Court makes the following findings:

    1. Attorney Whalley is admitted to the Maine Bar and is a solo practitioner in Ellsworth, Maine in Hancock County.

    2. In 2003, Rene and Jeffrey Wiesner retained Attorney Whalley to assist them with the incorporation of their two small businesses. Attorney Whalley also agreed to pursue a disclosure hearing for a small claims case in which Mr. Wiesner had previously secured a judgment.

    3. Until 2005, Attorney Whalley employed Patrice Crossman as a legal assistant. Ms. Crossman was responsible for all small claims and collections procedures and regular corporate formation and routine filings for small business clients. Attorney Whalley admitted that he relied too much on Ms. Crossman's assistance in certain matters and should have provided more supervision of her work.

    4. Over time, significant problems arose that led to a breakdown in the attorney-client relationship between Attorney Whalley and the Wiesners. The Wiesners were very dissatisfied with their inability to make contact with Attorney Whalley. Further, his office failed to adequately prepare the annual registration form for the corporation. Upon learning of the mistake, Attorney Whalley's office again committed the same errors in the paperwork.

    5. Attorney Whalley also failed to diligently pursue the Wiesner disclosure/collection matter. He failed to monitor its progress, resulting in delays, problems with filing fees, late service on the defendant, and significant wait time in court for the Wiesners. He further failed to communicate with his clients regarding these problems.

    6. The. Wiesners terminated Attorney Whalley's representation in August 2005, and requested that he return their files. Despite their repeated requests, Attorney Whalley delayed in doing so until two months later, after this grievance was filed.

    7. Although this disciplinary proceeding had commenced and proceeded up the ladder to this Court, and Attorney Whalley had knowledge that every aspect of his practice would be scrutinized by this court, Attorney Whalley was threatened with suspension for failure to report his annual CLE hours in a timely fashion, demonstrating neglect of a very routine, yet critically important part of practicing law, while the disciplinary hearing was before this Court.

    8. Since 2005, Attorney Whalley has employed a full-time paralegal and another assistant. He has also made a significant effort to streamline his practice and become more efficient and organized.

    9. Attorney Whalley was truthful in preparing his defense for this Court and did not intentionally mislead Bar Counsel, the Grievance Commission, or this Court.

    10. This Court has previously disciplined attorney Whalley. He received a reprimand in 2005, and in 2003, he received a suspended suspension for three months and was required to submit his practice to a monitor. He also received warnings in 1995, 2000, 2001, and 2005.

    This Court further finds that Attorney Whalley violated Bar Rules 3.1(a); 3.5(a)(2); 3.6(a)(2),(3); 3.6(e)(2)(iv); and 3.13(c)(1),(2). Having determined that Attorney Whalley's conduct violated the Bar Rules, the Court must determine an appropriate sanction. The primary purpose of attorney discipline is not to impose punishment, but to protect the public. Although Attorney Whalley's mishandling of the Wiesners' legal matters caused undue stress and significant burdens for the Wiesners, fortunately, the consequences were minor and not of a permanent nature. Attorney Whalley has also indicated his remorse and willingness to take steps to ensure that this never happens again. Given Mr. Whalley's prior disciplinary history, however, this Court has grave concerns about his ability to effectively manage the same caseload and serve clients' needs in the future. In particular, the court found in 2003 that Mr. Whalley had neglected client matters and had failed to timely communicate with clients about case developments as they occurred, similar to the problems that gave rise to the complaint in this case. This court certainly does not demand perfection from all who practice law, but it does require some evidence of a concerted effort and desire to improve when it is determined that an attorney's approach to client relations and case management is so obviously dysfunctional. It further concerns this Court that Attorney Whalley is uninsured for malpractice.

    Accordingly, it is hereby ORDERED and ADJUDGED that Christopher J. Whalley, Esq. be suspended from the practice of law in the State of Maine for a period of thirty (30) days, but that suspension itself shall be suspended for a period of one year under the following terms and conditions:

    Mr. Whalley shall submit his practice of law to the monitoring of Joel A. Dearborn Sr., Esq., of Brewer, Maine for a period of one year.

    1. Mr. Dearborn shall receive no compensation and shall not be expected to incur any disbursements.

    2. Mr. Whalley will meet with Mr. Dearborn at Mr. Dearborn's calling and convenience, on a bi-weekly basis, unless Mr. Dearborn determines that more or less frequent meetings are appropriate.

    3. Mr. Dearborn shall have the right to withdraw and terminate his services at any time for any reason he deems necessary. If he does so, he shall notify the Court, Bar Counsel and Mr. Whalley of his withdrawal, whereupon this matter shall then be scheduled for further hearing as deemed appropriate by the Court.

    4. If any aspect of the monitoring procedures creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Bar Rules, Mr. Dearborn may adopt anyone of the following courses with the proposed result:

    a. Mr. Dearborn ceases to act as monitor and a potential conflict is avoided.

    b. Mr. Dearborn continues as monitor, but totally excludes Mr. Whalley's clients' matter from the monitoring process, so that no conflict is deemed to exist.

    c. Mr. Dearborn continues as monitor, but withdraws from the conflicted matter.

    d. Mr. Dearborn continues as monitor, and obligates Mr. Whalley not to participate in the matter and to promptly obtain replacement counsel for his client(s).

    1. If in Mr. Dearborn's judgment it is appropriate, he shall have the right to contact clerks of court, judges, or opposing counsel to determine the accuracy of Mr. Whalley's reports to him.
    2. Mr. Dearborn shall have no contact with any of Mr. Whalley's clients, Mr. Dearborn's only contacts in the performance of his monitoring duties being with Mr. Whalley or other persons contemplated by this order.
    3. Mr. Dearborn's participation in the disposition of Mr. Whalley's disciplinary case and monitoring of Mr. Whalley's practice shall be deemed not to create an attorney-client relationship between Mr. Whalley and Mr. Dearborn or between Mr. Dearborn and Mr. Whalley's clients. Specifically, Mr. Dearborn shall be deemed not to represent Mr. Whalley or any of Mr. Whalley's clients or to be employed by them in any capacity and Mr. Dearborn shall not have any responsibility of any nature to any of them. Moreover, the attorney-client privilege shall not apply to Mr. Dearborn's monitoring of Mr. Whalley's practice, and Mr. Dearborn shall be immune from any civil liability (including without limitation, any liability for defamation) to Mr. Whalley or any of Mr. Whalley's clients.
    4. Mr. Dearborn will have the authority to review and examine any of Mr. Whalley's files, except those in which Mr. Dearborn might have adverse interests under paragraph 5.
    5. Mr. Whalley shall prepare and present to Mr. Dearborn reasonably in advance of each meeting a list of all his current clients, showing each pending client's matter with a brief summary and calendar of the status thereof.
    6. Mr. Dearborn will, as soon as practicable, have Mr. Whalley establish a method of objectively identifying delinquent client matters and have him institute internal checks and controls to make his practice appropriately responsible to the needs of his clients.
    7. Mr. Dearborn shall file a confidential report with the Court every three months or sooner if Mr. Dearborn deems it necessary, with copies to Mr. Whalley and Bar Counsel concerning at least the following subjects:

    a. measures Mr. Whalley has taken to avoid delinquencies;

    b. a description of any client matter identified as delinquent;

    c. and any professional assistance Mr. Dearborn has provided to Mr. Whalley.

    1. Mr. Dearborn shall have the duty to report to Bar Counsel and the Court any apparent or actual professional misconduct by Mr. Whalley of which Mr. Dearborn becomes aware or any lack of cooperation by Mr. Whalley in the performance of this Order.
    2. Mr. Dearborn's monitoring of Mr. Whalley's practice will be for a period of one year, unless terminated earlier as herein provided or by other Order of this Court.
    3. If Mr. Dearborn's reports identify continuing problems with Attorney Whalley's practice management and client relation skills, then this Court may implement the suspension.

    It is FURTHER ORDERED that Mr. Whalley shall comply with the provisions of M. Bar R. 7.2 (b)(8) and pay the reasonable expenses incurred by the Board in the investigation of the matter and in the conduct of hearings before the Grievance Commission and before the Court no later than six months from the date of this Order.

    Finally, pursuant to Bar Rules 7.1(c) and (d), Bar Counsel may file an Information directly with the Court without any Grievance Commission review or hearing concerning any new complaints of professional misconduct allegedly committed by Mr. Whalley and received by the Board after the date of this Order. Any apparent violations of the condition of this Order shall be brought to the attention of the Court by Bar Counsel.


    For the Court

    Warren M. Silver, Associate Justice - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Patricia Danisinka-Washburn

    Download Decision (PDF)

    Docket No.: BAR-06-4

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: July 5, 2007

    Respondent: Patricia Danisinka-Washburn

    Bar Number: 001747

    Order: Findings of Fact and Conclusions of Law

    Disposition/Conduct: Conduct Prejudicial Administration of Justice; Conduct During Representation: Standards of Care and Judgment/Neglect/ Inadequate Preparation; Excessive Fees; Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation


    FINDINGS AND CONCLUSIONS


    This matter is before the Court for decision, after hearing, on a disciplinary information filed by the Board of Overseers of the Bar. M. Bar. R. 7.2(b). The information asserts violations of the Code of Professional Responsibility, Bar R. 3, and requests disciplinary action by the Court. A hearing was held on June 27, 2007, on the issues of violation of the Code of Professional Responsibility. By agreement of the parties and the Court, presentation of any evidence and argument relating to the issue of sanctions was deferred pending ruling by the Court on whether, or not, any violations of the Bar Rules have been proven.

    Based on the evidence presented, the Court makes the following findings:

    Floyd Burton Jr. was indicted for arson (Class A), 17-A M.R.S.A. § 802, and attempted murder (Class A), 17-A M.R.S.A. § 201, in the Superior Court, Penobscot County, CR-95-261. Burton was convicted of both charges after a jury trial in which he was represented by another attorney. On December 30, 1996, he was sentenced by the court (Calkins, J.) to concurrent terms of twenty-eight years, with all but twenty years suspended and four years probation. His trial attorney, on that date, filed a notice of appeal and an application for leave to appeal the sentence.1 His trial counsel also filed a motion to withdraw, which was granted, conditioned on appearance of new counsel. At trial, Burton had been represented on a court-appointed basis. In early-January 1997, another attorney, not involved in this matter, was court-appointed to handle Burton's appeal.

    After sentencing, Burton was incarcerated at Department of Corrections Facilities and remains incarcerated today. Attorney Patricia Danisinka-Washburn had previously represented Burton in two civil matters. At some point in January 1997, Floyd Burton's mother, Hattie Burton, and Ms. Danisinka-Washburn spoke about the possibility of Danisinka-Washburn representing Floyd Burton on the appeal on a retained basis.

    After several conversations, Danisinka-Washburn agreed with Hattie Burton that she would represent Floyd Burton in the appeal for a retainer of $15,000.

    Hattie Burton advised Danisinka-Washburn that she would have trouble paying that sum in one payment. Danisinka-Washburn advised Hattie Burton that Burton could pay gradual payments, but a large sum was needed early on. Hattie Burton then mortgaged her home, paid some other debts, and paid Danisinka-Washburn $9,000 towards the retainer. She also began making monthly or bi-monthly payments of $200 or $250.

    Danisinka-Washburn entered her appearance as counsel on the appeal on February 5, 1997. Danisinka-Washburn then undertook efforts to obtain the case file from Floyd Burton's trial attorney. Floyd Burton's trial attorney proved uncooperative until Danisinka-Washburn sought the assistance of the Board of Overseer of the Bar, after which the case file was obtained. The case file did not include the transcript. While the transcript had been ordered as part of the filing of the notice of appeal, payment arrangements had not been made. Thus, the transcript was not provided.

    Because of delays in preparing the transcript, the State filed a motion to dismiss the appeal for want of prosecution. Danisinka-Washburn filed an objection to that motion. The Law Court (Wathan, C.J.) deferred ruling on the motion pending determination of Floyd Burton's indigency to secure court funds to pay for the transcript. In an order docketed on May 23, 1997, the court (Mead, J.) found Floyd Burton indigent and ordered that the court pay the costs incurred on appeal, including costs for payment of the transcript. The docket entries and several exhibits in the file indicate that there was some confusion between the Court, the court reporter, and Danisinka-Washburn as to whether funds for payment for the transcript had been approved.

    The transcript was ultimately received by the Law Court on December 2, 1997. It was received by Danisinka-Washburn at about the same time. The Law Court notified Danisinka-Washburn that her brief was due January 5, 1998. No brief was filed. Danisinka-Washburn received, from the Law Court, a notice of possible dismissal for failure to timely file the appellant's brief in late-February 1998. She filed a request for more time until May 6, 1998, to file her brief. Her request for an extension of time to May 6 was granted. The time she requested lapsed, and no brief was filed.

    The State filed another motion to dismiss in mid-May 1998. Danisinka-Washburn did not oppose this motion. Burton's appeal was dismissed for want of prosecution on May 28, 1998.

    At hearing, Danisinka-Washburn asserted that she had extensively prepared and reviewed the file and researched potential issues on appeal and had decided that there were no meritorious grounds for appeal. Accordingly, she indicated she elected not to oppose the motion to dismiss.

    This decision, that the appeal lacked merit and she would not oppose the motion to dismiss, was not communicated to Floyd Burton, Hattie Burton, or the Law Court.

    By the time the appeal was dismissed, Danisinka-Washburn had been paid approximately $14,000 through the $9,000 payment from Hattie Burton, monthly or bi-monthly payments from Hattie Burton, and a payment to Danisinka-Washburn of $3,000 from Floyd Burton's brother-in-law.

    As is the Law Court's practice when an appeal is dismissed, the notice of dismissal was sent, not only to the attorneys appearing in the case, but also directly to the defendant, Floyd Burton. Mr. Burton received the notice that the appeal had been dismissed shortly after the order dismissing the appeal was entered on May 28, 1998.

    Although Floyd Burton was Danisinka-Washburn's client, virtually all of the contacts regarding the appeal were between Danisinka-Washburn and Hattie Burton. Hattie Burton is an individual with limited education, who had difficulty understanding the significant legal matters involved in the appeal. Floyd Burton wrote Danisinka-Washburn a number of letters asking that she contact him directly, but she did not do so. She continued to maintain contact only through Hattie Burton.

    The record contains only one letter from Danisinka-Washburn to Floyd Burton. It was written in June 1998, about one month after Burton's appeal was dismissed. The letter does not mention the appeal and addresses an issue about a request to transfer Burton to a different facility within the prison system. A month after that letter, Floyd Burton wrote to Danisinka-Washburn stating he had learned of the notice of dismissal of his appeal and asked, "I would like to know what is going on with my case." Danisinka-Washburn did not reply to the letter.

    Danisinka-Washburn asserts that she did not engage in direct contacts with Floyd Burton because she encountered difficulty in making calls to or receiving calls from the Maine State Prison where Burton was incarcerated. However, by Danisinka-Washburn's own admission, she has significant experience dealing with prisoners in the Maine State Prison, including the capacity for her to contact them and them to contact her. She testified that she worked virtually full-time as an advocate, connected to Pine Tree Legal Assistance, in dealing with matters for prisoners at the Maine State Prison in the early 1970s, and she has continued to receive and respond to correspondence and phone calls from a number of prisoners, both prisoners who were her clients and prisoners who were not, into the mid 1990s. Danisinka-Washburn knew how to engage in telephone contact with prison inmates, and could have done so with Floyd Burton, had she desire to have contact. The purported difficulties in telephone contact provide no excuse for failing to write to Mr. Burton about the decision that his appeal lacked merit, and the dismissal of his appeal, or to respond to some of his numerous letters asking about the status of his case.

    After Floyd Burton received the notice from the Law Court that his appeal had been dismissed, he attempted to contact Danisinka-Washburn about the dismissal, and he also asked his mother to get information from Danisinka-Washburn as to why the appeal appeared to have been dismissed. When asked about the dismissal by Hattie Burton, Danisinka-Washburn informed her that she had received an extension of time, and the appeal was still being processed. This statement was false.

    At hearing, Danisinka-Washburn testified that she spent extensive amounts of time reviewing and re-reviewing the file and researching legal issues connected with the appeal, such that she spent more time than would have been adequately compensated with the $15,000 retainer that she had requested. Danisinka-Washburn testified that she believed that the appeal had no merit because, primarily, the trial involved factual determinations related to credibility of the witnesses. At the same hearing, she testified that her claimed extensive work on the appeal included twelve to fifteen trips to the State Law Library in Augusta, during which time she had spent between six and eight hours each time researching legal issues connected with the appeal. She has no paperwork related to this claimed research because, she asserts, it was destroyed when the area where she had the files stored was flooded in 2001. Danisinka-Washburn offered little explanation as to what legal issues, in a case that she viewed as primarily a credibility contest, required such extensive research.

    The Court finds that, after receiving the case file from the trial attorney, Danisinka-Washburn did not engage in the extensive file review, case preparation, and legal research claimed. At the time, her practice was disorganized and poorly documented, issues that have been subject to a prior disciplinary proceeding and order. BAR-03-4

    At hearing, Danisinka-Washburn testified that she believed her representation of Floyd Burton ended by November of 1998 after she completed consideration of whether it might be possible to obtain a new trial for Burton. This termination of representation was not communicated to Floyd Burton or Hattie Burton. In subsequent conversations with Hattie Burton and other family members, and in one telephone conversation with Floyd Burton, Danisinka-Washburn spoke of efforts for a new trial or a sentence reduction. These comments were in response to questions about the status of the case. They were calculated to give the impression that Danisinka-Washburn was still working on the matter that she knew, but did not tell her client, had ended with dismissal of the appeal.

    The Court finds that, in this case, Danisinka-Washburn neglected to adequately review and prepare the appeal and neglected to communicate with her client regarding the status of the appeal and it's ultimate dismissal.

    The Court also finds not credible Danisinka-Washburn's claims that, after the appeal was dismissed, she engaged in further substantial work trying to develop evidence to file a motion for a new trial. The Court finds that such preparations to try to identify a basis for a new trial, if any, were minimal. The Court also finds that while Danisinka-Washburn may have briefly explored the possibility of obtaining a pardon or a commutation of sentence, her work on this issue was also minimal at best.

    Throughout this time period, from late 1997, when she had claimed to be working on the appeal, through 1998, when the appeal was dismissed, and afterwards into 1999, Floyd Burton regularly wrote Danisinka-Washburn asking information about the status of the case and the appeal. She did not respond directly to Floyd Burton. In communications with Hattie Burton, Danisinka-Washburn misled Hattie Burton into believing that there were still issues to be explored, and that the appeal was taking a long time to be resolved.

    In November 2001, Floyd Burton and Danisinka-Washburn spoke by telephone. This was their only direct conversation. At that time, Danisinka-Washburn advised Burton that she was still working on his case and trying to get his sentence reduced. She also told Burton that she would be sending him some paperwork to sign relative to his case. No paperwork was ever sent. While Danisinka-Washburn claims that this conversation relates to her efforts to obtain a commutation of Burton's sentence, she did not advise Burton that this process was separate from the appeal that had been dismissed. Burton believed this conversation related to the appeal. Notably, the conversation occurred after the spring of 2001 when Danisinka-Washburn claims that part of the paperwork relating to Burton's appeal was destroyed. She did not advise Burton of the loss of the appeal paperwork in the November 2001 conversation.

    CONCLUSIONS

    Based on the above findings and its consideration of the whole record, the Court concludes as follows:

    1. Danisinka-Washburn neglected to prosecute the appeal for which she had been retained. Her failure to prosecute the appeal violated M. Bar R. 3.2(f)(4) and 3.6(a)(2) and (3).

    2. She did not perform services reflecting the time and effort that would justify retention of the $14,000 payment received from Hattie Burton and Floyd Burton's family. In relation to the work done, the fee charged was excessive pursuant to M. Bar. R. 3.3(a).

    3. Danisinka-Washburn failed her obligation to communicate with her client, Floyd Burton, and particularly failed an obligation to consult with him prior to her decision to allow dismissal of the appeal, which he wished to maintain. Such consultation is a mandatory obligation of counsel on appeal. Florida v. Nixon, 543 U.S. 175, 187 (2005); Smith v. Robbins, 528 U.S. 259, 265-66 (2000); Anders v. California, 386 U.S. 738 (1967); State v. Junkins, 2001 ME 133, 779 A.2d 948. This failure to communicate violated M. Bar. R. 3.6(a).

    4. Danisinka-Washburn misled Floyd Burton and Hattie Burton with respect to the status of the appeal, leading them to believe that she was still working on the appeal, and that the appeal still might be processed after she knew that the appeal had been dismissed. This misleading conduct, including false and misleading statements, violated M. Bar. R. 3.2(f)(3) and (4).

    These findings of violation of the Bar Rules having been made, the Court will schedule a hearing to determine, after hearing from Bar counsel and Danisinka-Washburn, what sanction may be appropriate in light of the violations of Bar Rules found in this order. The final disposition order will incorporate the above findings and conclusions, plus the Court's determinations regarding the appropriate sanction.

    A hearing to determine appropriate sanctions will be scheduled promptly.


    For the Court

    Hon. Donald G. Alexander Associate Justice - Maine Supreme Judicial Court


    Footnotes

    1The application for leave to appeal sentence was denied by the Sentence Review Panel on May 2, 1997.

    Board of Overseers of the Bar v. Patricia Danisinka-Washburn, Esq.

    Download Decision (PDF)

    Docket No.: BAR-06-4

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: August 9, 2007

    Respondent: Patricia Danisinka-Washburn, Esq.

    Bar Number: 001747

    Order: Suspension

    Disposition/Conduct: Conduct Prejudicial Administration of Justice; Conduct During Representation: Standards of Care and Judgment/Neglect/ Inadequate Preparation; Excessive Fees; Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation


    DECISION and ORDER


    This bar discipline matter was heard by the Court on June 27, 2007. On July 5, 2007, this Court issued "Findings and Conclusions" which are incorporated in this Order by reference. Throughout these proceedings Attorney Danisinka-Washburn has been represented by William Robitzek, Esq., and the Board of Overseers has been represented by Assistant Bar Counsel Aria eee.

    Prior to the second phase of hearing, the parties notified the Court that they were in agreement as to sanctions and resolution of this matter. After discussion with the parties, further hearing has been waived. With approval of the Court, this Order is entered by agreement.

    Based upon the Court's findings of misconduct by Attorney Danisinka-Washburn, the potential disposition must be considered. In determining the appropriate sanctions for the Code violations, the Court must consider Attorney Danisinka-Washburn's disciplinary history, including her previous suspended suspension in 2003. The Court notes that generally, when a lawyer has been sanctioned for the same or similar misconduct and engages in further acts of misconduct that cause injury to a client, the public, the legal system, or the profession, the appropriate sanction is suspension. ABA Standards for Imposing Lawyer Sanctions §8.2 (1986). See Board of Overseers v. Bruce S. Billings, BAR-90-16 (1991).

    Furthermore, this Court found in its Order of July 5, 2007, that Attorney Danisinka-Washburn received payments from Hattie Burton and another member of Floyd Burton's family in the amount of approximately $14,000 for legal fees on behalf of Floyd Burton. This Court also concluded that Attorney Danisinka-Washburn's professional services did not justify retention of that amount. The retention of the fees by Attorney Danisinka-Washburn constituted misconduct under the Code.

    The Court understands that Hattie Burton has filed a claim seeking reimbursement for her loss from the Lawyers' Fund for Client Protection. The parties agree and the Court orders that if Ms. Burton's claim is approved and paid in whole or in part by the Lawyers' Fund for Client Protection, the Lawyers' Fund for Client Protection shall have a claim for restitution against Attorney Danisinkan-Washburn for the amount paid. This Order shall operate as a judgment in favor of the Lawyers' Fund for Client Protection against Attorney Danisinka-Washburn in an amount equal to what the Fund may pay Ms. Burton plus costs. However, if the Lawyer's Fund determines that the loss was greater than $14,000, (the approximate amount Ms. Burton paid Attorney Danisinka-Washburn), the Fund may seek an amendment of this Order.

    Accordingly, it is hereby ORDERED and ADJUDGED that Patricia Danisinka-Washburn, Esq. is suspended from the practice of law in the State of Maine for a period of five years, effective thirty (30) days after the date of entry of this Order. It is FURTHER ORDERED that on or before the effective date of this Order, Patricia Danisinka-Washburn shall comply with the provisions of M. Bar R. 7.3(i)(1)(A), (B) and (C).

    After the period of suspension, Danisinka-Washburn shall then immediately file with the Board a notification of her discontinuance of the practice of law in Maine and will then register on inactive status under Maine Bar Rule 6(C). She shall not thereafter resume the active practice of law without first having complied with all the provisions and requirements of Maine Bar Rule 6(c) (2), (3) and 7.3(j).

    Finally, Bar Counsel may file an information directly with the Court without any Grievance Commission review or hearing concerning any new complaints of professional misconduct allegedly committed by Ms. Danisinka-Washburn and received by the Board after the date of this Order.


    For the Court

    Hon. Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Charles F. Perrault, Esq.

    Download Decision (PDF)

    Docket No.: BAR-07-8

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: October 16, 2007

    Respondent: Charles F. Perrault, Esq.

    Bar Number: 003330

    Order: Reprimand Reciprocal Discipline

    Disposition/Conduct:


    ORDER


    This Court has received a certified copy of the Order of Public Reprimand by the Commonwealth of Massachusetts' Board of Bar Overseers of the Supreme Judicial Court dated June 21, 2007, publicly reprimanding Attorney Charles F. Perrault for his violations of the Supreme Court's Rules of Professional Conduct. Attorney Perrault has defaulted by failing to file any response to this Court's Order And Notice dated August 30, 2007 for him to show cause why the Court should not impose identical discipline to that imposed upon him in Massachusetts, as requested by Maine's Board of Overseers of the Bar.

    Therefore, based upon that default, this Court hereby ORDERS:

    1. The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;

    2. Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Attorney Charles F. Perrault is reprimanded for his violations of those portions of Maine's Code of Professional Responsibility that are analogous to those violations of Massachusetts' Rules of Professional Conduct by him as found in Massachusetts' Order of Public Reprimand dated June 21, 2007.

    For the Court

    Hon. Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Richard W. Salewski, Esq.

    Download Decision (PDF)

    Docket No.: GCF 06-383

    Issued by: Grievance Commission

    Date: June 20, 2007

    Respondent: Richard W. Salewski, Esq.

    Bar Number: 007185

    Order: Reprimand

    Disposition/Conduct: Disclosure of Interest; Commencement; Standards of Care and Judgment; Conflict of Interest: Simultaneous Representation


    REPORT OF PROCEEDINGS, FINDINGS, CONCLUSIONS AND DISPOSITION


    The above matter was referred by the Grievance Commission Panel A, on June 5, 2007, at the U.S. District Court house in Bangor, Maine. Pursuant to a Disciplinary Petition dated October 3, 2006, with proper notice being provided, a disciplinary hearing open to the public was conducted on this date pursuant to Maine Bar Rules 7.1(e)(1),(2) to determine whether grounds exist for the issuance of a reprimand or whether probable cause exists for the filing of an information with the Court. The Board of Overseers was represented by Assistant Bar Counsel, Nora Sosnoff, Esq., and Respondent Richard Salewski represented himself. Witnesses included Attorney Salewski, and the Complainant, Irmgard Dering.

    The pleadings consisted of a Petition filed by the Board and Response filed by the Respondent. In the course of the proceedings, Exhibits 1 through 6 were offered by the Board, and admitted without objection; Exhibits 1 through 5 were offered by the Respondent and also admitted without objection.

    Background and Findings of Fact

    1. In February of 2006, the complainant Irmgard Dering first contacted Attorney Salewski to represent her in a transaction for the purchase of real estate located in Bowdoin, Maine. She was referred to Attorney Salewski by the lender that she was working with at that time. Attorney Salewski did in fact represent Ms. Dering in that February 2006 land transaction, but that transaction was not consummated by the parties and the Purchase and Sale Agreement was voided.

    2. On or about March 11, 2006, Ms. Dering entered into a second Purchase and Sale Agreement for a piece of property and home located at 24 Stone Ridge Lane, in Bowdoin, Maine. The sellers of that property were Robert and Stephanie Dundas. For this transaction, Ms. Dering obtained her financing with Camden National Bank. Pursuant to Respondent's Exhibit #1, Ms. Dering chose Attorney Salewski as her attorney to close the transaction. Phone records further suggest that there was ongoing contact through February and March of 2006 between Ms. Dering and Attorney Salewski.

    3. Consistent with her selection of Attorney Salewski as her attorney, the Purchase and Sale Agreement was forwarded to Attorney Salewski and he was instructed to commence taking the necessary steps to prepare for closing.

    4. Ms. Dering was of the reasonable belief that Attorney Salewski was at all times representing her and acting as her lawyer for the purpose of the Stone Ridge Lane purchase transaction.

    5. In conducting the title search in preparation for closing, Attorney Salewski discovered a problem with the Stone Ridge Lane property. The existing access to the primary roadway was by a right of way over an adjacent property. The nature of the relevant defect was that the right of way boundaries drawn by a surveyor at the time of the subdivision approval were not the actual boundaries of the roadway as constructed and existing on the face of the earth. This problem was detected by a Mortgage Loan Inspection performed by a surveyor. The right of way was essential to allow access to and from the property.

    6. On or about May 11, 2006, Attorney Salewski notified Ms. Dering that there was a problem with the right of way. Attorney Salewski testified that these discussions were limited in scope to those problems revealed by the Mortgage Loan Inspection. Attorney Salewski told Ms. Dering that he would take the necessary steps to resolve the right of way problem.

    7. To resolve the right of way problem as identified by the Mortgage Loan Inspection, Attorney Salewski prepared deeds to be exchanged between the Dundas' and the abutting property owners, the McManus'. Those deeds were signed by the Dundas' and McManus’ on or about May 15, 2006, and appear to reasonably correct the problems identified by the Mortgage Loan Inspection.

    8. Attorney Salewski charged the Sellers his fee to prepare those curative documents regarding the right of way and to prepare the Dundas' deed of conveyance; but also had the Dundas' sign an acknowledgement in which they acknowledged that Attorney Salewski was representing the bank and was not representing them.

    9. The closing was scheduled for May 16, 2006. On May 15, 2006, Ms. Dering called Attorney Salewski's office to inquire as to the status of the defective right of way. She was informed by a staff member that the right of way defect had been taken care of.

    10. The closing occurred on May 16, 2006, at Attorney Salewski's office. Although a number of the closing documents were reviewed and explained by Attorney Salewski, he did not specifically explain to Ms. Dering the existing terms of the right of way. The work done by Attorney Salewski in no way changed the terms of the right of way; his work merely corrected the location of the right of way. Nonetheless, Attorney Salewski failed to discuss or explain to Ms. Dering any of the remaining terms of the right of way, specifically those regarding upkeep and maintenance of the right of way.

    11. A number of months after the closing, Ms. Dering was contacted by her neighbor, the McManus', on whose property the right of way was located. Mr. McManus presented with a bill for half of the charges he incurred to have the right of way paved. Ms. Dering became extremely upset. She was of the belief that Attorney Salewski had "resolved" the right of way issues, and has since come to the misunderstanding that Attorney Salewski's curative work with the right of way somehow created for her greater obligations with regards to maintenance and upkeep.

    12. Upon receipt of the complaint brought by Ms. Dering, Attorney Salewski took the position that he was never representing Ms. Dering. In responses written by Attorney Salewski dated September 5, 2006, and January 30, 2007, Attorney Salewski repeatedly maintained he was not representing Ms. Dering and that he was only representing the lender, Camden National Bank.

    Discussions

    The Board has alleged that Attorney Salewski has violated the following bar rules:

    1. 3.4(a)1 Disclosure of Interest;
    2. 3.4(a)2 Commencement;
    3. 3.4(c)(2);
    4. 3.6(a) Standards of Care and Judgment;

    The Panel finds that Attorney Salewski did violate all of these rules. From the facts, there is no question that, by an objective standard, that both the lawyer and the client could and should reasonably understand and agree that Attorney Salewski had undertaken representation of Ms. Dering. That representation began not only with the February 2006 purchase, but also with the March 2006 purchase of the Stone Ridge Lane property. The Panel is particularly concerned by Attorney Salewski's repeated position that he was only representing the bank and not Ms. Dering. Although Attorney Salewski now acknowledges that representation may have occurred, it is clear that through the duration of his representation of and dealings with Ms. Dering, he was of the firm belief that he was not representing her. As a result of his failure to acknowledge that he was representing Ms. Dering, it in effect became impossible for him to meet or fulfill all of the other obligations which he owes to a client pursuant to the Maine Bar Rules.

    Since Attorney Salewski was of the mistaken belief that he was not representing Ms. Dering, he obviously was also in violation of Rule 3.4(a)1 which required him to disclose to Ms. Dering his dual representation of her and the bank. This is a technical violation in that Attorney Salewski failed to disclose in writing the dual representation and provide to Ms. Dering the additional cautions required by the rule. At the same time, it is likely Ms. Dering understood all along that Attorney Salewski was not only representing her but also the bank. Similarly Attorney Salewski violated the Rule 3.4(c)2 in that Ms. Dering was not given the opportunity to make a decision and give her consent to the dual representation. More importantly, as a result of Attorney Salewski's failure to recognize that he was representing Ms. Dering as well as the bank, it again became impossible for him to recognize that there could be conflicts which could arise which could require him to terminate his simultaneous representation, withdraw from employment, and refer the clients to other attorneys.

    Finally, the Panel finds that Attorney Salewski violated Rule 3.6(a), particularly in that he failed to take reasonable measures to keep his client informed of the client's affairs. The particular title problem that developed was the right of way. The Board is satisfied that Attorney Salewski took reasonable steps to cure the right of way problem that was disclosed by the Mortgage Loan Inspection. By that time, however, Ms. Dering was of the misunderstanding that "all right of way issues had been resolved". Attorney Salewski acknowledged that he failed to review with Ms. Dering at any time prior to closing the very important terms of the right of way regarding upkeep and maintenance. The terms of the right of way as disclosed in the deed are conditions of title that Attorney Salewski should have and was under a duty to at a minimum review with his client. Attorney Salewski was in error to operate under the belief that conditions in the title are a matter that can be left to real estate brokers to explain. Conditions of title are a critical example of an area that an attorney representing a client in a real estate transaction should review and discuss with his client. Attorney Salewski's failure to review this matter with Ms. Dering flows from his failure to acknowledge that he was in fact representing her throughout this transaction. The Panel is not suggesting that Attorney Salewski created any problems with the right of way and in fact finds to the contrary; Attorney Salewski's work in curing the right of way issues dealt only with the location of the right of way. Attorney Salewski's failure is specifically limited to his failure to discuss the terms of the right of way in any manner with Ms. Dering. All that would have been required of him would have been to disclose and review the terms of that right of way with Ms. Dering. Pursuant to that discussion, she then could have made informed decisions on how to proceed. The Panel acknowledges that had such a discussion occurred, there may have been in fact nothing that could be done to change the terms of the right of way and that the transaction may still have gone through as planned. The point is Attorney Salewski failed to provide his client with this important information, thereby depriving her of the opportunity to make informed decisions. Again, this violation flows from and is a direct result of Attorney Salewski's failure to recognize he was representing Ms. Dering during this transaction, which the Panel finds to be the most troubling. Based on the foregoing reasons and upon the evidence and record before it, Panel A determines the appropriate disposition of this Petition is that the Respondent, Attorney Salewski, should be and hereby is reprimanded.


    For the Grievance Commission

    Harold L. Stewart II, Esq.
    John A. Mitchell, Esq.
    Raymond J. Cota

    Board of Overseers of the Bar v. Patricia V. Shadis, Esq.

    Download Decision (PDF)

    Docket No.: GCF 05-386

    Issued by: Grievance Commission

    Date: January 18, 2007

    Respondent: Patricia V. Shadis, Esq.

    Bar Number: 006811

    Order: Reprimand

    Disposition/Conduct: Conduct Prejudicial Administration of Justice; Conduct During Representation: Standards of Care and Judgment/Threatening Prosecution; Adversary Conduct; Conduct Unworthy of an Attorney


    REPORT OF FINDINGS OF PANEL B OF THE GRIEVANCE COMMISSION

    On January 18, 2007, pursuant to due notice, Panel B of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1 (e)(2), concerning misconduct by the Respondent, Patricia V. Shadis, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on September 22, 2006. Attorney Shadis, through counsel, filed an Answer to the Disciplinary Petition on October 25, 2006.

    Present at the hearing were Assistant Bar Counsel Aria eee, representing the Board, and Attorney Karen Kingsley, with her client, respondent, Patricia V. Shadis. The complainant, Lori S. Hall, though not present addressed the proposed, stipulated Report via correspondence to the Grievance Commission.

    The Panel accepted Ms. Hall's letter and reviewed counsels' proposed stipulated findings. The Panel then issued the following disposition:

    FINDINGS

    1. Attorney Shadis of Newcastle, County of Lincoln, State of Maine, was 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 Shadis was admitted to the Maine Bar in 1989 and has been practicing law in Newcastle, Maine since 1989.

    2. On November 1, 2005 Lori S. Hall filed a grievance complaint against Attorney Shadis. On November 28, 2005 Attorney Shadis filed her response to the grievance.

    3. The specifics of Attorney Shadis' conduct are outlined below.

    4. Attorney Shadis, on behalf of her client, filed a post-divorce motion in the Wiscasset District Court. The post-divorce custody case began in January 2005 and ended in August 2005.
    1. During the pendency of that civil case, Attorney Shadis pursued a closed criminal investigation involving Mrs. Hall's then domestic partner, now husband, Mr. Hall. To that end, Attorney Shadis arranged contact between the witnesses and provided information to the Maine State Police with the intent to obtain information for the custody case and to reopen the criminal investigation against Mr. Hall. Prior to her involving the State Police, Attorney Shadis had been in contact with the former wife of Mr. Hall who expressed concern and provided information about the allegations.
    2. In her answer to the grievance, Attorney Shadis asserted that she was vigorously representing her client, rather than violating the Code of Professional Responsibility. She maintained that the information was relevant to her custody case. However, Respondent now acknowledges that her initiation of contact with the Maine State Police and the alleged victim transcended acceptable standards of an attorney's proper representation of a client. See Maine Bar Rules 3.6(a) and 3.7(a).
    3. Attorney Shadis also now agrees that her previous criticism of a District Court Judge demonstrated poor judgment and was discourteous to a tribunal in violation of Maine Bar Rule 3.7(e)(2)(vi).
    1. Ultimately, the principal parties involved in the Hall custody case resolved their differences, and law enforcement never charged Mr. Hall with any criminal conduct.

    A. Violation of M. Bar R. 3.1(a)

    By reviewing her actions in total, it is clear that Attorney Shadis committed "conduct unworthy of an attorney". After further reflection Attorney Shadis recognizes and regrets her failures in judgment.

    B. Violation of M. Bar R. 3.2(f)(4)

    Attorney Shadis knew or should have known that pursuing a closed criminal case during her representation of an unrelated civil client would be unwarranted. While competent advocacy is expected of lawyers, overzealous representation can lead, as it did here, to a violation of the Code of Professional Responsibility. Attorney Shadis went too far in advancing her client's interests.

    C. Violation of M. Bar R. 3.6(a); 3.6(c)

    Attorney Shadis should always employ reasonable care and apply her best judgment in the performance of professional services. Furthermore, Attorney Shadis should never again threaten to present criminal charges in order to obtain an advantage in a civil matter.

    D. Violation of M. Bar R. 3.7(e)(2)(vi)

    3.7 Conduct During Litigation

    (e) Adversary Conduct.

    (2) In appearing in a professional capacity before a tribunal, a lawyer shall not:

    (vi) Engage in undignified or discourteous conduct that is degrading to a tribunal.

    While advocating on behalf of her client, Attorney Shadis violated the above referenced provision of Maine Bar Rule 3.7. At the disciplinary hearing, Attorney Shadis, apologized for her behavior, accepted responsibility for those violations and acknowledged that her actions were the result of a desire to zealously represent her client.

    CONCLUSION AND SANCTION

    As Maine Bar Rule 2 outlines, the purpose of disciplinary proceedings is not punishment but rather, protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable to discharge properly their professional duties. It appears that a reprimand here serves those purposes.

    Therefore the Panel concludes that the following violations occurred:

    1. Attorney Shadis violated M. Bar R. 3.2(f)(4);

    2. Attorney Shadis violated M. Bar R. 3.6(a) and (c);

    3. Attorney Shadis violated M. Bar R. 3.7(e)(2)(vi).

    4. Attorney Shadis' foregoing violations also constitute conduct unworthy of an attorney in violation of M. Bar R. 3.1(a).

    Having made findings of misconduct subject to sanction under the Bar Rules, M. Bar Rule 7.1 (e)(3)(C) directs this Grievance Commission Panel to consider certain factors in determining the appropriate sanction.

    These factors are:

    1. whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
    2. whether the attorney acted intentionally, knowingly, or negligently;
    3. the amount of actual or potential injury caused by the attorney’s misconduct; and
    4. the existence of any aggravating or mitigating factors.

    The Panel has accordingly considered the foregoing factors and finds that Attorney Shadis has violated duties owed to the public and the legal system. She acted knowingly and purposefully, causing actual injury to the complainant's family who retained counsel in order to address the renewed criminal allegations. As a mitigating factor, Attorney Shadis has no prior disciplinary record with the Board. She is remorseful and acknowledges that her overzealous representation of her client prevented her from complying with her obligations to the attorney oath and to the Code of Professional Responsibility.

    The Panel concludes that the appropriate disposition of this case is a public reprimand to Attorney Patricia V. Shadis.


    Seen and agreed to:

    Karen Kingsley, Attorney for Respondent
    Aria eee, Assistant Bar Counsel


    For the Grievance Commission

    John H. Rich III, Esq., Chair
    John Bass, Esq.
    Susannah White

    Board of Overseers of the Bar v. Brian D. Condon, Jr.

    Download Decision (PDF)

    Docket No.: BAR-06-3

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: May 31, 2007

    Respondent: Brian D. Condon, Jr.

    Bar Number: 008588

    Order: Suspension

    Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Contempt; Violating Court Orders/Rules


    FINDINGS OF FACT CONCLUSIONS OF LAW SANCTION


    A hearing on the motion for contempt brought by the Board of Overseers of the Bar against Brian Condon was held on May 8, 2007. Nora Sosnoff appeared for the Board, and Karen Kingsley appeared for Brian Condon. Condon was the only witness. The parties agreed to the admissibility of all of the offered exhibits.

    By order of Justice Howard H. Dana, Jr. of the Supreme Judicial Court entered on December 27, 2006, Condon was found to have violated several provisions of the Maine Bar Rules. The sanction was a one-year suspension from the practice of law, commencing January 1, 2007. The court suspended all but fifteen days of that one-year period of suspension. The parties agree that the unsuspended fifteen-day period began on January 15, 2007.

    By motion dated February 26, 2007, the Board seeks a finding of contempt against Condon and alleges three violations of the December 27, 2006 order. First, the Board alleges that Condon continued to advertise his services as an attorney in a local newspaper during the period of January 15 through January 30, 2007. Second, the Board alleges that during this period Condon acknowledged deeds as an attorney. Third, the Board alleges that Condon violated the provision of the order that required him, before resuming his practice, to enter into a monitoring agreement with the Maine Assistance Program for Lawyers (MAP). As a sanction, the Board seeks a six-month extension of the unsuspended portion of the suspension from the practice of law.

    I. FINDINGS

    Related to these instances alleged in the Board's motion for contempt, the court finds that the Board has demonstrated by clear and convincing evidence the following facts.

    A. Advertisements

    In a weekly local publication called the "Community Advertiser," Condon publicized his law office with a small (four-inch by one and one-half-inch) advertisement. The advertisement gives the address of Condon's law office with the phone number and email address. It indicates that he provides services for "Wills/Trusts, Estate Administration, Probate, Corporations, Real Estate, Taxes." It further states: "If buying a home or business, make sure YOU are represented properly." Condon had a standing order for the weekly ads. He was periodically billed for the ads by the publication.

    This advertisement ran on January 20 and January 27, during the unsuspended portion of Condon's suspension from practice. Condon testified that the advertisement on those dates was inadvertent. He excused his failure to notify the publication to remove the advertisement by saying that it was not an advertisement as much as it was his support for the publication that provides community services. Condon's excuse is disingenuous and undermines his testimony that his failure to pull the advertisement during his period of unsuspended suspension was completely inadvertent.

    B. Deed Acknowledgments

    There was some initial confusion regarding the timing of the unsuspended period of suspension. The parties resolved the confusion and agreed that the period would start on January 15. From January 15 through January 30, Condon continued to go to his law office at least some of the time. He was a sole practitioner at the time of his suspension. He removed a sign from his law office indicating that it was a law office.

    During this fifteen-day period he continued to operate another business that he owns, a law-related business of a title company, and he displayed a title company sign on his law office. In his capacity as the owner or employee of the title company, he prepared deeds. He was also the agent of a title insurance company, and in that capacity he made commitments for the title insurance company.

    On January 26, 2007, he conducted a real estate closing involving property in which the seller was Affordable Maine Homes and the buyer was an individual. The buyer and the manager of Affordable Maine Homes were present in Condon's office. The deed and mortgage deed had been prepared ahead of time. Condon took the acknowledgment of the buyer on the mortgage deed. Under Condon's signature, Condon wrote "atty." He realized that he should not acknowledge the signature as an attorney and crossed out "atty." He located his notary stamp and stamped the deed with the notary stamp. Condon also took the acknowledgement of the manager of Affordable Maine Homes on the warranty deed and used his notary stamp. On the same day, Condon participated in another closing and took the acknowledgement of the sellers' signatures on a warranty deed.

    On these three deeds, Condon's notary stamp is illegible and the date of expiration is not shown. Although Condon was not aware of it on January 26, his notary commission had expired in March 2006.

    Condon did not become of aware of the defect1 in his taking of the acknowledgments until his attorney telephoned to tell him about the motion for contempt that the Board was considering. Condon then wrote a letter to Justice Dana in which he stated:

    On January 27, 2007, 3 days prior to resuming the practice of law and prior to the MAP contract being finalized, in the course of doing a closing for my title company, I notarized 3 documents. The first was a mortgage, and instinctively I wrote, "atty" below my name, as I always do. I immediately noticed it, and went into my office from the conference room to get my notary stamp, because I know that an attorney can only notarize documents if they are in good standing. I stamped the document with my notary stamp and seal, and then notarized 2 deeds as well, with the stamp and seal. What I didn't realize until a few weeks later when the mortgage company got the mortgage, was that my notary stamp (through lack of use or age), had either worn away, or the ink was so dried and low, that the date of my commission expiring was unreadable. When I pulled my stamp and stamped it, I still could not read it, so I turned it around and looked at it, and it said "Commission Expires, March 2006".


    Therefore, those three documents, I needed to re-notarize and re-record, which I have completed at my own expense.

    Condon continued on in the letter to state that he meant no disrespect, and he apologized for the mistake. The letter is undated, but the postmark indicates it was mailed on February 26.

    In the answer that Condon filed with this Court in response to the Board's motion for contempt, Condon stated:

    Attorney Condon ... was unaware that his commission as a Notary Public had expired on March 9, 2006, until the mortgage company for the real estate transaction had received the documents back from the Registry of Deeds and notified him of the situation, after which he had the documents in question re-notarized and re-recorded at the Registry of Deeds and promptly applied to the Secretary of State for reinstatement of his notary commission.

    In fact, as Condon admitted in his testimony and contrary to what he stated In his letter to Justice Dana and in his answer, he has corrected the acknowledgement and rerecorded only one of the three deeds. Condon testified that he made a "misstatement" in his letter to Justice Dana and in his answer with regard to having corrected and rerecorded all three deeds. The Court finds that Condon made a deliberate misrepresentation in his letter to Justice Dana and his answer concerning his correction and rerecording of the deeds.

    C. Monitoring Agreement

    The December 27 order states:

    a) Prior to his returning to active practice any time after February 1, 2007, at his own expense, Attorney Condon shall enter into a monitoring agreement with the Maine Assistance Program for Lawyers and Judges (MAP) in a form acceptable to Bar Counsel and the Director of MAP, and shall undergo assessment, testing, and treatment, all to the satisfaction of the director of MAP.

    Condon resumed his practice of law sometime between January 30 and February 5, 20072. Prior to January 15, 2007, and during the fifteen-day period, Condon's attorney corresponded by email and telephone with David Kee, the director of MAP regarding a monitoring agreement. Kee explained what he would need from Condon to establish an agreement. Among other things, Condon had to provide Kee with releases and a letter of intent from which Kee would prepare the contract. Condon did not provide the letter of intent to Kee until February 6. Kee then drafted the contract and sent it to the Board's counsel for approval as to form. Condon approved a draft of the contract on February 13, and the Board's counsel gave final approval by letter dated February 27. Kee signed the contract on March 2, and Condon signed it thereafter.

    Condon testified that he did not understand that the monitoring agreement had to be executed before he could resume his practice of law. He testified that he believed that as long as counsel for the Board had approved the form of the agreement, he could resume practice, and he testified that Board counsel had approved the form before he returned to practice. The Court finds it difficult to believe that Condon could interpret the requirement that he enter into a monitoring agreement before he resumes his practice in the manner that he testified. Condon violated the above-quoted provision of the December 27 order.

    II. CONCLUSIONS OF LAW

    An attorney under suspension may not "accept any new retainer or engage as attorney for another in any new case or legal matter of any nature." M. Bar R. 7.3(i)(1)(A). The Court has held that this provision is violated when an attorney used stationary with a letterhead indicating that he is an attorney. Bd. of Overseers of the Bar v. MacKerron, 581 A.2d 424, 425 (Me. 1990). Furthermore, an attorney under suspension has no ability to act as an attorney during the suspension period. Id.; M. Bar R. 7.3(i)(1)(B). "[A]cknowledging a deed as an attorney" is holding oneself out as an authorized attorney. MacKerron, 581 A.2d at 425.

    The Maine Bar Rule regarding contempt by a suspended attorney states:

    Any failure by a disbarred, resigned or suspended attorney to comply with any of the provisions of this rule, may be found to constitute a contempt of court and thereupon subject said attorney to such sanctions as the Court may further order, including, but not limited to, an extension of the time period of any order of suspension from the practice of law.

    M. Bar R. 7.3(i)(1)(F). Under an identically-worded rule, the Court has affirmed the finding of contempt of a suspended attorney who used his letterhead stationery and acknowledged a deed signature as an attorney. MacKerron, 581 A.2d at 425.

    "Contempt" in M.R. Civ. P. 66(2)(A) is defined as "(i) disorderly conduct, insolent behavior, ... or other ... action which actually obstructs or hinders the administration of justice or which diminishes the court's authority; or (ii) failure to comply with a lawful judgment, ... or formal instruction of the court."

    Even without contempt rules, Maine courts have inherent contempt power, State v. DeLong, 456 A.2d 877, 879 (Me. 1983), and the Supreme Judicial Court has statutory contempt authority, 4 M.R.S. § 7 (2006).

    Condon's failure to stop his advertisement during the fifteen-day suspension period constitutes a failure to comply with Rule 7.3(i) and a failure to comply with the order dated December 27,2006. Condon's acknowledgment of the three deeds in his capacity as an expired notary does not technically constitute acting as an attorney during the period of suspension. However, Condon's deliberate misrepresentation to Justice Dana by letter and to this Court by answer that he had completed the correction of the defects in the three acknowledgments when, in fact, he had not done so, constitutes "hinder[ing] the administration of justice," M.R. Civ. P. 66(2)(A)(i), and a contempt of court. Finally, Condon's failure to comply with the terms of the December 27 order by resuming practice before he had entered into the monitoring agreement with MAP likewise constitutes contempt.

    III. SANCTION

    Condon's failure to stop his advertisement and his resumption of practice before the agreement with MAP was completed warrant a sanction that will capture Condon's undivided attention and impress upon him the seriousness of the suspension imposed by the Court. Furthermore, the deliberate misrepresentation of the facts in his letter to Justice Dana and in his answer to this Court warrants an extension of the unsuspended portion of the suspension from the practice of law.

    Therefore, the unsuspended portion of the suspension originally ordered by the December 27 order is extended for an additional period of sixty days, which is to commence on July 1, 2007. In all other respects the December 27 order remains in full force and effect.


    For the Court

    Hon. Susan Calkins, Associate Justice - Maine Supreme Judicial Court


    Footnotes

    1The acknowledgement statute provides: “Deeds . . . must be acknowledged by the grantors, . . . before a notary public in the State, or before an attorney-at-law duly admitted and eligible to practice in the courts of the State . . . “ 33 M.R.S. § 203 (2006)

    2 According to his February 26 letter to Justice Dana, Condon resumed his practice three days after January 27, 2007. He testified that he resumed his practice on February 5, 2007.

    Board of Overseers of the Bar v. Richard S. Emerson, Jr.

    Download Decision (PDF)

    Docket No.: BAR-00-5

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: August 27, 2007

    Respondent: Richard S. Emerson, Jr.

    Bar Number: 000934

    Order: Resignation

    Disposition/Conduct:


    ORDER


    This matter came before the Court pursuant to a Petition to Determine Incapacity filed by the Board of Overseers of the Bar. Following preliminary negotiations, the parties ultimately agreed to propose that the Court instead consider and accept Mr. Emerson's resignation, pursuant to Maine Bar Rule 7.3(g). That voluntary resignation dated August 2, 2007 was tendered to the Board on August 17, 2007 when the full Board considered Emerson's request. Following its consideration, the Board recommended that the Court accept Attorney Emerson's resignation from the Maine bar. The parties then appeared before the Court on August 27, 2007 to conduct the final hearing in this matter.

    Throughout the proceeding, the Board of Overseers of the Bar (the Board) has been represented by Assistant Bar Counsel Aria eee. Defendant Richard S. Emerson, Jr. (Emerson) has been represented by Peter J. DeTroy, Esq. The Court understands that Ms. Eee notified the complainants, Matthew O’Donnell and Richard P. Waltz, in advance of the proposed resolution of this disciplinary proceeding.

    Stipulations

    The parties have stipulated to the following material facts:

    By Order dated March 15, 2001 this Court determined that

    "The Board may file additional Petitions to Determine Incapacity directly with the Court, without the necessity of the preliminary screening and hearing that might otherwise be required by M. Bar R. 7.3(e)(2)(A), concerning other allegations that Mr. Emerson is incapacitated from continuing the practice of law by reason of addiction to intoxicants, which come to the Board's attention after the date of this order".

    Since March 2002, Richard S. Emerson, Jr. has been registered with the Board of Overseers of the Bar as an inactive attorney under M. Bar Rule 6(c). Subsequent to that date and pursuant to M. Bar R. 6(b)(1) and 10(b), Emerson was summarily suspended for his failure to register and pay the applicable fees to the Board. The summary suspension became effective on November 2, 2002 and while not a disciplinary sanction, it did result in a prohibition on Emerson's right to practice law.

    On April 25, 2005 Matthew O'Donnell filed a complaint against Emerson with the Board. O'Donnell's complaint alleged that in October 2003 Emerson had agreed to a business venture involving the two of them and a few other partners. To that end, O'Donnell partially liquidated his retirement account and by overnight mail sent a bank check for $25,000 to "Richard Emerson, Esq." The parties agree that Emerson then cashed the check but failed to clarify his inactive bar status for O'Donnell.

    After an immediate turn in events, O'Donnell repeatedly requested a return of his funds but Emerson was unable to comply asserting that he did not have the money. Subsequently, O'Donnell obtained a civil judgment against Emerson. O'Donnell has attempted to collect on that judgment and or to negotiate a payment plan but his efforts have proved unsuccessful. Emerson accepts responsibility for the fact that O'Donnell's funds remain missing and have not been reimbursed to him. He agrees that he owes the money and he intends to reimburse Mr. O'Donnell.

    Based upon the facts of this case, the Court finds that Emerson's involvement with 0' Donnell either created an ambiguity as to his role or left O'Donnell with the impression that Emerson would be providing legal services. Moreover, when Emerson cashed the check made out to "Richard Emerson, Esq." he compounded the ambiguity and misperception of his bar status.

    More recently, in 2006 Emerson persuaded an acquaintance to co-sign a bank loan apparently to fund some of Emerson's personal expenses. When Emerson defaulted, the acquaintance used his own funds to repay the loan. Emerson promised to reimburse the man but thus far he has made only two payments.

    At the time the Board filed its Petition for Incapacity, it argued that Emerson's failure to satisfy the O'Donnell judgment before borrowing additional funds constituted violations of the Code of Professional Responsibility. Again, the Court notes that Emerson apparently did not intend to harm anyone but his actions nonetheless resulted in considerable injury both to the men affected and to Emerson's credibility.

    As a mitigating factor, Emerson recognizes his lapses in professional and personal judgment and he agrees that his behaviors have severely impacted his fitness to practice law. Emerson is now employed in a different career and it is not his intent to return to the practice of law. The Court also notes that Emerson has displayed sincere remorse for his actions.

    Finally, the Court understands that Mr. O'Donnell intends to file a claim seeking reimbursement for his loss from the Lawyers' Fund for Client Protection (LFCP). If that claim is approved and paid in whole or in part by the LFCP, the Lawyers' Fund shall have a claim for restitution against Richard S. Emerson, Jr. for the amount paid. This Order shall operate as a judgment in favor of the LFCP against Mr. Emerson in the amount of $25,000 plus costs. However, if the Fund determines that the loss was even greater, the LFCP may seek an amendment of this Order accordingly.

    Conclusions of Law

    The parties agree and the Court so finds that Mr. Emerson's conduct violated Maine Bar Rules 3.1(a) (conduct unworthy of an attorney) and 3.2(f)(4) (conduct prejudicial to the administration of justice). Specifically, the Court is satisfied that Emerson's disability caused him to act in such a way as to have others trust and rely upon him and he failed to honor his commitments to those persons harmed by his misconduct. Of significance here, the Maine Bar Rules allow any attorney who is the subject of a disciplinary investigation to submit to the Board a letter of resignation, supported by an affidavit, subject to the attorney's compliance with specific conditions as outlined by M. Bar R. 7.3(g)(1).

    Therefore, pursuant to Maine Bar Rule 7.3(g)(2) the Court hereby ORDERS the following:

    Richard S. Emerson, Jr.'s resignation from the Maine bar is accepted immediately, pursuant to Maine Bar Rule 7.3(g)(3).

    As required by M. Bar R. 7.3(g)(3), Richard S. Emerson Jr.'s supporting Affidavit dated August 2, 2007, is hereby impounded, and shall not be available for inspection unless otherwise ordered by the Court. Should Richard S. Emerson Jr. seek reinstatement to the Maine bar, this Affidavit may then be made public without further Order of the Court.

    This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).


    For the Court

    Hon. Susan Calkins, Associate Justice - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Joel C. Vincent, Esq.

    Download Decision (PDF)

    Docket No.: BAR-06-304

    Issued by: Grievance Commission

    Date: September 24, 2007

    Respondent: Joel C. Vincent, Esq.

    Bar Number: 003488

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Neglect


    REPORT OF FINDINGS PANEL D OF THE GRIEVANCE COMMISSION
    M. Bar R. 7.1(e)(2)
    M. Bar R. 7.1(e)(4)

    On September 24, 2007, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Joel C. Vincent, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on August 2,2007.

    At the hearing, Attorney Vincent appeared, pro se and the Board was represented by Assistant Bar Counsel, Aria eee. The complainant, Robert W. Marion III, had been provided with a copy of this Report (in its proposal form) but was not present. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction order for the Grievance Commission Panel's review and consideration.

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

    FINDINGS

    Respondent Joel Vincent (Vincent) of Portland, County of Cumberland, State of 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 Vincent was admitted to the Maine bar in 1987 and he is a member in good standing.

    On July 30, 2006 Robert W. Marion III filed a complaint with the Board against Attorney Vincent alleging that Vincent failed to prosecute Mr. Marion's criminal appeal.

    On August 25, 2006, Attorney Vincent filed his response to the complaint, providing background information on his representation of Mr. Marion. Vincent recounted how his client's sentence appeal had been denied by the First Circuit Court of Appeals and how Mr. Marion had subsequently filed a Petition for Certiorari with the U.S. Supreme Court on a pro se basis. In his response to the complaint, Attorney Vincent admitted to failing to comply with his duties as counsel by 1) either providing Mr. Marion with continued representation on the Petition for Certiorari or 2) notifying Mr. Marion in a timely manner that in Attorney Vincent's opinion, the Petition would be frivolous, therefore, warranting Attorney Vincent's withdrawal as counsel. Attorney Vincent further admitted his neglect in failing to immediately respond to Mr. Marion's letters. Once he discovered his errors, Attorney Vincent did notify his client and offered to assist him in any way that remained possible. Ultimately, Mr. Marion completed the filing of the Petition without requesting further assistance from Attorney Vincent.

    A review of the materials from the Board's investigation reveals that prior to his above-outlined failure Attorney Vincent appropriately and adequately represented Mr. Marion throughout the proceedings, including Marion's initial appeal. Likewise, the Board found, and the Grievance Commission now agrees and affirms, that Attorney Vincent's response to the bar complaint was forthright and he expressed sincere regret and remorse for his errors in Mr. Marion's case.

    On December 21, 2006 the complaint and responses were reviewed by a Panel of the Grievance Commission. The panel found that probable cause existed that Attorney Vincent had engaged in misconduct subject to sanction under the Bar Rules. The Panel directed Bar Counsel to prepare and file a formal Disciplinary Petition before another panel of the Grievance Commission.

    After discussion between the parties, the Board filed a Stipulated Disciplinary Petition on August 2, 2007. The parties generally agreed to a finding of misconduct as referenced in the Disciplinary Petition.

    To that end, Attorney Vincent acknowledges that his failure to prosecute his client's Petition or in the alternative, to withdraw from the representation (due to Vincent's belief that the Petition was frivolous) and to timely communicate with Mr. Marion constituted violations of the Code of Professional Responsibility. Specifically, those violations involved Maine Bar Rules 3.1(a) (conduct unworthy of an attorney) and 3.6(a)(3) (neglect of a legal matter entrusted to the lawyer).

    CONCLUSION AND SANCTION

    The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Vincent's above-outlined failures, Mr. Marion's only option was to proceed pro se on his Petition for Writ of Certiorari. Although the Grievance Commission is not convinced that the Petition would have been accepted by the U.S. Supreme Court, Mr. Marion nonetheless deserved a chance for the Court to decide that question after having the benefit of counsel's assistance.

    The panel notes that Attorney Vincent has taken full responsibility for his actions and the unfair result to Mr. Marion. From the beginning, Attorney Vincent has been remorseful and apologetic for his violations of the Code of Professional Responsibility. To his credit, Attorney Vincent previously disclosed his failures and apologized to Mr. Marion even before the filing of the bar complaint.

    M. Bar. R. 2(a) provides that 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, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Vincent agrees that he did in fact violate the Code of Professional Responsibility, it appears that a public reprimand serves those purposes. Attorney Vincent has no history of professional discipline and since the time that the misconduct occurred there have been substantial changes in his office structuring and office management procedures. Based upon his well-established diligence as a criminal defense lawyer and his sincere response to having failed Mr. Marion, the Panel finds that it is unlikely that Attorney Vincent will repeat the same behavior in the future.

    Therefore, the Panel accepts the agreement of the parties, including Attorney Vincent's waiver of the right to file a Petition for review, and concludes that the appropriate disposition of this case is a reprimand to Joel C. Vincent, Esq. as provided by M. Bar R. 7. 1(e)(3)(C).


    For the Parties

    Aria eee, Assistant Bar Counsel
    Joel C. Vincent, Esq.


    For the Grievance Commission

    Benjamin P. Townsend, Esq., Chair
    William E. Baghdoyan, Esq.
    David Nyberg Ph.D.

    Board of Overseers of the Bar v. In Re Richard B. Slosberg, Esq.

    Download Decision (PDF)

    Docket No.: BAR-04-7

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: November 16, 2007

    Respondent: Richard B. Slosberg, Esq.

    Bar Number: 003446

    Order: Reinstatement Denied

    Disposition/Conduct: Reinstatement Denied


    ORDER ON PETITION FOR REINSTATEMENT


    This matter is before the Court pursuant to M. Bar R. 7.3(j)(1), (5) on the petition of Richard B. Slosberg for reinstatement as a member in good standing of the Maine Bar. Mr. Slosberg was disbarred by Order of this Court dated February 22, 2005, for violation of Maine Bar Rules 3.1(a), 3.2(f)(4), and 3.7(e)(2)(vi).

    The petition for reinstatement was opposed by bar counsel, and the matter was referred to the Grievance Commission. See M. Bar R. 7.3(h)(5). The Grievance Commission held a hearing on the petition for reinstatement, and following the hearing, issued findings, and recommended against the reinstatement of Mr. Slosberg. See M. Bar R. 7.3(j)(5)(A)-(F).

    Pursuant to M. Bar R. 7.3(j)(6), the Report of the Panel was filed with this Court. The Board of Bar Overseers followed the recommendation of the Grievance Commission, and recommended that the petition for reinstatement be denied.

    The matter was assigned to the undersigned Justice. A hearing on the petition for reinstatement was held on October 16, 2007, at the Cumberland County Courthouse. The Board was represented by Bar Counsel J. Scott Davis. Richard Slosberg represented himself. Testifying were Mr. Slosberg, and Assistant Bar Counsel Aria Eee.

    In a reinstatement proceeding, the burden is on the petitioner to demonstrate, by a clear and convincing standard, that he is entitled to reinstatement based on all of the factors set out in M. Bar R. 7.3(j)(5).1

    The Court finds that as to Rule 7.3(j)(5)(C), petitioner Slosberg has failed to demonstrate by a preponderance of the evidence, much less by clear and convincing evidence, that he recognizes the wrongfulness and seriousness of the misconduct for which he was disbarred.

    In the February 22, 2005, order disbarring Mr. Slosberg, the Court accepted the testimony of Shawn Willson, M.D., a psychiatrist who treated Mr. Slosberg and who diagnosed him as Bipolar I and suffering from depression. She described Mr. Slosberg as "irrational and prone to rages," who did not follow recommended dosages of prescription drugs. She concluded that he had "difficulty appreciating the inappropriateness of his [bad] conduct" and stated that he did "not have the capacity to look at himself insightfully."

    In a later opinion, expressed in an April 1, 2005, letter to the Court,2 Dr. Willson stated that Mr. Slosberg had improved with medication, and that he "can return to the practice of law without any restrictions and would be a low risk for behavioral problems" if he continued with his medication and his counseling. Mr. Slosberg, however, has discontinued his medication, and no longer consults with Dr. Willson or any other mental health professional.

    Moreover, the conduct of Mr. Slosberg in connection with a Bar Discipline proceeding involving another attorney, conduct which occurred since Mr. Slosberg's disbarment, demonstrates that Mr. Slosberg does not fully recognize the wrongfulness and seriousness of the misconduct that resulted in his disbarment.

    In August of 2005, Mr. Slosberg himself filed a complaint with the Board of Overseers against an attorney who practices law in York County. Slosberg's letter of complaint contained two allegations of misconduct against the attorney. The first complaint alleged that the attorney engaged in assaultive conduct. The second complaint alleged that the attorney filed a false affidavit with the Superior Court in York County in connection with a motion for a summary Judgment filed in a case in which the attorney was representing one of the parties.

    Mr. Slosberg had no involvement in the case out of which the alleged assault by the attorney arose, and did not observe the alleged assault. Mr. Slosberg apparently was involved, prior to his disbarment, in the case in which the allegedly false affidavit was filed, but was not involved in the case at the time of the filing of the affidavit. Mr. Slosberg's friend, Attorney Herschel Lerman of York County, was involved in both cases, and Attorney Lerman was the source of knowledge of the facts alleged in Mr. Slosberg's letter of complaint against the York County attorney.

    After preliminary review of Mr. Slosberg's complaint by a panel of the Grievance Commission, to which the complaint had been referred See M. Bar R. 7(d)(1)(A), that preliminary review panel decided that a Bar discipline case should proceed against the York County attorney, but on only one of the two matters set out in Mr. Slosberg's complaint letter, namely the alleged assault committed by the attorney, to which Mr. Slosberg was not a witness. See M. Bar R. 7.1(e)(1). A disciplinary petition was filed by Bar Counsel against the York County attorney concerning the alleged assaultive behavior. No further action was taken on the allegation concerning the filing of a false affidavit, and the petition filed by bar counsel with the Grievance Commission does not allege any misconduct arising out of the filing of the affidavit. Pursuant to Rule 7.1(e)(2), a hearing before a different Grievance Commission Panel on the petition filed by Bar counsel against the York County attorney was held on August 28, 2006.

    A partial transcript of that Grievance Panel hearing concerning the attorney from York County was provided to this Court in this case involving Mr. Slosberg's petition for reinstatement. In addition, Mr. Slosberg and Deputy Bar Counsel Eee both testified about Mr. Slosberg's participation in that Grievance Panel hearing. The evidence shows that at that hearing, Mr. Slosberg attempted to have the Grievance Panel address the allegation concerning the filing of a false affidavit, conduct that the initial Panel did not recommend be pursued, and that Bar Counsel was not pursing in its petition before the Grievance Panel. That Mr. Slosberg, at the hearing before the Grievance Panel dealing only with an allegation of an assault, insisted that the Grievance Panel address an additional allegation about the filing of a false affidavit, which had been found not worthy of pursuing, and which was not being pursued by Bar Counsel, demonstrates, at the very least, poor judgment on the part of Mr. Slosberg.

    That poor judgment was compounded at the August 28, 2006, Grievance Panel hearing when Mr. Slosberg argued to the Board that he had a right to address the Panel on the false affidavit allegation contained in his initial complaint to the Board of Overseers. Mr. Slosberg continued to press the matter before the Panel, and insisted that he had a right to bring the matter before the Panel, and to make an opening statement to the Panel even after he was told by the Panel Chair that the false affidavit allegation was not before the Panel, and that he had no standing to make an opening statement in that proceeding that had been initiated by a petition filed by Bar Counsel. Mr. Slosberg displayed poor judgment at the hearing and his conduct was inappropriate, and reflects that he does not recognize either the wrongfulness or the seriousness of that behavior. See M. Bar R. 7.3(j)(5)(C).

    Moreover, Mr. Slosberg has failed to meet the requirement of M. Bar R. 7.3(j)(5)(F) in that he has not satisfied the continuing legal education requirements of M. Bar R. 12(a)(1) for any of the time he has been prohibited from the practice of law in Maine.

    For the foregoing reasons, the Court finds that Mr. Slosberg has failed to demonstrate compliance with all of the requirements set out in M. Bar R. 7.3(j)(5). Accordingly, his petition for reinstatement must be denied.

    The entry is:

    Petition for Reinstatement is denied.


    For the Court

    Hon. Robert W. Clifford, Associate Justice - Maine Supreme Judicial Court


    Footnotes

    1M. Bar R. 7.3(j)(5) provides in pertinent part:

    Factors to be considered as to the petitioner's meeting that burden include evidence that:

    (A) The petitioner has fully complied with the terms of all prior disciplinary orders;

    (B) The petitioner has neither engaged nor attempted to engage in the unauthorized practice of law;

    (C) The petitioner recognizes the wrongfulness and seriousness of the misconduct;

    (D) The petitioner has not engaged in any other professional misconduct since resignation, suspension or disbarment;

    (E) The petitioner has the requisite honesty and integrity to practice law;

    (F) The petitioner has met the continuing legal education requirements of Rule 12(a)(1) for each year the attorney has been inactive, withdrawn or prohibited from the practice of law in Maine, but need not complete more than 22 credit hours of approved continuing legal education for that entire period of absence from practice with at least two credit hours being primarily concerned with the issues of ethics or professional responsibility.

    2Admitted without objections at the reinstatement hearing as Board Exhibit #24.

    Board of Overseers of the Bar v. Richard G. Cervizzi

    Download Decision (PDF)

    Docket No.: BAR-04-04

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: April 4, 2005

    Respondent: Richard G. Cervizzi

    Bar Number: 001607

    Order: Disbarment

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Standards of Care and Judgment; Retention of Client Files; Illegal Conduct; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Neglect; Improper Concealment


    ORDER OF DISBARMENT


    This matter is before the Court pursuant to M. Bar R. 7 .2(b) (1) on a disciplinary information filed by the Board of Overseers of the Bar, seeking the disbarment of Richard G. Cervizzi. The matter was heard on March 31, 2005. Although notified of the hearing, Mr. Cervizzi failed to appear, instead sending a letter indicating that he did not contest disbarment. Bar counsel was present and presented testimony by six witnesses. Fifty exhibits were offered and admitted.

    Based on the record of testimony, exhibits and the information and other pleadings filed in this matter, the Court makes the following findings regarding procedures and Mr. Cervizzi's default:

    1. On December 20, 2004, Mr. Cervizzi's spouse was properly served by a deputy sheriff at their residence in Scarborough, Maine with copies of the information, a notice directing Mr. Cervizzi to file an answer within 20 days of service and the Board's Motions for Default and Contempt. Such service upon Mrs. Cervizzi constituted service upon Defendant Cervizzi himself. M.R. Civ. P. 4 (d)(1). At the direction of Bar Counsel, on January 7, 2005, Mr. Cervizzi was served in-hand by private detective, Ronald J. Randall, with duplicate copies of those same documents. Service was accomplished at Mr. Cervizzi's employment, Lee Auto Sales in Windham.
    2. Mr. Cervizzi did respond to the Board's Motion for Contempt by cooperating with the Board on January 19, 2005 in the removal of his former clients' files from his residence, pursuant to the Court's Order of January 14, 2005.
    3. Mr. Cervizzi did not respond to the information filed by the Board of Overseers or a subsequent motion for default.
    4. Because Mr. Cervizzi did not respond to the Board's information or oppose the motion for default, he is defaulted. The facts and allegations of that information are deemed admitted. M. Bar R. 7.2(b)(2), M.R. Civ. P. 7(c)(3), 55.
    5. Mr. Cervizzi was provided notice of this hearing by the Court's letter of March 10, 2005, and also had several telephone discussions with Board staff between March 18th and March 29th confirming his knowledge of the hearing date.
    6. By his hand-delivered letter to the Court dated March 30, 2005, Mr. Cervizzi stated that he did not oppose the sanction of disbarment being sought by the Board. He failed to appear at the hearing. Mr. Cervizzi did notify Bar Counsel that he would not be present.

    Based upon the allegations admitted by default and the testimony of six witnesses presented by Bar Counsel at hearing, the Court finds the following facts regarding misconduct by Mr. Cervizzi:

    1. Mr. Cervizzi practice law in Maine from 1970 until July/August 2003.
    2. Upon receiving notice in early July, 2003 that he had been summarily suspended from practice by the Board, effective July 30, 2003, for his failure to comply with his tax obligations, Mr. Cervizzi failed to inform his clients, courts, opposing counselor other required individuals or agencies of that suspension.
    3. Mr. Cervizzi failed to assist many of his clients to obtain new counsel, and abandoned most of his clients and the legal matters they had entrusted to him. A number of his clients were left with no idea where their lawyer was, that in fact he was no longer acting as their lawyer, where to find him or their files, or in what status their legal affairs had been left.
    4. While Mr. Cervizzi did respond to two initial grievance inquires from Bar Counsel, thereafter he repeatedly ignored the Board's and Bar Counsel's efforts to contact him about grievances filed against him and the whereabouts of clients' files.
    5. In at least two matters, he continued to represent clients in court after July 30, 2003, in direct violation of his suspension notice.
    6. In one of those matters, a pending criminal case, Mr. Cervizzi signed a document on August 7, 2003 that was dated July 31, 2003. He then filed that document with the Biddeford District Court for his client's case, making it appear that he had signed it before he had been suspended from practice.
    7. By his unsigned letter of September 12, 2003 from Cervizzi's Title Company, he admitted that he was obligated to disburse fees and charges totaling $990.00 to a mortgage broker, NovaStar Home Mortgage, Inc., concerning a loan transaction for which Mr. Cervizzi had acted as the settlement agent. To date, there is no evidence that he has made that payment to NovaStar.1
    8. Mr. Cervizzi initially failed to comply with this Court's Order for Custody of Files issued on April 28, 2004 requiring him to turn his former clients' files over to Bar Counsel by May 7, 2004. It was not until some eight months later - on January 19, 2005 - after the Board's agent, Mr. Randall, had directly confronted him about the seriousness of his failure to turn over those files to Bar Counsel, that Mr. Cervizzi finally complied with that April 28, 2004 Order for Custody of Files.
    9. Mr. Cervizzi abandoned each of the four clients who testified at hearing, refused to respond to inquiries by each of the four, and refused to return files and wills to his clients, so that they could pursue their pending legal matters through alternate counsel.
    10. Mr. Cervizzi lost all or parts of files of some clients.
    11. Clients received files only after they were removed from Mr. Cervizzi's home by court order and transferred to the custody of the Board and a law office in Saco.
    12. The Court incorporates by reference as findings all of the allegations in the information that have been admitted by default.

    CONCLUSIONS

    Based on these findings, the Court concludes that Richard G. Cervizzi has violated numerous Bar Rules. Specifically,

    1. By failure to comply with Bar Rules and court orders and failure to respond to inquiries by the Board and Bar Counsel, he has violated M. Bar. R. 2(c), engaged in conduct unworthy of an attorney pursuant to M. Bar. R. 3.1(a), and violated M. Bar R. 3.2(f)(1), (2), (3), (4).
    2. By practicing law and filing court documents after his suspension, he has violated M. Bar R. 3.2(f)(1), (3), (4), and 7.3(i)(1)(B), (C).
    3. By refusing to return files to clients after ceasing practice and representation and by failing to act promptly to provide the files after request by Bar Counsel and order of the Court, he has violated M. Bar R. 3.4(a)(4).
    4. By abandoning his clients, neglecting legal matters entrusted to him, and refusing or delaying requests to return files he has violated M. Bar. R. 3.6(a) and 3.6(a)(3).
    5. By representing clients after being suspended, he has violated M. Bar R. 2(c); 3.1(a); 3.7(b), and 7.3(i)(1)(B), (C).
    6. By failing to notify clients after his suspension for disciplinary purposes, he has violated M. Bar R. 7.3(i)(1)(B), (C).

    The violation of these provisions of the Bar Rules are numerous and serious, affecting many clients and the integrity of the disciplinary process. Mr. Cervizzi has not suggested any justification or mitigating circumstances for his action. He has indicated no remorse for the harm he has caused to his former clients.

    Protection of the public is the primary purpose of the attorney discipline system. With that purpose and no indication of any mitigating circumstances, the numerous and serious violations of the Bar Rules require that the sanction of disbarment be imposed as the only appropriate sanction in the circumstances.

    ORDER

    It is hereby ORDERED that Richard G. Cervizzi be, and he hereby is disbarred from the practice of law in the State of Maine effective the date of this order. Mr. Cervizzi may not seek reinstatement to practice law in Maine until at least five (5) years from the date of this order, and may do so then only f he first makes the following payments:

    1. Restitution payments of $990.00 to NovaStar Home Mortgage, Inc. of Santa Ana, California, and $600 to Valerie L'Heureux for jury trial payments on cases that were abandoned;
    2. $2212.55 to the Board of Overseers of the Bar (for its expenses incurred for the removal of former clients' files from his residence, and providing notice of that removal).


    For the Court

    Hon. Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court


    Footnotes

    1Suggested amendments by Mr. Cervizzi to Bar Counsel’s draft disbarment order include a suggestion by Mr. Cervizzi that the $990 has been paid to NovaStar. That allegation, not subject to examination, is insufficient to overcome the defaulted finding of non-payment.

    Board of Overseers of the Bar v. Richard B. Romanow

    Download Decision (PDF)

    Docket No.: GCF 04-332; GCF 05-243; GCF 05-244; GCF 05-256

    Issued by: Grievance Commission

    Date: February 27, 2006

    Respondent: Richard B. Romanow

    Bar Number: 002287

    Order: Reprimand

    Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Preserving Identity of Funds and Property


    REPORT OF FINDINGS OF PANEL D OF THE GRIEVANCE COMMISSION

    On February 27, 2006, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Richard B. Romanow. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on January 12, 2006.

    Present at the hearing were Assistant Bar Counsel Aria eee, representing the Board and Richard B. Romanow, appeared pro se. The complainants, Tara Jo Johnson, Timothy Lucero, Christina Bently and Patty Stenger do not reside in Maine and were not present for the hearing. However, Assistant Bar Counsel did speak with Ms. Johnson and sent her a copy of the Board's proposed Report in advance of hearing. Ms. Johnson then forwarded copies of the Report to her relatives, the remaining complainants; also in advance of hearing.

    Mr. Romanow addressed the Panel and expressed his remorse for his role in the circumstances of these four cases. Having considered the remarks of those present and having reviewed the agreed upon proposed findings presented by counsel, the Panel makes the following findings and disposition:

    FINDINGS

    1. Respondent Richard B. Romanow of Portland, County of Cumberland, State of Maine, was at the time 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. Mr. Romanow was admitted to the Maine Bar in 1980, but was summarily suspended in 2003 for failure to complete his continuing legal education requirement, as he considered himself retired from practicing law since 2000. He is now employed as a high school history teacher and has no plans to return to practicing law.
    2. The background on these cases is as follows: Mr. Romanow served his client, Annie Wright for many years, including acting as trustee during her last years and Personal Representative (PR) and trustee following her death in 1995. Mr. Romanow explained that Ms. Wright's previous direction to him was to take care of her sister (Josephine Anderson) and Ms. Anderson's extended family members, including financial assistance as resources allowed. In addition to the financial assistance, members of the family had been permitted to live in the decedent's former home. It was Mr. Romanow's belief that Ms. Wright would have wanted the trust money spent in the manner in which he allowed and or provided for, during the years following Wright's death.
    3. Since 1995, Mr. Romanow provided for Josephine Anderson's financial needs along with some other financial needs of the family as approved by Ms. Anderson. However, Mr. Romanow did not keep formal records of his financial transactions as trustee, thereby violating Maine Bar Rule 3.6(e)(1). In addition to that problem, there were instances in which Mr. Romanow failed to pay the South Carolina real estate taxes in a timely manner, resulting in a violation of Maine Bar Rule 3.6(a). Finally, due to overspending, some of the family trusts and the charitable giving outlined by Ms. Wright's will were not established.
    4. In October 2004 Tara Jo Johnson filed a complaint with the Board against Mr. Romanow. The complaint alleged inter alia that Romanow had promised Johnson that her son would receive money from the trust. In 2005, other devisees under Ms. Wright's will (Lucero, Bently, Stenger) complained to the Board against Mr. Romanow for his failure to produce the funds owed to those complainants or their relatives.
    5. On July 5, 2005 and September 6, 2005, respectively, these four complaints were reviewed by a panel of the Grievance Commission. The panel found probable cause to believe that Mr. Romanow had engaged in misconduct subject to sanction under the Maine Bar Rules for which appropriate discipline should be imposed as provided for in those rules.
    6. The Board's Disciplinary Petition was filed on January 12, 2006. The parties stipulated to the finding of misconduct outlined in the Petition.
    7. Although there is a factual dispute as to how the money was spent, the end result is the same: there were not enough funds to fulfill the directives outlined in Ms. Wright's will.

      Therefore the Panel concludes that the following Code violations occurred:

    1. Mr. Romanow violated M. Bar R. 3.6(a);
    2. Mr. Romanow violated M. Bar R. 3.6(e)(1);

    CONCLUSION AND SANCTION

    It is a clear violation of the minimum standards established in Maine's Code of Professional Responsibility, for an attorney to fail to keep financial records during the course of their service as a trustee or a personal representative. During this proceeding, Mr. Romanow has taken full responsibility for his actions and the subsequent distress it caused the complainants.

    As Maine Bar Rule 2 outlines, the purpose of disciplinary proceedings is not punishment but rather protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable to discharge properly their professional duties. Given the facts of this case, a reprimand serves those purposes.

    Therefore, the Panel concludes that the appropriate disposition of this case is a public reprimand as provided by M Bar R. 7.1(e)(3)(C).


    For the Grievance Commission

    Benjamin P. Townsend, Esq., Chair
    Victoria Powers, Esq.
    David Nyberg, Ph.D.

    Board of Overseers of the Bar v. Brian Condon

    Download Decision (PDF)

    Docket No.: Ken-07-359

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: February 20, 2008

    Respondent: Brian Condon

    Bar Number: 008555

    Order: Order Staying Suspension

    Disposition/Conduct:


    ORDER STAYING SUSPENSION OF ATTORNEY UNTIL FEBRUARY 25


    Brian Condon, Esq., has moved to stay his suspension from the practice of law for thirty days from the issuance of this Court's mandate in this matter. The mandate affirming his suspension was issued on February 19, 2008.

    The motion is GRANTED IN PART. Condon's suspension is stayed through February 24, 2008. His suspension shall begin effective February 25, 2008.


    For the Court

    Hon. Chief Justice Leigh I. Saufley - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Robert M.A. Nadeau, Esq.

    Download Decision (PDF)

    Docket No.: BAR-05-03

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: March 2, 2006

    Respondent: Robert M.A. Nadeau, Esq.

    Bar Number: 007460

    Order: Reprimand

    Disposition/Conduct: Misconduct before a Tribunal


    CONSOLIDATED ORDER


    Before the Court are matters concerning the professional conduct of Attorney Robert M.A. Nadeau pursuant to an information filed by the Board of Overseers of the Bar in accordance with M. Bar R. 7.2(b). The Board was represented by Nora Sosnoff, Deputy Bar Counsel; Attorney Nadeau was represented by Stephen B. Wade, Esq.

    At issue in these consolidated cases is the professional conduct of Attorney Nadeau. The Grievance Commission docket numbers assigned by the Board of Overseers of the Bar are: GCF # 03-255; GCF # 03-335; and GCF # 04-314. Those matters are hereby consolidated under this Court's docket number BAR 05-03.

    The facts stated below are established by agreement of the parties. The resolution of this matter is also based on agreement of the parties with approval of the Court.

    GCF# 03-255

    On June 20, 2003, Attorney Nadeau commenced a consensual sexual relationship with a divorce client. Attorney Nadeau's conduct when he terminated the attorney-client relationship and withdrew from representation of that client fell short of the standards established in the Code of Professional Responsibility. The conduct towards the client came to the attention of Bar Counsel and subsequently the Grievance Commission because the client complained after the relationship had ended. The testimony and other evidence about Attorney Nadeau's conduct in connection with this relationship impressed the Grievance Commission as being serious enough to warrant this Court's consideration of a sanction of possible suspension or disbarment. However, that same complainant and Attorney Nadeau have now reunited in their romantic relationship. The former client and complainant now denies that Attorney Nadeau acted unprofessionally concerning her or that she suffered any harm from his conduct. In recommending as disposition a dismissal with a warning, Bar Counsel has taken into account the complainant’s reversal of position and the fact that Attorney Nadeau has no prior history of such conduct. Any future misconduct of a similar nature would be closely scrutinized and this history would be considered as an aggravating factor.

    Accordingly, it is hereby ORDERED that the proceeding in GCF #03-255 is dismissed with a warning to Attorney Nadeau to refrain from such misconduct in the future.

    GCF #03-335

    During the months of June and July of 2003, Attorney Nadeau was involved in an acrimonious departure of two attorneys from his law firm. Civil cross claims arising from a dispute over ownership of accounts receivable owed to the firm as of the date of the attorneys' departure were filed in the Superior Court. In that Superior Court litigation, the opposing parties filed pleadings that contained information about Attorney Nadeau's sexual relationship with the former client that was subject to the complaint in GCF #03-255. Attorney Nadeau sought to have that record sealed. In his initial efforts, Attorney Nadeau sent two items of correspondence to his adversaries' counsel that he simultaneously faxed directly to the represented opposing parties. Attorney Nadeau's conduct violated M. Bar R. 3.6(f) that prohibits such direct contact with represented persons. After the disciplinary hearing, the Grievance Commission reprimanded Attorney Nadeau for that misconduct. Attorney Nadeau has an appeal pending seeking to have that ruling vacated, but will be withdrawing that appeal.

    GCF# 04-314

    The third grievance complaint was commenced on a sua sponte basis by Bar Counsel. When the Grievance Commission conducted its preliminary review of that matter, it found probable cause to believe that misconduct had occurred and referred the matter to hearing before a different panel of the Grievance Commission; see M. Bar R. 7.1(d)(5). In light of the pending related disciplinary cases in this Court, and the proposed resolution contained herein, the Grievance Commission authorized the matter to proceed directly to Court.

    As reflected in the facts found concerning GCF # 03-335 (above), Attorney Nadeau endeavored to have a Superior Court record sealed to prevent public disclosure of his affair with his former client (the subject of GCF # 03-255 - above). When the presiding Superior Court justice denied Attorney Nadeau's request to seal that court's record, Attorney Nadeau sent a letter to that justice stating that, in his own view, and the view of many others who were not identified, the justice had failed to adhere to established legal principles underlying the Rules of Civil Procedure. Attorney Nadeau spoke of "outright shock" concerning the justice's exercise of discretion in his ruling. Attorney Nadeau referred to the justice's decision as "horrible" and causing Attorney Nadeau's wife and children to suffer. Attorney Nadeau claimed that the further suffering of his wife and his children was "not because of my affair which by that time was old news in my family wherein tremendous, positive healing had occurred, but because of what you chose to do to reopen and tremendously expose the wounds."

    Attorney Nadeau's conduct was discourteous and degrading to the Superior Court tribunal in violation of M. Bar R. 3.7(e)(2)(vi).

    In accordance with Bar Counsel's recommendation, and with agreement of Attorney Nadeau, on the basis of the conduct set forth in GCF#03-335 and GCF#04-314 a public reprimand is imposed. All of these violations of the Maine Bar Rules are serious. Attorney Nadeau is ORDERED to conduct himself in the future so as to avoid further occasions of professional misconduct. By agreeing to this disposition, Attorney Nadeau acknowledges that he feels remorse for his actions. The Court cautions him to utilize that remorse to inform his judgment, and to choose his best judgment over his inclination to impulsivity in the future.


    For the Court

    Hon. Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Albert P.C. Lefebvre

    Download Decision (PDF)

    Docket No.: BAR-98-4

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: January 24, 2001

    Respondent: Albert P.C. Lefebvre

    Bar Number: 002800

    Order: Disbarment

    Disposition/Conduct: Conduct Unworthy of An Attorney; Excessive Fees; serving Identity of Funds and Property; Misconduct During Representation; Misconduct before a Tribunal


    ORDER OF DISBARMENT


    This matter is before the Court pursuant to M. Bar R. 7.2(b)(1), (2) on an information filed by the Board of Overseers of the Bar against the Respondent, Albert P.C. Lefebvre. Lefebvre has been served with a copy of the information and summons.

    Lefebvre is an attorney who practices in Maine and is subject to the Maine Bar Rules. The two count information charges, inter alia, that Lefebvre violated M. Bar R. 3.1(a) (conduct unworthy of an attorney); 3.2(f)(2), (3), (4) (other conduct adversely reflecting on honesty, trustworthiness, or fitness to be a lawyer, conduct involving dishonesty and fraud, and conduct prejudicial to the administration of justice); 3.3(a) (misconduct involving excessive fees); 3.6(a)(2)(3) (misconduct during representation); 3.6(e)(2)(iii), (iv) (misconduct involving preserving the identity of funds and property); 3.7(b) (misconduct during litigation); and 3.7(e)(1) (misconduct before a tribunal).

    On June 23, 1998, following a jury trial, a judgment of conviction of one felony count of perjury (Class C) was entered against Lefebvre pursuant to 17-A M.R.S.A. § 451 (1983 & Supp. 2000). The perjury resulted from Lefebvre's having made one or more false material statements to the Court (Glassman, J.) under oath during a disciplinary hearing held on November 21, 1996, in the matter of Board of Overseers of the Bar v. Albert P.C. Lefebvre, Docket No. BAR-96-8. By this Court's order of October 20, 1998, Lefebvre was suspended from the practice of law because of that conviction.

    On July 24, 1998, the York County Probate Court (Nadeau, J.) issued a Decision and Order in the matter of In re: Irene A. Bisaillion, Docket No. 1991-0510(4). The court found that Lefebvre, as conservator for the Estate of Irene A. Bisaillion, engaged in misconduct including defalcation, and that such conduct constituted a violation of his fiduciary duties. He was ordered to reimburse the estate in the amount of $85,365.01 and was terminated as conservator.

    The Court finds that Lefebvre has violated M. Bar R. 3.1(a); 3.2(f)(2), (3), (4); 3.3(a); 3.6(a)(2), (3); 3.6(e)(2)(iii), (iv); 3.7(b); and 3.7(e)(1). Those findings are not challenged. Accordingly, it is hereby ordered that Albert P.C. Lefebvre be and hereby is disbarred from the practice of law in the State of Maine effective this date.


    For the Court

    Hon. Robert W. Clifford, Associate Justice - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Warren M. Turner, Esq.

    Download Decision (PDF)

    Docket No.: BAR-04-9

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: July 27, 2006

    Respondent: Warren M. Turner, Esq.

    Bar Number: 001623

    Order: Suspended Suspension

    Disposition/Conduct: Illegal Conduct that Adversely Reflects on the Lawyer's Honesty, Trustworthiness, or Fitness as a Lawyer in other Respects


    ORDER


    This matter was heard before the Court on July 26, 2006, pursuant to M. Bar R. 7.2(b)(1) and (2). The action began with the Board's filing of an Information against the Respondent Warren M. Turner, an attorney with an office in Yarmouth, Maine. In its Information, the Board alleged that Mr. Turner engaged in violations of M. Bar R. 3.1(a) and 3.2(f)(2). Present at the hearing were Aria eee, Esq., assistant bar counsel, Warren M. Turner, Esq., and Malcolm L. Lyons, Esq., representing Mr. Turner.

    The relevant facts are as follows: On August 22, 2003, Attorney Lyons filed a letter with Bar Counsel self-reporting his client, Mr. Turner, for having pled to four criminal charges (all Class D offenses) arising from his failure to file Maine State tax returns for the years 1998 through 2001. Mr. Turner was sentenced to two consecutive one-year sentences, which were suspended, and fined $1000. He was also placed on probation and required to complete 100 hours of public service work. Mr. Turner has since successfully completed his probation and paid the relevant fines.

    The Court finds that Mr. Turner violated M. Bar R. 3.2(f)(2) by engaging in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness as a lawyer. Likewise, the conduct is unworthy of an attorney. By his admission, Mr. Turner acknowledges that his actions demonstrated multiple instances of unprofessional conduct. Mr. Turner, who was admitted to practice in 1973, has had no prior disciplinary history.

    Having found these violations of the Maine Bar Rules, and agreeing with the parties that they are serious, the Court must now consider the appropriate sanction. The Court has considered the purpose of this bar disciplinary proceeding in imposing a sanction in this case. It is well established that the main purpose of attorney discipline is not punishment, but protection of the public. The Court acknowledges that for many years Mr. Turner has successfully managed his civil law practice, concentrating in real estate and business matters, and he has done so without previous disciplinary action.

    Accordingly, the Court hereby ORDERS that Warren M. Turner, Esq. be and hereby is suspended from the practice of law in Maine for a period of ninety days commencing July 26, 2006, with that suspension itself suspended.

    In the event that a grievance complaint is received by Bar Counsel concerning alleged misconduct occurring on this date or thereafter, such complaint shall be processed under either M. Bar R. 7.1(c) or 7.1(d) as appropriate. In the event a preliminary review panel finds probable cause of misconduct under M. Bar R. 7.1(d)(5), the matter shall then be filed directly before the Court under M. Bar R. 7.2(b). Additionally, any apparent violations of the conditions of this Order shall be filed by bar counsel directly with this Court.


    For the Court

    Hon. Jon D. Levy, Associate Justice - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Frank B. Walker

    Download Decision (PDF)

    Docket No.: BAR-06-5

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: October 24, 2006

    Respondent: Frank B. Walker

    Bar Number: 000058

    Order: Resignation

    Disposition/Conduct:


    ORDER


    Pending before the Court is Attorney Frank B. Walker's voluntary resignation dated August 25, 2006 supported by his Affidavit pursuant to M. Bar R. 7.3(g). On September 13, 2006 the Board of Overseers of the Bar considered this matter and agreed to unanimously recommend the Court's acceptance of Attorney Walker's resignation from the Maine bar subject to a 60-day period for him to close his practice and further conditioned on Attorney Walker's payment to the Board of Overseers of one-half of the Board's cost for the transcription of the Grievance Commission's earlier disciplinary proceeding. Attorney Walker made that payment to the Board on October 5, 2006.

    Therefore, it is hereby ORDERED pursuant to M. Bar R. 7.3(g)(3) that Frank B. Walker's resignation from the Maine bar is accepted, and effective December 31, 2006 his name shall then be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine. Attorney Walker shall comply with all of the necessary notification reporting requirements of M. Bar R. 7.3(i)(1)(B) by December 15,2006.

    Pursuant to M. Bar R. 7.3(g)(3), Attorney Walker's supporting Affidavit is hereby impounded, and shall not be available for inspection unless otherwise ordered by the Court. However, should Attorney Walker seek reinstatement to the Maine bar that Affidavit will then be made public without further Order of the Court.

    This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).


    For the Court

    Susan Calkins, Associate Justice - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. David A. Vincent, Esq.

    Download Decision (PDF)

    Docket No.: GCF-05-30

    Issued by: Grievance Commission

    Date: November 17, 2006

    Respondent: David A. Vincent, Esq.

    Bar Number: 009395

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Inadequate Preparation


    REPORT OF FINDINGS OF PANEL C OF THE GRIEVANCE COMMISSION

    On July 10, 2006 and October 10, 2006, Panel C of the Grievance Commission conducted a disciplinary hearing open to the public in accordance with Maine Bar Rule 7.1(e)(2). The Board of Overseers of the Bar was represented by Bar Counsel J. Scott Davis and the Respondent David A. Vincent, Esq. appeared Pro se. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar dated May 2, 2006 alleging misconduct in Respondent's representation of two clients in separate cases. For Count I, the Petition alleges violations of M. Bar R. 3.1(a), 3.2(f)(4), and 3.6(a)(1)(2)(3); and in Count II alleged violations of M. Bar R. 3.1(a), 3.2(f)(4), 3.4(a)(2) and 3.6(a)(1)(2)(3).

    The Panel admitted Board exhibits 1, 1(a), 1(b), 2 through 9, 9(a) through 9(g), 10 through 16, 16(a), 16(b), 17 through 22, 23(a), 23(b), 24, 25, and 26 and Respondent's exhibit 1.

    COUNT I-GCF #05-301 (Carlos Bones)

    The Panel heard testimony from the Respondent; the Respondent’s former client; Carlos Bones; Katherine Priest, LCSW from the Charleston Correctional Facility; Anne V. Hayward, Associate Clerk of the Washington County Superior Court; and Paul Cavanaugh, Assistant District Attorney for Washington County. Having heard the testimony and upon a review of the evidence presented during the hearing, the Panel makes the following findings:

    FINDINGS

    At all times relevant, Respondent has been an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules.

    On April 6, 2005, Justice E. Allen Hunter appointed the Respondent as a court-appointed attorney for Carlos Bones' appeal on a conviction for sexual abuse of a minor. From March of 2005 and during all times relevant hereto, the Respondent was associated with the law firm of Gregory B. Brown, P.A. with an office located at 129 Elm Street in South Portland, Maine, and a Notice of Appointment was sent to Respondent at that address. Prior to the notice being sent to the Respondent, the associate clerk of the Washington County Superior Court had a very difficult time reaching Mr. Vincent at his South Portland office, finally making contact after a number of calls. Respondent recalls receiving a call from the clerk's office although the Respondent testified that he was under the mistaken belief that he was being appointed to represent Mr. Bones in a "post-conviction review" rather than an appeal. Respondent also testified that he received notice of his appointment "a couple of days" before filing a pleading styled as ''Motion to Enlarge Time for Filing Petition for Post-Conviction Review" on May 5, 2005, a day before Mr. Bones' law court brief was due for his appeal. At the time of that filing, Respondent made no attempt to ascertain the procedural posture of Mr. Bones' case, and never requested a copy of his file from prior counsel. However, this was only one of many lapses in judgment the Respondent had while representing Mr. Bones.

    The Respondent's "Motion to Enlarge Time for Filing Petition for Post-conviction Review" dated May 5, 2005 was granted one month later on June 7,2005, only to be rescinded two weeks later on June 21, 2006 as Defendant Bones had not exhausted his appellate remedies. But approximately a month and a half-after filing his motion, the Respondent still was unaware of the procedural history of his case, and had had no contact with Mr. Bones. As a result of his neglect of this matter, the Law Court issued an Order of Dismissal of Mr. Bones' appeal on June 29, 2005.

    The Respondent was uncertain as to whether he received the Notice of Appointment in a timely fashion; uncertain as to whether he received the Assistant District Attorney’s Motion to Reconsider dated June 17, 2005; and uncertain as to whether he received a briefing schedule from the Law Court. Even if we take the Respondent’s represents facts at face value a simple inquiry to the Washington Count' clerk’s office should have provided Respondent with an understanding of the case's status and procedural posture. The Panel finds that Respondent easily could have ascertained, in the ordinary course of representation, that the Bones appointment involved an appeal to the Law Court. If he had, the Respondent could have filed an opposition to the State's motion to dismiss the appeal, and after the dismissal of the appeal, the Respondent could have filed a Motion to Reconsider the Law Court's dismissal of the Appeal after he received that Order.

    What is clear to the Panel is that the Respondent violated the standard of care of a reasonably prudent attorney by failing to take the steps necessary to fully understand the scope of his appointment as the attorney for Mr. Bones, and to take the steps necessary to protect his client's interests. Upon receipt of his appointment, the Respondent failed to ascertain the applicability of any deadlines which might affect his client, failed to communicate with his client in any way in violation of Maine Bar Rule 3.6(a)(3), and agreed to handle a matter in which he was not qualified to handle in violation of Maine Bar Rule 3.6(a)(1). Although Mr. Bones' appeal was reinstated by a successor counsel, Respondent's conduct resulted in an unnecessary delay in the administration of justice for Mr. Bones regardless of the merits of his appeal.

    he Panel concludes that Respondent violated Maine Bar Rules 3.1(a)(3) and 3.6(a)(1), and that the appropriate sanction for these violations is that the Respondent receives a public Reprimand.

    The Panel finds that in view of the above misconduct, an appropriate disposition of this matter is that the Respondent, Attorney David A. Vincent be, and hereby is reprimanded for these violations of the Code of Professional Responsibility.

    For the Grievance Commission

    David S. Abramson, Esq., Chair
    Martha C. Gaythwaite, Esq.
    Christine Holden, Ph.D.

    Board of Overseers of the Bar v. Michael X. Savasuk, Esq.

    Download Decision (PDF)

    Docket No.: GCF 05-308

    Issued by: Grievance Commission

    Date: July 12, 2006

    Respondent: Michael X. Savasuk, Esq.

    Bar Number: 002708

    Order: Reprimand

    Disposition/Conduct: Failure to Respond to Bar Counsel; Conduct Unworthy of an AttorneyConduct During Representation: Standards of Care and Judgment; Responsibilities Regarding Non-Lawyer Assistants


    REPORT OF FINDINGS AND DETERMINATION OF PANEL B OF THE GRIEVANCE COMMISSION

    This matter came before Panel B of the Grievance Commission on an Amended Disciplinary Petition of Bar Counsel alleging that Respondent Michael X. Savasuk of Portland, Maine violated the following Maine Bar Rules:

    Rule 2(c) - failure without good cause to respond to Bar Counsel
    Rule 3.1 (a) - conduct "unworthy of an attorney"
    Rule 3.2(f)(1) - direct or indirect violation of the rules
    Rule 3.6(a) - failure to exercise reasonable care and skill and apply the lawyer's best judgment in the performance of professional services

    A public hearing was conducted on June 15, 2006 in Portland, Maine to determine whether a Bar Rule violation had occurred.

    The Board of Overseers of the Bar ("the Board") was represented by Aria eee, Esq. Respondent Michael X. Savasuk, Esq. was present and represented by Peter J. DeTroy, Esq. No objection was made to the composition of the Panel. At the hearing, the Panel admitted Board Exhibits 1 - 16 without objection. The Panel also heard testimony from the Respondent, Michael X. Savasuk, Esq., Susan Adams, Julia A. Zimont, and Nancy Hall Delaney. At the hearing, the Board also alleged that Respondent Michael Savasuk violated Rule 3.13(c) governing a lawyer's responsibilities regarding non-lawyer assistants. On the basis of this evidence, Panel B finds that Respondent Michael Savasuk did violate Maine Bar Rules 2(c) and 3.13(c), and thus 3.1(a), 3.2(f)(1), and 3.6(a). For the reasons stated below, the Panel reprimands Michael X. Savasuk for his violation of the foregoing Bar Rules.

    FINDINGS OF FACT

    On May 13, 2005, Michael Savasuk ordered, via facsimile, a transcript from Jay H. Pilchick & Associates, a court reporting service in Miami, Florida. On May 19, 2005, Mr. Savasuk received a corresponding bill, which he asked his secretary, Julia Zimont, to investigate because of an earlier partial prepayment. Ms. Zimont did not do so. A second request for payment was mailed to Mr. Savasuk by Jay H. Pilchick & Associates without response. On August 19, 2005, Mr. Pilchick wrote to Mr. Savasuk for a third time and enclosed a draft complaint against him to the bar (addressed to the Maine State Bar Association and not to the Board of Overseers), which he indicated would be mailed by August 29 if the bill remained outstanding. Mr. Savasuk did not respond.

    On September 15, 2005, the Board of Overseers received Mr. Pilchick's grievance complaint against Michael Savasuk for failure to pay the outstanding bill for court reporting services. That day, Bar Counsel wrote to Mr. Savasuk informing him of the complaint and requesting a response by October 6. Mr. Savasuk did not respond.

    Sometime after October 6, Board of Overseers staff member Nancy Delaney called Mr. Savasuk's office on two occasions to follow up the earlier September 15 correspondence. Both times, Ms. Delaney identified herself as a Board employee to the female who answered the telephone, and both times asked to speak directly with Mr. Savasuk. Each time, the female who answered the phone put Ms. Delaney on hold, then returned and reported that Mr. Savasuk was unavailable because he had just taken another telephone call. Because Ms. Delaney suspected that she was being treated evasively, she enlisted Deputy Bar Counsel Nora Sosnoff's assistance.

    On October 28, Ms. Sosnoff called Attorney Savasuk's office. Ms. Sosnoff identified herself as Deputy Bar Counsel and asked to speak with Attorney Savasuk. The female who answered placed Ms. Sosnoff briefly on hold. Within a minute, the female voice returned to the call and said that Mr. Savasuk had just taken another call. Ms. Sosnoff emphasized that the office of Bar Counsel had now called three times and each time had received the same response. Ms. Sosnoff firmly and plainly requested that the message be relayed to Attorney Savasuk that it was very important that he call her back that same day. The female acknowledged that she had heard the message.

    Mr. Savasuk did not return Ms. Sosnoff's call by the close of business on October 28. Accordingly, Assistant Bar Counsel Aria eee sent Mr. Savasuk a letter citing his failure to respond to the grievance complaint as of that date, providing a preliminary panel review date, and offering Mr. Savasuk the further opportunity to file a response by November 3, 2005. Again, Mr. Savasuk did not respond.

    On November 28, a Grievance Commission panel found probable cause to believe that Mr. Savasuk had engaged in misconduct subject to sanction and authorized Bar Counsel to prepare a disciplinary petition.

    In the meantime, Mr. Savasuk testified that, at the end of December (after Christmas), he noticed that the Pilchick & Associates bill was still outstanding. Rather than pay the bill, now some seven months old, he again asked Ms. Zimont to contact Mr. Pilchick to seek an explanation of the bill in light of the previously-mentioned partial prepayment. On January 19, 2006, Bar Counsel filed the Board's first Disciplinary Petition and mailed it to Mr. Savasuk. Mr. Savasuk had still failed to pay Mr. Pilchick's outstanding bill or to contact Bar Counsel. Once again, Mr. Savasuk did not answer the Petition. On February 28, 2006, Mr. Savasuk was served in-hand with the Petition, on the deputy sheriff's third try. By letter dated March 1, he responded to the Petition and mailed a copy of his response together with a payment check to Mr. Pilchick.

    In his response, and at the evidentiary hearing before this Panel, Mr. Savasuk indicated that he did not receive any of the letters from the Board or Mr. Pilchick, or any of the telephone messages from the Board. He blamed his secretary, Julia Zimont, for this failure. Ms. Zimont submitted to this Panel an affidavit stating, "It was never my intention to circumvent payment of invoices, OR any communications from the Board of Overseers of the Bar. Any failure of my job performance causing this situation was unintentional and is deeply regretted." In his response to the Board, Mr. Savasuk stated, "In order that this never happen again, I have given specific written instructions and amendment to office procedures that all of my bills and notices are to be placed on my desk daily." According to Mr. Savasuk, these changes were made in writing to a preexisting office procedures document entitled "Office Procedures - Daily Grind." Mr. Savasuk acknowledges receipt of the original bill from Mr. Pilchick. In addition, when Mr. Savasuk noticed that Mr. Pilchick had still not been paid in late December, he apparently took no action either to see that Mr. Pilchick was paid immediately, or to ascertain why his secretary had failed to follow up with his instruction to contact Mr. Pilchick some seven months earlier. Finally, between late December and March 1, when Mr. Savasuk sent Mr. Pilchick full payment, Mr. Savasuk apparently did nothing to double-check with his secretary that she had contacted Mr. Pilchick, as he had asked her to do a second time (she had not). Unfortunately, the foregoing internal communication breakdown was not without precedent.

    According to her own statement (Board Exh. 11), on July 3, 2003, Julia Zimont received the Board's annual registration packet for Mr. Savasuk, which was due to be returned to the Board by July 31, 2003. That deadline was not met. With the filing of a late fee, a grace period was provided until August 31, 2003. Again, that deadline was not met. On September 4, 2003, according to her statement, Julia Zimont received a certified letter from the Board indicating that, unless Mr. Savasuk's bar registration forms were received by October 3, 2003, he would be automatically suspended from the practice of law under Bar Rule 12(c). Once again, that deadline was not met, and Mr. Savasuk was automatically suspended from the practice of law.

    Mr. Savasuk's license suspension was precipitated not only by his failure to return his annual registration packet by the due date, but also by his failure to have met his continuing legal education requirements in 2002. He was 5.45 hours short of meeting his 2002 CLE requirements.

    On October 10, 2003, Mr. Savasuk submitted a letter to the Board of Overseers stating, "I failed to respond to the Board's correspondence warning of the CLE deficiency because I did not know that I had received such correspondence. . .. I can honestly state that for whatever unexplainable reason, this office's secretary just did not pass the correspondences on to counsel in this office. Enclosed herewith is a correspondence from our secretary which we have asked her to write, confirming the unfortunate situation that has occurred in this office."

    Enclosed with Mr. Savasuk's October 10 letter was a letter dated October 8 addressed to Mr. Savasuk from Julia Zimont. Just as she has in the instant matter, Ms. Zimont took responsibility for Mr. Savasuk not responding to the Board's mailings, stating "Please accept my deepest apologies for this mess. I acknowledge full responsibility for the failure of this process."

    While Mr. Savasuk indicated in his October 10 letter to the Board that he was "deeply saddened and extremely embarrassed by this situation, and can sincerely state that it will never happen again," he testified at the disciplinary hearing before this Panel that he took no steps to change his office protocol to ensure that he reviewed mail addressed to him. While he testified that he verbally reprimanded Ms. Zimont, he continued not only to employ Ms. Zimont but to allow her to open his mail and determine what mail he should see and what he need not.

    BOARD ALLEGATIONS OF MISCONDUCT

    Michael Savasuk is alleged to have violated several Maine Bar Rules because of his failure to pay his professional bills and his failure to respond to Bar Counsel:

    Rule 2(c) - failure without good cause to respond to Bar Counsel
    Rule 3.1(a) - conduct "unworthy of an attorney"
    Rule 3.2(f)(1) - direct or indirect violation of the rules
    Rule 3.6(a) - failure to exercise reasonable care and skill and apply the lawyer's best judgment in the performance of professional services
    Rule 3.13(c) -lawyer's responsibilities regarding non-lawyer assistants

    DISCUSSION

    Maine Bar Rule 2(c) requires that a lawyer "respond to any inquiry by ... Bar Counsel." Clearly, Mr. Savasuk did not do so, either in the original mailing to him by Bar Counsel of the Petition in this matter, or in response to the three telephone calls made to his office thereafter, or in response to Bar Counsel's second mailing warning him of a referral to a Grievance Panel.

    As then Justice D. Brock Hornby observed, "The Board of Overseers can fulfill its responsibility to ensure lawyer discipline only if it is assured that it will receive the full cooperation of all lawyers." Board of Overseers of the Bar v. George S. Hutchins, 1989 Me. LEXIS 213. Mr. Savasuk defends himself against his undeniable failure to respond to Bar Counsel's inquiry by arguing that he did not know about Bar Counsel's inquiries because his secretary failed to inform him of them. This defense implicates squarely Maine Bar Rule 3.13(c), which mandates that lawyers take reasonable steps to ensure that their non-lawyer assistants' conduct is compatible with the lawyers' professional obligations. This Panel has no difficulty in concluding that Mr. Savasuk did not take reasonable efforts to ensure that he complied with Rule 3.13(c).

    Two years before the instant failure to respond to Bar Counsel, Mr. Savasuk's secretary had not brought to his attention repeated communications from the Board regarding his annual registration and his CLE credit shortfall. As of that time, Mr. Savasuk was clearly on notice that critical professional communications were not being forwarded to him by his secretary. Despite that notice, Mr. Savasuk apparently allowed his secretary to continue to "screen" his mail, in effect delegating to her the task of determining what correspondence addressed to him he should see. Second, shortly before the instant failure to respond to Bar Counsel, Mr. Savasuk was again reminded of his secretary's professional shortcomings when he discovered in December that she had not followed up with Mr. Pilchick's office, as he had asked her to do some seven months earlier. In neither case did Mr. Savasuk take any substantive disciplinary action against his secretary or change his office protocol so that he read his own mail in the first instance. Regrettably, his most recent decision to read his own mail comes too late.

    We recognize that lawyers cannot be the guarantors of the professional behavior of their non-lawyer assistants. But, the Maine Bar Rules require that they take reasonable steps to ensure that their non-lawyer assistants act in a manner consistent with the lawyers' professional obligations. In this instance, Mr. Savasuk failed to exercise the supervision and oversight necessary under Rule 3.13(c). Despite several clear warning signs that he had allowed too much latitude to his secretary to screen his mail, Mr. Savasuk continued to delegate to his secretary the critical task of determining what professional mail addressed to him should be brought to his attention. Had Mr. Savasuk read his own mail, the repeated communications both from Mr. Pilchick regarding the court reporter bill and the repeated communications from Bar Counsel regarding the instant Petition would not have been ignored.

    Inadequate supervision of Ms. Zimont is also evidenced by her failure to deal appropriately with the three telephone calls received from Staff and Deputy Bar Counsel of the Board of Overseers. She failed either to connect the calls to Mr. Savasuk or to communicate to Mr. Savasuk the content of the three telephone calls, and most significantly the call from Deputy Bar Counsel Nora Sosnoff on October 10, 2005, stating that her call was the third one from the Board of Overseers and asserting the importance of Mr. Savasuk returning her call that same day.

    DETERMINATION

    In the event the Panel concludes lawyer misconduct subject to sanction under the Maine Bar Rules has occurred, Maine Bar Rule 7.1(e)(3) requires this Panel either to issue a dismissal with a warning or to issue a public reprimand or a finding of probable cause for suspension or disbarment and direct Bar Counsel to commence an attorney disciplinary action by filing an information pursuant to Maine Bar Rule 7.2(b). In determining an appropriate sanction, this Panel took into account the numerous communications to the Respondent that went unheeded, the importance of timely communication with Bar Counsel to the administration of the bar in general, and Respondent's prior record of non-responsiveness to the Board and Bar Counsel.

    Accordingly, we believe the appropriate sanction is that Michael X. Savasuk be and hereby is issued a public reprimand for violation of Maine Bar Rules 2(c) and 3.13(c), and thus Maine Bar Rules 3.1(a), 3.2(f)(1), and 3.6(a).


    For the Grievance Commission

    John H. Rich III, Esq., Chair
    Marjorie Medd.
    Susannah White

    Board of Overseers of the Bar v. Thomas M. Mangan

    Download Decision (PDF)

    Docket No.: AND-00-153

    Issued by: Law Court

    Date: January 16, 2001

    Respondent: Thomas M. Mangan

    Bar Number: 001743

    Order: Decision Affirmed

    Disposition/Conduct:


    ORDER

    RUDMAN, J.

    [¶1] Thomas Mangan appeals from the judgment of a single justice of the Supreme Judicial Court (Saufley, J.) finding that he violated several provisions of the Maine Bar Rules1 and disbarring him from the practice of law. Mangan contends, inter alia, that (1) the single justice erred in finding both an attorney-client relationship, and the search for the complainant's daughters' fathers constituted the practice of law, (2) the single justice erred in finding that Mangan made improper use of his client escrow account, and (3) he was denied a fair and impartial trial. We disagree and affirm.

    [¶2] The single justice found Mangan was a lawyer who had practiced in the Lewiston area since approximately 1975. The complainant, who is Vietnamese, has lived in this country for approximately twenty-eight years. She has three adult daughters, all of whom have different fathers. Sometime in the early 1980's, the complainant approached Mangan to seek his legal assistance in obtaining child support from the father of one of her daughters. Mangan agreed to assist her but shortly thereafter was discharged. Mangan had no further contact with the complainant until she sought out his assistance again in 1990. She had received $4,000 in settlement of a personal injury claim. Because her medical bills exceeded that amount, she asked Mangan to negotiate with the medical providers in order to settle her existing obligations. Mangan agreed to assist her. He did not enter into a fee agreement with the complainant and asserts he expected to do the work without compensation. He took the $4,000 compensation check, deposited it in his client escrow account, and then paid a number of her medical bills with the money. Despite the payments made by Mangan, the complainant continued to receive phone calls from creditors and was never clear on which bills had been paid and which had not. Mangan never told the complainant that he had concluded the work and never gave her a final accounting for the payments he had made on her behalf.

    [¶3] The complainant next approached Mangan about locating fathers of her two older daughters. Mangan told the complainant that he was good at searches, that he would undertake search for her, and that he expected the search would take approximately six months. She asserts that he told her she could pay him when the search was completed. Again, Mangan did not specify his expected compensation and did not enter into any fee agreement with the complainant.

    [¶4] Sometime after agreeing to undertake the search for the fathers, Mangan began a consensual sexual relationship with the complainant. Mangan initiated that relationship and the complainant was, for a while, a willing participant. The single justice specifically found that at the time the sexual relationship began, Mangan had given the complainant no final accounting on the medical bills and was still searching for her daughters' fathers. The complainant was living with her husband and their daughter when the relationship with Mangan began. One evening when the complainant was visiting at Mangan's office, her husband appeared at the office. After a brief discussion, resulting in moments of uncomfortable silence, the complainant emerged from the back room and left the office with her husband. Subsequently, the complainant and her husband separated, and after that separation, the complainant sought assistance to obtain a court order requiring her husband to pay child support for their child. Mangan understood that he might become a witness to the proceeding because of the incident at his office. He therefore referred the complainant to another lawyer. In order to pay that lawyer's retainer, Mangan put his own money into his client escrow account and then wrote a check to the lawyer form that account.

    [¶5] Eventually the relationship between Mangan and the complainant became strained. During this time, the complainant was struggling with depression and also began demanding money from Mangan.

    [¶6] The single justice made the following relevant conclusions:

    I am convinced that when [the complainant] came to understand fully that Mr. Mangan had abused his relationship with her, she attempted to obtain a financial advantage through that knowledge. Her repeated phone calls and her demands for money from October of 1996 through June of 1997 belie her assertion that she just wanted to end the relationship completely in the fall of 1996. I am also convinced that the sexual relationship between Mr. Mangan and [the complainant], spanning several years, was, at least initially, consensual. I am not persuaded that she originally had sex with him only, as she said, because "he [sic] my lawyer. " Nor do I believe that she asked him about his search for the fathers "every day," over the course of the relationship, thereby keeping the attorney-client relationship foremost in his mind.

    I am convinced, however, that Mr. Mangan began the sexual relationship with [the complainant] during a time when he was acting as her attorney. I am also convinced that Mr. Mangan used information gained in his attorney-client relationship to initiate the sexual relationship and in so doing took advantage of her personal situation as well as her desire to find the fathers.2 Further, I am persuaded that he used that information to manipulate [the complainant] in order to maintain a continuing sexual relationship at a time when she would have chosen to cease her contact with him. That Mr. Mangan used his search for the fathers to manipulate [the complainant] became clear through his own testimony to that effect that, although he did find one daughter's father, ... , he did not tell [the complainant], choosing instead to "hold onto it" until he had news about both fathers. When he became angry with her, probably in late January of 1997, he "chucked it all," thereby destroying any important information he had obtained during the search. It is evident then that he misled [the complainant] regarding the success of his search, and he destroyed or made unavailable to her whatever results he had obtained when their personal relationship became difficult.

    In sum, Mr. Mangan allowed his personal relationship with [the complainant] to affect his work for her, he took advantage of knowledge gained in his attorney-client relationship with [the complainant] in order to pursue and continue that sexual relationship, and he used his search for the fathers to coerce a continuing sexual relationship with her.

    A.

    [¶7] We must first determine whether an attorney-client relationship existed and then whether Mangan's actions constituted "the practice of law." The single justice's finding that there was an attorney-client relationship is a factual finding that will be upheld unless clearly erroneous. Board of Overseers of the Bar v. Dineen, 500 A.2d 262, 264 (Me. 1985), cert. denied, 106 S. Ct. 2248, 476 U.S. 1141, 90 L.Ed.2d 696 (1986).

    [¶8] We have held that "[t]he term 'client' includes one who is either 'rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him. '"Board of Overseers of the Bar v. Dineen, 500 A.2d 262, 264 (Me. 1985) (citing. M.R. Evid. 502(a)(1)). In Dineen, we further explained that '''[a]n attorney-client relationship does not require the payment of a fee or formal retainer but may be implied from the conduct of the parties.'" Dineen, 500 A.2d at 264-265 (quoting Matter of McGlothlen, 663 P.2d 1330, 1334 (Wash. 1983)) (emphasis added).

    [¶9] We adopt the New Hampshire formulation that an attorney-client relationship is created when '"(1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.'" State v. Gordon, 692 A.2d 505, 506 (N.H. 1997) (quoting McCabe v. Arcidy, 138 N.H. 20, 25, 635 A.2d 446, 449 (1993)).

    [¶10] The record is replete with evidence to support, the single justice's conclusion that there existed an attorney-client relationship between Mangan and the complainant. The complainant sought advice and assistance from Mangan. The advice or assistance sought pertained to matters within Mangan's competence and Mangan undertook the task requested of him.

    [¶11] Given that definition of "attorney-client' relationship," the single justice did not commit clear error in finding that Mangan and the complainant had entered into an attorney-client relationship.

    [¶12] We next consider whether Mangan's actions constituted "the practice of law." The Maine Bar Rules do not explicitly state what constitutes the "practice of law," nor have we ever defined what constitutes the "practice of law."

    [¶13] The term "practice of law" is a '''term of art connoting much more than merely working with legally-related matters. '" Attorney Grievance Commission of Maryland v. Shaw, 732 A.2d 876, 882 (Md. App., 1999 (quoting In Re Application of Mark W., 491 A.2d 576, 585 (1985)). "The focus of the inquiry is, in fact, whether the activity in question required legal knowledge and skill in order to apply legal principles and precedent.'" Id. (quoting In re Discipio, 645 N.E.2d 906, 910 (1994)). Even where "'trial work is not involved but the preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity, is involved, these activities are still the practice of law."' Shaw, 732 A.2d at 883 (quoting Lukas v. Bar Ass'n of Montgomery County, 35 Md. App. 442, 448, 371 A.2d 669, 673, cert. denied, 280 Md. 733 (1977)).

    [¶14] In Shaw, 732 A.2d 876, 882 (Md. App. 1999), the court noted that the practice of law includes '''[u]tilizing legal education, training, and experience [to apply] the special analysis of the profession to a client's problem. '" (quoting Kennedy v. Bar Ass'n of Montgomery County, Inc., 316 Md. 646, 662, 561 A.2d 200, 208 (1989)). The Shaw court further noted that "[t]he Hallmark of the practicing lawyer is responsibility to clients regarding their affairs, whether as advisor, advocate, negotiator, as intermediary between clients, or as evaluator by examining a client's legal affairs." Shaw, 732 A.2d at 883 (quoting In Re Application of R.G.S., 312 Md. 626, 632, 541 A.2d 977, 980 (1988)).

    [¶15] The single justice made the following finding in determining that Mangan's search for the girls' fathers constituted the practice of law:

    As attorneys' roles increase in complexity and overlap with other professions, the answer to [the question of what constitutes the practice of law] will continue to evolve. Ultimately, the question will turn on the specific facts of the work undertaken and the understanding of the parties. In determining whether Mr. Mangan was engaged in the practice of law, I have looked to, among other things, the understandings of both [the complainant] and Mr. Mangan, the trust and confidence reposed in Mr. Mangan by [the complainant], the context in which the request for services arose-both physical and conceptual, the skills necessary to the completion of services, the need for discretion and confidentiality in rendering the services and the nature of the services themselves.

    [¶16] The determination of what constitutes the practice of law is very fact specific. In this instance, the record shows that the complainant approached Mangan in his law office, she sought Mangan's advice on the matter while she was there on other attorney-client business, Mangan did not tell the complainant that he was not undertaking the search as her lawyer, the complainant had a reasonable belief that he was undertaking the search as her attorney, and she told him very personal and confidential information about her relationship with the girls' fathers, Because there is competent evidence in the record to support the single justice's findings, she did not commit clear error in holding that Mangan was engaged in the practice of law while searching for the girls' fathers.3

    B.

    [¶17] As the single justice noted, "no funds belonging to the lawyer or his law firm shall be deposited" in a client escrow account. See M. Bar R. 3.6(e)(1), (2). The single justice found as a matter of fact that Mangan placed his own funds in his client escrow account and, on the complainant's behalf, wrote a check to another attorney from that account. The single justice also found, and we agree, that the use of the client escrow account for this purpose constituted an unmistakable violation of M. Bar R. 3.6(e)(1)4 and was conduct unworthy of an attorney for the purposes of M. Bar R. 3.1(a).5 An attorney may not, under any circumstances, mingle his funds with the funds belonging to his clients in the escrow account.

    C.

    [¶18] Both in his brief and at oral argument to us, Mangan argued extensively that he was denied a fair and impartial trial. We first note Mangan failed to make the arguments he makes on appeal before the single justice. An issue not raised before the single justice is deemed waived. See McAfee v. Cole, 637 A.2d 463, 467 (Me. 1994) (Dana, J. dissenting) ("a party who raises an issue for the first time on appeal will be deemed to have waived the issue"). In the instant situation, Mangan's intemperate attacks on the single justice and Bar Counsel are further evidence of his unfitness for the practice of law. The record is devoid of any evidence to sustain Mangan's unfounded accusations. Although Mangan disputes many of the factual findings of the single justice, those findings are supported by the record and would only be set aside if they were clearly erroneous, giving due regard to the opportunity of the single justice to evaluate the credibility of witnesses. It is clear that the single justice found much of Mangan's testimony not to be credible, a conclusion fully supported in the record.

    [¶19] Mangan received a fair and impartial trial. He was represented by counsel;6 he challenged the evidence offered by Bar Counsel; and obtained a favorable result on those counts on which Bar Counsel failed to sustain his burden of proof. The findings of the single justice are supported by the record and the sanction imposed, was justified.

    [¶20] Mangan's other contentions are meritless.

    The entry is:

    Judgment affirmed.


    Attorneys for Plaintiff
    J. Scott Davis, Bar Counsel
    Karen G. Kingsley, Asst. Bar Counsel (orally)
    PO Box 527
    Augusta, ME 04332-0527

    For Defendant
    Thomas M. Mangan
    PO Box 3112
    Lewiston, ME 04243-3112


    Panel
    Wathen, C.J., and Rudman, Dana, Alexander, and Calkins, JJ.


    Footnotes

    1The single justice found that:

    1. Mangan made inappropriate use of his client escrow account in violation of M. Bar R 3.1(a) and 3.6(e)(1), (2);
    2. Mangan neglected legal matters entrusted to him and failed to account for receipts related to his work in violation of M. Bar R.3.1(a); 3.6(a)(3); and 3.6(e)(2)(iii); and
    3. Mangan engaged in a sexual relationship with a client which relationship with a client which relationship adversely affected his representation of the client and abused the attorney-client relationship in the context of the sexual relationship in violation of M. Bar R. 3.1(a): 3.2(f)(2), (3), (4); 3.4(b)(1); 3.4(f)(1); and 3.6(a)(3).

    2The complainant was embarrassed about having had three daughters with three different men, only one of whom she had married.

    3Mangan, interestingly enough, denies the existence of an attorney-client relationship; however, he also testified as follows:

    Q. Why is it that you didn't deposit [the $2,000] in your checking account or your savings account?

    A. The escrow account was client's money.
    Q. But it wasn't her money?

    A. Sure it was, once I gave it to her, it was her money.

    4. M. Bar R 3.6 provides in pertinent part:

    (e) Preserving Identity of Funds and Property.

    (1) All funds of clients paid to a lawyer or law firm, other than retainers and advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the state in which the law office is situated at a financial institution authorized to do business in such state. No funds belonging to the lawyer or law firm shall be deposited therein except as follows:
    (i) Funds reasonably sufficient to pay institutional service charges may be deposited therein; and

    (ii) Funds belonging in part to a client and in part presently or potentially to a lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client: in that event the disputed portion shall not be withdrawn until the dispute is finally resolved.

    M. Bar R. 3.6(e)(1).

    5M. Bar R 3.1 provides in relevant part:

    (a) This Code shall be binding upon attorneys as provided in Rule 1(a). Violation of these rules shall be deemed to constitute conduct “unworthy of an attorney” for purposes of 4 M.R.S.A. § 851 and Rule 7(e)(6)(A). Nothing in this Code is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation and the prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned.

    M. Bar R. 3.1(a)

    6On appeal, Mangan appeared on his own behalf.

    Board of Overseers of the Bar v. Brian D. Condon, Jr., Esq.

    Download Decision (PDF)

    Docket No.: BAR-06-3

    Issued by: Single Justice, Maine Supeme Judical Court

    Date: December 27, 2006

    Respondent: Brian D. Condon, Jr., Esq.

    Bar Number: 008588

    Order: Suspended Suspension

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct Prejudicial Administration of Justice;Preserving Identity of Funds and Property; Maintaining Complete Record of Funds


    DECISION AND ORDER


    This matter came before the Court upon the filing of an Information by the Board of Overseers of the Bar. The Board was represented by Bar Counsel J. Scott Davis, and Deputy Bar Counsel Nora Sosnoff and Attorney Brian D. Condon, Jr., Esq. was represented by Attorney Karen G. Kingsley. The Court heard testimony from Attorney R. Howard Lake and Attorney Condon. Following the hearing, the parties by agreement, offered the Disciplinary Petition with attachments. Because the attachments contain attorney-client confidential material, at the request of the parties, they were received under seal. The Court makes the following findings:

    FINDINGS OF FACT
    1. Attorney Condon has practiced law in Maine since his admission to the Maine Bar in 1997 and from 2002 until March 7,2005, was a partner at the law firm of Hufnagel, Lake & Condon (HLC);
    2. Like most Maine law firms, HLC kept a pooled client trust account with detailed client records. At HLC, these client records were made and retained on a computer-based accounting program called "Quickbooks";
    3. On or about March 10, 2004, Attorney Condon received from an insurance company a settlement check for Client A for $2547.95 with instructions to hold and not deposit the check until Attorney Condon's client had signed a release. Although Client A had not signed a release, Attorney Condon deposited the check in the HLC pooled client trust account in a subaccount attributable to Client A. Then, still without a release from Client A, on August 26, 2004, in violation of the insurer's terms of settlement, Attorney Condon paid the firm $400 in legal fees from the sub-account attributable to Client A;
    4. Although Attorney Condon attributes this to an unintended clerical error, the Court is satisfied that sometime between mid-September and early October 2004, Attorney Condon manipulated the "Quickbooks" accounting program to change the name on the trust sub-account from Client A to Client Band change the source of those funds from an insurance company to the law firm to whom .. Attorney Condon had previously referred Client B to handle his personal injury claim.
    5. On December 6, 2004, the firm to whom Client B had been referred sent Attorney Condon $1111.11 as a referral fee (i.e., one-third of the one-third of the $10,000 settlement negotiated for Client B). Rather than deposit the sum in the firm's general account as income, Attorney Condon directed his secretary to "please deposit (the check) ... in (Client B) Trust Account." With that deposit the sub-account in the name of Client B totaled $3259.06 (i.e., $2547.95 minus $400, plus $1111.11);
    6. Attorney Condon admits that on December 10, 2004, he caused a check to be drawn on HLC' s trust account payable to Client B and that he deposited that check for $3259.06 into Attorney Condon's personal checking account. Although he does not remember doing so, the Court is satisfied that Attorney Condon endorsed Client B' s name to the back of the check. The funds neither belonged to Attorney Condon nor to Client B;
    7. On January 25, 2005, Client A called HLC wanting to speak with Attorney Condon about his case. Within an hour of that call, the Court is satisfied that Attorney Condon, using an absent employee's password to gain access to the Quickbooks program, established a sub-account for Client A for $2547.95 indicating the source of those funds was a law firm rather than the insurance company and reduced the size of another client's sub-account by $2547.95;
    8. When a month later Attorney Condon's manipulations began to be uncovered he first blamed the firm's staff. Only after viewing a videotape of him making the deposit into his personal checking account did he admit the deposit. He claims not to remember endorsing Client B' s name on the back of the check and intimated at the hearing that a credit union teller may have done so.
    9. Attorney Condon testified that he has recently been diagnosed with attention deficit disorder and is taking medication to help him "focus" and "operate in more of a controlled manner." While the Court is unqualified to assess whether this condition may explain his conduct, it is a working hypothesis.

    CONCLUSIONS OF LAW

    Attorney Condon has violated the following provisions of the Maine Bar Rules: 3.1(a), 3.2(f)(1), 3.2(f)(3),3.2(f)(4), 3.6(a), 3.6(e)(1), and 3.6(e)(2)(iii).1

    SANCTIONS

    It is well established that the main purpose of attorney discipline is not punishment, but protection of the public. "The purpose of [a bar disciplinary] proceeding is not punishment, but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable to discharge properly their professional duties." M. Bar R. 2(a) (Purpose of Rules). The Court has considered the purpose of bar disciplinary proceedings in imposing the sanction in this case and recognizes that no clients of Condon have (joined in this grievance and he has no previous disciplinary record with the Board or this Court.

    To the extent that he has accepted responsibility for his actions, Condon has apologized to the Court, to the administrative staff at HLC, and to his former law partner, R. Howard Lake, Esq. Condon has affirmed that he will make every effort to ensure that no future violations of any Bar Rules occur.

    Accordingly, the Court HEREBY ORDERS that Brian D. Condon, Jr. be and hereby is suspended from the practice of law in Maine for a period of one year commencing January 1, 2007, with all but the second fifteen (15) days of that suspension itself being suspended subject to the following terms and conditions:

    a) Prior to his returning to active practice any time after February 1, 2007, at his own expense, Attorney Condon shall enter into a monitoring agreement with the Maine Assistance Program for Lawyers and Judges (MAP) in a form acceptable to Bar Counsel and the Director of MAP, and shall undergo assessment, testing, and treatment, all to the satisfaction of the Director of MAP;

    b) Prior to his returning to active practice any time after February 1, 2007, Attorney Condon will have identified a local lawyer, approved by the Director of MAP, who will agree to monitor Attorney Condon's practice by reviewing an inventory list of his files, trust account activity, and be available to speak with Attorney Condon and vice versa on a regular basis, but at least once per month about any problems or issues with the practice;

    c) Attorney Condon will continue his treatment for ADD, and will sign whatever releases are necessary so that his treatment provider will be able to speak with the Director of MAP;

    d) In the event any new grievance complaint is received by Bar Counsel prior to January 1, 2008, concerning alleged misconduct by Attorney Condon such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as appropriate, but in the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1(d)(5), the matter shall then be filed directly in the Court under Bar Rule 7.2(b); and

    e) Any apparent violation of the conditions of this Order shall be brought to the attention of the Court by Bar Counsel.


    For the Court

    Hon. Howard H. Dana, Jr. Associate Justice - Maine Supreme Judicial Court


    Footnotes

    13.1 Scope and Effect

    (a) This Code shall be binding upon attorneys as provided in Rule 1(a). Violation of these rules shall be deemed to constitute conduct "unworthy of an attorney" for purposes of 4 M.R.S.A. § 851. ...

    3.2 Admission, Disclosure and Misconduct

    (f) Other Misconduct. A lawyer shall not:

    (1) directly or indirectly violate, circumvent, or subvert any provision of the Maine Bar Rules;

    . . . .

    (3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

    (4) engage in conduct that is prejudicial to the administration of justice.

    3.6 Conduct During Representation

    (a) Standards of Care and Judgment. A lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the client's affairs ....

    (e) Preserving Identity of Funds and Property.

    (1) All funds of clients paid to a lawyer or law firm, other than retainers and advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the state in which the law office is situated at a financial institution authorized to do business in such state. No funds belonging to the lawyer or law firm shall be deposited therein except as follows:

    (2) A lawyer shall:

    (iii) Maintain complete records of all funds, securities and other properties of a client coming into possession of the lawyer and render prompt and appropriate accounts to the client regarding them;

    Board of Overseers of the Bar v. Earle S. Tyler, Jr.

    Download Decision (PDF)

    Docket No.: BAR-05-4

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: October 14, 2005

    Respondent: Earle S. Tyler, Jr.

    Bar Number: 001745

    Order: Resignation

    Disposition/Conduct:


    ORDER


    This matter is before the Court to consider Attorney Earle S. Tyler Jr.'s voluntary resignation dated June 28, 2005, that has been tendered pursuant to M. Bar R. 7.3(g). Attorney Tyler's letter of resignation is supported by his Affidavit dated June 28, 2005. On July 22, 2005, the Board of Overseers of the Bar considered this matter and unanimously recommended that the Court accept Attorney Tyler's resignation from the Maine bar.

    Therefore, it is hereby ORDERED

    Pursuant to M. Bar R. 7.3(g)(3), Earle S. Tyler Jr.'s resignation from the Maine bar is accepted immediately.

    As required by M. Bar R. 7.3(g)(3), Earle S. Tyler Jr.'s supporting affidavit dated June 28, 2005 hereby impounded, and shall not be available for inspection purposes unless otherwise ordered by the Court. Should Earle S. Tyler Jr. seek reinstatement to the Maine bar, this Affidavit may then be made public without further Order of the Court.

    This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).


    For the Court

    Hon. Warren M. Silver, Associate Justice - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Robert Levine, Esq.

    Download Decision (PDF)

    Docket No.: GCF-04-381

    Issued by: Grievance Commission

    Date: October 25, 2005

    Respondent: Robert Levine, Esq.

    Bar Number: 000347

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Conduct During Representation: Standards of Care and Judgment/Adversary Conduct


    REPORT OF FINDINGS OF PANEL E OF THE GRIEVANCE COMMISSION

    On October 25, 2005, pursuant to due notice, Panel E of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Robert Levine, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on July 21, 2005. Attorney Levine filed an Answer to the Disciplinary Petition on August 26, 2005.

    Present at the Disciplinary Hearing were Assistant Bar Counsel Aria eee, representing the Board and Attorney Robert Levine, represented by Karen Kingsley, Esq. The complainant, Steven Dunn was present, represented by Robert Rubin, Esq.

    The Panel accepted comments from the parties and reviewed the proposed findings presented by the parties. The Panel then issued the following disposition:

    FINDINGS

    1. Respondent Robert Levine (Attorney Levine) of Rockland, County of Knox, State of Maine, was 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 Levine was admitted to the Maine Bar in 1974.

    2. On or about December 15, 2004, Robert Rubin, Esq. on behalf of his client, Steven Dunn, filed a complaint with the Board against Attorney Levine. [Board Exhibit# 1] The complaint filed by Mr. Dunn involved a family law matter (Dunn v. Dunn) in Rockland District Court.

    3. On or about January 24, 2005, Attorney Levine filed a response to Mr. Dunn's complaint with the Board. [Board Exhibit # 2] Thereafter, the Board received rebuttals and replies from both complainant and respondent. [Board Exhibits #3, #4 #5, #6 and #7]

    4. On April 25, 2005 a panel of the Grievance Commission reviewed Attorney Levine's actions in this matter, and, based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules for which appropriate discipline should be imposed as provided for in those rules. Therefore, that Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission. [Board Exhibit #8]

    5. The incident which constituted Attorney Levine's misconduct is as follows. In July 2004, Attorney Levine ran into the GAL (also a casual friend of his) who had served the court during Mr. Dunn's case. The divorce was finalized in March 2004 and the GAL mentioned to Levine that her fees had not yet been paid by Mr. Dunn.

    6. Although Attorney Levine had not served as counsel in the matter, his law partner had and because of that fact, Levine recognized the existence of the case. He offered to help the GAL secure her payment.

    7. Attorney Levine returned to his office and directed his secretary to request a Writ of Execution from the District Court. The secretary prepared a letter to the District Court applying for the Writ.

    8. A careful review of the file would have revealed that no final order for GAL fees had issued from the District Court. All that existed was the May 2, 2003 Order for Appointment of Guardian ad Litem [Board Exhibit #9]. That Order provided for a division of the initial fees to pay the GAL. It did not provide for any other division of fees and instead, directed "[that issue] is reserved for decision at time of final hearing." [Board Exhibit #9.]

    9. On August 30, 2004 a Writ of Execution [Board Exhibit #10] issued against Mr. Dunn for the amount of $1100.00.

    10. On December 8, 2004 the District Court Clerk wrote an internal memo questioning whether it was proper to have issued the above mentioned Writ. She wrote her memo in response to Attorney Robert Rubin's request for information about the issuing of that Writ. [Board Exhibit #11]

    11. On that same day, the District Court (Worth, J) vacated the Writ of Execution finding that "[it was] improvidently issued; not for a sum certain. See 5-2-03 order." [Board Exhibit #12]

    12. Attorney Levine's Answer to the Disciplinary Petition largely admitted the facts and allegations. However he denied any intentional misconduct. Attorney Levine accepts responsibility for the harm caused by his inaccurate request and he acknowledges his duty to ensure that he exercise diligence and due care.

    Therefore, the Panel finds that Attorney Levine violated the following provisions of the Code of Professional Responsibility:

    3.1 Scope and Effect

    (a) This Code shall be binding upon attorneys as provided in Rule 1(a). Violation of these rules shall be deemed to constitute conduct "unworthy of an attorney" for purposes of 4 M.R.S.A. § 851 and Rule 7(e)(6)(A). Nothing in this Code is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation; and the prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned.

    3.2 Admission, Disclosure and Misconduct

    (f) Other Misconduct. A lawyer shall not:

    (4) engage in conduct that is prejudicial to the administration of justice.

    3.6 Conduct During Representation

    (a) Standards of Care and Judgment. A lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the client's affairs. A lawyer shall not

    (2) handle a legal matter without preparation adequate In the circumstances; or

    3.7 Conduct During Litigation

    (e) Adversary Conduct.

    (1) In appearing in a professional capacity before a tribunal, a lawyer shall:

    (i) Employ, for the purpose of maintaining the causes confided to the lawyer, such means only as are consistent with truth ...

    CONCLUSION AND SANCTION

    Attorney Levine has taken responsibility for his actions and the subsequent distress it caused Mr. Dunn. At the hearing, Attorney Levine took responsibility for the error and expressed his remorse that it happened.

    As Maine Bar Rule 2 outlines, the purpose of disciplinary proceedings is not punishment but rather, protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable to discharge properly their professional duties. It appears that a reprimand in this case serves those purposes.

    Nearly a year ago, Attorney Levine paid a sum certain to Mr. Dunn to compensate for the illegitimate request for a Writ of Execution. The panel finds that a reprimand is a sufficient sanction because Mr. Levine is remorseful and acknowledges his misconduct.

    Having made findings of misconduct subject to sanction under the Bar Rules, M. Bar Rule 7.1(e)(3)(c) directs this Grievance Commission Panel to consider certain factors in determining the appropriate sanction.

    These factors are:

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

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

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

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

    The Panel has accordingly considered the foregoing factors and finds that Attorney Levine has violated duties owed to the public and the legal system. He acted knowingly and or negligently and there was actual injury to Mr. Dunn. Attorney Levine's civil settlement serves as a mitigating factor to the current disposition.

    The Panel concludes that the appropriate disposition of this case is a public reprimand to Attorney Robert Levine.


    For the Grievance Commission

    Charles W. Smith, Esq., Chair
    Stephen J. Schwartz, Esq.
    Joseph R. Reisert, Ph.D.

    Board of Overseers of the Bar v. E. Christopher L'Hommedieu, Esq.

    Download Decision (PDF)

    Docket No.: GCF-05-41

    Issued by: Grievance Commission

    Date: December 15, 2005

    Respondent: E. Christopher L'Hommedieu, Esq.

    Bar Number: 008299

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Conduct involving Dishonesty, Fraud, Deceit or Misrepresentation; Conduct During Representation: Improper Concealment, Statement or Evidence; Adversary Conduct


    REPORT OF FINDINGS OF PANEL B OF THE GRIEVANCE COMMISSION

    On December 15, 2005, pursuant to due notice, Panel B of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, E. Christopher L'Hommedieu, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on September 21, 2005. Attorney L'Hommedieu filed an Answer to the Disciplinary Petition on October 25, 2005.

    Present at the hearing were Assistant Bar Counsel Aria eee, representing the Board, and Attorney Jennifer Ferguson, with her client, respondent, E. Christopher L'Hommedieu. The complainant, Cynthia McConnell was also in attendance.

    The Panel accepted comments from the parties and Ms. McConnell and reviewed counsel's proposed stipulated findings. The Panel then issued the following disposition:

    FINDINGS

    1. Attorney L'Hommedieu of Lewiston, County of Androscoggin, State of Maine, was 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 L'Hommedieu was admitted to the Maine Bar in 1995 and has been practicing law in Lewiston, Maine since 1997.
    2. On October 23, 2001, the Court suspended Attorney L'Hommedieu for violations of Maine Bar Rules 3.1(a); 3.2(f)(3)(4) and 3.7(e)(1)(i). See Bar 01-03, Board of Overseers of the Bar v. E. Christopher L'Hommedieu, Esq.
    3. On February 14, 2005 Cynthia McConnell filed a grievance complaint against Attorney L'Hommedieu.
    4. The specifics of Attorney L'Hommedieu's conduct are outlined below.

    1. On or about February 18, 2004 Attorney L'Hommedieu, on behalf of his client (Henry McConnell/defendant), filed a post-Divorce Motion to Enforce (regarding contact between Mr. McConnell and the minor children) in the Lewiston District Court. At that time, Mr. McConnell was stationed at an U.S. Air Force Base in Turkey. Ms. McConnell's attorney cross-claimed and eventually filed proposed child support orders, based on her estimate of Mr. McConnell's income.
    2. On July 1, 2004, the District Court issued an "Interim Order and Order on Motions for Entry of Judgment and Sanctions". A copy of that Order was received from the court by Attorney L'Hommedieu on July 6, 2004. Contained within the Interim Order was a direction for the "Defendant to file a Child Support Affidavit with income from all sources ... within 20 days of the date of the Order".
    3. Issued with the Interim Order was an "Interim Child Support Order" which increased Mr. McConnell's child support obligation.
    4. Attorney L'Hommedieu failed to file Mr. McConnell's child support affidavit within that court-ordered time. Although by August 6, 2004, Attorney L'Hommedieu had two copies (faxed by his client) of the affidavits, he chose to not so inform the court or to then file the affidavits. Instead, he determined whether the "employment fringe benefits" portion which his client completed, was truly considered income. In his response to the Board, Attorney L'Hommedieu stated as follows:

      "After the 8/3/04 [case management] conference, the undersigned received a faxed copy of Henry's new child support affidavit. Henry had included in this affidavit employment fringe benefits of up to $27,384.00, an extraordinary figure. It was in no way clear what these fringe benefits were, and the undersigned was not convinced they needed to be included in Henry's child support affidavit."

    1. Multiple other motions and letters were filed by counsel for Ms. McConnell and by Attorney L'Hommedieu concerning discovery and procedural disputes, including a Motion for Default by Ms. McConnell's counsel seeking a child support order based on her estimate of Mr. McConnell's income. While in possession of his client's two child support affidavits, Attorney L'Hommedieu filed an "Offer of Judgment" using the lower child support figure proposed in Ms. McConnell's Motion for Default. However, Attorney L'Hommedieu now acknowledges that he had a duty to disclose accurately to the Court, irrespective of what Ms. McConnell had asked the Court for.
    2. The offer of settlement was rejected by Ms. McConnell's attorney.
    3. Attorney L'Hommedieu knew when he made the offer of settlement that his client's income, if the fringe benefits were included, was higher than what the complainant or her attorney had estimated the income would be and was higher than the income figure used by the District Court in the Interim Order.
    4. On or about September 21, 2004 Attorney L'Hommedieu complied with the District Court's order by filing the faxed copies of his client's two child support affidavits. Thereafter, he received the original signed child support affidavits from his client. On or about September 29, 2004 Attorney L'Hommedieu filed the original, signed child support affidavits from his client.

    A. Violation of M. Bar R. 3.1(a)

    Like the previous grievance against Attorney L'Hommedieu, the current violations concern dishonest conduct. By reviewing his actions in total, it is clear that Attorney L'Hommedieu committed "conduct unworthy of an attorney". After Magistrate Oram issued the "Interim Order," Attorney L'Hommedieu was required to comply with that Order.

    B. Violation of M. Bar R. 3.2(f)(3)(4)

    Attorney L'Hommedieu knew that his client's child support affidavit was due and that Mr. McConnell's income was higher than the District Court or Ms. McConnell had estimated. While competent advocacy is expected of lawyers, overzealous representation can lead, as it did here, to a violation of the Code of Professional Responsibility. Attorney L'Hommedieu went too far in advancing his client's interests.

    B. Violation of M. Bar R. 3.7(b); 3.7(e)(1)(i)

    By withholding the affidavit and then proposing a settlement offer regarding child support, Attorney L'Hommedieu concealed information and mislead the parties and the District Court. As an officer of the court, Attorney L'Hommedieu was obligated to ensure that the District Court's information was accurate and he is presumed to know that complete candor with the court is the responsibility of every lawyer admitted to practice. See Board of Overseers v. William Fogel BAR 99-7.

    CONCLUSION AND SANCTION

    As Maine Bar Rule 2 outlines, the purpose of disciplinary proceedings is not punishment but rather, protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable to discharge properly their professional duties. It appears that a reprimand serves those purposes.

    Therefore the Panel concludes that the following violations occurred:

    1. Attorney L'Hommedieu violated M. Bar R. 3.2(f)(3)(4);
    2. Attorney L'Hommedieu violated M. Bar R. 3.7(b); 3.7(e)(1)(i);
    3. Attorney L’Hommedieu's foregoing violations also constitute conduct unworthy of an attorney in violation of M. Bar R. 3.1(a).

    Having made findings of misconduct subject to sanction under the Bar Rules, M. Bar Rule 7.1(e)(3)(C) directs this Grievance Commission Panel to consider certain factors in determining the appropriate sanction.

    These factors are:

    1. whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
    2. whether the attorney acted intentionally, knowingly, or negligently;
    3. the amount of actual or potential Injury caused by the attorney's misconduct; and
    4. the existence of any aggravating or mitigating factors.

    The Panel has accordingly considered the foregoing factors and finds that Attorney L'Hommedieu has violated duties owed to the client and the legal system. He acted knowingly and purposefully, causing actual injury to the court and to the minor children, whose primary caretaker did not receive the adjusted support amounts in a timely fashion. As an aggravating factor, and as noted above, in December 2001, Attorney L'Hommedieu previously was suspended for engaging in dishonest conduct. As a mitigating factor, Attorney L'Hommedieu is remorseful and acknowledges that his overzealous representation of Mr. McConnell prevented him from complying with his duties to the District Court.

    The Panel concludes that the appropriate disposition of this case is a public reprimand to Attorney E. Christopher L'Hommedieu.


    For the Grievance Commission

    David R. Weiss, Esq., Chair
    John H. Rich III, Esq.
    Susannah White

    Board of Overseers of the Bar v. Raymond J. DiLucci, Esq.

    Download Decision (PDF)

    Docket No.: BAR-05-06

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: May 26, 2006

    Respondent: Raymond J. DiLucci, Esq.

    Bar Number: 007056

    Order: Reprimand Reciprocal Discipline

    Disposition/Conduct:


    ORDER


    This Court has received a certified copy of the Order of the New Hampshire Supreme Court dated December 30, 2004, publicly censuring Attorney Raymond J. DiLucci for his violations of the Supreme Court's Rules and the Rules of Professional Conduct. Attorney DiLucci has notified the Court of his consent to the Board of Overseers of the Bar's request for imposition of identical discipline in Maine.

    Therefore, by agreement of the parties, this Court hereby ORDERS:

    1. The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;

    2. Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Raymond J. DiLucci reprimanded for his violations of the Professional Responsibility.


    For the Court

    Hon. Robert W. Clifford, Associate Justice - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. J. Michael Huston, Esq.

    Download Decision (PDF)

    Docket No.: BAR-05-10

    Issued by: Single Justice, Maine Supreme Judicial Court

    Date: May 5, 2006

    Respondent: J. Michael Huston, Esq.

    Bar Number: 002154

    Order: Suspension

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct involving Dishonesty, Fraud, Deceit or Misrepresentation; Actions of Attorney who Assumes Inactive Status


    ORDER


    This matter was presented to the Court pursuant to information filed by the Board of Overseers of the Bar. The Board of Overseers of the Bar (the Board) was represented by Assistant Bar Counsel Aria eee. Defendant J. Michael Huston (Huston) was represented by David M. Lipman, Esq. The complainant, Wilfred Giroux, advised the Board in advance of his agreement to the proposed resolution of this grievance matter that is adopted by this order.

    Stipulations

    The parties have stipulated to the following material facts:

    Since March 1999, J. Michael Huston has been registered with the Board of Bar Overseers as an inactive attorney under M. Bar Rule 6(e). That status immediately followed a sixty (60) day suspension agreed to by Huston and imposed by this Court's Order dated December 23, 1998. That order provided as follows:

    This order is entered based upon the Court's express understanding that at the conclusion of that period of suspension on March 11, 1999, Huston will then immediately file with the Board a notification of his discontinuance of the practice of law in Maine and will then register on inactive status under Maine Bar Rule 6(c). In any event, after January 11, 1999, Huston shall not thereafter resume the active practice of law in Maine without first having complied with all the provisions and requirements of Maine Bar Rule 6(c)(2), (3).

    On or about May 6, 2004 Wilfred Giroux filed a complaint with the Board against Huston. Mr. Giroux referenced a May 6, 2004 Oxford Town Selectman's Meeting that he attended in which Huston stated that " ... he was not practicing on a full-time basis." The Board has both the tape and a transcription of that May 6, 2004 meeting. A review of the tape reveals that Huston did indeed say "I'm not practicing on a full-time basis."

    Also on May 6, 2004, Huston, while employed as the Oxford Town Manager, assisted a family friend's son at the South Paris District Court to contest the son's speeding ticket. Although Huston did not then enter an appearance, he did engage in discussions with the prosecutor and assisted the young man in obtaining a "filed" charge from the prosecutor. In those discussions, Huston informed the parties that he was an attorney, but that he was not "representing" the son. Regardless of Huston's intent, his presence and statements either created an ambiguity as to his role or left some observers with the impression that he was providing informal legal assistance. The day after his court attendance, the family friend stopped by Huston's office with a bouquet of flowers for him.

    During Bar Counsel's investigation, the Board discovered that Huston was not entirely forthcoming about his activities since his 1998 suspension and 1999 inactive status. Huston's lack of candor constitutes violations of Maine Bar Rules 3.1(a) and 3.2(f)(3). For example, in his initial response to the Board's inquiry, Huston asserted the following: "I have turned down previous clients who have called looking for wills .... or even for me to be the clerk of a corporation". However, the Board obtained from Huston's former employers documents that demonstrate he has served as a corporate clerk (for a corporation in which he owns stock) and has maintained legal documents which he had prepared. With the availability of those documents and their accessibility to municipal employees, emerged the appearance of Huston's continued practice of law, even after he registered as inactive.

    Since his change to inactive status, Huston has been employed by a variety of municipalities. The Board alleges that Huston improperly engaged in the practice of law during those municipal employments. While Huston denies the Board's allegation, he agrees that some of his actions may have led to other people's belief that he was improperly practicing law.

    Agreed Conclusions

    The parties agree, and the Court finds, that Huston's conduct violated Maine Bar Rules 3.1(a) (conduct unworthy of an attorney); 3.2(f)(1) (conduct subverting any provision of the Maine Bar Rules); 3.2(f)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation);; and 7.3(i)(1)(F) (action by disbarred or suspended attorneys or attorneys who assume inactive status under rule 6(c)).

    Sanction

    Having found these violations of the Maine Bar Rules, and agreeing with the Board and the Defendant that they are serious, the Court must address the sanction recommended by the parties. The Court is mindful that Huston was suspended in 1998 and immediately thereafter registered as inactive. However, by since acknowledging at a municipal meeting that "he wasn't practicing full time" as well as his actions while attending a District Court proceeding, Huston has left the impression that he is still practicing law. Huston's conduct, while perhaps not intentionally designed to violate this Court's previous order, has in fact, led him to be in violation of the Court's 1998 Order suspending him from the practice of law. Therefore, noting that the main purpose of attorney discipline is not punishment, but protection of the public, the Court ORDERS the following sanction in this matter as proposed by the parties:

    J. Michael Huston is suspended from the practice of law for 6 months with all but ten (10) days of that suspension being suspended for one year subject to the following terms and conditions:

    1. Mr. Huston shall not participate in any court proceedings on behalf of a party other than himself or as a witness, without the prior, specific authorization of Bar Counsel or this Court.

    2. Mr. Huston shall not engage in any conduct that would give the appearance that he is drafting any legal documents or giving any legal advice.

    3. In the event a grievance complaint is received by Bar Counsel concerning alleged conduct occurring on or after this date, such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as appropriate, but in the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1(d)(5), the matter shall then be filed directly before the Court under Bar Rule 7.2(b) instead of before the Grievance Commission under M. Bar R. 7.1(e);

    4. Any apparent violation of any of the conditions of this Order shall be filed by Bar Counsel directly with the Court; and

    5. Mr. Huston shall remain registered on inactive status under Maine Bar Rule 6(c). Following his suspension, Huston shall not thereafter resume the practice of law in Maine without first having complied with all the provisions and requirements of Maine Bar Rule 6(c)(2), (3).


    For the Court

    Hon. Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court

    Board of Overseers of the Bar v. Stephen T. Hayes, Esq.

    Download Decision (PDF)

    Docket No.: GCF 06-026

    Issued by: Grievance Commission

    Date: March 28, 2007

    Respondent: Stephen T. Hayes, Esq.

    Bar Number: 000065

    Order: Reprimand

    Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment


    REPORT OF FINDINGS OF PANEL D OF THE GRIEVANCE COMMISSION

    On March 26, 2007, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning the Respondent, Stephen T. Hayes, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on September 20, 2006, alleging misconduct in connection with Respondent's representation of a client, in violation of M. Bar R. 3.1(a), 3.2(f), and 3.6(a).

    At the hearing, Assistant Bar Counsel Aria eee represented the Board, and the Respondent was represented by James M. Bowie, Esq. The Board's exhibits marked Board Exh. 1-13 and Board Exh. 15-17, and the Respondent's exhibits marked R-1 through R-4, were admitted without objection. The Panel heard testimony from the Respondent; from his former clients, Mona K. Smith and John Coelho; and from Martin C. Womer, Esq. The material facts were not substantially disputed. Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings:

    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.

    Ms. Smith and Mr. Coelho engaged Respondent in November 2005 in connection with an estate planning matter involving the disposition of jointly owned real estate in Litchfield, Maine. Ms. Smith and Mr. Coelho were unmarried cohabitants who were registered domestic partners. Ms. Smith was undergoing treatment for cancer. Although the parties' recollections differed as to how fully Respondent was advised of the status of Ms. Smith's illness and treatment, the Panel does not find this discrepancy material to its conclusions.

    Following an initial consultation with Ms. Smith and Mr. Coelho on November 1, 2005, Respondent prepared a draft trust document for them, and forwarded it to them on or about December 16. They responded via an e-mail message posing some questions and additional considerations, which Respondent received on December 19.

    Respondent did not again communicate with Ms. Smith and Mr. Coelho until January 30, 2006. Although he did not so advise them at the time, the additional considerations raised in their e-mail message created substantial legal issues regarding their ability to protect the assets from creditors. Moreover, this matter arose during a time when the law governing such issues was in a considerable state of flux, due to recent and pending state and federal legislation and rule changes. Although Respondent was actively researching the effect of these changes upon the clients' matter, he testified that it is his practice not to send "empty" communications to clients until such time as he has substantive legal conclusions to impart. Respondent further testified, by way of explanation rather than excuse, that during the time period in question, he had a busy trial schedule and also suffered a spell of bronchitis that temporarily impeded his ability to maintain a full workload.

    Mr. Coelho left a voicemail message with Respondent on January 9, and Ms. Smith and Mr. Coelho sent an e-mail message to Respondent on January 11, both of which sought information about the status of their matter. The e-mail message of January 11, in particular, should have put Respondent clearly on notice of his clients' concerns:

    It appears that the demands of your practice make it difficult for you to respond to or provide the legal services we requested in regard to the subject trust.

    If this is the case, please be good enough to so advise by return note so that we may seek the services of another attorney.

    Respondent did not respond to this e-mail message. On January 26, Ms.Smith and Mr. Coelho filed a complaint with the Board of Overseers of the Bar; however, Respondent did not receive notice of their complaint until February 2. In the meantime, he concluded his research (including consultation with Mr. Womer, an elder law attorney with expertise in the specific legal issues affecting this matter), and forwarded two separate e-mail messages to his clients on January 30 and February 1, conveying his conclusions. He sent a bill for his services on February 2. On Saturday, February 4, Ms. Smith and Mr. Coelho sent him an e-mail message terminating his representation of them, which he received on Monday, February 6.

    CONCLUSIONS AND SANCTIONS

    It is clear from the evidence presented in this matter that Respondent did not neglect his clients' legal matter in violation of M. Bar R. 3.6(a)(3), nor engage in any dishonesty, fraud, deceit or misrepresentation in violation of M. Bar R. 3.2(f). The Panel concludes, however, that Respondent violated M. Bar R. 3.6(a), in that Respondent failed to "take reasonable measures to keep the client informed on the status of the client's affairs."

    Reasonableness is determined by what a prudent lawyer would have done under like circumstances. Respondent was clearly on notice of his clients' anxiety about the status of the pending matter and their wish for a status report. The responsibility under Rule 3.6(a) to take reasonable measures to keep the client informed rests upon the attorney, and under the circumstances of this case, Respondent did not act as a reasonably prudent attorney should have to communicate with his clients. In this case, notwithstanding Respondent's expressed antipathy to "empty" client communications, the Panel concludes that a simple status message via telephone or e-mail would not have been an "empty" communication; rather, it would have sufficed to meet the Respondent's professional obligation to take reasonable measures to keep his clients informed.

    With regard to an appropriate sanction, the Panel has seriously considered, but ultimately rejects, a dismissal with a warning pursuant to M. Bar R. 7.1(e)(3)(B). While Respondent's misconduct was minor and was not due to any neglect nor bad faith and Respondent's misconduct did not cause substantial injury to the clients, the public, the legal system, or the profession, the Panel is unable to conclude that there is little likelihood of a repetition by the attorney, for two reasons. First, the Panel's review of Respondent's past disciplinary history suggests that Respondent has experienced previous difficulties with client communication. Second, the Panel is concerned by Respondent's evidently sincere testimony regarding his aversion to "empty" client communications, and notes that to the extent such communications are necessary to keep clients reasonably informed as to the status of pending matters, or to respond to a client's inquiries as to the status of a pending matter, they are not merely "empty" communications, but rather an affirmative obligation of the attorney under M. Bar R. 3.6(a).

    Accordingly, the Panel hereby determines that the appropriate sanction is a reprimand pursuant to M. Bar R. 7.1(e)(3)(C), and Respondent is accordingly so reprimanded.


    For the Grievance Commission

    Benjamin P. Townsend, Esq., Chair
    David Nyberg, Ph.D.
    William E. Baghdoyan, Esq.

    Board of Overseers of the Bar v. Warren C. Shay, Esq.

    Download Decision (PDF)

    Docket No.: GCF 05-098

    Issued by: Grievance Commission

    Date: Decmeber 18, 2005

    Respondent: Warren C. Shay, Esq.

    Bar Number: 000190

    Order: Reprimand

    Disposition/Conduct: Conduct Unworthy of an Attorney; Conflict of Interest; Simultaneous Representation


    REPORT OF FINDINGS OF PANEL C OF THE GRIEVANCE COMMISSION

    On November 14, 2005, due notice having been properly and seasonably given, Panel C of the Grievance Con1n1ission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), to determine whether there were grounds for the issuance of a reprin1and or whether probable cause existed for the filing of an information concerning alleged misconduct by Respondent, Warren C. Shay, Esquire (Shay) as described in the Petition dated September 6, 2005 filed by the Board of Overseers of the Bar (the Board).

    Assistant Bar Counsel, Aria eee, Esquire, represented the Board, and S. Peter Mills, Esquire, represented Shay, both counsel and Shay being present at the hearing. The complainant Thomas N. Dube was also in attendance. The Panel incorporates the following stipulations of fact which the parties have entered into which the Panel so finds:

    1. Since 1974, Warren C. Shay, Esquire of Skowhegan, Maine has been an attorney duly admitted to the Maine Bar, actively practicing from an office in Skowhegan and subject to the Maine Bar Rules. During the tenure of his practice in the Maine Bar, Attorney Shay has received two prior dismissals with a warning resulting from prior complaints in 1994 and 2003.

    2. On March 29, 2005, Thomas N. Dube filed against Attorney Shay a grievance complaint arising from the purchase by Dube and two other buyers in common of 27 acres of land from sellers Walter Lamont and Milan Davis on October 9, 2003.

    3. Respondent prepared the deed for the seller and a title opinion for the buyers. The transaction was closed in Respondent's office. Respondent represented both the seller and the buyers with oral consent of the parties but without their informed written consent.

    4. Preceding the Dube land purchase, Respondent had represented the sellers Walter Lamont and Milan Davis in preparing a deed for the sale of an adjoining lot to Anthony Carter. At that time, in June of 2003, the land was owned by both Walter Lamont and Milan Davis.

    5. Respondent prepared the deed to Carter under instructions from the sellers Lamont and Davis and did not represent the buyer. The deed to Carter was signed by the sellers in Respondent's office on June 30, 2003, but without Carter present. The signing was overseen by Attorney Shay's partner, Attorney Michael Talbot. No money changed hands at Respondent's office and no funds were held by Respondent. Instead, Carter paid the purchase price directly to the LeClairs (former owners) and some money to Davis and Lamont, who then used the money to make improvements to the lot.

    6. Although signed by the two sellers in June 2003, the deed to Carter was not filed because Carter's information for the transfer tax form had not been provided and no arrangements had yet been made to pay the transfer tax and recording fees. Both Davis and Lamont were advised oral1y and in writing that the deed could not be filed without fulfilling these requirements.

    7. No information or funds necessary for filing of the deed were received by Respondent's office and the Carter deed of June 30, 2003, was never recorded. Instead, the Carter transaction was consummated by the filing of a new deed, dated June 3, 2004, after Carter persuaded the reluctant sellers to remove certain setback and building height restrictions. Thomas Dube was unaware that the restrictive covenants on the abutting Carter parcel bad changed between the 2003 sale and the 2004 filing of the amended deed.

    8. The Carter and Dube lots, which abut each other, are located along the west side of the Old Greenville Road in Monson, Main