Board of Overseers of the Bar v. Maeghan Maloney, Esq.
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Docket No.: GCF# 18-094
Issued by: Grievance Commission
Date: May 20, 2019
Respondent: Maeghan Maloney, Esq.
Bar Number: 008792
Disposition/Conduct: Communication; Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)
On May 20, 2019, with due notice, a panel of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, District Attorney (DA) Maeghan Maloney. The Board of Overseers of the Bar (the Board) commenced this proceeding by the October 18, 2018 filing of a Formal Disciplinary Petition.
At the hearing on that Petition, DA Maloney appeared and was represented by her counsel, Attorney Christopher Taub. The Board was represented by Bar Counsel, Aria Eee.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a settlement of the disciplinary matter. The proposed sanction report was submitted to the Clerk for the Commissions advance review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Grievance Commission Panel makes the following findings and issues this resulting disposition:
Respondent DA Maeghan Maloney (DA Maloney) of Augusta, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, DA Maloney is subject to the Maine Bar Rules, and the Maine Rules of Professional Conduct (M.R.P.C.). DA Maloney was admitted to practice in 1998 and has no prior bar discipline.
According to the parties stipulations, the Grievance Commission finds the following relevant facts:
On January 1, 2013, Ms. Maloney was sworn in as District Attorney for Kennebec and Somerset Counties. At that time, the District Attorneys office was prosecuting Eric Bard, who had been indicted on August 9, 2012, with multiple counts of serious criminal conduct. Throughout much of the proceedings, Bard had been represented by two defense counsel. During a June 12, 2014 hearing, one of those attorneys stated that DA Maloney (who was not present at the hearing) had engaged in improper conduct. DA Maloney was not present because an Assistant Attorney General was assigned to the case.
On June 23, 2014, DA Maloney, at the direction of the trial judge, appeared in the judges chambers. In addition to the trial judge, a court reporter and clerk were present. The trial judge questioned DA Maloney to determine whether she had engaged in misconduct, and DA Maloney responded to the questions.
The trial judge subsequently conducted jury selection on August 8, 2014. Neither DA Maloney nor one of Bards co-counsel were present. At that time, defense counsel who was present remarked that he understood that the judge had engaged in ex parte communications with DA Maloney regarding the case. The judge stated that he had met with DA Maloney to determine whether there had been an ethical breach and that, as a result of the meeting, he was satisfied that there had been no breach. He also stated that the communications he had with DA Maloney were not relevant to the case. Based upon the courts response, defense counsel did not request a transcript of the June 23, 2014 chambers conference.
On August 27, 2014, Bard entered a conditional guilty plea. On July 24, 2015, the trial judge sentenced Bard, and he entered a judgment of conviction on July 28. Bard appealed to the Law Court. At the oral argument in September 2016, which included questions concerning the June 23, 2014 chambers conference, Bards co-counsel learned of that conference and the existence of a related transcript. After argument, defense counsel moved for production of that transcript. The Law Court then stayed the appeal to allow for further proceedings in the Superior Court. After obtaining the transcript, Bard moved for the trial judges recusal and to vacate the judgment of conviction. The trial judge recused himself, and a second trial judge denied Bards motion to vacate. Bard appealed to the Law Court.
In its decision dated March 15, 2018, the Law Court vacated all adjudicatory action taken after the June 23, 2014 chambers conference. State v. Bard, 2018 ME 38. The Court held that Bard's decision not to request a copy of the chambers conference transcript at the August 8, 2014 jury selection proceeding was based "on the courts assurances that the ex parte conference &lsqou;had absolutely nothing to do with the motion to dismiss’ and had ‘nothing to do with this case.’" Id. at ¶ 36. The Court specifically stated:
"As is now evident, the ex parte conversation at issue here did include a discussion (between the court and DA Maloney) of several areas of substance pertaining to the pending criminal case." (Bard, 2018 ME 38, ¶ 48).
Pursuant to M. Bar R. 2(b), Bar Counsel initiated a sua sponte docketing of this matter following the Law Courts March 15, 2018 decision. That docketing primarily occurred because, at the time of the chambers discussion between the trial judge and DA Maloney, Bards competency and a motion to dismiss were pending, contested issues before that court. Moreover, DA Maloneys additional comments regarding defense counsel were improper, considering the totality of the circumstances.
With some exceptions, the Maine Rules of Professional Conduct prohibit attorneys from engaging in ex parte communications with a judge concerning a pending proceeding. Given their important role in the legal community, prosecutors are relied upon to ensure the fair administration of justice. DA Maloney failed to comply with this obligation, wrongly believing that the judges initiation of the proceedings and the presence of the court reporter and clerk required her to participate in the conference without the presence of defense counsel. As a result, the parties agree and the Commission so finds that DA Maloney engaged in violations of Maine Rules of Professional Conduct 3.5(b) [ex parte communication]; and 8.4(d) [conduct prejudicial to the administration of justice].
The panel understands that the chambers conference DA Maloney attended presented unique circumstances. The trial judge directed DA Maloney to appear and answer his questions. Nevertheless, DA Maloney, in response to the judges questions, did engage in communications regarding the pending prosecution of Bard. The panel accepts DA Maloneys representation that she understood that she was required to answer the trial judges questions and that, because the conference was being recorded, a transcript would be made available to defense counsel if the trial judge deemed it appropriate. DA Maloney now recognizes and admits that she should have been more cautious in her communications with the trial judge.
As the Court and Grievance Commission has consistently held, the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public arising after attorney misconduct. Since the evidence supports a finding and DA Maloney agrees that she did in fact violate the Maine Rules of Professional Conduct, the Commission must now issue an appropriate sanction. Pursuant to M. Bar R. 13(e)(6)(8), prior to imposing a sanction, the Commission has considered the existence or absence of any prior sanction record.
Moreover, the Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of appropriate sanctions. Bar Rule 21 states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyers misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, DA Maloney agrees that her misconduct violated duties that she owed to the profession. DA Maloney did engage in an improper discussion with the trial court, but she believed she was required to respond to the courts directive to appear for that meeting. The Commission also finds that while DA Maloney did communicate information relevant to a determination of Bards competency, she subjectively believed that she was required to provide this information to ensure that she was completely and fully responding to the trial judges questions. DA Maloney recognizes that she should not have commented on Bards defense counsel.
As a result of the ex parte communications, the Law Court vacated Bards judgment of conviction, which thus resulted in further judicial proceedings. While this is an injury to the administration of the legal system, the Law Court recognized that this arose from the trial courts decision to address the allegation of misconduct in an ex parte conference, rather than in the presence of opposing counsel. Further, the injury was compounded when the trial judge incorrectly assured defense counsel that the chambers conference was not relevant to the ongoing prosecution. As the Law Court found, defense counsels decision to not request a transcript of the conference was based on this assurance. DA Maloney was not present when the trial judge gave this assurance, and she thus had no opportunity to clarify the trial judges recollection regarding the matters discussed. The panel accepts DA Maloneys representation that she would have intervened had she been present.
Regarding aggravating factors, DA Maloney has substantial experience in the practice of law. In mitigation, DA Maloney has admitted her misconduct, has expressed remorse for that misconduct and has been cooperative in the resolution of this matter.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Commission finds that an Admonition is the appropriate sanction to address the misconduct by DA Maloney.
Therefore, the Commission accepts the agreement of the parties, including DA Maloneys separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is an Admonition to DA Maeghan Maloney. That Admonition is now hereby issued and imposed upon her pursuant to M. Bar R. 21(b)(1).1
Date: May 20, 2019
Teresa M. Cloutier, Esq., Panel Chair
Thomas H. Kelley, Esq., Panel Member
Marjorie Medd, Public Member
1An admonition is not discipline, although it does constitute a sanction. SeeM. Bar 21(b)(1).