Board of Overseers of the Bar v. Robert J. Rubin
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Docket No.: GCF 10-084
Issued by: Grievance Commission
Date: May 9, 2011
Respondent: Robert J. Rubin, Esq.
Bar Number: 008448
Order: Dismissal with Warning
Disposition/Conduct: Improper Communication with an Adverse Party; Conduct Prejudicial to the Administration of Justice; Conduct Unworthy of an Attorney
REPORT OF FINDINGS OF PANEL D OF THE GRIEVANCE COMMISSION
On April 25, 2011, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing, in accordance with Maine Bar Rule 7.1(e)(2) and open to the public, on a complaint concerning the Respondent, Robert J. Rubin, Esq. 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 III, Esq.
At the hearing, the Panel heard testimony from the following witnesses:
Robert J. Rubin, Esq. Robert J. Levine, Esq. Don Y. Mandell Carmen G. Barreto
The Board’s exhibits 1-19, and Respondent’s exhibits 1-11, were admitted without objection.
Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings in this matter:
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. Respondent represented Ms. Barreto in connection with her divorce from Mr. Mandell, and various post-divorce matters. Mr. Mandell was represented by Attorney Levine in those matters.
In the divorce judgment, dated October 10, 2007, Mr. Mandell was awarded the parties’ embroidery business, in connection with which Ms. Barreto was ordered to provide him with a computer key. After an unexplained delay of several months, Mr. Mandell filed a motion for relief from judgment, alleging that the computer key was damaged and inoperable. A hearing on the computer key issue was scheduled for August 12, 2008.
On August 5, 2008, Ms. Barreto and Mr. Mandell met, and she gave him a hand-written proposal that she would get the computer running, in return for which he would pay her $1,000 and release all further claims arising out of the divorce. Mr. Mandell forwarded that proposal to Attorney Levine, who contacted Respondent. Attorney Levine proposed that Mr. Mandell pay $750 in escrow, to be held by Attorney Levine until Mr. Mandell confirmed that the computer system was working properly. He did not address the requested release in his written communication with Respondent, but he testified that he clearly informed Respondent in a telephone conversation that Mr. Mandell would not execute a release. Respondent replied that a payment of $750 would be acceptable if it were made directly to Ms. Barreto, rather than in escrow, but that a general release of claims would be required. Respondent and Attorney Levine did not resolve the discrepancies between their positions, including the matter of the proposed general release, but Attorney Levine agreed that Mr. Mandell would meet in person with Ms. Barreto in an effort to resolve their dispute prior to the scheduled hearing.
Over the intervening weekend, Ms. Barreto reiterated to Respondent that she would require a general release, and requested that Respondent draft such a release and forward it to her. Respondent did so early on Monday morning, August 11. Respondent did not forward a copy of the draft release to Attorney Levine; he testified that he was preoccupied by the press of other business, and did not make any considered decision as to sharing the draft release with opposing counsel – in fact, that it never crossed his mind.
Later that morning, Ms. Barreto met with Mr. Mandell at the community room of St. John the Baptist Episcopal Church in Thomaston, Maine, with their pastor present. She recorded their discussion, and a transcript of that recording was admitted in evidence. Ms. Barreto demonstrated to Mr. Mandell how to operate the computer key. She then stated to Mr. Mandell:
[Ms. Barreto]: I do need you to do one thing. I have a release form here that the lawyer put together. [Mr. Mandell]: Oh, alright.
The transcript then shows a pause while Mr. Mandell read the release, and then the parties’ discussion resumes as follows:
[Mr. Mandell]: Yeah alright. [Ms. Barreto]: And now, that will be it then. We are done. We are completely finished with this case and there won’t be any need for any further discussions or motions or anything like that! Correct? [Mr. Mandell]: That’s correct.
Mr. Mandell then signed the release in duplicate, retaining one counterpart original. He testified at the hearing that he understood that the release dealt only with the computer key, and not with any other matters arising out of the divorce.
Mr. Mandell contacted Attorney Levine and notified him that the pending dispute regarding the computer key was resolved. He did not tell Attorney Levine he had signed the release, and did not give him a copy. On the basis of the information provided to him by his client, however, Attorney Levine filed a withdrawal of the pending motion.
Several months later, on behalf of Mr. Mandell, Attorney Levine filed a motion to compel an accounting with respect to the financial settlement between the parties. In opposition to that motion, Respondent raised the general release signed by Mr. Mandell. The District Court set aside the release on the basis of “defense overreaching,” stating:
The defense, knowing that plaintiff’s lawyer had not agreed to a release, should not have caused the plaintiff to be in a position of deciding whether to sign a release to solve the problem that was the subject of the pending motion.
The Law Court dismissed Ms. Barreto’s appeal of that order as interlocutory, and Mr. Mandell’s motion remains pending before the District Court. Mr. Mandell subsequently filed a grievance complaint asserting that he was the subject of an “indirect contact” by Respondent while he was represented by counsel.
Because Respondent’s actions in this matter occurred prior to August 1, 2009, this matter is governed by the Maine Code of Professional Responsibility then in effect (the “Code”). The abrogation of the Code and its replacement by the Maine Rules of Professional Conduct effective August 1, 2009, do not affect the responsibility of the Panel to review Respondent’s conduct under the provisions of the Code in effect at the time of the conduct in question. Board of Overseers of the Bar v. Dubois, No. BAR-09-7 (Dec. 28, 2009) (slip op. at 6, n. 2).
Respondent’s actions potentially implicated former Rule 3.6(f) (causing another to communicate with a represented party without consent of that party’s attorney), and/or former Rule 3.2(f)(4) (conduct prejudicial to administration of justice). Additionally, a finding of a violation of either of these provisions could also support a finding of a violation of former Rule 3.1(a) (conduct unworthy of an attorney).
Causing Another to Communicate with a Represented Party
Former Rule 3.6(f) provided, in pertinent part:
During the course of representation of a client, a lawyer shall not . . . cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the prior consent of the lawyer representing such other party . . ..
(Emphasis added.) The Board has cited numerous disciplinary cases, and one opinion of the Professional Ethics Commission, for the proposition that an attorney may not cause another to communicate with a represented party, but those authorities are inapposite here because it is undisputed that Attorney Levine expressly consented to the communication between Ms. Barreto and Mr. Mandell, notwithstanding his knowledge that the issue of the general release remained unresolved. Accordingly, the Panel concludes that Respondent did not violate former Rule 3.6(f).
Failure to Provide Opposing Counsel with a Copy of the Draft Release
The Board asserts that by failing to provide Attorney Levine with a copy of the draft release, which Respondent knew or should have known Ms. Barreto would present to Mr. Mandell, Respondent engaged in “conduct that is prejudicial to the administration of justice” in violation of former Rule 3.2(f)(4). In support of that position, the Board cites two opinions of the Professional Ethics Commission of the Maine Board of Overseers of the Bar. While neither opinion appears directly controlling in this matter, those opinions do provide some guidance for the Panel.
Opinion No. 35, dated January 17, 1983, holds that where a judge in a litigated case requests the prevailing attorney to prepare a final decree or judgment, that attorney has an obligation to provide opposing counsel with a copy of the draft proposal. That opinion, however, was based solely on former Rule 3.7(h)(2), barring written communication with a judge or tribunal on the merits of a contested matter without furnishing a copy of the communication to opposing counsel, and is therefore not directly applicable to the situation before the Panel.
Opinion No. 93, dated February 15, 1989, holds that an attorney may communicate directly with a represented party where the communication is authorized by law, but adds:
A word of caution remains in order, however, in that the mere fact that the direct communication is authorized by statute in no way detracts from the fundamental application of Rule 3.6(j) insofar as the rule continues to require that any communication concerning the subject matter of the representation involve opposing counsel.
While no specific language that “require[d] that any communication concerning the subject matter of the representation involve opposing counsel” appeared in former Rule 3.6(f) at the time of the communications at issue in this matter, the Panel concludes that even though the communication between Ms. Barreto and Mr. Mandell was authorized by Attorney Levine, Respondent knew that the release was intended to be given legal effect in the dispute between the parties, and he therefore should have provided a copy of the proposed release to Attorney Levine. His failure to do so constituted conduct prejudicial to the administration of justice in violation of former Rule 3.2(f)(4), as well as conduct unworthy of an attorney in violation of former Rule 3.1(a).
In considering an appropriate sanction under the Bar Rules, the Panel must consider the following factors set forth in M. Bar R. 7.1(e)(3)(C):
(i) whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
Respondent’s actions in this matter violated duties owed to the legal system and to the profession.
(ii) whether the attorney acted intentionally, knowingly, or negligently;
The Panel concludes that Respondent’s misconduct was negligent, but that he did not intentionally or knowingly violate the Bar Rules.
(iii) the amount of actual or potential injury caused by the attorney’s misconduct;
The dispute over the enforceability of the release, based on Respondent’s failure to share it with Attorney Levine at the time he prepared it, appears significantly to have prolonged the course of the litigation between Ms. Barreto and Mr. Mandell.
(iv) the existence of any aggravating or mitigating factors.
As an aggravating factor, the Panel notes that Respondent was well aware that Attorney Levine had objected strenuously to Ms. Barreto’s demand for a general release, and therefore under these circumstances, Respondent should have considered the risk that providing a draft release to his client might result in Mr. Mandell being put in the position of needing to make a legally significant decision without consulting Attorney Levine. As a mitigating factor, Respondent testified that his failure resulted simply from the press of other business, and was not a part of any conscious plan or subterfuge. Respondent has no record of prior discipline.
In view of the foregoing factors, and in accordance with M. Bar R. 7.1(e)(3)(C), the Panel concludes that an appropriate sanction in this matter would be a dismissal with a warning. Accordingly, the Panel hereby dismisses the complaint with the following warning to Respondent:
Even where opposing counsel has consented to communications between an attorney’s client and opposing counsel’s client, an attorney who prepares a document for his client, such as a release, that is intended to have legal effect in the matter, that he knows will be provided to the other party, and that the attorney knows has not been agreed to by opposing counsel, must share that proposed document with opposing counsel.
For the Grievance Commission
Benjamin Townsend, Esq., Chair
Mary A. Denison, Esq.