Board of Overseers of the Bar v. Donald F. Brown, Esq.
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Docket No.: 07-323
Issued by: Grievance Commission
Date: April 6, 2011
Respondent: Donald F. Brown, Esq.
Bar Number: 008541
REPORT OF FINDINGS AND ORDER
OF PANEL D OF THE GRIEVANCE COMMISSION
On February 28, 2011, with due notice, Panel D of the Grievance Commission conducted a disciplinary hearing concerning alleged misconduct by the Respondent, Donald F. Brown, Esq. This disciplinary proceeding was commenced on August 20, 2009 by the Board of Overseers of the Bar's filing of a disciplinary petition. The February 28, 2011 hearing was open to the public pursuant to Maine Bar Rule 7.1 (e)(l).
At the hearing the Board of Overseers was represented by Assistant Bar Counsel Jacqueline Gomes and Mr. Brown was represented by Walter McKee, Esq. There was no objection to the members of Panel D by the parties, which for this hearing consisted of William Baghdoyan, Esq., Acting Chair, Tobi Schneider, Esq. and Kathleen A. Schultz.
By agreement of the parties, Board's Exhibits # 1-10, revised exhibit #11 and exhibits # 12-A, 12-B, and 12-C were admitted into evidence as well as Respondent's Exhibit #1, which consisted of the Board's original exhibit #11.
Sworn testimony was taken from the complainant, Jack D. Bullock, and from the Respondent, Donald F. Brown.
Respondent Donald F. Brown, Esq. of Brewer, Maine is and 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 Brown represented Sally Bullock, Mr. Bullock's ex-wife in a contested protection from abuse and divorce action against Mr. Bullock, and Mr. Bullock filed a complaint regarding that representation on October 4, 2007. The complaint alleged, in pertinent part, that Mr. Brown had received confidential attorney-client documents that concerned notes of meetings with his counsel, Charles Budd, Esq. and thoughts or ideas that might be pursued during protective order proceedings and the divorce proceedings, and that Attorney Brown knowingly utilized these confidential documents in Court during his representation of Mrs. Bullock. These documents consisted of photo-copies of some pages of a notebook that Mr. Bullock used to note his thoughts and impressions of events in his daily life, including the divorce and protective order court proceedings, as well as more mundane things such as his appointments and his grocery lists.
These copied pages of Mr. Bullock's notebook were provided to Attorney Brown by his client Sally Bullock at a protective order hearing in the Newport District Court in January 2007. Attorney Brown had not requested that his client provide these documents to him, nor did he have any warning that the documents would be provided. He was handed the documents in the courtroom, just prior to the hearing, by his client. The notebook, along with a computer (which is not in issue in this hearing) were taken from the marital home by Mrs. Bullock and pages of the notebook were copied by Mrs. Bullock. The notebook was returned to Mr. Bullock prior to the January 2007 hearing, as it was clear from his testimony that he had the notebook in his possession on the day of the protective order hearing.
Attorney Brown did utilize the notebook copies to ask Mr. Bullock at least one question at the protective order hearing, regarding whether Mr. Bullock had written a note in the notebook to "speak softly" and "not over-emphasize facts." Attorney Brown testified at the hearing that he had recently reviewed the tape recording of the court hearing in question and that he had asked Mr. Bullock at that hearing what these phrases meant, and that Mr. Bullock denied knowledge of them.
The panel finds that an examination of the copied notebook pages does not reveal them to be obvious lawyer-client documents or even notes of lawyer-client meetings between Mr. Bullock and his attorney, Mr. Budd. Instead, they appear at most to contain some of Mr. Bullock's impressions and notes to himself regarding his cases against his wife. There is no clear indication that these notes contain any confidences exchanged between the lawyer and the client or that Mr. Bullock ever communicated these notes and impressions to his attorney. The panel is convinced that on their face, the notebook copies are not so obviously attorney -client communications that Attorney Brown should have been on notice to immediately return them.
The finding that these notes were not actually attorney - client communications is supported by the fact that Attorney Budd never requested the return of these notes nor did he mention them at all to Mr. Brown during the pendency of the cases. There were apparently several conversations between Mr. Budd and Mr. Brown regarding a computer that Sally Bullock took from the marital home, but none regarding the notes.( Though the computer was part of Mr. Bullock's original complaint to the Board, the computer was not part of the allegations brought by the Board in its petition.)
The panel also finds that this case is distinguishable from the case of Corey v. Norman, Hanson and DeTroy, 1999 ME 196, because in that case there was no question that the documents were in fact confidential, although they were inadvertently delivered to the opposing party. Here, the documents were intentionally delivered to Mr. Brown by his client, but they were not obviously confidential, but were rather, on their face, the apparent personal notes of Mr. Bullock with no indication that they had been shared with or discussed with his attorney.
Because the panel finds the copies of the notebook pages delivered to Attorney Brown by Sally Bullock do not appear to be confidential, and thus Attorney Brown should not have presumed or surmised that they were privileged communications between Mr. Bullock and his attorney, the Panel concludes that Attorney Brown committed no violation of the Maine Bar Rules. Therefore the Panel dismisses the petition against him.
For the Grievance Commission
William E. Baghdoyan, Esq. Chair
Tobi L. Schneider, Esq.
Ms. Kathleen A. Schulz