Board of Overseers of the Bar v. Richard L. Rhoda, Esq.

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Docket No.: GCF #19-089

Issued by: Grievance Commission

Date: January 7, 2021

Respondent: Richard L. Rhoda, Esq.

Bar Number: 000124

Order: Reprimand

Disposition/Conduct: Communication, Confidentiality, Prejudicial Conduct


REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION
M. Bar R. 13(e)

On December 2, 2020, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7), concerning misconduct by the Respondent, Richard L. Rhoda, Esq. This disciplinary proceeding was commenced by the filing of a Formal Disciplinary Charges Petition by the Board of Overseers of the Bar (the "Board") on April 16, 2020.

At the hearing, Attorney Rhoda appeared and represented himself. The Board was represented by Assistant Bar Counsel Justin W. Andrus. Before the hearing, Assistant Bar Counsel Andrus had informed the complainant, Ms. Doe, of the parties’ intention to submit a stipulation of facts, which obviated the need for her testimony. Ms. Doe did not appear. The parties had no objection to the composition of the Panel.

Prior to the disciplinary proceeding, the parties stipulated to the factual predicate of the matter (the "Stipulation"), which was accepted by the Panel Chair. Although the parties agree on the facts, they disagree on whether the facts represent a violation of the Maine Rules of Professional Conduct.

Having reviewed the Stipulation and the testimony of Mr. Rhoda at the hearing, the Panel makes the following findings:

FINDINGS OF FACT

1. Attorney Rhoda has been, at all times relevant hereto, an attorney duly admitted to and engaging in the practice of law for 45 years in Maine. As such, Attorney Rhoda is subject to the Maine Bar Rules ("M. Bar R.") and the Maine Rules of Professional Conduct ("M.R.P.C."). Attorney Rhoda was admitted to the Maine Bar in 1974 and is currently a solo practitioner in Houlton, Maine.

2. According to her complaint, Jane Doe contacted Attorney Rhoda on or about January 25, 2019 for potential representation in a divorce.

3. Ms. Doe met with Attorney Rhoda at his law office on January 28, 2019. They discussed relevant family information and facts forming the basis for the divorce. Ms. Doe told Attorney Rhoda that she had a Protection from Abuse Order (the "protection order") against her spouse, though she did not provide a copy to Attorney Rhoda. They did not have a substantive discussion about the protection order at that time. Ms. Doe told Attorney Rhoda that she was concerned about the cost of the divorce and the anticipated amount of his legal fees. He quoted her an estimate and indicated that they could negotiate a payment plan. They arranged to meet the next day so that Ms. Doe could sign the divorce documents. At that time, Attorney Rhoda believed they had an attorney-client relationship.

4. Soon after that meeting, Ms. Doe began having second thoughts about filing the divorce and whether she could afford to pay an attorney to represent her. As a result, Ms. Doe did not appear for the pre–arranged meeting on January 29th to sign the filing documents. Instead, on January 30, 2019, Ms. Doe contacted Attorney Rhoda and informed him that she had changed her mind and no longer needed his services. During that conversation, Attorney Rhoda felt obligated to inform Ms. Doe that he had seen her estranged husband in the courthouse the day before. Attorney Rhoda had inquired of her husband whether he had retained counsel so that Attorney Rhoda could serve him with divorce papers. Within her complaint, Ms. Doe conveyed her distress that Attorney Rhoda notified her husband as she believes that the disclosure put her at risk of further harm. Attorney Rhoda asserts that he only mentioned the service of divorce paperwork, but no substantive issues concerning the divorce. Attorney Rhoda explains that he only briefly spoke to the husband in an attempt to save his client the costs of service by a sheriff. Ms. Doe never returned to see Attorney Rhoda and he did not charge her for the time he had spent on the matter.

5. On February 15, 2019, Ms. Doe filed a complaint against Attorney Rhoda for failing to maintain her confidentiality about the potential divorce matter. Attorney Rhoda responded to the grievance matter on or about March 4, 2019, denying any professional misconduct. Through his responses, Attorney Rhoda explained that Ms. Doe failed to inform him that she did not want her husband to know of her impending divorce action. Ms. Doe contends that lawyers, including Attorney Rhoda, should readily know that domestic violence survivors are concerned with the safety of their information and their physical beings. Attorney Rhoda expressed his understanding of that belief and reiterated that at the time, he was not aware of Ms. Doe’s concern about disclosure of her information.

VIOLATIONS

Based upon the findings of fact set forth above, the Panel finds that Attorney Rhoda violated M.R.P.C. 1.4(a), 1.6(a), and 8.4, which are as follows:

RULE 1.4 COMMUNICATION
(a) A lawyer shall:
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

RULE 1.6 CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not reveal a confidence or secret of a client unless, (i) the client gives informed consent;

RULE 8.4 MISCONDUCT
It is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice;

Ms. Doe chose not to engage Attorney Rhoda to represent her in a divorce action, but the Panel agrees with his assertion that an attorney-client relationship existed between them as a result of their meeting on January 28, 2019. While there was no &quotmeeting of the minds&quot on how Ms. Doe would pay his fee, Attorney Rhoda had elicited sufficient information during the meeting to prepare a divorce complaint for her to sign the next day. Clearly, the nature of their communication, including Ms. Does disclosure of personal matters, was more than sufficient to create a reasonable expectation on her part that Attorney Rhoda had undertaken to advise her. See Maine Professional Ethics Commission Opinion # 61 (September 4, 1985). This conclusion is further supported by Ms. Doe’s statement to Mr. Rhoda during a phone call on January 30th that she "no longer needed his services." See Paragraph 4 in the above Findings of Fact.

Attorney Rhoda testified that Ms. Doe did not mention anything about the protection order at first during their meeting, and she showed "no particular concern" about it. She did not provide a copy to him, and he had no substantive discussion with her about it. He did not discuss service or how it could best be effected in light of his client’s circumstances. In the Panels view, however, the possible methods and timing of service of a divorce complaint should always be discussed with a client, especially one who has a protective order against an abusive spouse. Ms. Doe’s safety should have been a primary concern to Attorney Rhoda in agreeing to represent her in a divorce. He should have talked with her about the options and timing of service, and whether Ms. Doe felt the need to make advance arrangements for a safe place to be around the time of service should her husband react in a volatile fashion.

Attorney Rhoda appeared to place the burden on Ms. Doe to tell him that she feared her husband so that he could have decided on another form of service ("If I had been informed that she was fearful of physical action against her I would not have spoken to her husband but would have simply employed a Deputy Sheriff to make service upon him." Respondent’s Answers to Formal Disciplinary Charges Petition, paragraph 7). However, it was Attorney Rhodas duty to inquire further of Ms. Doe about the protective order and to fully discuss service, and the concerns around service, with her. Accordingly, the Panel finds that his failure to do so constitutes a violation of Rule 1.4(a)(2) of the M.R.P.C.

By failing to obtain Ms. Doe’s informed consent before he approached her husband to ask whether he had retained counsel on whom Attorney Rhoda could serve the divorce papers, the Panel finds that Attorney Rhoda violated Rule 1.6(a) of the M.R.P.C. Pursuant to Rule 1.0(e) of the M.R.P.C., "informed consent" means a person’s agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." Since Attorney Rhoda never discussed with Ms. Doe the possible methods of effecting and timing of service, as well as the possible risks to her safety engendered by each alternative, Ms. Doe did not give her informed consent for Attorney Rhoda to reveal to her husband that she intended to start divorce proceedings.

Finally, the Panel finds that Attorney Rhoda violated Rule 8.4(a) of the M.R.P.C. by failing to communicate with his client about her protection order and possible concerns about her safety regarding service of the divorce complaint, and by failing to obtain her informed consent before disclosing Ms. Doe’s husband her intent to begin divorce proceedings.

PRIOR DISCIPLINARY HISTORY

Attorney Rhoda has the following sanction record on file with the Board of Overseers of the Bar:

In 1995, following a hearing before a panel of the Grievance Commission on two complaints, Attorney Rhoda received a reprimand for violating former Maine Bar Rules 3.4(c) and (d) for representing both sides with differing interests in a real estate transaction, and failing to fully disclose the multiple representation and to obtain consent.

In 2001, Attorney Rhoda received two dismissals with warning for committing a minor violation of former M. Bar R. 3.4(c)(1) in giving advice that favored the interest one client over another; and for failing to get the informed consent of both clients whom he was simultaneously representing as required by former M. Bar R. 3.4(c)(2).

In 2003, following a hearing before a panel of the Grievance Commission, Attorney Rhoda received a reprimand for violating former M. Bar R. 3.2(f)(3) by engaging "in conduct involving dishonesty, fraud, deceit or misrepresentation; for violating former M. Bar R. 3.4(f)(1)(2) relating to the substantial risk that his "significant financial and personal relationship" with a client imposed on his representation of her; for violating former M. Bar R. 3.4(c)(d) by failing to get the informed consent of clients whom he was simultaneously representing; and for violating former M. Bar R. 3.5(b)(2)(ii) by failing to withdraw from his representation of a client and her Trust after learning that she had made misrepresentations to buyers and had perpetrated a fraud.

In 2006, following a hearing before a panel of the Grievance Commission, Attorney Rhoda received a reprimand for former M. Bar R. 3.2(f)(1 and 3.4(b)(1), (c)(1) and d(1)(i) relating to a conflict of interest resulting from his simultaneous representation to different clients and his failure to withdraw from representation of both after he identified the conflict of interest.

In 2011, following a hearing before a panel of the Grievance Commission, Attorney Rhoda received a dismissal with a warning for violating M.R.P.C. 1.4(a)(4) and (b), and M.R.P.C. 8.4(d) for failing to turn discovery over to a client in a criminal case as requested by the client and as directed by the trial court.

SANCTIONS

The purpose of a disciplinary proceeding is not to punish, but rather to protect the public from an attorney who has failed in his professional duty to the client, the public, the courts, or the legal profession. In committing the violations found herein, the Panel finds that Attorney Rhoda acted negligently, rather than intentionally. His conduct betrayed his clients belief in the confidentiality of personal disclosures to him, which caused her some emotional injury but not of a substantial nature. The vulnerability of his client and his prior disciplinary history are aggravating factors that the Panel has considered in deciding on an appropriate sanction. The Panel has also considered the following factors in mitigation of imposing a more severe sanction: the violations found herein show no pattern of repeat conduct from violations found in his past discipline; Attorney Rhoda did not have a dishonest or selfish motive in taking, or not taking, the actions that he did; and he was cooperative throughout the investigation and disciplinary proceeding.

Accordingly, the Panel concludes that the appropriate discipline in disposition of this matter is as follows:

1. Attorney Rhoda is hereby REPRIMANDED, pursuant to M. Bar R. 21(b)(5), and placed on PROBATION, pursuant to M. Bar R. 21(b)(4) for a period of six months from the date of this Report. The conditions of Probation shall include the following:

A. Attorney Rhoda shall complete 3 hours of an accredited continuing legal education ("CLE") program that is specific to representing survivors of domestic abuse.

B. Attorney Rhoda shall complete 1 hour of an accredited CLE program on ethics that focuses on effective communication with clients.

C. At the end of the period of probation, Attorney Rhoda shall provide to the Grievance Commission his certificates of attendance to the required CLE programs and his affidavit supporting termination of probation as contemplated by M. Bar R. 21(b)(4).

D. Attorney Rhoda shall not violate any Bar Rule, Rule of Professional Responsibility or otherwise willfully violate any statute, rule or order of any court.

E. Violation of any condition of probation shall constitute grounds for the imposition of discipline, pursuant to M. Bar R. 21(a)(3). In the event of any such violation, Attorney Rhoda shall have the burden of demonstrating that the violation was not "willful" as contemplated by said rule. Attorney Rhoda shall be estopped from denying the findings set out in this Report, and these findings may be used as aggravating factors for the purpose of determining a sanction.

F. Should the Board determine that Attorney Rhoda has violated any condition of his probation, it may file, through its office of Bar Counsel, an affidavit stating its basis for its determination. Attorney Rhoda shall have 21 days to file a counter–affidavit showing cause why he should not be disciplined for the violation. After filing a counter–affidavit, Attorney Rhoda may be heard for the purpose of showing good cause as to why he should not be disciplined. If he does not file a counter–affidavit, the Grievance Commission shall proceed to a hearing on sanctions, pursuant to M. Bar R. 20.

G. While litigation is pending for an alleged violation of probation, the period of probation shall be tolled, such that the time that elapses during the pendency of litigation shall not be counted toward the period of probation.


Carolyn A. Silsby, Esq., Panel Chair
Megan A. Sanders, Esq., Panel Member
Marjorie Medd, Public Member