Board of Overseers of the Bar v. Jeffrey W. Davidson, Esq.
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Docket No.: GCF No. 11-318
Issued by: Grievance Commission
Date: July 6, 2012
Respondent: Jeffrey W. Davidson, Esq.
Bar Number: 009579
Disposition/Conduct: Respect for Rights of Third Persons; Professional Misconduct
REPORT OF FINDINGS AND ORDER OF PANEL A OF THE GRIEVANCE COMMISSION
On June 28, 2012, pursuant to due notice, Panel A of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning the Respondent, Jeffrey W. Davidson, 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 September 30, 2011, alleging violations of M. Bar R.P.C. 4.4 and 8.4.
At the disciplinary hearing, the Board was represented by Bar Counsel Aria Eee, Esq. and Respondent was present and represented by Jeffrey Toothaker, Esq. The Board's exhibits marked Board Exh. 1-13 were admitted without objection. No exhibits were present by Respondent. The Panel heard testimony from the following witnesses:
Jeffrey W, Davidson, Esq.
Lieutenant Keith Albee
Lieutenant Mary C. Zidalis
Officer Allen Rolfe
Ricky A. Holmes
Captain Robert Gross
Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings:
Respondent Jeffrey W. Davidson, Esq. of Machias, Maine, is, and was at all times relevant hereto, an attorney duly admitted to and actively engaged in the practice of law in the State of Maine and subject to the Maine Rules of Professional Conduct.
Respondent, Jeffrey W. Davidson, Esq., was admitted to the Maine Bar in 2004, and he is currently registered as an active Maine attorney. Previously, Respondent, Jeffrey W. Davidson, Esq., was admitted to and practiced law in Louisiana as an Assistant Public Prosecutor for seven years. He has no prior disciplinary record.
The Incident on September 27. 2011
Lieutenant Mary Zidalis ("Zidalis") of the Washington County Sherriff's Department filed a complaint regarding what she described as "offensive actions towards" her, through words and actions used by Attorney Davidson ("Davidson") on September 27,2011 at the Washington County Jail.
Zidalis was then waiting to be a state witness in the criminal trial of Chase Bellefountaine, Davidson's client, regarding charges for assault of another jail inmate.
Zidalis was a key witness in Davidson's defense of his client because of what Davidson perceived as flaws in her investigation. Zidalis and Davidson discussed the upcoming cross examination in the days before the trial at Davidson's office and Davidson let Zidalis know of his strategy.
Forty five minutes before the start of the trial, as Zidalis walked by Davidson, he spoke to her the words, "Have you ever been raped?" She responded that his question was a personal question. Davidson then commented, "Well, get ready because today will be your first time." or words to that effect. Zidalis then walked away and into a control room where she reported the remark to her colleague and then her superiors.
Zidalis and Davidson were not strangers to each other because they had had a joking, bantering, competitive relationship over several years, but his remark had a very unsettling effect upon her minutes before her testimony. Davidson views this as a joke that went too far, but the panel believes that the word "rape' in this setting was unsettling to her as a witness, as well as unprofessional and prejudicial to the administration of justice.
Subsequent events turned out to be beyond the control of either Zidalis or Davidson as the Sherriff of Washington County barred Davidson from entering the Washington County Jail through a letter which Davidson received on the day after the incident. Because of a reference to a possible criminal investigation for attempting to intimidate a witness, Davidson consulted outside counsel the next day after receiving the sheriff's letter and was advised not to speak with Zidalis and so he did not apologize to Zidalis, although he testified that he had intended to do so.
Davidson admits that he used the word "rape" in the context of Zidalis' upcoming testimony in their pre-trial conversation. His words had no substantial purpose other than to unsettle, if not intimidate, Zidalis, in violation Maine Rule of Professional Conduct 4.4(a). This constitutes professional misconduct under Maine Rule of Professional Conduct 8.4(a).
The panel finds that Davidson's misconduct in the context of this situation was not minor. There was emotional injury to a third party who is a law enforcement officer. Further, because it was directed to a witness in a criminal proceeding, there was injury to the legal system, as well as the profession. The panel did not hear sufficient evidence to draw a conclusion with respect to whether there is a likelihood of repetition, particularly where Davidson viewed his comment as a joke gone too far.
The Incident of December 6, 2011
In addition, Bar Counsel presented evidence that on December 6, 2011, Davidson called Zidalis a "bitch" in a conversation with another client, who was an inmate, because he thought that the client's arrival at court was delayed by Zidalis. While the remark was expected to be protected by the attorney-client privilege, this remark was reported to both Zidalis and the Sheriff. In the context of that remark, the panel understands Davidson's frustrations, but the evidence indicated that the delay was not caused by Zidalis. While we find his comment to be in extremely poor taste, we do not find the remark to be a violation of the rules.
Since the evidence of misconduct is clear and convincing so as to support a finding that Davidson did in fact violate the Maine Rules of Professional Conduct, the Panel finds that the appropriate disposition of this case is the issuance of a public reprimand, which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.l(e)(3)(C).
Grievance Panel A
M. Ray Bradford, Jr. Esq. Chair
Sarah McPartland-Good, Esq.