Board of Overseers of the Bar v. Clayton N. Howard, Esq.
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Docket No.: GCF# 10-322
Issued by: Grievance Commission
Date: January 17, 2013
Respondent: Clayton N. Howard, Esq.
Bar Number: 000115
Disposition/Conduct: Conflict of Interest; Responsibilities of a Partner or Supervising Lawyer
STIPULATED REPORT FINDINGS AND ORDER OF PANEL B OF THE GRIEVANCE COMMISSION
On January 17, 2013, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Clayton N. Howard, Esq. (Howard). This disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on December 11, 2012.
At the hearing, the Board was represented by Bar Counsel J. Scott Davis, and Attorney Howard was present and represented by Attorney James B. Haddow. Prior to the disciplinary proceeding, the parties had submitted a stipulated proposed sanction Report to the Panel for its review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes and now issues the following disciplinary disposition:
Respondent Clayton N. Howard of Damariscotta, Maine has been 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 and the Maine Rules of Professional Conduct. Howard was admitted to the Maine Bar in 1969 and he is currently engaged in private practice in Damariscotta, Maine.
This grievance complaint was initiated by Bar Counsel in September 2010 on a sua sponte basis under Maine Bar Rule 7.1(b) based upon references to Attorney Howard’s conduct in the Law Court’s decision of Howard v. Howard, 2010 ME 83. No complaint was otherwise filed against Attorney Howard in this matter.
Andrew Howard is the younger brother of Attorney Howard. Linda Howard is the former wife of Andrew Howard. Linda and Andrew Howard were divorced in the Maine District Court, York County (Docket No. BID-FM-02-69) by that court’s final judgment and decree dated January 10, 2008.
Although Attorney Howard did not directly do so, a partner in his law firm represented Andrew Howard throughout that divorce and the appeal to the Law Court. From the 1990s into the mid-2000s, Attorney Howard formed business entities in which he and his brother Andrew held legal interests. These entities (called the “Howard entities”) included Howard Sports, LLC, Sierra Woods, and Saco North Street, LLC. Attorney Howard and other attorneys in his firm provided legal services to the Howard entities. During the marriage of Andrew and Linda Howard, Linda Howard was involved, to varying degrees, in the Howard entities’ business operations. The divorce judgment summarized the sale by Linda and Andrew Howard of their joint assets and the subsequent reinvestment of much of those proceeds into the entities for which Andrew and Clayton were the record owners. According to the judgment, Linda had done the bookkeeping and office management for all of her and Andrew’s businesses and investments and also for the businesses in which Andrew and Clayton were the record owners.
It is Attorney Howard’s position and belief that Linda never held a formal legal interest in any of those businesses prior to their divorce. Linda was, however, aware of the legal services provided by Attorney Howard and his firm to those Howard entities, and she often communicated with Attorney Howard or others in his law firm about those services. At the very minimum, Linda believed that as a participant in the business of the Howard entities and as Andrew Howard’s spouse she therefore was a client of Attorney Howard and his law firm. The circumstances of Attorney Howard’s formation of these various business entities and his provision of legal services to them, both directly and through his law firm, were such that a reasonable person in Linda’s position could have understandably concluded that she was a client of that firm.
The evaluation and division of Andrew Howard’s interests in the Howard entities was a central element of the subject matter of Linda and Andrew Howard’s divorce proceeding. Neither Attorney Howard nor anyone else in his firm secured the informed written consent of Linda to the firm’s representation of Andrew Howard in that divorce. Although Attorney Howard was not actually Andrew’s divorce attorney, he should have had proper procedures in place at his firm to prevent the conflict of interest that occurred by a partner of his firm so serving as Andrew’s attorney in his divorce from Linda.
Attorney Howard’s conduct was therefore in violation of then applicable Maine Bar Rules 3.4(b),(d)(1) (conflict of interest) and 3.13(a)(1) (responsibilities of a partner or supervisory lawyer).
The Code of Professional Responsibility and the Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. The Panel notes Bar Counsel has confirmed that Attorney Howard received a private reprimand in 1980 (misstating matters filed in court), an informal dismissal with a warning in 1995 (conduct prejudicial to the administration of justice) and a public reprimand in 2010 for conduct (conflict of interest) similar in form to that which is involved in this unrelated matter. At the disciplinary proceeding, Attorney Howard expressed his remorse for engaging in this conflict, apologized for his actions and accepted responsibility for his violation of the then applicable Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties.
Since the evidence of misconduct supports a finding and Attorney Howard agrees he did in fact so violate the Code of Professional Responsibility, the Panel finds that its issuance of a Public Reprimand is an appropriate sanction.
Therefore, the Panel accepts the agreement of the parties including Attorney Howard’s separately executed waiver of the right to file a Petition for Review. The Panel concludes that the appropriate disposition of this case is the issuance of a Public Reprimand to Clayton N. Howard, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
John R. Bass II, Esq. Chair
Maurice A. Libner, Esq.
Kenneth L. Roberts (layperson)