Board of Overseers of the Bar v. George P. Kesaris, Esq.
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Docket No.: BAR-12-8
Issued by: Maine Supreme Judicial Court
Date: June 17, 2013
Respondent: George P. Kesaris, Esq.
Bar Number: 002579
Order: Order and Decision
Disposition/Conduct: Order Discharge of Receiver
ORDER DISCHARGE OF RECEIVER
THIS MATTER having been presented upon the motion of the Receiver, appointed pursuant to M. Bar R. 7.3(f), for an order discharging him as Receiver of the law practice of George P. Kesaris, the Court makes the following findings of facts and conclusions of law:
On August 23, 2012, upon motion of Nathaniel R. Fenton, the Court appointed Nathaniel R. Fenton, Esq., as Receiver of the law practice of George P. Kesaris for the purpose of obtaining possession of files belonging to George P. Kesaris's clients, securing funds held in George P. Kesaris's operating and trust accounts, obtaining George P. Kesaris's trust account records, and protecting the interests of the clients and/or former clients of George P. Kesaris.
It appears that Nathaniel R. Fenton, Receiver of the law practice of George P. Kesaris, acting in good faith, has taken all reasonable steps to fulfill his obligations as Receiver of the law practice of George P. Kesaris. He has returned or attempted to return all client files to their rightful owners. He has secured funds held in George P. Kesaris's operating and trust accounts, and has identified or attempted to identify the persons to whom those funds belong.
Nathaniel R. Fenton has reviewed George P. Kesaris's clients' files. An inventory of the client files has been provided to the Office of Bar Counsel.
Nathaniel R. Fenton has distributed files to a significant number of clients and/or former clients of George P. Kesaris. Nathaniel R. Fenton has returned, when possible, all active client files to the respective clients.
A number of George P. Kesaris's clients have not picked up their files, despite the Receiver's good faith effort to provide them notice that they should do so. Nathaniel R. Fenton now has in his possession more than 1,000 client files wherein he has received no instructions regarding the storage or return of the files to the former clients.
Some disposition needs to be made of the remaining files of George P. Kesaris's former clients. Margaret T. Jeffery, Esq., an attorney having an office in the same building as George P. Kesaris, is the most appropriate caretaker of the remaining files Margaret T. Jeffery is willing and able to execute these duties. She has been instructed by the Receiver in the proper method of tending and distributing these files.
The Receiver has disbursed all funds from any trust accounts held by George P. Kesaris to the Office of Bar Counsel.
Based upon the foregoing FINDNGS OF FACT, the Court makes the following conclusions of law:
Nathaniel R. Fenton, Receiver of the law practice of George P. Kesaris, has taken all reasonable steps to discharge his obligations as Receiver of the law practice of George P. Kesaris, to return all client files, and to disburse all funds in George P' Kesaris's operating and trust accounts.
Pursuant to the directions provided to Margaret T. Jeffery, she can be authorized to maintain in storage at 59 Cottage Steet, Bar Harbor, Maine those client files that have not yet been retrieved by the former clients of George P. Kesaris.
THEREFORE, it is hereby ORDERED as follows:
Nathaniel R. Fenton is discharged as Receiver of the law practice of George P. Kesaris
Margaret T. Jeffery, Esq., Bar No. 7600, is hereby authorized to maintain in storage at 59 Cottage Street, Bar Harbor, Maine those client files that have not been retrieved by the clients of George. P. Kesaris. The tending of these files will be accomplished as outlined in the letter of instructions attached hereto as Exhibit 1.
FOR THE COURT,
Donald G. Alexander
May 28, 2073
Margaret T. Jeffery, Esq
59 Cottage Street
Bar Harbor, ME 04609
Re: Estate of George P. Kesaris
On behalf of the Maine legal community and myself I want to thank you for agreeing to tend the remaining client files of George P. Kesaris, Esq. You are performing an important service for both George P. Kesaris and his clients.
In this letter I hope to share with you a little bit about the profound importance of the files you will be holding and explain to you how you can best manage to keep, distribute and ultimately dispose of the files in the future.
What are these files? These are some of the files created by George during the time he was practicing law. Each time a new matter involving a new or existing client emerged, George created a file to hold all the documents relating to the matter. This is a standard practice for attorneys. We like to keep everything. In time, most matters conclude and the file becomes what attorneys refer to as “closed”. While a matter may appear to be resolved, unexpected events will occasionally cause a party to the matter to re-open the matter. In instances where a matter is re-opened, it is critical for an attorney to have all the documents relating to the original matter at his or her fingertips. Because one never knows which files might re-open and which ones will remain truly closed, an attorney will usually keep a file for a long time after everything appears resolved.
George did exactly that. Over the course of the last few weeks I, or my assistant, Tobias Fenton, Esq., had the opportunity to examine a total of approximately 1,000 plus files kept by George. As we examined the files we were able to determine which files were open and which were closed. Once each file's status was determined, we endeavored to contact the client associated with each file by publication in the local newspapers and ask them to come and retrieve their file. This was an important process because, with some exceptions, a client is entitled to possess the contents of his or her files. Unfortunately, not everyone came to retrieve his or her file. It's possible that some former clients moved and didn’t see the advertisement and maybe some clients determined that they just didn't want to bother picking the file up. Whatever the reason, a large number of files remain unclaimed.
What should happen to these files? In cases like this one, the legal community looks to the family and close associates of the attorney whose law practice is closing and asks them to assist us in holding these files until the final- disposition of the files can be determined. Because you knew George through your practice of law in the same building, I asked you and you generously accepted. While the responsibility for protecting these files is heavy, the actual burden to you should be light.
Your first responsibility will be to provide the appropriate file to any client with a legitimate claim to its possession. Over the course of the next few years it is likely that some former clients of George will seek out their file and come to you to retrieve it. It is critical that these clients have every conceivable opportunity to retrieve their files and it is your generous service that will provide them that opportunity. There are many ways that these former clients may learn of your possession of George’s unclaimed files including the final order of the Court, the Board of Overseers of the Bar, old newspaper advertisements or even from other attorneys in the community. However they find you, rest assured, they will come.
Once a former client has contacted you and asked to retrieve their file, you should schedule a time for them to come and retrieve it. Make sure to give yourself enough time to locate the file and prepare the appropriate paperwork. In the binder of materials I will provide to you, I will include a number of blank Client File Release Forms and it is this form that each claimant must complete and sign before you provide them their file. Once completed, the Client File Release Form should be filed with the other completed release forms contained in the front of the binder.
As far as you should be concerned, everything in the client file belongs to the client and should be returned in its entirety. I have arranged the files, for the most part, in alphabetical order.
Unfortunately, not everyone will appear to claim their file and archiving these unclaimed files is a vital responsibility of the caretaker. It would be nice if we could just shred and dispose of the unclaimed files but we can’t. Some of these files contain documents that attorneys refer to as having "intrinsic value". These sorts of documents might be Wills or real property title paperwork, the kinds of documents that cannot be replaced and are critical to the clients who entrusted them to George. To destroy these documents could have profound implications for the families of a deceased loved one or clients trying to transfer property. Regardless of whatever rules might apply to the eventual destruction of less critical client files, files containing intrinsically valuable documents should be kept safe until they are needed.
Even client files without intrinsically valuable documents are still important. Because matters can be re-opened, it is important a file be available to a client if he or she should the future.
What should be done with these files? It is portions of the Maine Code of Professional Responsibility that guide the legal community in circumstances like this one. In Maine, the Code is interpreted by various legal entities, among them the Professional Ethics Commission. This Commission is appointed by the Maine Supreme Judicial Court to interpret the Code of Professional Responsibility and to issue advisory opinions concerning the Code. Some of the Opinions published by the Commission bear directly on the issue of George's unclaimed client files and I have included them here as Ethics Opinions #74 and #143.
One of the tensions these opinions address is difficulty of balancing the unknowable need for a file by a client and the futility of trying to keep everything forever. An Amendment to the Code adopted after these Opinions permits some files to be destroyed eight years or more after the matter they pertain to appears to be resolved. Which files can be destroyed is a highly technical issue and should only be decided by an attorney who has had the opportunity to examine the file.
You will need to hold these documents for a minimum of eight years before even considering the confidential destruction of files that are eligible. While some of the client files may exceed the eight-year minimum, it is imperative that you wait the full eight years before considering destruction. Waiting eight years for all the eligible files will simplify the procedure for you and provide clients the greatest possible period of time in which to claim their files.
You will recall that we discussed an alternate caretaker. Given the confidential nature of these documents, it is essential that we plan now for unforeseen circumstances. If you have a Will or other estate planning documents you should include amongst them this letter or one written by you, so that your family and caretakers will know to act and who to contact.
I realize that having to preserve these files may seem like an overwhelming task. It is not a thankless one. Your service is of great importance to George and the Maine legal community. Thank you. I hope this letter is helpful to you now and in the future. If you have any questions, please free to contact me at any time.
Nathaniel R. Fenton, Esq.
Receiver, Law Practice of George P. Kesaris, Esq.