Board of Overseers of the Bar v. Brian E. Swales
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Docket No.: GCF# 13-040
Issued by: Grievance Commission
Date: October 10, 2013
Respondent: Brian E. Swales
Bar Number: 000163
Disposition/Conduct: Failure to file an affidavit attesting compliance with the provisions of M.B.R. 7.3(i)(2); Failure to respond to a lawful demand for information from Bar Counsel
REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION M. Bar. R. 7.1(2)(4)
On October 8, 2013, with due notice, panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, Brian E. Swales. This disciplinary proceeding was commenced by the filing of a Grievance Complaint by the Board of Overseers of the Bar (the Board) on January 29, 2013.
At the hearing, the Respondent was not present and the Board was represented by Assistant Bar Counsel Alan P. Kelley.
The Panel makes the following disposition:
Respondent Brian E. Swales (Swales) of Houlton, Maine was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Swales was admitted to the Maine bar in 1977 and he is currently subject to an administrative non-disciplinary suspension.
On October 22, 2O12 Swales was administratively suspended by the Board for his failure to report CLE credit and his failure to register and pay the fees required by Maine Bar Rules 6(a)(1), 10(a) and 12, as well as Rule 3(a) of Maine's Rules For Lawyers’ Fund For Client Protection. Swales did not file the affidavit certifying his compliance with Maine Bar Rule 7.3(i)(2) as required within 30 days after that suspension date. The Board sent a certified letter on November 29, 2O12 which notified Swales of the consequence of his failure to file that required affidavit; that letter was returned "unclaimed."
On January 29, 2013, Bar Counsel docketed a sua sponte grievance complaint against Swales for to his failure to comply with the affidavit requirements. Swales did not respond to the investigation of this grievance matter in violation of M. R. Prof. Conduct 8.1(b). On June 18, 2013 a panel of the Grievance Commission reviewed Swales' actions and, based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules.
On July 16, 2O13, the Board filed a Disciplinary Petition. On July 22, 2013, Swales was personally served with a copy of the Disciplinary petition by Aroostook County Deputy Sheriff. Swales failed to file an answer to the Disciplinary Petition. To date, Swales has not filed an affidavit certifying compliance with the requirements of M. Bar R. 7.3(i)(2)(A)(B).
Swales violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine Bar, nor has he completed a change of status to inactive or withdrawn. M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather is the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer’s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of professional conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Swales violated his duties to the legal system by failing to complete the annual registration requirements in 2012 and by failing to file the required notification affidavit once he was administratively suspended. Swales' neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
Swales' continuing failure to file an affidavit complying with M. Bar R. 7.3(i)(2)(A)(B), is an aggravating circumstance.
Because the evidence supports a finding that Swales did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Brian E. Swales which is now hereby issued and imposed upon his pursuant to M. Bar R. 7.1(e)(3)(c), (4).
For the Panel:
Victoria Powers, Esq. - Chair
Robert S. Hark, Esq.
Marjorie M. Medd