Board of Overseers of the Bar v. Suzanne Dwyer-Jones
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Docket No.: BAR#11-20
Issued by: Grievance Commission
Date: July 21, 2015
Respondent: Suzanne Dwyer-Jones
Bar Number: 008638
Order: Reinstatement Recommended
Disposition/Conduct: Reinstatement Recommended
On October 1, 2014, Suzanne Dwyer-Jones petitioned the Maine Supreme Judicial Court and the Board of Overseers of the Bar for reinstatement of her license to practice law in the State of Maine pursuant to Maine Bar Rule 7.3(j). The Board opposed the petition. Pursuant to Maine Bar Rule 7.3(j)(5), the petition was referred for evidentiary hearing to Panel C, consisting of Peter C. Fessenden, Esq., Robert S. Hark, Esq. and John C. Alfano. There were no objections to the composition of the panel. Pursuant to notice, the hearing was held in Portland on June 18, 2015 at the Cumberland County Courthouse. The Petitioner appeared personally and was represented by C. Walter Smith, Jr., Esq. The Board of Overseers of the Bar was represented by Deputy Bar Counsel Aria Eee, Esq.
Panel C now submits this report of findings and recommendation to the Board of Overseers of the Bar.
Suzanne Dwyer-Jones was suspended from the practice of law in the State of Maine by order of Honorable Andrew M. Mead on July 19, 2013 for a period of one year. Justice Mead’s order provided that Ms. Dwyer-Jones could petition for reinstatement thereafter. It provided, inter alia,
Any petition for reinstatement must show insight into the serious problems that resulted in this suspension, her plan to address them, and a showing of substantial progress toward the goal of being able to undertake the affairs of others without being distracted or incapacitated by her underlying conditions.… During the period of suspension, she shall:
- Undertake active treatment for the conditions noted above from licensed mental health professionals, including in-patient hospitalization if necessary;
- Advise Bar Counsel of all of the names of her treating professionals and institutions, and execute releases to allow Bar Counsel to monitor her progress in treatment;
- Attend no less than three (3) AA meetings per week and provide proof of attendance if requested by Bar Counsel;
- Take all medications as prescribed;
- Refrain from all consumption of alcohol and drugs, other than medications in the amounts prescribed by her mental health professionals;
- Take steps to ensure that any of her clients with active cases in the State of Maine are immediately referred to other counsel for representation;
- Seek employment as within her abilities, but not provide legal advice or counsel to any other person;
- Seek stable housing that is not dependent upon the benevolence of other persons;
- Engage the services of the Maine Assistance Program to assist with her substance abuse recovery management of her psychiatric condition;
- Keep the Board updated on her progress of these requirements at regular intervals, not less than quarterly;
- Make a good faith effort to reimburse MCLIS for her own court-appointed attorney’s services, and similarly reimburse the Board for investigation and prosecution of this matter;
- Undergo a psychological evaluation at the direction of Bar Counsel if so requested and provide a release to allow Bar Counsel to obtain a report of such evaluation; [and]
- Otherwise comply with all laws of the State of Maine.
Maine Bar Rule 7.3(j) provides, inter alia
[T]he petitioner … shall have the burden of presenting clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State. The petitioner shall also offer clear and convincing evidence that it is likely that reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest. Factors to be considered as to the petitioner’s meeting that burden include evidence that:
- The petitioner has fully complied with the terms of all prior disciplinary orders;
- The petitioner has neither engaged nor attempted to engage in the unauthorized practice of law;
- The petitioner recognizes the wrongfulness and seriousness of the misconduct;
- The petitioner has not engaged in any other professional misconduct since … [her] suspension;
- The petitioner has the requisite honesty and integrity to practice law;
- The petitioner has met the continuing legal education requirements of Rule 12(a)(1) for each year the attorney has been … prohibited from the practice of law in Maine …
Testimony was received from Suzanne Dwyer-Jones, Dr. Kenneth H. Cohen and William C. Nugent, Esq. Petitioner’s Exhibits #1 through #4 were admitted by agreement. Bar Counsel’s Exhibits #1 through #13 (including Exhibit #11 as supplemented on June 10, 2015) and Exhibits #15 and #16 were admitted by agreement. Bar Counsel’s Exhibits #14A-C were not objected to by the Petitioner, but the panel accepted them only as non-binding precedent and not as evidence on any issue presented in this case.
Ms. Dwyer-Jones’ suspension in 2013 was precipitated by the confluence of family tragedy, the contentious end to a stressful marriage, uncontrolled alcohol addiction, acute mental health crises, abuse of prescription medications, and several criminal charges emerging from those problems. The challenges confronting Ms. Dwyer-Jones are – and will continue to be – formidable.
The panel has reviewed the record, listened intently to the oral testimony of the three witnesses, and examined the exhibits presented by both parties. Carefully weighing and considering the evidence presented and in light of the clear and convincing standard by which the evidence regarding all factors and conditions must be measured, the panel concludes that Ms. Dwyer-Jones has met her burden. Our analysis follows.
Ms. Dwyer-Jones testified first.
The Petitioner was candid and credible. The panel is convinced that the petitioner has a comprehensive insight, understanding and acceptance of her conditions and the perils that they present. She knows that she is an alcoholic. She knows that she is bi-polar and suffers from post-traumatic stress disorder, depression, ADHAD and anxiety, all of which require appropriate medication. She knows that she needs to keep her conditions in her consciousness, and to address them consistently and conscientiously.
Ms. Dwyer-Jones has taken concrete steps to address her conditions. In late 2013, she began and still continues in a therapeutic counselling relationship with Richard Connelly, LCPC of Counseling Services, Inc., on a weekly basis. Her medications are prescribed and monitored by Virginia Lawrence, PMHNP-BC, also with Counseling Services, Inc. She engaged in long-term psychiatric treatment with Dr. Kenneth H. Cohen until her ability to afford his care ended; she intends to return to his care once she has the financial ability to do so. She attends Alcoholics Anonymous on a regular and consistent basis several times per week, where she has a sponsor. She participated fully in the Maine Assistance Program with William C. Nugent, Esq., and continues to keep in contact with him.
The Petitioner is currently employed at Old Navy as a retail clerk. The work is not challenging and is well below her abilities. Nonetheless, Ms. Dwyer-Jones has been a conscientious employee. She has not engaged in the practice of law, or attempted to do so, during her suspension.
Ms. Dwyer-Jones’ current living situation is not transient, although it is not as stable as it might be due to her precarious finances. She lives independently when she can afford to do so, but otherwise uses her mother’s home as a backstop and has occasionally resorted to a shelter. The panel is convinced that the Petitioner is committed to stable living arrangements, that she is seeking them actively to the extent that her precarious finances will permit.
As of the time of her suspension, the Petitioner left none of her Maine clients in limbo. Arrangements were made to refer all clients to other counsel. There was one bar complaint in Maine which led to her suspension, but no others. Two bar complaints filed in Massachusetts, in January 2010 and May 2012, pre-dated her suspension by Justice Mead. Ms. Dwyer-Jones responded timely to each and the files were closed without further action.
The panel is troubled by the Petitioner’s apparent disregard of Justice Mead’s requirement that she keep the Board of Overseers updated on her progress at regular intervals, not less than quarterly. Counsel for Ms. Dwyer-Jones explained that her failure to provide formal periodic reports on a quarterly basis was “entirely his fault” since he believed that his informal contact with bar counsel was sufficient. The panel explicitly inquired if Deputy Bar Counsel asserted that the petition for reinstatement necessarily foundered on this factor. Deputy Bar Counsel appeared to be considerably less troubled than the panel. On that basis, the panel calls the attention of the Board of Overseers to the deficiency, but agrees with Deputy Bar Counsel that it is not crucial to her reinstatement.
The panel finds without contradiction that Ms. Dwyer-Jones is aware of her responsibilities to reimburse MCLIS for her court-appointed attorney’s services in connection with the criminal charges related to her psychological and emotional collapse in 2013, and to reimburse the Board for its costs in connection with the bar complaint that culminated in her suspension. The panel finds that she has made a good faith effort to do so. Although that task is far from completed, she impressed the panel with her commitment to fulfill it.
Ms. Dwyer-Jones is committed to the Maine Assistance Program. She has been and continues to be in contact with MAP Director William C. Nugent, Esq. As more fully discussed below, the panel finds that Director Nugent is committed to Ms. Dwyer-Jones’ recovery, both as an individual and as a practicing attorney. The confluence of their commitments is persuasive evidence of her ability to discharge her duties to the profession and to her future clients.
During her direct testimony and further on the probing cross examination of Deputy Bar Counsel, Ms. Dwyer-Jones described her steep descent into incapacity starting with the death of her father in 2009. The critical elements of her testimony, however, focused on her climb back out.
Deputy Bar Counsel offered voluminous records of Ms. Dwyer-Jones’ treatment, detailing her work and the work of her therapists and physicians. Counsel pointed repeatedly to the dips in the Petitioner’s road to recovery. (The panel admires and appreciates the sensitivity and tone of Deputy Bar Counsel Eee’s presentation. It was intense and vigorous but never unkind or disrespectful.) On June 13, 2014, Mr. Connelly noted that the Petitioner was “upset over having drank and slipped.” The panel calls the attention of the Board of Overseers to this breach of Justice Mead’s requirement that she refrain from alcohol use. That being said, the panel notes that it was apparently minor, that it was instantly reported to Mr. Connelly by Ms. Dwyer-Jones, and that it was accepted by her as both warning and guidance. Indeed, Mr. Connelly noted thereafter that he was able to use her candor as an illustration of her “engagement and honesty and a willingness to change and ask for help.”
Raw data is often searing. Mr. Connelly and Ms. Lawrence documented the Petitioner’s every doubt and every moment of despair. The panel has reviewed and considered their records in detail. The positive direction of their arc is unmistakable. Taken in context – of the Petitioner’s testimony and demeanor, of the testimony and report of Dr. Cohen, the letter from Richard Connelly, and of the testimony and recommendations of William Nugent – and even standing alone, the panel views Ms. Dwyer-Jones as entirely capable of discharging her responsibilities to the profession and to her future clients.
Ms. Dwyer-Jones understands that she is neither cured of nor recovered from her afflictions. They persist. She convinced the panel that she persists in recognizing and addressing them, and that she can function well, both personally and professionally, and will continue to do so.
Dr. Kenneth Cohen testified at length about his past treatment of Ms. Dwyer-Jones.1 and his September 2014 psychiatric evaluation updated in June 2015. There was much discussion and some disagreement about the primary and subsidiary diagnoses of the Petitioner’s conditions. Whether ADHD, bi-polar, alcoholism, anxiety or PTSD, her underlying conditions are serious. They are not acute. With the care and attention she is presently receiving, they are under control. Dr. Cohen is confident – as is the panel – that Ms. Dwyer-Jones can practice law successfully and for the benefit of the profession and her future clients.
The panel relies heavily on the testimony and recommendations of MAP Director William C. Nugent, Esq. He has worked with Maine attorneys for many years who are struggling with alcohol, narcotic and substance abuse problems. He is skilled, experienced, perceptive and highly respected. Mr. Nugent began working with Ms. Dwyer-Jones when she was on the spiral down. He has met and spoken with her repeatedly since then. In his direct testimony and upon extensive examination by Deputy Bar Counsel, Mr. Nugent was clear and firm: Ms. Dwyer-Jones is ready, willing and able to resume the practice of law in Maine. The panel shares his conclusion.
Decisions of the Law Court and the Grievance Commission frequently observe that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public to ensure that members of the profession can discharge their duties properly. Discipline may be imposed upon a preponderance of the evidence. Reinstatement proceedings follow the imposition of professional discipline. The burden on this Petitioner is greater: clear and convincing evidence, rather than a mere preponderance. Nonetheless, the purpose is the same – the protection of the public.
Just as the public must be protected from unqualified attorneys; it can be benefited by competent lawyers. To meet her burden, Ms. Dwyer-Jones must show that it is “highly probable” that she has fulfilled the conditions set by Justice Mead and met the requirements of Maine Bar Rule 7.3(j). The core of Deputy Bar Counsel’s argument is that the Petitioner has come a long way but not far enough and that the gestalt of her condition compels a conclusion of “maybe someday, but not yet.”
We do not give Ms. Dwyer-Jones any benefit of the doubt. Our recommendation is compelled by the evidence and testimony presented. We conclude that the Petitioner has fully earned and demonstrated her entitlement under Maine Bar Rule 7.3(j) and recommend that she be reinstated to the practice of law. Our only reservations arise from our findings noted above that there were two conditions set by Justice Mead that were not strictly met. We believe that the failure to meet the strict standards of those conditions should not be an impediment to her reinstatement, but leave that final decision to the Board of Overseers or, perhaps, to the Court.
That being said, we are aware that medical, psychiatric and emotional afflictions ebb and flow. We agree with Deputy Bar Counsel that reasonable oversight for a period of years is prudent. In closing argument, the Petitioner agreed. Therefore we further recommend that the Board of Overseers condition her reinstatement on the following:
- Ms. Dwyer-Jones shall continue to participate in Alcoholics Anonymous meetings at least three times weekly. She shall report to Bar Counsel both the identity of her sponsor(s) (with their permission) and her participation in the program.
- Ms. Dwyer-Jones shall comply with her prescribed medications and shall notify her primary care physician if any changes occur or if she fails to take medication as prescribed, including over-medication.
- Ms. Dwyer-Jones shall follow the treatment recommendations of her medical and mental health providers. She shall receive consistent treatment from those providers to promote continuity of care.
- Ms. Dwyer-Jones shall meet with the Maine Assistance Program for Lawyers and Judges (MAP) and execute a contract satisfactory to MAP.
- Ms. Dwyer-Jones shall abstain from the use of alcohol and from any non-prescribed medications and drugs. Ms. Dwyer-Jones shall report any relapse to MAP and to Bar Counsel. She shall report any mental health or substance-related hospitalizations to MAP and to Bar Counsel.
- Ms. Dwyer-jones shall execute and deliver releases for MAP and Bar Counsel to monitor her ongoing treatments.
- For a period of at least two (2) years, Ms. Dwyer-Jones shall be monitored in her practice by a mutually agreed-upon third party.
- Ms. Dwyer-Jones shall refrain from all criminal conduct and shall report immediately any criminal charges to MAP and to Bar Counsel. She shall further report any convictions arising out of criminal conduct in any jurisdiction.
- Ms. Dwyer-Jones shall report to MAP and Bar Counsel any matters in which she is the subject of any civil protection order, e.g. Protection From Harassment or Protection From Abuse.
- Ms. Dwyer-Jones shall designate a Maine attorney to serve as her proxy in the event of any future disability.
- Ms. Dwyer-Jones shall maintain stable housing and report any change of address and contact information to MAP and Bar counsel. She shall ensure that both entities have updated information by which to contact her.
- Ms. Dwyer-Jones shall reimburse MCLIS to its satisfaction for her own court-appointed attorney’s services.
- Ms. Dwyer-Jones shall pay all court fines to the satisfaction of the court.
- Ms. Dwyer-Jones shall reimburse the Board of Overseers to its satisfaction for its costs and expenses in investigating and prosecuting her disciplinary matter.
- Ms. Dwyer-Jones shall report any disciplinary proceeding and/or sanctions to all jurisdictions where she is admitted.
- Ms. Dwyer-Jones shall comply timely with her required annual registration filings and continuing legal education requirements.
- Ms. Dwyer-Jones shall engage a third party, satisfactory to Bar Counsel, to reconcile her trust account(s) on a monthly basis, and to provide a copy of that accounting to Bar Counsel each month.
Date: July 21, 2015
Peter C. Fessenden, Esq., Panel Chair
Robert S. Hark, Esq., Panel Member
John C. Alfano, Public Member
1Unlike the psychologist in Overseers v. Mangan, whose interaction with the Petitioner was only four contact sessions, Dr. Cohen treated Ms. Dwyer-Jones for 72 sessions, plus the two evaluations.