Board of Overseers of the Bar v. James M. Whittemore
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Docket No.: BAR-18-9
Issued by: Maine Supreme Judicial Court
Date: November 30, 2018
Respondent: James M. Whittemore
Bar Number: 007767
Disposition/Conduct: Competence, Scope of Representation, Diligence, Communication, Fees, General misconduct; Illegal conduct; Deceit/dishonesty; and Conduct Prejudicial to the Administration of Justice
As a result of the Board of Overseers of the Bars (the Board) filing of its Petition for Immediate Interim Suspension, the Court issued an August 7, 2018 Order suspending attorney James M. Whittemore. Through its subsequent September 11, 2018 filing of an Information, the Board commenced further disciplinary action. Thereafter, the Board filed amended pleadings which alleged additional misconduct by Mr. Whittemore. Counsel for Mr. Whittemore filed timely responses to all of the Boards pleadings.
Prior to hearing in this matter, the parties notified the Court that they had reached agreement as to findings and a stipulated sanction. Appearing at the November 30, 2018 final hearing were Aria Eee, Acting Bar Counsel and Justin Andrus, Attorney for James Whittemore. Also present at the hearing were Complainant Amanda Ward with her attorney Joseph Gousse, Esq. and James Whittemore. The other complainants in this matter were contacted by the office of the Bar Counsel, but declined to attend the hearing or could not be reached.
Having reviewed the pleadings and the parties stipulations and the testimony of James Whittemore the Court finds as follows:
Pursuant to the mandatory reporting requirements of M. R. Prof. Conduct 8.3(a), on March 21, 2018, Attorney William Childs filed a grievance complaint alleging misconduct against Mr. Whittemore. That complaint outlined Whittemores mishandling and suspected conversion of approximately $151,981.06 derived from the assets of the Virginia Hilton Testamentary Trust, a matter then pending in the Cumberland County Probate Court.
Attorney Childs provided several documents within his complaint which established that, as of October 18, 2016, Mr. Whittemore had affirmed his receipt of five checks intended for distribution to the individual beneficiaries of the Hilton Trust. Those checks totaled $151,981.06.
In a June 21, 2017 status conference, Mr. Whittemore informed the Probate Court that he would prepare a Show Cause Order for an accounting of the Trust assets. He never did so. During that conference, Mr. Whittemore also confirmed his receipt and retention of the beneficiaries five checks within his client trust account.
By February 20, 2018, Attorney Childs became concerned about the lack of financial distribution to the Trust beneficiaries. In response to Attorney Childs inquiry of that date, Mr. Whittemore acknowledged "a problem," and reported that no portion of the $151,981.06 remained in his trust account.
In response to the Boards allegations, Mr. Whittemore offers no dispute and no explanation. Accordingly, the Court finds that Mr. Whittemore engaged in violations of M. R. Prof. Conduct 1.3 [diligence]; 1.5(a) [fees]; and 8.4(a)(b)(c)(d) [general misconduct; illegal conduct; fraud, deceit or dishonesty; and conduct prejudicial to the administration of justice].
The Court is aware that as a result of Mr. Whittemores professional misconduct, the Trust beneficiaries have filed or will be filing claims with the Lawyers Fund for Client Protection (LFCP). Mr. Whittemore does not intend to dispute those claims. Mr. Whittemore also reports that he does not have the funds to fully reimburse the claimants or the LFCP.
On July 13, 2018, a former client of Mr. Whittemore, referred to herein as A.W., filed a grievance complaint with the Board. Relevant to that complaint are the circumstances leading up to A.W.s retention of Mr. Whittemore.
In July 2013, A.W.s long-time domestic partner had a fatal motorcycle accident, leaving behind A.W. and their three children. One of those three was an adult son. Shortly after the accident, A. W. and her son consulted with Mr. Whittemore for representation in a wrongful death action. A.W. and her son subsequently signed Mr. Whittemores engagement letter and its attached contingent fee agreement.
Despite his service as counsel for A.W. and her son, Mr. Whittemore repeatedly failed to respond to A.W.s multiple status inquiries. His failure to communicate with his clients constituted a violation of M. R. Prof. Conduct 1.4. By March 2018, A.W. retained a new attorney for assistance with contacting Mr. Whittemore. The new attorney did initiate contact, and Mr. Whittemore reported that he would review the file and then follow up with A.W. However, Mr. Whittemore never did so, in violation of M. R. Prof. Conduct 1.3 [diligence], 1.4[communication]; and 8.4(c) [dishonesty]. From April 2018 through June 2018, A.W.s successor counsel and/or his staff made several inquiries and file requests. At times, Mr. Whittemore promised to respond to the requests of successor counsel. However, he failed to follow through with any of those promises.
On July 10, 2018 an employee of successor counsels firm appeared at Mr. Whittemores law office and made a final request for A. W.s client file. At that time, Mr. Whittemore admitted that he did not have the file. His failure to safeguard A.W.s property prejudiced her interests and constituted a violation of M. R. Prof. Conduct 1.15. Before the end of the July 10 discussion, Mr. Whittemore suggested that A.W.s successor counsel "take whatever action is necessary," concerning his misconduct, including contacting the Board.
Beyond Mr. Whittemores neglect of A.W. and her son, Bar Counsel received additional information of further serious misconduct. In that regard, an agent of the American Automobile Association (AAA) reported to successor counsel that Mr. Whittemore had settled the two wrongful death claims for the policy limits of $100,000. The AAA agent further reported that the settlement funds had been made directly payable to Mr. Whittemores client trust account. Mr. Whittemore acknowledges, and the Court so finds, that he failed to notify A.W. and her son that he had received their respective settlement proceeds. Based upon Mr. Whittemores acknowledgment, the Court finds that he improperly received and converted the entire amount of those settlement proceeds, thereby violating M. R. Prof. Conduct 1.2[scope of representation]; 1.4[communication]; and 8.4(a)(b)(c)(d) [other misconduct, deceit and illegal conduct]. The Court is aware that as a result of Mr. Whittemores professional misconduct, A.W. and her son have or will be filing claims with the Lawyers Fund for Client Protection (LFCP). Mr. Whittemore does not intend to dispute those claims. Mr. Whittemore also reports that he does not have the funds to fully reimburse the claimants or the LFCP.
On or about August 20, 2018, Angela Twitchell, Manager of the Brunswick Topsham Land Trust (BTLT), filed a grievance complaint against Mr. Whittemore. Ms. Twitchells complaint alleged misappropriation of funds similar to that recounted previously herein.
In that regard, Ms. Twitchell reported that the BTLT had entered into an agreement with the family of Geoff Lachance to purchase a conservation easement on the Lachance farm. On or about January 31, 2017, Mr. Whittemore received $15,000.00 to hold in escrow pending the closing on the BTLTs purchase. That closing became delayed and remains pending for reasons unrelated to this matter.
On or about August 9, 2018, (following the Courts appointment of a Receiver for the Whittemore law office), Ms. Twitchell discovered that the $15,000.00 was no longer in any of Mr. Whittemores escrow or other bank account(s). Based upon his lack of any explanation for that loss, the Court finds that Mr. Whittemore converted or otherwise improperly removed the BTLT funds for his own benefit. By doing so, Mr. Whittemore violated M. R. Prof. Conduct 1.5(a) [fees] and 8.4(a)(b)(c) [general misconduct; illegal conduct; fraud, deceit or dishonesty].
The Court is aware that as a result of Mr. Whittemores professional misconduct, Angela Twitchell and Mr. LaChance have or will be filing claims with the Lawyers Fund for Client Protection (LFCP). Mr. Whittemore does not intend to dispute those claims. Once again, Mr. Whittemore reports that he does not have the funds to fully reimburse the claimants or the LFCP.
On October 4, 2018 the Board received Kathleen Munroes grievance complaint. Ms. Munroes complaint alleged that on August 20, 2015 she and her (now deceased) husband had provided Mr. Whittemore with a $1,500.00 retainer for representation regarding a construction dispute involving the Munroes Westport Island retirement home.
Thereafter, Ms. Munroe remained in contact with Mr. Whittemore for updates concerning her legal matter. Mr. Whittemore communicated no information that assured Ms. Munroe he was still providing her with any legal services. His failure to appropriately respond to his clients inquiries was a violation of M. R. Prof. Conduct 1.3 [diligence] and 1.4 [communication].
Following the Courts August 7, 2018 issuance of the Interim Suspension Order, Ms. Munroe had contact with the Court-Appointed Receiver, Judy Metcalf, Esq. Approximately one month later, Attorney Metcalf informed Ms. Munroe that a retainer balance of $1,250.00 should have been, but was not, then present in Mr. Whittemores trust account. In fact, by that time, there were no available funds from any of Mr. Whittemores accounts.
Based upon his lack of any explanation for that deficiency, the Court finds that Mr. Whittemore performed minimal legal services for Ms. Munroe and then converted the remaining advanced fee for his own use. By doing so, Mr. Whittemore violated M. R. Prof. Conduct 1.3 [diligence]; 1.5(a) [fees]; and 8.4(a)(b)(c)(d) [general misconduct; illegal conduct; fraud, deceit or dishonesty; and conduct prejudicial to the administration of justice].
The Court is aware that as a result of Mr. Whittemores professional misconduct, Ms. Munroe has or will be filing a claim with the Lawyers Fund for Client Protection (LFCP). Mr. Whittemore does not intend to dispute that claim. Mr. Whittemore also reports that he does not have the funds to fully reimburse Ms. Munroe or the LFCP.
On October 15, 2018 the Board received another client complaint against Mr. Whittemore. In that regard, Donald Bibber alleged that from late 2017 into 2018 he had paid Whittemore a total of $18,790 for legal representation concerning a right-of-way easement issue.
Mr. Bibber reported that Whittemore has never rendered an accounting for legal services he purportedly provided to Mr. Bibber. Nonetheless, whenever Whittemore requested additional funds, Mr. Bibber obliged that request, trusting that Whittemore was performing legal work to properly earn the funds.
Mr. Whittemore agrees that he received fees from Mr. Bibber but acknowledges that he cannot account for how he earned those fees. Thus, based upon all of the relevant facts, the Court finds that Mr. Whittemore improperly requested and received fees from Mr. Bibber without performing the requisite legal work, in violation of M. R. Prof. Conduct 1.5(a) and 8.4(a)(b)(c)(d).
The Court is aware that as a result of Mr. Whittemores professional misconduct, Mr. Bibber may be filing a claim with the Lawyers Fund for Client Protection (LFCP). Mr. Whittemore does not intend to dispute that claim. Mr. Whittemore also reports that he does not have the funds to fully reimburse Mr. Bibber or the LFCP.
M. Bar R. 21 (c) delineates the grounds for lawyer discipline, the range of sanctions which may be imposed for ethical misconduct, and the factors that the Court must consider prior to imposing any such discipline.
M. Bar R. 21(c) states:
Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
- whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- whether the lawyer acted intentionally, knowingly, or negligently;
- the amount of the actual or potential injury caused by the lawyers misconduct; and
- the existence of any aggravating or mitigating factors."
The ABA Standards for Imposing Lawyer Discipline (ABA Standards) define the purposes of lawyer disciplinary proceedings, the public nature of those proceedings and the purpose of the Standards themselves. The ABA Standards are designed to promote:
":(1) consideration of all factors relevant to imposing the appropriate level of sanction in an individual case;
(2) consideration of the appropriate weight of such factors in light of the stated goals of lawyer discipline;
(3) consistency in the imposition of disciplinary sanctions for the same or similar offenses within and among jurisdictions." Standard 1.3, ABA Standards for Imposing Lawyer Sanctions.
In a recent appellate decision, a six-member panel of the Maine Law Court was evenly divided on the issue of whether M. Bar R. 21(c) incorporates the ABA Standards as a "matter of law."1 Although there is an even divide among the Court over the precise import of the ABA Standards, at a minimum, the Court has concluded that an adjudicator should consult those Standards as guidance in making its determination of appropriate sanctions.
Notably, M. Bar R. 21(c) is identical to ABA Standard 3.0. That Standard mandates the courts consideration of "(a) the duty violated; (b) the lawyers mental state; (c) the potential or actual injury caused by the lawyers misconduct; and (d) the existence of aggravating and mitigating factors." In applying the ABA Standards, intentional acts of misconduct require the imposition of more significant sanctions than misconduct which results from a lawyers negligence. Likewise, the amount of injury, or potential injury, to a client, the public, the legal system or the profession is a significant factor. Generally, the most severe sanction of disbarment appears to be reserved for intentional acts of misconduct, or misconduct which results in significant injury, or a combination of both.
Based upon the above-referenced misconduct, the Court finds that Mr. Whittemore violated M. R. Prof. Conduct: 1.1 [competence]; 1.2 [scope of representation]; 1.3 [diligence]; 1.4 [communication]; 1.5(a) [fees]; and 8.4(a)(b)(c)(d) [general misconduct; illegal conduct; deceit/dishonesty; and conduct prejudicial to the administration of justice].
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has considered the duty that Mr. Whittemore violated as a result of his behavior. In each instance, Mr. Whittemores conduct demonstrated violations of duties owed directly to his clients. In addition, Mr. Whittemore violated duties that he owed to the court, to the public, and to his profession.
The correlating ABA Standard for the rules concerning clients and their property is 4.0. As detailed below, the Court finds the ABA Standard to be both relevant and applicable.
4.1 Failure to Preserve Clients Property
4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
4.4 Lack of Diligence
4.41 Disbarment is generally appropriate when:
(a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.
The correlating ABA Standard for the rules concerning unlawful conduct is 5.0. As detailed below, the Court finds the ABA Standard to be both relevant and applicable.
5.1 Failure to Maintain Personal Integrity
5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice. . . fraud, extortion, misappropriation, or theft. . . or an attempt. . . to commit any of these offenses.
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has also considered Mr. Whittemores mental state in committing the various acts of professional misconduct. Based upon the Courts findings and Mr. Whittemores lack of dispute with those findings, the Court concludes that his actions were intentional in nature.
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has considered the actual and or potential injury resulting from Mr. Whittemores misconduct. As noted above, in each of the five counts, there was serious and intentional misconduct that exacted both financial and emotional injury to vulnerable clients.
Pursuant to M. Bar R. 21(c) and ABA Standards 9.2 and 9.3, the Court has considered the applicable aggravating and mitigating factors. While the correlating ABA Standards themselves warrant Mr. Whittemores disbarment, the following aggravating factors are also implicated:
(b) dishonest or selfish motive;
(c) a pattern or misconduct;
(d) multiple offenses;
(h) vulnerability of victim(s);
(i) substantial experience in the practice of law; and
(k) illegal conduct
Conversely, there appear to be no mitigating factors for this courts consideration.
As is evident, the aggravating factors enumerated herein provide a stark contrast to the lack of mitigating factors present in this proceeding. That fact coupled with the serious harm resulting from Mr. Whittemores misconduct require this Court to impose the sanction of disbarment.
As such, the Court hereby Orders that James M. Whittemore is disbarred for a period of ten years from the practice of law. Any subsequent reinstatement shall occur through Whittemores petition filing, pursuant to the Maine Bar Rules.
In the event that the Lawyers Fund for Client Protection (LFCP) pays any claims on behalf of Mr. Whittemore (including after the effective date of this order), he shall be responsible for reimbursement of those claims in a manner acceptable to the LFCP Trustees. Compliance with this provision shall be a consideration for the Court upon any petition for reinstatement.
Dated: November 30, 2018
Nancy D. Mills
Justice, Maine Superior Court
Sitting as Single Justice, by Designation
1In Board of Overseer of the Bar v. Prolman, 2018 ME 28, three of the justices concluded that: "Rule 21(c) incorporates the framework and methodology of the ABA sanction standards, thereby requiring that framework to be explicitly applied after a finding of lawyer misconduct." (supra at paragraph 46.) Conversely, the three remaining justices concluded that there was: "no need to incorporate the ABAs lengthy and detailed ‘Standards for Imposing Lawyer Sanctions’ into the Maine Bar Rules as a matter of law. Although an adjudicator should consult that extended discussion when it is relevant to a particular sanction decision, the requirement that an adjudication must track that lengthy and minute detail in order to impose any sanction would create an unnecessarily cumbersome process." (supra at paragraph 51.)