Board of Overseers of the Bar v. Richard A. Lord, Esq.
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Docket No.: BAR-01-01
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 10, 2001
Respondent: Richard A. Lord, Esq.
Bar Number: 000664
Disposition/Conduct: Excessive Fees; Identifying Commencement, Continuation, and Termination of Representation
Stipulation of Facts and Agreed Upon Order
This matter comes before the Court pursuant to M. Bar R. 7.2(b)(1)(2) and the Court's order of March 15, 2001 whereby the Defendant, Richard A. Lord, Esq., consented to and the Court authorized the Board to file an Amended Information directly with the Court without the necessity of hearing by the Grievance Commission under Maine Bar Rules 7.1 (d), (e).
The Board was represented by Assistant Bar Counsel, Geoffrey S. Welsh, Esq., and the Defendant was represented by Philip P. Mancini, Esq. As recited below, the parties stipulate to the facts, and agree to the entry of an order disposing of this case as follows:
I. Findings of Fact
A. Count I-McCourt
For many years the Defendant was the personal attorney for Denise Cloutier (Cloutier), and he drafted her Last Will and Testament, which she executed on April 2, 1997 when she was then 70 years old. Under the terms of her Will, Cloutier left all of her property to James A. McCourt (McCourt), and she nominated the Defendant to be the Personal Representative (PR) of her estate.
Cloutier's Will also included the following provision:
Inserting this language into Cloutier's Will was the Defendant's idea, not Cloutier's, and the Defendant did so in keeping with his practice of including such a provision in a Will only when he is the PR named in the instrument. The Defendant explained his estate PR fee arrangement to Cloutier by analogy to a real estate broker's percentage fee, and he claimed that he had intended to charge Cloutier's estate a flat fee instead. Significantly, the Defendant did not have Cloutier's separate written consent to or other written confirmation of this unusual compensation arrangement.
On October 12, 1998 Cloutier died, and on October 20th the Defendant filed an Application for Informal Probate of Will and Appointment of Personal Representative with the Cumberland County Probate Court (the Probate Court). Shortly thereafter, the Probate Court appointed the Defendant as PR of Cloutier's estate, and informally admitted Cloutier's Will to probate. As an experienced probate attorney, based upon the relevant provisions of the Maine Probate Code, 18-A M.R.S.A. §1-101, et seq., and because of Estate of Davis, 509 A.2d 1175 (Me. 1986), and Harrington v. Lord, 704 A.2d 1211 (Me. 1997), the Defendant knew or should have known before he sought or accepted appointment as PR of Cloutier's estate that: 1) Determining the PR's compensation, and that of any attorney employed by the PR, based upon a percentage of the estate was a violation of M. Bar R. 3.3(a); and 2) Lord's total combined fees as the PR and as the PR's attorney were required to be reasonable.
Cloutier's estate totaled approximately $110,000.00 of liquid assets, and the Defendant initially charged the estate legal fees of $5,500.00, the Defendant deducting that sum from the McCourt bequest and claiming two separate legal fees: i.e., one for being the PR and one for being the PR's attorney. The Defendant concedes and acknowledges that it was improper and unreasonable for him to be compensated in two capacities from the assets of Cloutier's estate and to base that compensation upon the aforementioned provision, which he had drafted. Such misconduct constituted entering into an agreement for and charging an illegal and excessive fee in violation of M. Bar R. 3.3(a), Davis and Harrington, supra. When, however, McCourt later complained through separate legal counsel about the amount of the fees, the Defendant immediately agreed to a reduction of these charges to the sum of $3,300.00, and promptly refunded the difference to him. On July 11, 1999 a Panel of the Fee Arbitration Commission confirmed the $3,300.00 charge as fair and reasonable.1
B. Count II-Currier
On March 3, 1995 Lynn M. Currier (Currier) hired the Defendant to represent her in a divorce from her then husband, Richard Currier (Richard)2 and on June 28th the Sagadahoc County District Court granted her divorce. During their marriage, the Curriers had one child, Darren A. Currier, who was born on August 20, 1987. On March 14, 1997 the Defendant began representing Currier in post divorce litigation concerning child support, and on that date he filed a Motion for Contempt against Richard. On October 28, 1997 the District Court mediator filed her child support worksheet showing Richard's weekly child support obligation to be $54.00.
Sometime after the divorce, Richard was charged with having committed a number of criminal offenses, and he sought out the Defendant to represent him in them. Although the Defendant agreed to represent Richard in at least two of those criminal matters, he neither disclosed to Currier nor obtained her informed written consent to his representation of Richard. In fact, Currier did not become aware of the Defendant's representation of Richard until she herself checked with the District Court Clerk's Office in Lewiston. The Defendant's simultaneous representation of Richard and Currier was problematic for Currier since the Defendant repeatedly had informed her that he could not collect the past due child support because he could not locate Richard. By simultaneously representing Currier and Richard without Currier's knowledge and consent, the Defendant thereby violated M. Bar R. 3.4(a), (b), (c).
C. Richard A. Lord
The Defendant has been a practicing Maine attorney in good standing for over 35 years. During the course of that time he has devoted numerous hours to public service and pro bono work. He is now 65 years of age. Several years ago he and his wife were granted custody of their 12 year old grandchild who has numerous health problems, and the Defendant and his wife have devoted an inordinate amount of time to her care. Because of the time and attention necessary to assist in the care of his grandchild, focusing sufficient attention on his sole practice has been difficult. These violations are the culmination of that situation.
II. Stipulated Discipline
Bearing in mind the nature of the substantive misconduct described above and the aggravating and mitigating circumstances surrounding that misconduct, the parties hereby stipulate and agree to the entry of a decision and order disposing of this case as follows:
It is hereby ORDERED: That the Defendant is suspended from the practice of law in Maine for a period of sixty (60) days, thirty (30) days of that suspension itself being suspended for a period of one year subject to the following terms and conditions:
The Defendant shall obtain the informed written consent of his clients in all cases where M. Bar R. 3.4(c)(2) otherwise permits simultaneous representation of clients;
The Defendant's fee agreements with all of his clients shall be in writing;
If after due notice and hearing the Court finds that the Defendant violated or failed to comply with any provision of this order, the Court may enter any additional order necessary or appropriate to protect the public, including but not limited to imposing the unsuspended portion of his suspension;
Bar Counsel may file an information against the Defendant directly with the Court concerning any professional misconduct occurring subsequent to the date of this order without the necessity of a Grievance Commission hearing, provided however that any such misconduct is first reviewed by the Grievance Commission pursuant to M. Bar R. 7.1(d);
The Defendant's thirty (30) day unsuspended portion of his suspension shall begin on September 1, 2001, and he shall comply with the notification and reporting requirements of M. Bar R. 7(i) by that date; and
With the exception of the Defendant's unsuspended portion of his suspension, all provisions of this order shall be effective on the date of this order.
For the PartiesGeoffrey S. Welsh, Esq.
Philip P. Mancini, Esq.
For the Court
Hon. Leigh I. Saufley, Associate Justice- Maine Supreme Judicial Court
1After authorizing his attorney to settle the fee dispute with the Defendant, McCourt filed a Petition to arbitrate the dispute with the Fee Arbitration Commission. Thus, the Fee Hearing Panel ratified the agreement earlier reached by McCourt's attorney and the Defendant.
2Currier has since remarried, and now goes by her married name of Lynn M. Quillen.