Board of Overseers of the Bar v. Peter E. Rodway, Esq.
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Docket No.: GCF-02-185
Issued by: Grievance Commission
Date: December 1, 2003
Respondent: Peter E. Rodway, Esq.
Bar Number: 007105
Disposition/Conduct: Neglect of a CLient's Matter
REPORT OF FINDINGS OF PANEL B OF THE GRIEVANCE COMMISSION
On December 1, 2003, pursuant to due notice, Panel B of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), to determine whether there were grounds to issue a reprimand or if probable cause existed to file an information concerning alleged misconduct by the Respondent, Peter E. Rodway, Esq. (Rodway), as described in a Petition dated and filed by the Board of Overseers of the Bar (the Board) on August 27, 2003. Assistant Bar Counsel, Geoffrey S. Welsh, Esq., represented the Board, and Peter J. DeTroy, III, Esq., represented Rodway, both counsel being present at the hearing.
The complainants, Scott E. and Brenda L. Spearrin (the Spearrins) did not attend the hearing. They had, however, been notified and understood that the parties had stipulated to the following facts and agreed upon disposition of this matter by a reprimand, which the Panel now so finds and adopts:
On or about June, 2001 Rodway began representing Brenda L. Spearrin (Brenda) in several matters, civil and criminal, all involving her domestic difficulties with her husband, Scott E. Spearrin (Scott).
On October 1, 2001 a Kimberly L. Olden (Olden) filed a small claims action in the Bridgton District Court (the Court) against Brenda generally alleging that Brenda had breached a contract with Olden requiring her to reimburse Olden for snow removal and to return a security deposit for Olden’s rental unit.
While the small claims lawsuit was collateral to the other matters in which Rodway represented Brenda, he advised that he would be willing to assist her in defending the claim, including appearing in court if she desired.
Rodway, however, filed no formal appearance for Brenda in the matter. His and Brenda’s recollections differ about how he would become involved in the case. Brenda thought he would approach the court directly to obtain a hearing date and Rodway believed that Brenda would inform him of the hearing date when she received the Notice of Hearing from the clerk’s office. Because of this honest miscommunication and misunderstanding, neither Brenda nor Rodway appeared at any hearing.
On October 12, 2001 the Court mailed a Notice of Hearing to Ms. Spearrin and Ms. Olden in their case stating that the hearing would be on December 20th at 8:30 a.m. Brenda did not notify Rodway of the hearing date. On that same date the Court entered a default judgment against Brenda in the amount of $836.64 plus costs of $45.00.
On January 2, 2002 Brenda wrote Rodway enclosing a copy of the default judgment, and for the first time he was made aware of the hearing of December 20, 2001. Within several weeks thereafter Rodway told Brenda that he would file a motion to vacate that judgment. However, he failed to do so which he recognizes was a violation of M. Bar R. 3.6(a)(3).
On January 23, 2002 the Court issued a Writ of Execution against Brenda, and also a Notice of Disclosure Hearing for February 21st.
On March 21, 2002 the Court entered a Disclosure Hearing Order therein noting the parties’ agreement that Brenda would pay Olden a total amount of $959.00 on a monthly installment basis.
Considering the above facts stipulated to by the parties, the Panel finds that Rodway was not diligent in pursing the motion to vacate the default judgment for Brenda. While his reliance on her to provide him with the small claims hearing date so that he could calendar the matter for trial is understandable, his failure to file the motion to vacate is not, and it constituted neglect.
In view of the foregoing misconduct, the Panel concludes, as Rodway admitted during the hearing, that the appropriate disposition of this complaint is that Rodway be, and he hereby is, reprimanded for his violations of the Maine Bar Rule as established in the findings of fact discussed in this report. In reaching this conclusion, the Panel recognizes that Rodway has not previously been disciplined.
For the Grievance Commission
David R. Weiss, Esq., Chair
John H. Rich, III, Esq.
Caroline S. Macdonald
To: Members, Panel B of the Grievance Commission
From: Geoffrey S. Welsh, Assistant Bar Counsel
Re: Board of Overseers of the Bar v. Pete E. Rodway, Esq., GCF# 02-185
Date: January 6, 2004
Enclosed for the Panel’s review and consideration is a copy of the proposed Report of Findings of Panel B of the Grievance Commission regarding the above captioned matter scheduled for a disciplinary hearing on Monday, December 1, 2003 @ 9:30 a.m. at the Maine District Court, 205 Newbury Street, 2nd Floor – Courtroom #10, Portland, Maine, 04112.
As indicated in the proposed Report, both parties have agreed that the appropriate disposition of this disciplinary matter is by a reprimand. Assuming that Report is acceptable to the Panel, we are prepared to proceed with the normal abbreviated format in such matters, whereupon the parties and counsel appear and the Panel accepts and signs the Report at that time. Please notify the Grievance Commission Clerk or me if for any reason that procedure will be unacceptable to the Panel.
Because of the tentative disposition of this case agreed upon by Mr. DeTroy and me, I shall not be proceeding with witnesses, etc., if the Panel rejects the proposed disposition. Consequently, I have agreed with him that this case then would be reassigned to another Grievance Commission Panel for a full evidentiary hearing.
C: Peter J. DeTroy, III, Esq.,