Maine Board of Overseers of the Bar Annual Report 2001
| Publication year | 2002 |
| Pages | 119 |
| Citation | Vol. 01 No. 2002 Pg. 119 |
Spring 2002, pg. 119. Maine Board of Overseers of the Bar ANNUAL REPORT 2001
Spring 2002
The Board of Overseers of the Bar consists of six lawyers and three lay persons. It performs its duties and responsibilities under the Maine Bar Rules through its staff of three lawyers and six additional staff. There are, in addition to the Board, three agencies: the Fee Arbitration Commission, the Grievance Commission, and the Professional Ethics Commission. The Fee Arbitration Commission and the Grievance Commission (twenty-one and twenty-six members, respectively) normally conduct their functions by three-member panels. Each grievance panel is comprised of two attorneys and one lay (public) member. The fee panels may be so comprised or instead consist of two lay members and one attorney. Information concerning the responsibilities and functions of the Board and each of its commissions is contained in informational pamphlets available at the office of the Board of Overseers of the Bar, 97 Winthrop Street, P.O.Box 527, Augusta ME. 04332-0527 (telephone 207-623-1121; fax 207-623-4175). Certain public information may also be accessed at the Board's Web site: www.mebaroverseers.org; e-mail may be addressed to board@mebaroverseers.org. Please also note the respective membership lists (at the end of this report).
Complaints
In 2001, the office of Bar Counsel received, screened, and docketed as Grievance Commission Files (GCF) 183 written grievance complaints. This means that upon screening by an attorney in the office of Bar Counsel these matters were deemed to initially allege at least some prima facie claim of misconduct by Maine attorneys in violation of the Code of Professional Responsibility (Code). That was a 4.2 percent decrease from the number filed in 2000 (191). There were an additional 136 filings that were docketed instead as Bar Counsel files, meaning that upon screening, these complaints were deemed not to state any Maine attorney's violation of the Code. See M. Bar R. 7.1(c) and 7.1(d).
Case Reviews
Panels of the Grievance Commission met on thirty-eight occasions to conduct preliminary reviews of 193 GCF complaints under M. Bar R. 7.1(d). These meetings consist of a panel consulting with Bar Counsel or an assistant bar counsel to review the contents of GCF investigative files. Such reviews are not hearings; neither the complainant nor the respondent attorney is present and, in fact, the majority of the reviews occur by telephonic conference call. Although the Rule's requirements are inapplicable to either complainants or respondent attorneys, the entire investigation and review process through this preliminary phase is kept confidential by the Board, its Commission and its staff under M. Bar R. 7.3(k)(1). However, any subsequent disciplinary hearing and the resulting decision (report) are always open and available to the public.
As a result of those 193 reviews, 159 complaints were closed by issuance of either a dismissal (136) (no finding of any attorney misconduct), or a dismissal with a warning (twenty-three) (minor misconduct) to the involved attorneys. See M. Bar R. 7.1(d)(3)(4). Review panels also found probable cause that professional misconduct warranting some disciplinary sanction had occurred in thirty-one of the reviewed matters. As a result, for those complaints, disciplinary petitions were directed by review panels to be filed by Bar Counsel for formal disciplinary hearings open to the public before another panel of the Commission under M. Bar R. 7.1(e). While this was a major increase in the number of complaints so authorized for hearing in 2001 (ten), eight of the 2001 matters involved one attorney, with another attorney having four matters filed against him. Three additional grievance matters were authorized to be filed directly with Court. See M. Bar R. 7.2(b)(7).
Grievance Commission panels conducted public disciplinary hearings resulting in eighteen decisions in 2001. Panel decisions included two reprimands and three dismissals with warnings of attorneys. Brief descriptions of the proven misconduct in those two public reprimand matters are presented below. In eleven hearing panel discussions, Bar Counsel was directed to file further de novo proceedings before the Supreme Judicial Court, i.e., the panels found probable cause for issuance of the more serious disciplinary sanctions of either suspension or disbarment of the respective attorneys. While these two 2001 reprimands (involving the same attorney in different matters) represented a 67 percent decrease in the number (six) so issued in 2000, the eleven court-referred matters in 2001 represented a very significant-and disturbing-increase (550 percent) compared to the number of GCF matters (two) heard and directed for suspension/disbarment proceedings in 2000. Copies of all public disciplinary decisions issued after hearing are available to the public at the Board's office at 97 Winthrop Street, Augusta, and all such decisions (issued after January 2000) are available at the Board's Web site: www.mebaroverseers.org.
* A panel of the Grievance Commission reprimanded an attorney because he had a conflict of interest, did not employ reasonable care and skill and improperly disclosed client confidences or secrets as a result of his pro bono activities on behalf of immigrant workers. Board of Overseers of the Bar v. John M. Whalen, Esq., GCF No. 98-109 (October 3, 2001).
* A Grievance Commission hearing panel reprimanded an attorney because in a conservatorship proceeding he improperly signed three acknowledgments on waivers of notice without the respective affiants ever having appeared before him to acknowledge their signatures and affirm under oath that they each had read and signed the waivers. The parties stipulated and agreed to a proposed reprimand which, after a public hearing where the complainant(s) were allowed to voice their objections, the Grievance Commission panel made minor amendments and adopted. Board of Overseers of the Bar v. John M. Whalen, Esq., GCF No. 00-143 (November 8, 2001).
Certain complaints heard before panels of the Grievance Commission resulted in dispositions other than reprimands or further court proceedings. Two matters were dismissed for lack of proof of any violation of the Code, and three other cases resulted in dismissals with a warning for minor violations. See M. Bar R. 7.1(e)(3)(B).
As referenced above, Bar Counsel files are those complaints that upon initial review by Bar Counsel were deemed not to allege any professional misconduct subject to sanction under the Maine Bar Rules. M. Bar R. 7.1(c) requires Bar Counsel's unilateral dismissal of such matters, either with or without investigation. There were 136 such filings in 2001, representing a 25.9 percent increase from the number docketed in 2000 (108). As a result, by combination of those matters with all unrelated formal grievance complaints (GCF) discussed above, the number of written complaints about claimed attorney misconduct filed with Bar Counsel in 2001 totalled 319, a 6.7 percent increase from the total of such matters filed in 2000 (299).
When a Bar Counsel file is dismissed, the complainant is always notified by Bar Counsel of the reason for the dismissal and of a right within the subsequent fourteeen days to request that the dismissal be reviewed. That review will be performed by a lay member of either the Board or the Grievance Commission. The involved attorney is always informed by Bar Counsel of the dismissal, any resulting request for review, and the reviewer's decision. Bar Counsel dismissed 121 Bar Counsel files in 2001, with thirty complainants requesting review of those actions, as allowed by Rule 7.1(c)(1). Lay members decided and approved twenty-one of those requests in 2001, with eight reviews pending and one dismissal vacated and re-docketed as a Grievance Commission File.(Fn1)
Eight disciplinary or related matters were acted on by the Court in 2001, with the dispositions as follows: Disbarment-1; Suspensions-4; Resignation-1; Reinstatement-1; and Incapacity-1. A brief summary of those matters follows below. In that regard, it is worth noting that all but one of the Court's disciplinary sanctions was entered by approval of a proposed stipulation of the parties.
In June 1998, after a jury trial, an attorney was convicted of one felony count of perjury (Class) pursuant to 17-A M.R.S.A. § 451 (1983 & Supp. 2000). The perjury resulted from the attorney's having made one or more false material statements to the Court under oath during the course of a prior disciplinary hearing. At the time of the conviction the Court suspended the attorney's license to practice law. In addition, in an unrelated matter, the York County Probate Court found that the same attorney while acting as conservator of a client's estate had misappropriated a sizeable sum of the client's money in breach of his fiduciary duties. A disbarment order was issued upon the Court's (Clifford, J.) finding that the attorney had violated the following Maine Bar Rules: 3.1(a) [conduct unworthy of an attorney]; 3.2(f)(2), (3), and (4) [illegal conduct, conduct involving dishonesty, fraud or deceit, and conduct prejudicial to the administration of justice]; 3.6(a)(2), (3) [handling a matter without...
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