Opinion
GCF 22-152
03-28-2023
BOARD OF OVERSEERS OF THE BAR Petitioner v. Edward L. Dilworth III, Esq. of Norway, ME Me. Bar No. 007644 Respondent
Board of Overseers of the Bar
REPORT OF FINDINGS FINDINGS AND ORDER OF GC Panel B OF THE GRIEVANCE COMMISSION M. Bar R. 13(e)
Jerrol A. Crouter, Esq. Panel Chair
The matter came before the Grievance Commission on January 31, 2023, for a public disciplinary hearing on the Board of Overseers of the Bar's (the Board) Formal Disciplinary Charges Petition dated October 24, 2022, pursuant to Rules 13(e)(7) and 14(a) of the Maine Bar Rules. Assistant Bar Counsel Suzanne E. Thompson represented Petitioner. Respondent, Edward L. Dilworth, III appeared and was represented by Attorney James M. Bowie. The Panel received into evidence Petitioner's Exhibits 1-49 and Respondent's Exhibit 50 and heard testimony from two (2) witnesses: the Respondent and the Complainant, R.S. Pursuant to M. Bar. R. 13(e)(9), based on the evidence and argument presented by the parties at the public hearing, the Panel issues this written report setting forth its findings of fact, conclusions of law, and application of any relevant factors with respect to appropriate sanctions for misconduct.
FINDINGS
1. Respondent Edward L. Dilworth III, Esq. (Dilworth III) of Norway, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Attorney Dilworth III is subject to the Maine Bar Rules, and the Maine Rules of Professional Conduct (MRPC). Attorney Dilworth III was admitted to the Maine Bar in 1993 and he is currently in private practice in Norway, Maine.
2. Complainant, R.S., filed a first complaint [GCF-21-223] against Respondent on September 19, 2021. (Petitioner's Exhibit 26.) Complainant thereafter filed a Supplement to her Complaint on September 28, 2021. (Petitioner's Exhibit 27.)
3. Respondent filed a written response to the Complaint, dated October 14, 2021. (Petitioner's Exhibit 28.)
4. Thereafter, Complaint filed additional responses on November 8, 2021, (Petitioner's Exhibit 30) to which Respondent replied on November 22, 2021. (Petitioner's Exhibit 31.)
5. On January 5, 2022, Petitioner the Board of Overseers of the Bar, as part of its investigation of the Complaint pursuant to M. Bar Rule 13(b), requested additional information. (Petitioner's Exhibit 35.)
6. Both Complainant (See Petitioner's Exhibits 37, 39) and Respondent (See Petitioner's Exhibits 36, 38) provided additional information in response to Petitioner's requests.
7. On February 23, 2022, Bar Counsel issued a Dismissal After Investigation of GCF 21-223 (See Petitioner's Exhibit 40) which was Approved after Public Review. (Petitioner's Exhibit 41.)
8. Thereafter, Complainant filed a second Complaint on April 14, 2022, which attached a copy of the Fee Arbitration Commission's (FAC) Panel Award and Determination and Confidential Addendum (Petitioner's Exhibit 42) and specifically set forth three (3) new allegations;
a. that the testimony Respondent provided in the FAC hearing contradicted the information provided in the first investigation and established that Complainant was not informed of, nor consented to, the agreement Respondent made to mediate after the expiration of the statute of limitations;
b. that Respondent did not provide Complainant with a written fee agreement explaining the terms under which Respondent and the Probate Attorney were dividing fees, and that Complainant did not authorize the payment of a referral fee; and
c. that Respondent's FAC testimony demonstrated that he did not diligently research Driver's assets in contradiction to statements he made on this issue during the investigation in GCF 21-223.
9. Respondent submitted written responses on May 4, 2022, and June 6, 2022 (See Petitioner's Exhibit 43, 45) and Complainant filed submissions on May 20, 2022, and June 14, 2022. (Petitioner's Exhibit 44, 46.)
10. On July 1, 2022, Petitioner the Board of Overseers of the Bar, as part of its investigation of the Complaint pursuant to M. Bar Rule 13(b), requested additional information. (Petitioner's Exhibit 47.)
11. Both Respondent (See Petitioner's Exhibits 48) and Complainant (See Respondent's Exhibit 49) provided additional information in response to Petitioner's requests.
12. After review and instruction to proceed accordingly by a different Grievance Commission panel acting pursuant to M. Bar. Rule 13(d), Petitioner filed its Formal Disciplinary Charges Petition dated October 24, 2022.
13. Respondent filed his Answer to Disciplinary Charges Petition dated November 14, 2022.
14. The Panel rejects Respondent's assertion that the claims in this matter are barred by the dismissal in GCF 21-223. Claim preclusion has not been applied to disciplinary proceedings in Maine under the Rules of Professional Conduct, and the Supreme Court of Colorado in In Re Greene, 2013 CO 29, upon which Respondent relies, rejected a claim preclusion argument where the claims were not identical. In this case, Complainant's claims in the instant matter differ from those in GCF 21-223, insofar as they are based upon information not presented in GCF 21-223, and are based upon information provided before the FAC. Furthermore, no final judgment issued previously regarding these claims. Rather, the matter was dismissed administratively by Bar Counsel and the dismissal was approved by a Public Member of the Grievance Committee.
15. The Panel finds that the Respondent was sufficiently diligent in researching Driver's assets, and did not violate Rule 1.1 and 1.3. Driver's sworn financial affidavit demonstrated she had limited assets, and the $75,000 which Driver received in her divorce, the amount on which Complainant basis her claim, was protected from execution under Massachusetts law.
16. The Panel finds that the Respondent violated Rule 1.5(e)(1) by failing to confirm in writing with the Complainant his agreement to share fees with the referring attorney. While the fee sharing was disclosed in the two settlement statements which were signed by the Complainant, this occurred well after the Respondent was retained by the Complainant. Rule 1.5(e) requires written confirmation of the fee sharing agreement at the time the other lawyer is employed, and there was no such contemporaneous written consent by Complainant.
17. The Panel finds credible Complainant's testimony that Respondent did not discuss the statute of limitations, or any agreement to toll the statute of limitations, with her before the mediation. The Panel also finds credible Complainant's testimony that her negotiating position was affected by the mediator's description of the statute of limitations issue. Although a tolling agreement is not required to be in writing, Respondent's failure to discuss the statute of limitations with Complainant as the limitations period approached, and his failure to communicate to Complainant that he believed he had an agreement to toll the limitations period, violated Rule 1.4(b), which requires the lawyer to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." The Panel finds, however, that Complainant suffered no harm as a result of this violation. Indeed, the Panel finds that Respondent obtained for the Complainant's sister's estate the full value of available insurance, plus an additional $30,000 from Driver.
18. The Panel finds that to the extent there was inconsistency between Respondent's testimony before the FAC and the information provided to Bar Counsel in GCF 21-223, the inconsistencies do not constitute violations of Rules 8.1(a) or (b), or Rule 8.4(a), (c) or (d).
CONCLUSION OF LAW AND SANCTION
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding that Attorney Dilworth III did in fact violate the Maine Rules of Professional Conduct, the Grievance Commission must now issue an appropriate sanction. Pursuant to M. Bar R. 13(e)(6)(8), prior to imposing a sanction, the Commission has considered the existence or absence of any prior sanction record.
The Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction. Maine Bar Rule 21 states as follows:
(c) 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 panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer's misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, Attorney Dilworth's III misconduct violated duties that he owed to his clients and to the profession. However, the Commission does not find that Attorney Dilworth III acted with the intent to harm his clients' interests.
There are no aggravating factors. In mitigation, Attorney Dilworth III did not harm his client, and in fact obtained a fair result for her in her capacity as Personal Representative of the estate. There was no direct harm to the public. Attorney Dillworth III has also had his fees reduced by the Fee Arbitration Commission as a result of the same issues which form the basis of the Commission's findings in this case.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Commission finds that an ADMONITION is the appropriate sanction to address the misconduct by Attorney Dilworth III. Therefore, the Commission concludes that the appropriate disposition of this case is an ADMONITION to Edward L. Dilworth III, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e)(10)(B) and 21(b)(1).
Bernard J. Broder III, Esq. Panel Member
Richard P. Dana, CPA Public Member