Opinion
GCF 22-168
06-16-2023
Board of Overseers of the Bar Petitioner v. Jason M. Jabar, Esq. of Waterville, ME Me. Bar No. 009154 Respondent
REPORT OF FINDINGS AND ORDER OF THE GRIEVANCE COMMISSION M. BAR R. 13(E)(9)
On April 11, 2023, with due notice, the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7), concerning alleged misconduct by the Respondent, Jason M. Jabar, Esq. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition ("Petition") by the Board of Overseers of the Bar on October 14, 2022.
At the hearing, Attorney Jabar appeared and was represented by James M. Bowie, Esq., and the Board was represented by Assistant Bar Counsel Suzanne E. Thompson Esq. The Panel admitted without objection the Board's previously submitted Exhibits 1-3, 5-8, &10 and disallowed exhibits 4 &9. The Panel also heard the sworn testimony of Jason M. Jabar, Esq. and the Complainant, C.R.
FINDINGS of FACT
1. Petitioner is the Board of Overseers of the Bar (the "Board").
2. Respondent Jason M. Jabar of Waterville, State of Maine, is and was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law. As such, he is subject to the Maine Rules of Professional Conduct and the Maine Bar Rules.
3. The Board asserts upon information and belief that the Respondent engaged in misconduct by violating specific portions of the Maine Rules of Professional Conduct as set forth below for which he should be disciplined, as further described in the Petition.
4. The Complainant filed a complaint on April 28, 2022, and filed additional information on May 20, 2022, and June 10, 2022. The Respondent filed his response on June 7, 2022, and June 28, 2022.
5. During the Board's investigation, C.R. and the Respondent were afforded respective opportunities for rebuttal and supplemental responses, resulting in a fully developed investigation, pursuant to M. Bar R. 2(b)(2) &13(b).
6. As a result, on or about October 13, 2022, a panel of the Grievance Commission reviewed the Respondent's actions in this matter, and based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Rules of Professional Conduct and/or the Maine Bar Rules. Therefore, the Grievance Commission panel directed Assistant Bar Counsel to prepare and present the Petition before a different panel of the Grievance Commission.
The facts concerning the Respondent's alleged misconduct are as follows:
7. The Complainant and her late husband, B.R., engaged the Respondent in 2008 to prepare simple wills.
8. The Complainant's will granted B.R. a life estate in real property and devised the real property and the remainder of her estate to her children.
9. B.R.'s will devised his business to his son, the remainder of his estate to the Complainant and appointed the Complainant personal representative.
10. In 2021, the Complainant and B.R. separated and began divorce proceedings. B.R. also had a pending domestic violence charge wherein the Complainant was the victim.
11. In April 2021, B.R. reached out to Respondent to engage him to draft a new will that revoked his 2008 will and omitted the Complainant from his estate.
12. Respondent advised B.R. that drafting a new will would have no practical effect until the divorce was finalized and that finalization of the divorce would revoke any will drafted during the marriage. Nevertheless, B.R. requested that Respondent draft a new will. Respondent drafted the will as requested.
13. Thereafter, the Complainant and B.R. reconciled. The criminal matter was resolved, and the divorce proceeding was dismissed.
14. April 18, 2022, B.R. passed away.
15. Thereafter, the Complainant called Respondent's office to inquire about B.R.'s will. Respondent questioned whether the Complainant and B.R. were going through a separation, then told the Complainant that "there was no will at his firm." Respondent instructed the Complainant to speak to B.R.'s son for further information. Respondent called the Complainant back later that same day and told her that B.R had "revoked his will."
16. In his response to the grievance complaint, Respondent disagreed his conduct violated the Maine Rules of Professional Conduct and asserted the following:
• The representation of B.R. in 2021 was not "the same or substantially related" to the original representation of the Complainant and B.R. in 2008, pursuant to M.R. Prof. Conduct 1.9(d). In support, Respondent noted that the representation he undertook in 2008 was limited to drafting two simple instruments that B.R. and the Complainant independently reviewed and verified.
• Revoking and redrafting B.R.'s will in 2021 was not materially adverse to the Complainant per M.R. Prof. Conduct 1.9(a) because the Complainant remained entitled to statutory remedies as spouse.
• B.R.'s 2021 revocation and execution of a new testamentary document did not constitute the "same legal transaction or dispute" within the meaning of M.R. Prof. Conduct 1.9(d).
• There was no "substantial risk that confidential factual information obtained in the prior representation" of the Complainant and
B.R. would be used to "materially advance" B.R.'s position in the 2021 representation. M.R. Prof. Conduct 1.9(d).
17. The Board alleges that Respondent violated M.R. Prof. Conduct 1.9(a)(d), and 8.4(a), which read as follows:
1.9 Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(d) Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter.
8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another.
Count I
18. The above information is restated and incorporated herein by reference.
19. M.R. Prof. Conduct 1.9(a) reads in relevant part, "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client ...." (emphasis added). The Board did not produce sufficient evidence to support a finding that the Complainant had an interest-within the meaning of M.R. Prof. Conduct 1.9(a)-in being the Personal Representative of B.R.'s estate and/or in the residuary of B.R.'s estate in the absence of B.R.'s promise not to revoke the 2008 will or other contractual obligation not to revoke.
20. Additionally, the Board did not produce sufficient evidence to support a finding that even if the Complainant had an interest-within the meaning of M.R. Prof. Conduct 1.9(a)-in being the Personal Representative of B.R.'s estate and/or in the residuary of B.R.'s estate, that the Complainant's interests were materially adverse to B.R.'s interests where the Board produced no evidence of materiality. Specifically, the Board produced no evidence:
• Concerning what the Complainant would have received in the residuary of B.R.'s estate per the 2008 will as compared to what C.R. in fact received from B.R.'s estate as B.R.'s spouse at the time of B.R.'s death; or
• Concerning what the Complainant could have done as Personal Representative that she was not able to do as spouse not acting as Personal Representative per the 2008 will.
In the absence of evidence concerning materiality, the Panel also cannot conclude that Respondent violated M.R. Prof. Conduct 1.9(a).
Count II
21. The above information is restated and incorporated herein by reference.
22. Because the Board did not prove by a preponderance of evidence that Respondent violated the requirements of M.R. Prof. Conduct 1.9(a)(d) the Board also did not prove by a preponderance of evidence that Respondent violated M.R. Prof. Conduct 8.4(a).
CONCLUSION
Based upon the evidence presented at the hearing, the closing arguments of the parties, and the parties' supplemental briefing, the Panel concludes that the Board has not met its burden to prove by a preponderance of the evidence that Attorney Jabar engaged in misconduct subject to sanction under the Maine Rules of Professional Conduct. Accordingly, pursuant to M. Bar R. 13(e)(10)(A) the panel dismisses the Petition.