Opinion
SUPERIOR COURT Docket No. CV-20-01
04-02-2021
BOARD OF OVERSEERS OF THE BAR Plaintiff, v. CHRISTOPHER J. WHALLEY Defendant.
STATE OF MAINE
PENOBSCOT, SS. ORDER This matter came before the Court for hearing on February 22, 2021. The Board of Overseers of the Bar (hereinafter referred to as the Board) was represented by Alan P. Kelley, Esq. The Defendant appeared and was represented by Walter McKee, Esq. The parties stipulated that Attorney Whalley had violated Maine Rules of Professional Conduct Rules 3.3, 4.1, and 8.4. Thus, the primary question for the Court is what sanction to impose.
Both parties consented to the hearing being conducted via Zoom.
Background and Factual Findings
In February of 2020, after proceedings before the Grievance Commission, the Board filed an Information with the Maine Supreme Judicial Court. The Information alleges that Mr. Whalley violated Maine Rules of Professional Conduct Rules 3.3 (a) (Candor Toward the Tribunal), 4.1 (a) (Truthfulness in Statements to Others), and 8.4(a)(c) and (d) (Misconduct). The Defendant did not file an answer. Therefore, the allegations in the Information have been admitted. M. Bar R. 20(a). In fact, during the pretrial proceedings and at the hearing, Defendant confirmed that the allegations and misconduct in the Information were admitted. Thus, the Court finds the following facts:
1. Ms. Welch contacted Mr. Whalley in November of 2016 asking that he represent her in response to her former husband's Motion to Modify the Divorce Judgment with respect to the primary residence of their children. (Information ¶¶ 10, 11, 12)
2. "Attorney Whalley and Ms. Welch determined that motions for contempt and to enforce the existing judgment should be filed in opposition to Mr. Trundy's motion to modify." (Id. at ¶ 13.)
3. "Attorney Whalley prepared a Motion for Contempt, and a Motion to Enforce, both of which required the actual signature of Ms. Welch before they could be filed." (Id. at ¶ 14.)
4. "Thereafter, Attorney Whalley signed Ms. Welch's signature on the Motion for Contempt and the Motion to Enforce. Attorney Whalley then "notarized" the signatures, as an attorney at law, stating that Ms. Welch personally appeared before him and "made Oath" to the truth of the statements contained within the motion." (Id. at ¶ 15.)
5. "On January 31, 2017, Attorney Whalley filed the Motion for Contempt and the Motion to Enforce with the Ellsworth District Court in Docket No. ELL-FM-11-314." (Id. at ¶ 16.)
6. "Attorney Whalley contacted Ms. Welch by Facebook 'Messenger,' attaching a photograph of her purported signature. In that message, Attorney Whalley informed Ms. Welch that he had, "obtained (her) signature to speed up filing contempt about counseling ... Remenber (sic) that's your signature." (Id. at ¶ 17.)
7. "In his February 8, 2019 response to Bar Counsel, Attorney Whalley admitted that he had prepared the Motions for Contempt and to Enforce on pre-printed court forms, and that he had signed his client's name and notarized her signature." (Id. at ¶ 18.)
8. "Attorney Whalley claimed that the 'process was an express agency with (Ms. Welch's) approval." (Id. ¶ 19.)
9. "Ms. Welch did not give Attorney Whalley permission to sign her name on the Motions for Contempt and to Enforce. In fact, she was unaware that he had done so until she received his Facebook Messenger message on January 31, 2017." (Id. at ¶ 20.)
The Facebook Message from Mr. Whalley apparently continued by stating: Not bad, huh (or something to that effect). However, this part of the Facebook message was not contained within the Information and while there was no suggestion at the hearing that the Bar's representation was not accurate (in fact the defense argued there it constituted a "bit of cheek"), the Court does not consider the addition to be proper for the Court's consideration and the Court does not consider the part of the message that was to the effect "Not bad, huh."
Analysis
The Maine Rules of Professional Conduct at issue are 3.3 (Candor Toward the Tribunal), 4. 1 (Truthfulness in Statements to Others), and 8.4 (a)(c) and (d) (Misconduct). The Court finds that Mr. Whalley violated Rules 3.3(a), 4.1(a) and 8.4(a)(c) and (d) by forging Ms. Welch's signatures, purporting to take her oath and notarizing the false signatures, filing the forged documents with the Court, and sending the Facebook message to Ms. Welch informing her that he had forged her signature and instructing her to remember that the forged signatures were her signatures. The "purpose of lawyer discipline is not punishment but protection of the public and the courts." Bd. of Overseers of the Bar v. Carey, 2019 ME 136, ¶ 36, 215 A.3d 229 citing Bd. of Overseers of the Bar v. Rodway, 470 A.2d 790, 791 (Me. 1984). See also Bd. of Overseers of the Bar v. Prolman, 2018 ME 128, ¶ 59, 139 A.3d 808 (Saufley, C.J., concurring) (concluding "the sanction imposed [was] wholly insufficient to protect the public and therefore an abuse of discretion."); Bd. of Overseers of the Bar v. Whalley, BAR-04-11, 2005 Me. LEXIS 102, at *8 (July 19, 2005) ("The primary purpose of attorney discipline is not to impose punishment but to protect the public."); Bd. of Overseers of the Bar v. Swales, BAR-01-8, 2002 Me. LEXIS 93, at *2 (May 21, 2002) ("It is well established that the main purpose of attorney discipline is not punishment, but protection of the public") To ensure disciplinary matters are administered with a focus on protecting the public and the courts, Maine Bar Rule 21 sets forth the factors to be considered in imposing sanctions for violation of the Rules of Professional Conduct. The Law Court, in an evenly split decision, addressed whether Rule 21 incorporated the A.B.A. Standards for Imposing Lawyer Sanctions (hereinafter the ABA Standards). Three members of the Court concluded that: "Rule 21(c) incorporates the framework and methodology of the ABA sanction standards, thereby requiring that framework to be explicitly applied after a finding of lawyer misconduct." Bd of Overseers of the Bar v. Prolman, 2018 ME 128, ¶ 46, 193 A.3d 808. The other three members of the Court concluded that
there was no need to incorporate the ABA's lengthy and detailed 'Standards for Imposing Lawyer Sanctions' into the Maine Bar Rules as a matter of law. Although an adjudicator should consult that extended discussion when it is relevant ..., the requirement that an adjudicator must track that lengthy and minute detail in order to impose any sanction would create an unnecessarily cumbersome process.Id. at ¶ 51. Maine Bar Rule 21(c) Factors to be Considered in Imposing Sanctions provides:
In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
ABA Standard 3.0 provides:(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 imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors:
In framing the presumptive sanctions, the ABA Standards look to the ethical duty and to whom it is owed, the lawyer's mental state, and the amount of injury caused by the lawyer's misconduct. ABA Annotated Standards for Imposing Lawyer Sanctions (2d ed. 2019) at xviii. After categorizing the misconduct and identifying the recommended sanction, the ABA Standards call for consideration of aggravating and mitigating circumstances. Id. In this case, after having found that Mr. Whalley violated Maine Bar Rules 3.3(a), 4.1 (a), and 8.4 (a)(b) and (d), whether the ABA Standards are explicitly applied or are considered and used for guidance is without consequence as the result would be the same.(a) the duty violated;
(b) the lawyer's mental state;
(c) the actual or potential injury caused by the lawyer's misconduct; and
(d) the existence of aggravating or mitigating factors.
Maine Rule of Professional Conduct 3.3 (a) provides:
"A lawyer shall not knowingly:
(1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) misquote to a tribunal ...
(3) offer evidence that is false..."
Maine Rule of Professional Conduct 4.1(a) provides:
"In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, ...".
Maine Rule of Professional Conduct 8.4 (a), (c), and (d) provides:
"It is professional misconduct for a lawyer to:
(a) 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; ...
(b) ...
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice."
1. Duty An attorney owes duties to his/her client, the general public, the legal system, and the legal profession. See Preface to ABA Annotated Standards for Imposing Lawyer Sanctions at xviii-xiv. The ABA Standards differentiate these duties: 1) the duty to the client are those duties based upon the fiduciary relationship; 2) the duty to the general public requires not engaging in criminal conduct; 3) the duty to the legal system requires attorneys, as officers of the court, to abide by the rules of substance and procedure which shape the administration of justice; and 4) the duty to the legal profession requires attorneys to maintain the integrity of the profession. Mr. Whalley - himself - forged his client's signatures, notarized the false signatures, filed the document containing the false signatures with the Court, and instructed his client to support the lawyer's dishonesty. These acts violate Mr. Whalley's duty to the legal system. ABA Standard 6.1 provides guidance on the appropriateness of available sanctions for a Violation of Duties Owed to the Legal System. Thus, reference is had to ABA 6.11 and 6.12. ABA 6. 11 provides:
The ABA Standards recognize the following issues as breaching a duty to a client: failure to preserve client's property, failure to preserve client confidences, failure to avoid conflicts of interest, failure of diligence, failure of competence, and lack of candor (deception regarding status of case, deception regarding settlement funds, misrepresentation regarding nature and extent of legal services performed, deception regarding attorney's fees). ABA Annotated Standards for Imposing Lawyer Sanctions, at 145, 217-220.
The ABA Standards recognize the following issues as breaching a duty to the public: practicing law during suspension, lack of integrity when acting as public officials, and committing criminal acts. ABA Annotated Standards for Imposing Lawyer Sanctions, at 229-230, 242. The Notes to the ABA Standards also recognize that "[W]hile Standard 6.0 (Violations of Duties Owed to the Legal System) provides the recommended disciple for false swearing, fraud, and misrepresentation to a court, such misconduct also is often analyzed under Standard 5.11(a) as involving serious criminal conduct, an element of which is false swearing." Id. at 247.
The ABA Standards recognize the following issues as breaching a duty to the legal system: false statements, fraud, and misrepresentation; abuse of the legal process; improper communications with individuals within the legal system. ABA Annotated Standards for Imposing Lawyer Sanctions, at 307, 310. Upon admission to the bar, every applicant shall, in open court, take and subscribe an oath to support the Constitution of the United States and the Constitution of this State, and take the following oath...: "You solemnly swear that you will do no falsehood nor consent to the doing of any in court, and that if you know of an intention to commit any, you will give knowledge thereof to the justices of the court or. . . but will conduct yourself in the office of an attorney within the courts according to the best of your knowledge and discretion, and with all good fidelity, as well as to the courts, as to your clients. So help you God." 4 M.R.S. § 806 (2021).
The ABA Standards recognize the following issues as breaching a duty to the legal profession: false or misleading communication about the lawyer or the lawyer's services, improper communication of fields of practice, improper solicitation of professional employment from a prospective client, unreasonable or improper fees, unauthorized practice of law, improper withdrawal from representation, or failure to report professional misconduct. ABA Annotated Standards for Imposing Lawyer Sanctions, at 363.
Maine law provides that: "Attorneys at law duly admitted and eligible to practice in the courts of the State shall have all of the powers of notaries public and be authorized to do all acts which may be done by notaries public with the same effect thereof and have the same territorial jurisdiction." 4 MRS § 1056 (2021).
While soliciting a client to cooperate with a falsehood may violate a duty owed to the lawyer's client, the ABA Standards do not specifically recognize this situation as such. Additionally, while Mr. Whalley's misconduct may violate a duty owed to the profession, the ABA Standards do not specifically recognize this situation as such. Violation of a duty owned to a client leads to Standard 4.0 and violation of a duty owed to the profession leads to ABA Standard 7.0. In this case, analysis under Standard 4.0 and/or 7.0 would follow a similar review of duty, mental state, and harm, and would lead to the same result. Because Attorney Whalley's multiple acts constitute one course of misconduct which resulted in the documents being filed with the Court, the Court considers the misconduct as violating his duty to the legal system.
Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, . . . and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.ABA 6.12 provides:
Suspension is generally appropriate when a lawyer, knows that false statements or documents are being submitted to the court . . . and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding
2. Lawyer's Mental State/intentionally, knowingly, or negligently The ABA Standards define "intent" as: "the conscious objective or purpose to accomplish a particular result." ABA Annotated Standards for Imposing Lawyer Sanctions, at xxi. There is no question that Mr. Whalley's conduct was intentional. Mr. Whalley had the intent to and did forge Ms. Welch's signature. He had the intent to and did purport to take her oath and notarize the false signature. He had the intent to and did file the forged documents with the Court. Finally, he had the intent to and did send the Facebook message suggesting that Ms. Welch acquiesce in the falsehood. Mr. Whalley had the "intent to deceive" the Court into believing that the rules had been followed when he filed the forged documents with the false jurat to cause the Court to docket the filings. While the Court finds that Mr. Whalley's conduct was intentional, it also accepts that the conduct was not designed to hurt his client or the legal system.
3. Injury The ABA Standards define "injury" as: "harm to a client, the public, the legal system, or the profession, which results from a lawyer's misconduct. The level of injury can range from 'serious' injury to 'little or no' injury; a reference to 'injury' alone indicates any level of injury greater than 'little to no' injury." "Potential injury" is defined as: "the harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct." ABA Annotated Standards for Imposing Lawyer Sanctions, at xxi. There is no question that Mr. Whalley's conduct did not, in fact, cause injury, serious or otherwise, to Ms. Welch. Mr. Whalley met with Ms. Welch regarding the substance of the motions. It appears that Ms. Welch believed the recitations in the motions were accurate and she continued to rely on those facts during the proceeding. Mr. Whalley did not submit substantive information to the Court that was false. There was no intent to deceive the Court (or the opposing party) about the actual information the Court would need to evaluate to make a decision on the pending motions. The falsehood related only to the forged signature and false jurat. However, there is injury to the legal system any time anyone submits false documents to the Court. There is injury to the legal system anytime an attorney suggests to a client or any third party that false swearing or filing false documents with the Court is acceptable conduct. Mr. Whalley's Facebook message to his client informing his client about the forgery and soliciting her cooperation in perpetuating the falsehood adds a negative dimension to the underlying misconduct Mr. Whalley had no intention to correct the falsehood. An attorney flaunting dishonest conduct causes inherent injury to the legal system. The Court finds that the ABA presumption sanction is Suspension. Thus, the Court proceeds to consider the Aggravating and Mitigating circumstances as set forth in ABA 9.1, 9.2, and 9.3
4. Aggravating and Mitigating Factors There are aggravating and mitigating factors in this case. The aggravating factors under ABA Standard 9.2 which are present in this case include: Mr. Whalley's prior disciplinary offenses and his substantial experience in the practice of law.
Prior discipline: Mr. Whalley has a rather extensive history with the Board of Overseers of the Bar. Mr. Whalley has been the subject of multiple complaints that have resulted in reprimands, suspended suspensions, or dismissals with warnings. He has received two suspended suspensions: one in 2003 and the other in 2007. Mr. Whalley has received two reprimands: one in 2005 and one in 2008. Mr. Whalley has received six dismissals with warnings, the most recent in 2015. The most recent disciplinary sanction was in 2008. It is unclear whether any of the prior disciplinary actions have involved any conduct similar to the conduct at issue in this case. The Board cites to one case involving "a misrepresentation" in 2003. However, the Court does not know the details of that prior misconduct so it cannot determine whether the "misrepresentation" was "similar" misconduct.
Experience: Mr. Whalley has very substantial experience in the practice of law.There are four mitigating factors in this case under ABA Standard 9.3: Remorse, remoteness of most serious of prior offenses, lack of personal gain, and full and free disclosure to the disciplinary board/cooperative attitude toward the proceedings.
Motive: The Court finds a dishonest motive in that Mr. Whalley had no intent to correct the forgery and intended that the Court accept the signed and notarized document purporting to bear the client's signature. However, the Court does not consider this dishonesty to be an aggravating factor because dishonesty is a fundamental aspect of the misconduct itself and it would be inappropriate to double-count this factor in the analysis.
Remorse: Mr. Whalley made a presentation to the Court. Mr. Whalley appears genuinely remorseful for his conduct.The aggravating and mitigating factors in this case are somewhat equal, and, even if the mitigating factors somewhat outweigh the aggravating factors, given the nature of the misconduct, suspension still appears to be the appropriate sanction.
Remoteness: Mr. Whalley's most recent suspended suspension was in 2007 and the most recent reprimand was in 2008.
Cooperation: Additionally, he has cooperated with the Bar proceeding.
Motive: Mr. Whalley was not motivated by personal gain to engage in this misconduct.
Benefit: Maine Courts have also considered an attorney's legal service benefiting the community as a mitigating factor. See Bd. of Overseers of the Bar v. McLaughlin, Jr., BAR-18-5 (March 26, 2019) (Mead, J.) ("Additionally, the Court finds that McLaughlin's practice, which is directed in large degree to individuals with low or limited incomes, has provided a benefit to the residents of Aroostook County, and is considered to be a further mitigating factor.") See also Bd. of Overseers of the Bar v. Hoffman, BAR-13-6 (Sept. 30, 2013) (Alexander, J.) (in discussing imposition of a suspended suspension, the Court stated Attorney Hoffman continues to provide an "important service to the public in a geographic area that is presently significantly underserved because only a few attorneys are available to take court appointed criminal and child protective cases. . . Any period of suspension to be served would disrupt and delay those cases, impacting not only Hoffman's clients, but others involved as parties, children, witnesses, etc.") See also Bd. of Overseers of the Bar v. White, BAR-18-03 (Oct. 3, 2018) (Alexander, J.) (the court considered it to be a mitigating factor that the attorney provided services at a reasonable cost to clients who might otherwise not be able to hire an attorney). Mr. Whalley's practice in large measure is devoted to representing court appointed clients in criminal and child protective matters.
Dismissals with warnings are permitted only in "cases of minor misconduct, when there is little or no injury to a client, the public, the legal system, or the profession, and when there is little likelihood of repetition by the lawyer." M. Bar R. 21(b)(3). While dismissals with warnings are private non-disciplinary sanctions, when the attorney has a subsequent disciplinary proceeding, such dismissals with warnings may bear on the issue of the proper sanction to be imposed in the subsequent disciplinary proceeding. M. Bar R. 21(b).
Sanction
The Maine Bar Rules set forth several options after finding a violation of the Bar Rules: dismiss the Information, admonition, dismissal with warning, probation, reprimand, suspended suspension, suspension for a definite period, and/or disbarment. M. Bar R. 21(b). Rule 21 provides further details regarding the appropriateness of imposition of these options. In this case, the Board argued for a one-year suspension with all by 90 days suspended. Mr. Whalley argued for a reprimand. While no two cases are the same, when addressing matters of attorney discipline, it is important to ensure that there is consistent application of the standards. Bd. of Overseers of the Bar v. Prolman, 2018 ME 128, ¶ 45, 193 A.3d 808 citing Bd. of Overseers v. Rodway, 470 A.2d 790, 791 (Me. 1984) ("Disciplinary proceeding must be administered with an even hand." Attorneys must receive "fair and consistent" treatment for violation of the Bar Rules.) Both parties argued that the Court should consider Bd. of Overseers of the Bar v. White, BAR 18-03 (Oct. 3, 2018) (Alexander, J.) in determining the appropriate discipline in this case. Jeffrey White submitted a document to a Bankruptcy Court with his client's s/ signature. A lawyer is required to have a document signed by his client in his possession before submitting the document with the s/ signature to the Court, and Mr. White did not. The Bankruptcy Judge found the "violations were not particularly serious" and the Single Justice imposed a public reprimand on this particular count of the White Information while imposing a suspension on other conduct in the Information. Id. at pg. 12. However, there are important differences between Mr. White's conduct and Mr. Whalley's conduct. Mr. White intended to have his client actually sign the document before it was used as an exhibit at the court hearing. Additionally, Mr. White did not suggest to his client that she should support the attorney's misconduct. Therefore, while there are similarities between Mr. White's and Mr. Whalley's conduct, the Court finds that the differences are striking and the result in the White case is easily distinguished from the appropriate result in this case. See also Bd. of Overseers of the Bar v. Miller, BAR-14-1 (Sept. 15, 2014) (Mead, J.) (attorney's failure to obtain client's original signature thereby violating Bankruptcy Court Rules resulted in a suspended suspension and the attorney had been reprimanded one year earlier). The parties also argued the matter of Iowa Supreme Court Disciplinary Board v. Lori Jo Kiefer-Garrison, 951 NW 2.d 29 (2020), in which the court suspended an attorney for a period of one year for, among other things, forging a client's signature on an arraignment form. However, in Kiefer-Garrison, the attorney failed to consult with her client before waiving his rights; upon direct inquiry from the court, she responded with false information; and the attorney had been disciplined for similar misconduct in the past. Mr. Whalley did consult with his client and did not give false information upon direct inquiry from a judge. Over the last ten years, Courts in the State of Maine have generally imposed license suspensions without any period suspended in the following circumstances: 1) significant injury to a client or others, 2) multiple incidents of misconduct, or 3) attorney incapacity/disability. None of these circumstances exist in this case. The misconduct in this case occurred in November of 2016 with one client over a period of a day or so and the client did not suffer any injury. The Court bears in mind that the primary purpose of attorney discipline is protection of the public and the courts. Bd. of Overseers of the Bar v. Carey, 2019 ME 136, ¶ 36, 215 A.3d 229 citing Bd. of Overseers of the Bar v. Rodway, 470 A.2d 790, 791 (Me. 1984). After full consideration of all of the above, the Court finds that a suspension from the practice of law is appropriate. The Court reaches this result both with and without strictly applying the presumptive sanction under the ABA Standards. The more difficult question is whether a portion of the suspension should be suspended. Unfortunately, there is little guidance to determine when suspending a suspension is appropriate. The more recent cases in which suspensions have been partially suspended generally involve harm to a client or others or a pattern of misconduct by the attorney. The more recent cases in which suspensions have been fully suspended generally involve cases with no injury to a client or where measures had been put in place to protect clients and the public. In this case, on the one hand, the conduct involved a single course of conduct occurring over the period of a day or so, involved one client, there was no injury to the client, but an unquantifiable injury to the legal system. Mr. Whalley has expressed remorse. On the other hand, the nature of the conduct was dishonesty and included suggesting to the client that she endorse the dishonesty and Mr. Whalley has been disciplined many times, including two suspended suspensions. Yet, the most serious past discipline is remote in time, and the last involvement in the form of a dismissal with a warning occurred in 2015. After full reflection of all of the factors set forth above, and subject to the requirements set forth in this Order and Decision, it is ORDERED that, commencing immediately, Mr. Whalley is suspended from practicing law in Maine for a period of one year, with that suspension fully suspended subject to the following:
1. that Mr. Whalley participate in a psychological evaluation and treatment. The psychological evaluation and treatment will focus on the factors that would cause an attorney to elevate his judgment on expediency over compliance with the laws and court rules and on the factors that would cause an attorney to solicit his client's cooperation in his misconduct. The treatment shall also focus on measures to prevent such or similar conduct from happening in the future. Within 21 days, the Board and Mr. Whalley shall agree on an evaluator/counselor. Mr. Whalley shall begin the evaluation by May 17, 2021. Mr. Whalley shall participate in no fewer than 20 sessions
of counseling, unless the counselor discharges him earlier upon successful completion of the course of counseling. The counselor shall be given copies of this and all prior disciplinary decisions and non-disciplinary decisions (dismissals) related to Mr. Whalley.The Court is satisfied that the period of suspension can be suspended while Mr. Whalley participates in the evaluation and treatment because Mr. Whalley's remorse and embarrassment will be a protective factor for the immediate future. The Clerk shall incorporate this Order upon the docket by reference. Dated: April 2, 2021
2. the Board and Mr. Whalley shall agree upon a monitor and such monitor shall monitor that Mr. Whalley attends the evaluation, that the treatment focuses on the issues set forth above (as well as any other areas the counselor determines necessary), and that Mr. Whalley participates in the treatment in good faith. Mr. Whalley shall sign all necessary releases to permit the monitor to determine whether he has participated in the evaluation and treatment and to discuss with the counselor the nature of the counseling and Mr. Whalley's participation therein. The monitor shall report his/her conclusions to the Board of Overseers of the Bar on no less than a monthly basis beginning on June 1, 2021, and particularly shall report any apparent violation of the conditions of this Order to Bar Counsel immediately. The monitor's responsibility does not extend to monitoring Mr. Whalley's law practice.
3. if Attorney Whalley commits any apparent violation of any of the conditions of this Order, Bar Counsel may proceed by way of contempt to request that the Court impose the suspended portion of this sanction.
4. upon certification by Bar Counsel that Mr. Whalley has completed the required evaluation and counseling, the underlying suspension shall terminate.
e.g. Board of Overseers of the Bar v. Spurling, BAR 20-08 (Sept. 4, 2020) (Stanfill, J.) (significant injury to clients when attorney made unwelcome sexual advances toward two clients and made plans with a third client); Bd. of Overseers of the Bar v. Sanchez, BAR 19-05 (June 19, 2019) (Horton, J.) (attorney suspended for one year due to significant injury to client after attorney permitted statute of limitations to expire on claim of environmental contamination of property); Bd. of Overseers of the Bar v. Carey, BAR 18-4, 16-15 (Dec. 20, 2018) (Warren, J.) (three year suspension imposed for significant injury to client after attorney engaged in unwanted physical advances that rose to the level of criminal conduct, failed to comply with the interim suspension order, including the continuation of his campaign for District Attorney after his interim suspension, and attempted tampering with a witness); Bd. of Overseers of the Bar v. White, BAR 18-03 (Oct. 3, 2018) (Alexander, J.) (nine month suspension imposed for, among other misconduct, failing to communicate with clients, failure to maintain trust accounts, failure to properly supervise staff and some injury was caused to clients); Bd. of Overseers of the Bar v. Burbank II, BAR 17-12 (Jan. 24, 2018) (Clifford, J.) (one year suspension for frivolous and baseless conduct, consistently disregarding "standards of law and practice that govern appellate review" and causing harm to opposing parties); In re Nadeau, 2017 ME 121, 168 A.3d 746 (probate judge suspended for two years for personally soliciting reelection campaign donations, attempting to remove attorneys from the court appointed attorney list based on contentious personal relationships, ordering destruction of a lawfully obtained public document, and urging litigants to lobby for increased court time); Bd. of Overseers of the Bar v. Otis, BAR 13-7 (Dec. 23, 2013) (Levy, J.) (four year suspension based on repeated failures to communicate with clients, improper retention of client funds for extended time, multiple acts of neglect, violation of the Order of Receivership, improper use of client trust assets, and harm to probate assets); Bd. of Overseers of the Bar v. Concannon, BAR 13-24 (Dec. 9, 2013) (Levy, J.) (disability); Bd. of Overseers of the Bar v. Cote, BAR 13-20 (Dec. 3, 2013) (Jabar, J.) (disability); Bd. of Overseers of the Bar v. Hunt, BAR-11-11 (July 18, 2013) (Levy, J.) (disability); Bd. of Overseers of the Bar v. Turner, BAR 11-15 (Feb. 7, 2012) (Jabar, J.) (suspended until further notice based on threat of serious harm to client by failing to: respond to client inquiries; return client files/property; appear at some District Court hearings; relinquish his complete client files and office computer; and failure to file an affidavit).
e.g Bd. of Overseers of the Bar v. Prolman, BAR 14-12 (July 8, 2019) (Alexander, J.) (after reconsideration of sanctions for significant injury, the Court imposed a two year suspension with all but nine months suspended after attorney made arrangements for vulnerable client to stay in his apartment with him, made multiple unwanted sexual advances toward the client, engaged in sexual acts with the client, and provided and consumed alcohol with the client in violation of the client's terms of probation and in violation of his own supervised release for a federal conviction for money laundering and a prior court disciplinary order); Bd. of Overseers of the Bar v. McLaughlin, Jr., BAR-18-5 (March 26, 2019) (Mead, J.) (attorney provided patently incorrect advice to a client which was in violation of a court order and which resulted in the client being convicted of criminal trespass, attorney also actively participated in entering house and removing property, and attorney failed to give truthful information to the Board); Bd. of Overseers of the Bar v. Sineni III, BAR 16-12 (Feb. 19, 2019) (Alexander, J.) (two year suspension with all but nine months suspended for several separate acts of misconduct, including at least twice violating his bail on pending criminal charges, violating a protection order, attempted improper use of a former client's medical records, violation of statutory medical malpractice fee limitation, failure to comply with the Board's investigation of bank and trust accounts, failure to maintain proper accounting and recording keeping of trust accounts, and repeated failures to timely file court documents); Bd. of Overseers of the Bar v. Letourneau, BAR 16-17 (Jan. 25, 2018) (Hjelm, J.) (engaging in graphically sexualized behavior toward a client, including recurrent sexualized texting and repeated unwelcome suggestions to engage in sexual acts by attorney to vulnerable client, 20 month suspension, 16 of which had already been served and a one year additional fully suspended suspension for failure to comply with any terms of the sanctions order.)
e.g. Bd. Of Overseers of the Bar v. Fethke, BARiso-16-11 (Jan. 30, 2017) (Humphrey, J.) (attorney's billing submissions to Maine Commission of Indigent Legal Services contained "material misrepresentations" of fact, including not accurately reflecting the dates of work, billing for work not yet performed, and he did not appreciate the need for accuracy in reporting the work being done in terms of dates and time of billing. Attorney had instituted law office changes); Bd. Of Overseers of the Bar v. Miller, BAR-14-1 (Sept. 15, 2014) (Mead, J.) (attorney failed to obtain client's original signature thereby violating Bankruptcy Court Rules and misleading the Bankruptcy Trustee and Bankruptcy Court. Attorney had been reprimanded one year earlier for misconduct that resulted in harm to clients. Attorney had instituted law office changes); Bd. Of Overseers of the Bar v. Hoffman, BAR-13-6 (Sept. 30, 2013) (Alexander, J.) (Attorney called in bomb threats to two elementary schools causing evacuation and fear and provided false information during the law enforcement investigation. Thereafter, attorney put measures in place to address his issues); Bd. of Overseers of the Bar v. Kellett, BAR-13-10 (July 16, 2013) (Gorman, J.) (violation of discovery by prosecutor and presentation of unfairly prejudicial arguments at criminal trial, attorney expressed remorse and took remedial measures); Bd. Of Overseers of the Bar v. Doukas, BAR-10-13 (Dec. 2, 2010) (Silver, J.) (gross negligence in handling matter resulted in expiration of the statute of limitations) (Court noted that the attorney "successfully handles low-cost domestic relations and family matters and has done so for many years."); Bd. Of Overseers of the Bar v. Letourneau, BAR-09-11 (March 25, 2010) (Gorman, J.) (neglect of nine clients) ("Keeping in mind that the purpose of bar discipline proceedings is not punishment but rather protection of the public, the Court must fashion an Order that addresses the problems associated with Attorney Letourneau's practice but does not unnecessarily interfere with his livelihood.")
But for the completion of a course of psychological counseling, which the Court believes will have a long-term effect in preventing future bar violations (thus protecting the public and courts), the Court would not suspend the entire period of suspension. --------
/s/_________
Ann M. Murray, Justice
Maine Superior Court
Sitting by assignment by order dated 2/18/20