Opinion
22-314
05-11-2023
BOARD OF OVERSEERS OF THE BAR Petitioner v. LAWRENCE C. WINGER, Esq. of Portland, ME Me. Bar No. 002101 Respondent
Karen Carlisle, LCSW Public Member David R. Dubord, Esq. Panel Member Sarah McPartland-Good, Esq. Panel Chair
Karen Carlisle, LCSW Public Member
David R. Dubord, Esq. Panel Member
Sarah McPartland-Good, Esq. Panel Chair
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION M. BAR R. 13(E)
On March 27, 2023, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning a claim of misconduct by the Respondent, Lawrence C. Winger, Esq. This disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition pursuant to M. Bar. R. 13(e)(7)(D) on February 27, 2023.
At the hearing, Attorney Winger proceeded pro se and the Board was represented by its Assistant Bar Counsel, Suzanne E. Thompson.
Via the Stipulated Disciplinary Petition, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter, with that proposed sanction report being submitted for GC Panel D's review and consideration. The complainant, K.H., has been provided with a copy of the parties' proposed Stipulated Report. K.H. was provided the opportunity to be present at the disciplinary proceeding and allowed an opportunity to provide comment to the Panel.
Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
FINDINGS
Respondent Lawrence C. Winger of Portland, 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 and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Winger was admitted to the Maine Bar in 1979 and he is currently a solo practitioner with an office in Portland, Maine.
According to the parties' stipulations, the Panel finds the following relevant facts:
On or about September 15, 2022, a grievance complaint was filed by K.H. with the Board against Attorney Winger, who then filed a response on October 13, 2022.
During the course of the Board's investigation, K.H. and Attorney Winger were afforded respective opportunities for rebuttal and supplemental responses, resulting in a complete investigation pursuant to M. Bar R. 2(b)(2) and 13(b).
As a result, in January of 2023 a panel of the Grievance Commission reviewed Attorney Winger's actions in this matter and found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, the Grievance Commission panel directed Assistant Bar Counsel to prepare and present a Formal Disciplinary Charges Petition before a different panel of the Grievance Commission.
In March of 2020, Attorney Winger was appointed by the Court to represent K.H. in post-conviction matters. Following his appointment, Attorney Winger timely filed a Memorandum for a Certificate of Probable Cause with the
Law Court on March 20, 2020. The Law Court Denied the Certificate of Probable Cause on or about June 30, 2020. Also in March of 2020, Attorney Winger further counseled his client to pursue an ineffective assistance of counsel claim against the layer who represented him in his probation revocation, also known as a Petgrave Motion. Petgrave v. State, 2019 ME 72. On March 23, 2020, Attorney Winger filed a Motion to Confirm the Timely Filing of a Petgrave Motion for New Trial and Leave to Supplement Said Motion. In May of 2020, the Court authorized K.H. to proceed with the Petgrave Motion. On May 21, 2020, Attorney Winger was granted sixty (60) days to supplement the Motion for a New Trial by filing a Motion for Ineffective Assistance of Counsel Affidavit within sixty (60) days. Attorney Winger failed to file the required Affidavit.
K.H. attempted to communicate with Attorney Winger over the course of Attorney Winger's representation. Although letter correspondence between attorney and client ceased in March of 2020, K.H. continued to call Attorney Winger's office eveiy two (2) to three (3) months seeking updated information about his case. Each time K.H. spoke with Attorney Winger, Attorney Winger would chastise himself and commit to attending to K.H.'s case. Eventually Attorney Winger stopped responding to his calls.
Attorney Winger competently and diligently represented K.H. regarding his discretionary appeal but failed to competently and diligently represent K.H. in the Petgrave Motion and failed to appropriately communicate with K.H. regarding the representation. At the time K.H. filed the grievance complaint in September of 2022, K.H. had not spoken with Attorney Winger for a year.
In responding to K.H.'s complaint Attorney Winger admitted his misconduct. With regards to his failure to file the required Affidavit in support of the Petgrave Motion Attorney Winger noted, "[u]nfortunately, I dropped the ball on that. I was overwhelmed by my caseload as a whole and stopped paying attention to this case."
Based on the facts set forth above, Attorney Winger has readily admitted that he engaged in violations of the applicable Maine Rules of Professional Conduct, including MRPC 1.1 (competence); 1.3 (diligence); and 1.4 (communication). These violations further implicate MRPC 8.4(a) &(d) (misconduct).
CONCLUSION AND SANCTION
Due to Attorney Winger's misconduct in violation of the Maine Rules of Professional Conduct, K.H. was foreclosed from proceeding with his Petgrave Motion, as authorized by the Law Court. Attorney Winger has now taken responsibility for his misconduct and has fully acknowledged his lack of competence in violation of MRPC 1.1, his lack of diligence in violation of MRPC 1.3, and his failure to keep his client "reasonably informed about the status of [his] matter" in violation of MRPC 1.4(a)(3). At the disciplinary hearing, Attorney Winger again expressed remorse for his violation of the Maine Rules of Professional Conduct, and for the effect that his lack of competence, diligence and communication had on his former client. As detailed below, Attorney Winger has also taken remedial measures in his solo practice to ensure that similar incidents do not happen in the future and has agreed to take further action as a condition of this order.
Pursuant to M. Bar R. 21(c) the factors to be considered in imposing sanctions for attorney misconduct are: the duty violated, the lawyer's mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating Or mitigating circumstances. See also ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
The first factor to be considered is the determination of the duty that has been breached by the attorney's misconduct. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to both their clients and the courts. In this instance, Attorney Winger's duties were to his former client, K.H, and he failed to fulfill those duties.
With regard to his mental state, Attorney Winger's misconduct was negligent, and it was not the result of any intentional or knowing conduct on his part.
Attorney Winger's failure to file the required Affidavit barred K.H. from litigating the Petgrave Motion and pursuing his ineffective assistance of counsel claim. The foregoing constitutes an actual injuiy to the client, resulting from Attorney Winger's misconduct as well as injury to the public, the legal system, and the profession.
The sole aggravating factor in this case is Attorney Winger's prior disciplinary history. Attorney Winger has been found to have engaged in professional misconduct on one prior occasion, resulting in the issuance of a suspension in 2015, BAR 15-12. The misconduct in the previous matter constituted a violation of MRPC 8.4(b)(d) and was dissimilar to the conduct that occurred in the current matter.
In mitigation, Attorney Winger recognized that his case load was unmanageable, and withdrew from all his MCILS rosters except Appeals and Post-Conviction Reviews in order to reduce his caseload and get his practice under control. Attorney Winger withdrew from the MCILS Domestic Violence, Drug Offense, Lawyer of the Day-Walk In, Other Felony, Other Misdemeanors, and OUI Rosters. In response to the complaint, Attorney Winger made a full and free disclosure of his actions to the Board during its investigation of K.H.'s complaint; and he appears to be genuinely remorseful for his misconduct.
Equally important, Attorney Winger has recognized the necessity of taking remedial measures and establishing practices and procedures in his office to ensure that similar incidents do not occur in the future. Attorney Winger has agreed to engage with Red Cave Law Firm Consulting and complete additional ethics CLE hours focused on Law Office Management.
In sum, the evidence of misconduct supports the reviewing Panel's findings, and Attorney Winger agrees that he did in fact violate the Maine Rules of Professional Conduct Rule 1.1, 1.3, 1.4 and 8.4(a)(d), and the Panel so finds. 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, and Attorney Winger agrees that he did in fact violate the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21.
In light of the foregoing findings, as supported by the stipulated record, and as adopted by this Grievance Commission Panel, this Panel imposes the following sanction:
1. Attorney Winger is hereby REPRIMANDED by the Grievance Commission pursuant to Maine Bar Rule 21(b)(5).
2. Attorney Winger is placed on PROBATION pursuant to M. Bar R. 21(b)(4) for a period of one year from the date of this Report and he shall be monitored in his practice pursuant to the attached PROBATION MONITORING ORDER.
3. Probation conditions include:
a. Attorney Winger shall engage with Red Cave Law Firm Consulting to obtain its professional advice and assistance in establishing and implementing better practices and procedures for his office and comply with its recommendations. Attorney Winger shall execute a waiver acceptable to allow Bar Counsel to confer with Red Cave Law Firm Consulting regarding his compliance with the terms and conditions of the Order.
b. Attorney Winger will complete three (3) additional Ethics CLE hours which pertain to Law Office Management.
c. Attorney Winger will comply with all professional requirements imposed upon him by the Maine Rules of Professional Conduct and the Maine Bar Rules.
4. Any violation of these probation conditions shall constitute grounds for the imposition of further discipline pursuant to M. Bar R. 21(a)(3), including any possible sanctions and discipline under the rules.
5. If the Board determines that Attorney Winger has violated these conditions of probation, the Board may through its office of Bar Counsel file an Affidavit stating its basis for that determination. Attorney Winger may then have up to 21 days to file a counter-affidavit showing cause why he should not be disciplined for that violation. If Attorney Winger does not then file a counter-affidavit, then the Grievance Commission will proceed to a sanctions hearing as contemplated by M. Bar R. 21. If Attorney Winger does file a counter-affidavit, then he may be heard for the purpose of showing good cause as to why he should not be disciplined.
6. During the period of any litigation related to an alleged violation of probation the period of probation shall be tolled such that time that elapses during such pendency is not counted toward the period of probation.
Therefore, the Panel accepts the agreement of the parties, including Attorney Winger's separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a public reprimand to Lawrence C. Winger, Esq. along with a period of probation as described above which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e)(10)(C) &(D) and 21(b)(4) &(5).