Bd. of Overseers of the Bar v. Prolman

• Citation: 193 A.3d 808
• Decision Date: 28 August 2018
• Docket Number: Docket: Cum-17-430
• Parties: BOARD OF OVERSEERS OF the BAR v. Gary M. PROLMAN
• Court: Maine Supreme Court

193 A.3d 808

BOARD OF OVERSEERS OF the BAR

v.Gary M. PROLMAN

Docket: Cum-17-430

Supreme Judicial Court of Maine.

Argued: June 12, 2018

Decided: August 28, 2018

Revised: October 11, 2018

Aria Eee, Esq. (orally), and J. Scott Davis, Esq., Board of Overseers of the Bar, Augusta, for appellant Board of Overseers of the Bar

James M. Bowie, Esq. (orally), Thompson Bowie & Hatch LLC, Portland, for appellee Gary M. Prolman

Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

Concurrence: JABAR, MEAD, and HJELM, JJ.

Concurrence: SAUFLEY, C.J., and GORMAN and HUMPHREY, JJ.

PER CURIAM

[¶ 1] The Board of Overseers of the Bar appeals from the judgment of a single justice of the Supreme Judicial Court (Alexander, J. ) concluding that Gary M. Prolman violated the Maine Rules of Professional Conduct and the attorney's oath, 4 M.R.S. § 806 (2017), and suspending him from the practice of law for six months. The Board argues that the court abused its discretion by imposing a six-month suspension without considering and applying the disciplinary framework set out in the American Bar Association's Standards for Imposing Lawyer Sanctions (Am. Bar Ass'n 1992) (ABA Sanction Standards).¹ Although we are evenly split in determining the basis of the error, we unanimously agree that the judgment must be vacated and the matter remanded for a redetermination of the sanction.²

I. BACKGROUND

A. Factual Findings

[¶ 2] The court made the following factual findings, which are supported by the record. See Bd. of Overseers of the Bar v. Brown , 623 A.2d 1268, 1270 (Me. 1993).

[¶ 3] In June 2014, as a result of his guilty plea to, and resulting conviction of, federal charges of conspiracy to launder money and aiding and abetting, 18 U.S.C.S. §§ 1956(a)(1), (h) 1957(2) (LEXIS through Pub. L. No. 115-231 ), Prolman was suspended indefinitely from the practice of law in Maine. Following his guilty plea, Prolman received a sentence of twenty-four months' imprisonment and twenty-four months' supervised release. In November 2015, the Board filed a motion seeking further disciplinary action against Prolman, and Prolman responded with a motion seeking limitation or termination of his suspension. After a hearing on those motions in February 2016, a single justice of the Supreme Judicial Court (Alexander, J. ) issued a decision concluding that Prolman had violated M.R. Prof. Conduct 8.4(a)-(d) but nonetheless ordering the termination of Prolman's suspension as of July 1, 2016, thereby reinstating him to the practice of law.³ Pursuant to that order, Prolman's reinstatement and continued active practice was conditioned upon his compliance with the terms and conditions of his federal supervised release. The Board did not appeal from that order.

[¶ 4] In late 2016, the woman who later filed the complaint in this matter contacted Prolman and asked him to represent her in two separate matters. One of those matters involved an outstanding warrant from Florida for the woman's arrest after she was charged with theft. Prolman agreed to represent the woman for a flat fee and successfully resolved the matter. Prolman also agreed to assist her in having the period of probation arising from a felony drug conviction terminate early. In March 2017, Prolman arranged for early termination of her probation, effective in June 2017, provided that his client complied with terms of her probation until that time. Prolman received another flat fee to represent her in that matter.

[¶ 5] Beyond the two matters for which Prolman was retained, the woman also discussed with Prolman whether he could assist her with a third matter. At the time, criminal charges for sex trafficking women, including Prolman's client, were pending against an individual in Massachusetts. Because the client was concerned about the risks associated with testifying against that individual, and because she wanted to put her history of sex trafficking victimization behind her, the client asked Prolman to assist her in arranging to avoid testifying in that matter.

[¶ 6] At the time the client retained Prolman, she was living with a boyfriend. The boyfriend was controlling and abusive; the client gave her boyfriend the money she earned from her job, and in return, he paid her expenses, including the flat fees paid to Prolman for his representation. The boyfriend also paid for and controlled the client's cell phone. On at least two occasions in early 2017, the boyfriend assaulted the client. Although law enforcement officials had indications that the assaults had occurred, the assaults were not prosecuted because the client indicated that she would refuse to testify against her boyfriend.

[¶ 7] On the evening of March 26, 2017, the client's boyfriend savagely assaulted her at their apartment. In addition to causing other injuries, he broke bones in her face and attempted to strangle her, leaving marks on her throat. The client fled to another residence and the police arrested the boyfriend.

[¶ 8] On March 27, 2017, law enforcement authorities anticipated that the boyfriend would be bailed and would return to the apartment that he and the client shared. As such, they believed that it was necessary that the client promptly find other accommodations where her boyfriend would not have access to her. At the time, the client had no money and no one in the community to whom she could turn for assistance.

[¶ 9] On March 27, Prolman was in Florida, preparing to return from a ten-day vacation. Prolman and the client spoke by phone on several occasions. During these calls, she apparently described the assault and informed Prolman of her need to find safe accommodations. Prolman also spoke with the deputy who was the client's diversion supervision officer. Prolman indicated to the deputy that there was an apartment above his law office in Saco where the client could stay. The impression Prolman conveyed to the deputy was that the apartment was an otherwise vacant apartment where the client could stay, by herself, until more permanent living arrangements could be found.

[¶ 10] In fact, the apartment above Prolman's law office was Prolman's residence and had three bedrooms and one bathroom. The first bedroom, located next to the only bathroom on that floor, was occupied by Prolman. The second bedroom was occupied by another individual who was not then present. The third bedroom was where the client would stay. Because the deputy did not know that Prolman lived in the apartment and because, from the deputy's perspective, no other living arrangement was available and a living arrangement for the client was urgently needed, the deputy agreed to place the client in the apartment above Prolman's law office. The deputy arranged for the client to travel to the apartment where, by prior arrangement, Prolman's office assistant had left directions for the client to get into the apartment.

[¶ 11] Prolman arrived home from Florida late in the evening of March 27 or very early in the morning on March 28. During the day of March 28, Prolman purchased a cell phone for the client that was added, as a second phone, to Prolman's cell phone account. The cell phone was intended to provide the client with a means of communication that was not known to or accessible by her abusive boyfriend. Prolman also assisted his client in obtaining a job as a waitress at a local restaurant.

[¶ 12] On March 29, Prolman and the client met with law enforcement officials and probation officers to discuss the client's probation status and the prosecution of her abusive boyfriend. At the meeting, the fact that the client was living in an apartment above Prolman's law office was discussed, but at no point did Prolman or his client indicate that Prolman was also residing at the apartment. Had she learned that Prolman was living at the apartment, the client's diversion officer would have acted to terminate that living arrangement. Because Prolman's conditions of supervised release prohibited him from associating with felons, except for providing service as an attorney, Prolman's federal probation officer also would have objected to Prolman allowing the client, who had a felony drug conviction, to live with him.

[¶ 13] When he arranged for his client to live in his apartment, Prolman was aware of his client's social history, history of abuse, submissiveness to men, and vulnerability to abusive physical and sexual relationships. Despite this knowledge, on more than one occasion while Prolman and his client were residing at his apartment between March 29 and April 9, 2017, Prolman approached his client seeking sexual gratification and engaged in sexual acts with her. The client regarded Prolman's sexual acts as "gross." Although she did not consent, she also did not communicate her objection to Prolman's sexual acts, simply submitting to what Prolman demanded as she had done in past relationships with men who had taken advantage of her vulnerability.

[¶ 14] Pursuant to the client's intensive supervision as part of the diversion program, the deputy was in regular contact with the client while she was residing at Prolman's apartment. At no time while the client was residing in Prolman's apartment did the deputy receive any indication that there was reason to be concerned about the relationship between Prolman and the client. Consistent with the client's past practice of minimizing or not disclosing problems she had with men abusing or taking advantage of her during the course of her probation supervision, the client did not disclose Prolman's actions until she moved out of the apartment.

[¶ 15] On April 10, the client, with the assistance of her employer, acquired a vehicle. That day, Prolman prepared dinner for his client, which they shared with glasses of wine. The meal was festive, and its purpose was to celebrate the client's increasing independence. Late that evening, Prolman approached the client in her bedroom and attempted to initiate sexual relations with her. She...