Bd. of Overseers of the Bar v. Brown
| Citation | 2023 ME 58 |
| Docket Number | Cum-22-404 |
| Decision Date | 24 August 2023 |
| Parties | BOARD OF OVERSEERS OF THE BAR v. DONALD F. BROWN |
| Court | Maine Supreme Court |
Argued: July 6, 2023
Maine Supreme Judicial Court docket number Bar-22-2
James M. Bowie, Esq. (orally), Thompson Bowie & Hatch LLC Portland, for appellant Donald F. Brown
Suzanne E. Thompson, Asst. Bar Counsel (orally), Board of Overseers of the Bar, Augusta, for appellee Board of Overseers of the Bar
Panel STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.
[¶1] Donald F. Brown appeals from a judgment of a single justice (McKeon, J.) finding that he violated the Maine Rules of Professional Conduct and the Maine Bar Rules and imposing a public reprimand and a one-year suspended suspension.[1] See M. Bar R. 13(g)(4). Brown challenges the sufficiency of the evidence supporting the single justice's findings, argues that the single justice erred and abused his discretion in applying the Maine Rules of Professional Conduct and the Maine Bar Rules, and asserts that the single justice imposed inappropriate sanctions. The Board of Overseers of the Bar moves to dismiss the appeal arguing that its motion for clarification and further order did not extend the timeline for filing an appeal. We hold that the appeal was timely filed and affirm the judgment.
[¶2] The single justice made the following factual findings, which are supported by competent record evidence. See Bd. of Overseers of the Bar v. Prolman, 2018 ME 128, ¶ 2, 193 A.3d 808; Bd. of Overseers of the Bar v. Brown, 623 A.2d 1268, 1270 (Me. 1993).
[¶3] Brown has been licensed to practice in Maine since 1997. He is a solo practitioner who maintains an office in Brewer and currently employs two part-time support staff. Around February 24, 2020, Brown became aware that he did not have any continuing legal education (CLE) credits for the 2019 calendar year. Maine Bar Rule 5 required Brown to earn twelve credits by February 28, 2020.[2] Brown reached out to the Board to determine how he could obtain the necessary credits by the deadline. The Board pointed him toward several third-party CLE providers. Brown chose a service named Lorman Education Services and purchased an all-access pass which gave him access to both "live" and "self-study" courses, all of which were online. Under Maine Bar Rule 5(c)(1), seven of the twelve CLE credits must be earned through live, as opposed to self-study, programs.
[¶4] Brown signed up for four live courses and five self-study courses with Lorman. Brown soon realized, however, that he had scheduling conflicts with some of the live courses. Brown asked a support staff person, Tammy May, to sign on using Brown's credentials to the live online courses that Brown could not attend. May understood that her role was to complete the live CLE courses for Brown. In accordance with Brown's request, May completed at least three of Brown's live CLE courses on February 25, 26, and 28, 2020. Brown then "allowed Lorman to report" to the Board that he had attended those live CLE courses. After May filed a complaint against Brown with the Board and after the Board extended the deadline for 2020 CLE completion due to the COVID-19 pandemic, Brown attended sufficient programs to meet his live CLE requirement.
[¶5] Brown first began a sexual relationship with T.F. in 2014. At some point after Brown and T.F. met, T.F. married M.P. T.F. and M.P. had a child in 2017, and during the pregnancy there was a gap in Brown and T.F.'s relationship. In 2018, T.F. retained Brown to file a motion to enforce a marital property distribution she was entitled to as part of her previous divorce from another man. Brown and T.F. then resumed having a sexual relationship while Brown represented T.F. on the motion to enforce.
[¶6] T.F. moved out of her home with M.P. in the late summer to early fall of 2019. At that time, Brown and T.F. were still engaging in periodic sexual relations. Also in the fall of 2019, Brown began representing T.F. in her divorce from M.P., a protection from abuse action against M.P., and an unrelated foreclosure action. Around this time, T.F. also began working for Brown on a part-time basis.
[¶7] Before Brown began representing T.F. in her divorce action from M.P., T.F. and Brown discussed the ethical rule regarding sexual relations with a client. See M.R. Prof. Conduct 1.8(j).[3] After doing so, Brown did not believe it would be a conflict of interest for him to represent T.F. in her divorce, and T.F. was comfortable with Brown representing her in the matter. Brown never obtained T.F.'s consent to the representation in writing.
[¶8] Starting around the fall or winter of 2019, Brown and T.F. began staying at each other's homes often. As a result, Brown regularly saw T.F. and M.P.'s minor child and regularly discussed the circumstances of T.F. and M.P.'s divorce with T.F.
[¶9] During the pendency of the divorce action and shortly after signing on to the CLE classes for Brown, May stopped working for Brown. On March 11, 2020, May contacted M.P.'s divorce attorney to say that she had information that could help M.P. M.P.'s attorney agreed to speak with May, and May provided him with information about Brown's relationship with T.F. M.P.'s attorney was concerned that Brown and T.F.'s relationship was contributing to the contentiousness of the divorce. At an interim divorce hearing the following day, March 12, 2020, testimony about Brown's relationship with T.F. was presented, and as a result the family law magistrate called a recess to speak with Brown and M.P.'s attorney. The magistrate advised both Brown and M.P.'s attorney to contact Bar Counsel to inquire whether their actions conformed to Maine's ethical rules. Brown talked with an Assistant Bar Counsel who cautioned him that continuing to represent T.F. could constitute a personal conflict of interest.
[¶10] After the interim hearing, Brown moved to disqualify M.P.'s attorney. At a hearing on that motion in July 2020, Brown confirmed that he was now cohabitating with T.F. and her child. Brown and T.F. later agreed it would be best if Brown withdrew from representing her. Brown withdrew his motion to disqualify M.P.'s attorney and withdrew as T.F.'s counsel in the divorce matter.
[¶11] In March 2020, May filed a bar complaint against Brown, alleging multiple instances of misconduct. Bar Counsel recommended that formal charges be filed against Brown. See M. Bar R. 13(b)(1)(F). In November 2020, a panel of the Grievance Commission reviewed the allegations and approved Bar Counsel's recommendation for the filing of formal charges. On August 25 and 26, 2021, a second panel of the Grievance Commission held a hearing on the matter. On September 30, 2021, that second panel filed a finding of probable cause and directed Bar Counsel to file an information with the court pursuant to Maine Bar Rule 13(g)(1). See M. Bar R. 13(e)(10)(E). On January 10, 2022, Bar Counsel filed a three-count information with the Executive Clerk of the Supreme Judicial Court. Count 1 alleged that Brown violated the Maine Bar Rules and the Maine Rules of Professional Conduct with regard to his continuing legal education. Count 2 alleged that Brown violated the Maine Rules of Professional Conduct with regard to his representation of T.F. Count 3 alleged that, in a matter unrelated to Counts 1 and 2, Brown misrepresented circumstances in a motion to continue.
[¶12] Following a hearing on July 19 and 21, 2022, the single justice issued an order finding that the Board proved Counts 1 and 2 by a preponderance of the evidence.[4] Based on the evidence produced at the hearing, the single justice concluded that with respect to Count 1, regarding his CLE requirements, Brown violated Maine Bar Rule 5(e)(3)[5] and Maine Rules of Professional Conduct 8.4(a)[6] and 8.4(c).[7] The single justice also concluded Brown violated Maine Rules of Professional Conduct 1.7(a)(2)[8] and 8.4(a) with respect to Count 2 and his representation of T.F.
[¶13] The single justice issued a separate sanctions order on October 6, 2022. Regarding Count 1, the single justice suspended Brown from the practice of law for one year. Brown's suspension was fully suspended subject to several conditions, including that (1) within twenty-one days, the parties would agree on a monitor who would confirm Brown's compliance with the court's order through monthly reports to the Board and report any violation by Brown of the order, the Maine Bar Rules, or the Maine Rules of Professional Conduct; and (2) Brown would fully reimburse the Board for costs recoverable under Maine Bar Rule 22. Regarding Count 2, the single justice imposed a public reprimand.
[¶14] On October 20, 2022, the Board filed a "Motion for Clarification &Further Order," without citation to authority, and requested that the single justice "impose a deadline for [Brown's] reimbursement of costs, require [Brown] to bear any associated costs of monitoring and order that Bar Counsel['s] office, or the Court, be permitted to select a monitor in the event the parties [could not] reach agreement [on a monitor] after twenty-one (21) days." On November 23, 2022, the single justice held a hearing on the motion for clarification and issued an order on that motion together with an order governing Brown's probation and monitoring. The single justice ordered Brown to fully reimburse the Board for costs recoverable under Maine Bar Rule 22 within twenty-one days, ordered Brown to assume all costs incurred to effectuate the monitoring requirements in the sanctions order, and ordered that Bar Counsel select a...
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