Board of Overseers of the Bar v. Dineen

• Decision Date: 04 November 1985
• Parties: BOARD OF OVERSEERS OF THE BAR v. James M. DINEEN.
• Court: Maine Supreme Court

Page 262

500 A.2d 262

BOARD OF OVERSEERS OF THE BAR v. James M. DINEEN.

Supreme Judicial Court of Maine.

Argued Sept. 18, 1985.

Decided Nov. 4, 1985.

J. Scott Davis (orally), Bd. of Overseers of the Bar, Augusta, for plaintiff.

James J. Fitzpatrick (orally), York, James M. Dineen, Kittery, for defendant.

Before NICHOLS, VIOLETTE, and SCOLNIK, JJ., and WERNICK, A.R.J.

VIOLETTE, Justice.

James Martin Dineen appeals from a decision and order of a single justice of the Supreme Judicial Court finding that he had violated several provisions of the Maine Bar Rules and, as a sanction, ordering his suspension as an attorney from the practice of law in all courts of the state for a period of six months. Appellant contends on appeal that the single justice erred in each of his several findings of violation of the Maine Bar Rules. We affirm.

I.

The charges against Mr. Dineen first arose as the result of legal services he rendered to a husband and wife in 1982. The testimony indicated that, prior to their marriage, the husband had been a regular client of appellant since the mid 1970s and that he had also rendered legal services to the wife. In the spring of 1982, the husband approached Mr. Dineen and explained that he and his wife were considering getting a divorce. The husband mentioned the possibility of the appellant handling the divorce for both parties, thus eliminating the necessity of hiring two attorneys. Mr. Dineen told the husband that he could only handle the matter if the couple prepared a full agreement of their mutual understanding concerning the issues and terms of the divorce.

In July, 1982 the wife was charged on a civil complaint for operating a motor vehicle while under the influence of alcohol. (OUI). The husband retained Mr. Dineen as counsel for his wife and agreed to pay the legal fees. The OUI matter was tried on September 20, 1982. In preparation for the appellant's defense of the wife, the wife did not inform the appellant that she had a serious problem with alcohol abuse. At a time proximate to the pendency of the OUI trial, the husband and wife met with Mr. Dineen at his office to discuss their divorce settlement agreement. Mr. Dineen informed the parties that if any divorce issue remained in dispute, he could not continue to handle the matter. There is testimony by both the husband and wife, however, that Mr. Dineen, in fact, helped the parties work out some of the disputed terms of their agreement. He also explained to them the concept of division of marital property under Maine Law but did so in a manner that favored the husband. Mr. Dineen also explained to the wife that if she wanted to retain another lawyer she could do so. From this meeting the wife was under the distinct impression that Mr. Dineen was representing both her husband and herself in this "no fault divorce." The wife went to the appellant's office one additional time for the purpose of being served, as defendant, with the divorce complaint. The complaint was signed by the husband as plaintiff and Mr. Dineen signed it as attorney for the plaintiff. The complaint alleged that the divorce was based on irreconcilable differences having "arisen between the parties which have caused the irremediable breakdown of the marriage."

In October, 1982, the wife admitted herself into the Seton Unit, Mid-Maine Medical Center in Waterville (Seton) for substance abuse rehabilitation. On December 14th, 1982, the husband brought a written divorce agreement prepared by the appellant to Seton for the wife to sign. She noticed that certain terms in the agreement had changed since the meeting between the appellant, her husband and herself: (1) the amount recited for the husband's child support payments was lower than that to which they had agreed, and (2) there was an added clause that allowed the husband to claim tax exemptions for their two minor children. The wife testified that, at this point, she formulated the opinion that she had been misled by the appellant's explanation of what constituted "marital property." She signed the agreement in spite of her misgivings about some of its terms.

On December 22, the wife called Mr. Dineen and explained that she was at Seton undergoing treatment for alcohol abuse and that she was not ready to be released. She requested that the appellant seek a continuance of the divorce trial date so she could retain separate counsel and contest the divorce. The appellant agreed to do so.

On January 28th, 1983, after another attorney had filed an appearance on behalf of the wife, Mr. Dineen filed an amended divorce complaint on behalf of the husband. The amendment added an allegation that the wife was guilty of cruel and abusive treatment and "of gross and confirmed habits of intoxication from the use of liquor." On February 1st, 1983, the wife filed a motion to compel Mr. Dineen to withdraw from representing the husband. The grounds for the motion were based on: 1) Mr. Dineen's improper representation of both the husband and wife in the pending divorce action and, 2) the fact that the amended complaint improperly put into issue the wife's alcohol abuse at a time subsequent to appellant's representation of the wife on the OUI charge.

On February 3rd, 1983, Mr. Dineen, on behalf of the husband, was before the District Court, Kittery, moving ex parte for temporary custody of the minor children. The grounds included allegations concerning the wife's unfitness to care for her children because of her alcohol abuse. Before hearing the ex parte motion, the District Court judge became aware of the motion to compel Mr. Dineen's withdrawal. In chambers, the judge warned Mr. Dineen that his conduct was susceptible to charges of violation of the bar rules and suggested that he seriously consider withdrawing voluntarily from the case. The appellant disregarded the warning and continued to represent the husband.

A full hearing on the motion to compel withdrawal of Mr. Dineen was held on March 17, 1983. The District Court found that Mr. Dineen had violated the following Maine Bar Rules: Rule 3.4(b) (conflict of interest); Rule 3.4(c) (multiple employment); Rule 3.4(e) (protection of the interests of a former client); Rule 3.6(l )(1) (preserving secrets of a client); and Rule 3.6(m) (avoiding misreliance on a lawyer's opinion by one other than a client). The District Court ordered the appellant to cease representation of either party relative to the divorce action.

In June, 1983 Bar counsel for the Board of Overseers of the Bar filed a petition with the Grievance Commission of the Maine Bar, pursuant to M. Bar R. 7(e)(2), charging the appellant with misconduct. After hearing, the Commission found that appellant's conduct was in violation of Bar Rules 3.4(a) and (b). The Commission recommended that an information be filed with the Supreme Judicial Court to investigate the matter and that, if the Court determined that violation of the Bar Rules had occurred, the appellant be sanctioned. Counsel for the Board of Overseers of the Bar proceeded to file an Information charging the appellant with violations of Maine Bar Rules 3.4(a), (b), (e), 3.6(l )(1) and 3.5(b)(2)(ii). After a full evidentiary hearing before a single justice of the Supreme Judicial Court, Mr. Dineen was found in violation of the Maine Bar Rules hereinafter set forth and, as a sanction, was suspended for six months from the practice of law in this State.

II.

In attorney disciplinary proceedings, the function of the Law Court is to review inferences drawn by the single justice from the evidence presented at hearing, and to uphold his findings unless they are clearly erroneous. Board of Overseers of the Bar v. Dineen, 481 A.2d 499, 502 (Me.1984). The single justice found that Mr. Dineen's conduct violated the Maine Bar Rules in three areas: (1) acceptance of employment, (2) conduct during employment and, (3) withdrawal from employment. Specifically, the single justice found violations of Maine Bar Rules 3.4(a), (b), (c), (d) and (e); 3.6(l )(1) and (m) and 3.5(b)(2)(ii). ¹

At the outset, the single justice determined that an attorney-client relationship was established between Mr. Dineen and the wife, and that Mr. Dineen gave the wife legal advice pursuant to that relationship. Mr. Dineen denies the existence of such a relationship and asserts that there is no evidence in the record that the wife relied upon his legal advice on matters pertinent to the divorce. The term "client" includes one who is either "rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him." M.R.Evid. 502(a)(1). Moreover, "[a]n attorney-client relationship does not require the payment of a fee or formal retainer but may be implied from the conduct of the parties." See Matter of McGlothlen, 663 P.2d 1330, 1334 (Wash.1983). The record supports the single justice's finding that the wife reasonably believed she had consulted the appellant and relied upon his advice with respect to the early divorce process. Furthermore the wife's expressed belief that an attorney-client relationship existed was heightened by the fact of the appellant's contemporaneous representation of her during the OUI proceedings. Id. ²

III.

Turning now to the first broad area of violation, regarding acceptance of employment, the single justice found that Mr. Dineen's conduct violated Rule 3.4(a), which provides:

(a) Disclosure of Interest. Before accepting any professional employment a lawyer shall disclose to the prospective client his relationship, if any, with the adverse party; his interest, if any, in the subject matter of the employment; all the circumstances regarding his relationship to the parties; and any interest or connection with the matter at hand that a lawyer knows or reasonably should know would influence the client in the selection of a lawyer.

M.Bar R. 3.4(a).

The appellant asserts that the wife was aware...