In re Prolman

• Decision Date: 14 April 2022
• Docket Number: Cum-21-238
• Citation: 2022 ME 25
• Parties: IN RE PETITION OF GARY M. PROLMAN FOR REINSTATEMENT TO THE BAR OF THE STATE OF MAINE
• Court: Maine Supreme Court

2022 ME 25

IN RE PETITION OF GARY M. PROLMAN FOR REINSTATEMENT TO THE BAR OF THE STATE OF MAINE

No. Cum-21-238

Supreme Court of Maine

April 14, 2022

Argued: December 9, 2021

Julia A. Sheridan, Esq. (orally), Board of Overseers of the Bar Augusta, for appellant Board of Overseers of the Bar

Mark V. Franco, Esq. (orally), and Sara P. Cressey, Esq., Drummond Woodsum, Portland, for appellee Gary M. Prolman

Panel STANFILL, C.J., and MEAD, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

PER CURIAM.

[¶1] The Board of Overseers of the Bar appeals from the judgment of a single justice (Kelly, J.) reinstating Gary M Prolman to the practice of law following the suspension imposed by a single justice of the Supreme Judicial Court (Alexander, J.) in accordance with our decision in Board of Overseers of the Bar v. Prolman (Prolman I), 2018 ME 128, 193 A.3d 808. Because we conclude that the record does not support the single justices finding that Prolman proved his compliance with Maine Bar Rule 29(e)(1) and (4) by clear and convincing evidence at the reinstatement hearing, we vacate the judgment and remand for further proceedings.

I. BACKGROUND

[¶2] Many of the facts leading to Prolmans current petition for reinstatement are set out in Prolman I. Briefly,

• In June 2014, Prolman was suspended indefinitely from the practice of law in Maine as a result of his federal convictions related to money laundering. Id. ¶ 3.

• In February 2016, a single justice (Alexander, J.) terminated Prolmans suspension and reinstated him to practice effective July 1, 2016. Id.

• In May 2017, the Board filed a petition seeking to again suspend Prolman, alleging improper conduct with a female client. Id. ¶¶ 4-18. The single justice held a hearing, found that Prolman had violated several Maine Rules of Professional Conduct and his attorneys oath, ^[1] and suspended him from the practice of law for six months effective November 1, 2017. Id. ¶¶ 18-19, 24.

• Following the Boards appeal, we concluded that "the sanctions imposed were simply insufficient and represent an abuse of discretion." Id. ¶ 25. We vacated the six-month suspension and remanded to the single justice "for a de novo imposition of sanctions" that, "at a minimum, would require Prolman to apply for readmission upon demonstration of a thorough understanding of the ethical obligations of a Maine attorney." Id. ¶¶ 26-27.

[¶3] On remand, in July 2019 the single justice ordered a new suspension of two years with all but nine months suspended, six months of the suspension having already been served. Of particular significance here, the single justice imposed a condition on the July 2019 suspension requiring Prolman "to engage in counseling regarding boundary issues, and to engage in ethics training and counseling with particular emphasis on issues regarding client communications and relationships and what the rules of ethics require in terms of those relationships." The single justice specifically required Prolman to petition for reinstatement once the remaining three months of the suspension commenced on October 1, 2019.

[¶4] On December 12, 2019, Prolman filed a petition for reinstatement. M. Bar R. 29(b). The Grievance Commission issued its report recommending that the petition be denied, and Prolman objected to the report. M. Bar R. 29(g)-(h). A single justice (Kelly, J.) then held a de novo evidentiary hearing.^[2] On June 16, 2021, the single justice found that Prolman had met his burden to prove by clear and convincing evidence that he had complied with each of the eight criteria for reinstatement set out in Maine Bar Rule 29(e). The single justice ordered that Prolman could be reinstated subject to "strict compliance" with several conditions restricting his contact with clients and requiring that he "meaningfully" engage for at least twelve months in counseling focused on maintaining proper client boundaries. M. Bar R. 29(i). Actual reinstatement was to follow a conference with counsel and the director of the Maine Assistance Program for Lawyers and Judges (MAP) to "finalize the details of the required counseling and [court-ordered] monitoring."

[¶5] The Board moved for additional findings pursuant to M.R. Civ. P. 52(b), contending, and asking the single justice to find, that Prolmans petition for reinstatement included a letter of support from a former client, the submission of which constituted "a misrepresentation [by Prolman] to the Supreme Judicial Court." In response to the motion, the single justice made detailed findings, ultimately finding that although Prolmans "extremely poor judgment created the conditions that have given rise to the Boards concerns," "[t]he court... has considered [the] letter, but having considered it, declines to find, in the highly unusual circumstances of this case, that [Prolmans] filing of the letter amounts to a material misrepresentation that would disqualify him from being reinstated."

[¶6] On July 26, 2021, following a conference with counsel, Prolman, the Executive Director of MAP, and two court-appointed monitors, the single justice issued an order reinstating Prolman to practice effective August 2, 2021. The order imposed conditions requiring the monitoring of Prolmans practice; regular, boundary-focused psychological counseling for at least twelve months; participation in the MAP; and-"[for] as long as [Prolman] is practicing law"- restrictions on his contacts with "current, former or future clients." See M.BarR. 29(i).

[¶7] The Board appealed. M.R. App. P. 2B(c)(1). We denied Prolmans motions to dismiss the appeal as interlocutory and to lift the automatic stay on his reinstatement imposed by M.R. Civ. P. 62(e).

II. DISCUSSION

[¶8] Maine Bar Rule 29(e), which we interpret de novo, see Bailey v. Bd. of Bar Examiners, 2014 ME 58, ¶ 17, 90 A.3d 1137, sets out eight criteria for reinstatement to the practice of law following a disciplinary suspension lasting longer than six months. See also M. Bar R. 29(a). At the de novo hearing on his petition for reinstatement, it was Prolmans burden to prove by clear and convincing evidence that he met each of the criteria. M. Bar. R. 29(e), (g); see Bailey, 2014 ME 58, ¶ 16, 90 A.3d 1137; In re Williams, 2010 ME 121, ¶ 6, 8 A.3d 666; In re Application of Hughes, 594 A.2d 1098, 1101 (Me. 1991).^[3]

[¶9] "We treat the single justices decision on the petition for reinstatement as the judgment of a trial court and review it as an appellate body." In re Jonas, 2017 ME 115, ¶ 1 n.1, 164 A.3d 120. Accordingly, we review the single justices factual findings for clear error and the ultimate determination that Prolman met the Rule 29(e) criteria for reinstatement for abuse of the single justices "substantial discretion." Bailey, 2014 ME 58, ¶ 17, 90 A.3d 1137; In re Williams, 2010 ME 121, ¶ 11, 8 A.3d 666; see Bd. of Overseers of the Bar v. Dineen, 557 A.2d 610, 613-14 (Me. 1989). That said, because we "retain[] ultimate authority to regulate attorneys and the practice of law in Maine," In re Jonas, 2017 ME 115, ¶ 30, 164 A.3d 120, and the relevant Bar Rule imposes the duty of reviewing the Grievance Commissions report on us directly, see Maine Bar Rule 29(g), (h), we will weigh the single justices exercise of discretion with the understanding that, in the end, the disciplinary determination is ours to make.

[¶10] The Board contends that the single justice erred in finding that Prolman met the six criteria set out in Rule 29(e)(1)-(6); it does not challenge the single justices findings concerning Rule 29(e)(7) (CLE requirements) or (8) (registration fees). Because we agree the evidence fails to support a finding that Prolman satisfied the Rule 29(e)(1) and (4) criteria, we need not reach the Boards remaining arguments, and we turn to a discussion of the single justices Rule 29(e)(1) and (4) findings.^[4]

A. Rule 29(e)(1)

[¶11] Under Maine Bar Rule 29(e)(1), Prolman was required to prove that he had "fully complied with the terms and conditions of all prior disciplinary orders issued in Maine," including the condition imposed by the single justice in the July 2019 suspension order requiring Prolman to "engage in counseling regarding boundary issues, and to engage in ethics training and counseling with particular emphasis on issues regarding client communications and relationships and what the rules of ethics require in terms of those relationships."

[¶12] In her 2021 reinstatement order, the single justice found that although Prolman "technically complied" with the "literal terms" of the boundary counseling requirement, "the record in this case makes clear that the counseling has been totally ineffective despite the best efforts of [Prolmans psychologist]." We disagree that Prolman complied, technically or otherwise, with the boundary counseling condition. The single justice found that Prolman had complied with the July 2019 suspension order because "[h]e attended approximately 25 sessions with [his] psychologist and mental health counselor ... with sessions specifically focused on boundary issues." However, in a letter to Justice Alexander, the single justice who imposed the requirement, the psychologist made clear that Prolmans counseling occurred before the requirement was imposed:

Mr. Prolman has provided me with copies of the July 8, 2019[, ] sanctions order and asked if there was additional work he should do in therapy to address the concerns about boundary issues as found [in] the order. I informed him this was the work we had done in 2017 and 2018 and at this time the work we had previously done had addressed exactly those concerns. There did not appear to be additional work in this area that would be beneficial at this time.^[5]

[¶13] The single justice who imposed the counseling requirement as...