Board of Overseers of the Bar v. Warren

JABAR, J.,

concurring in part and dissenting in part.

[¶ 39] I concur with the Court’s decision affirming the single justice’s decision granting the motion to quash, but I dissent from the Court’s decision vacating that portion of the single justice’s judgment determining that there was no violation of the Maine Bar Rules. While I agree with the Court’s conclusion that there is sufficient evidence to support the single justice’s conclusion that Bar Counsel failed to prove that the six attorneys violated Maine Bar Rule 3.2(e), I respectfully dissent from the Court’s determination as a matter of law that the six attorneys violated Maine Bar Rule 3.13(a)(1).

[¶ 40] The single justice’s factual findings must be upheld unless they are clearly erroneous. Bd. of Overseers of the Bar v. Brown, 623 A.2d 1268, 1270 (Me.1993). If there is competent evidence in the record to support the single justice’s factual findings, then we should not be substituting our judgment for the judgment of the fact-finder. Id.

[¶ 41] Maine Bar Rule 3.13(a)(1) (Tower 2007) provides, “A partner in a law firm shall make reasonable efforts to assure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility.” There is substantial evidence in the record supporting the single justice’s conclusion that Bar Counsel failed to prove that the six attorneys, as members of the firm’s Executive Committee, did not have measures in place to reasonably assure that the firm’s attorneys would conform to the Code in conducting their professional affairs.

[¶ 42] In order to refute the alleged M. Bar R. 3.13(a) violations filed against them, the six attorneys presented the expert testimony of Brian Dench, a Maine attorney, who had extensive experience both administering and interpreting the Maine Bar Rules. Dench served on the Grievance Commission from 1979, when it was first constituted, through 1990. Dench also served as a member of the Professional Ethics Commission, which was established by this Court to consider requests for ethics advisory opinions, from 1981 to 1988. He served on the Advisory Committee on the Code of Professional Responsibility, and as part of his responsibility in that capacity, worked to review amendments to the Maine Bar Rules. In addition to being the “go to” authority for ethical questions within his own firm, Dench over the years authored Continuing Legal Education materials for various seminars concerning legal ethics.

[¶ 43] Dench offered his opinion not only on the issue of whether the six attorneys had violated M. Bar R. 3.2(e), but also on the issue of the firm’s (and the six attorneys’) compliance with M. Bar R. 3.13(a)(1). Dench testified that his own firm had practices and policies in place that complied with M. Bar R. 3.13(a)(1), and upon reviewing the practice and policies in place at Verrill Dana, he found them to be no different than what was in place at his firm and in other law firms around the state.

[¶ 44] The single justice also heard a great deal of testimony regarding the practices and policies in place at the firm. Bar Counsel neither presented any experts to controvert Dench’s opinion, nor presented any other evidence establishing that the six attorneys failed to have in place poli*1115cies and measures to reasonably assure that all attorneys employed by the firm complied with the Code according to the letter of M. Bar R. 3.13(a)(1). Instead, Bar Counsel relied upon inconsistencies within the testimony of the witnesses presented to establish that the named defendants did not have proper policies and procedures in place. Since the determination of whether the six attorneys, as members of the firm’s Executive Committee, had in place measures giving reasonable assurance of compliance with the Code is a factual issue, it is up to the fact-finder, the single justice, to reconcile the inconsistent and conflicting testimony in arriving at its findings and conclusions. See Maine Shipyard & Marine Ry. v. Lilley, 2000 ME 9, ¶ 18, 743 A.2d 1264. Furthermore, because Bar Counsel did not file a motion for additional findings of fact pursuant to M.R. Civ. P. 52, “we infer any findings necessary to support the result that the court reached, as long as those findings are supported by the record.” Desmond v. Desmond, 2011 ME 57, ¶ 5, 17 A.3d 1234. I do not believe that we can find as a matter of law that the measures the firm had in place at the time, and the same measures the six attorneys employed in evaluating the misconduct that occurred here, violated M. Bar R. 3.13(a)(1).

[¶ 45] Because there was sufficient, competent evidence supporting the single justice’s conclusion that Bar Counsel had failed to prove a violation of M. Bar R. 3.13(a)(1), I would affirm the judgment that the six attorneys did not violate any of the conduct provisions specified in Maine Bar Rule 3.