November 22, 2004
Policing lawyers | Maine's system for disciplining attorneys draws criticism for its relative lack of action
By Taylor Smith
What began as an argument between neighbors over an eight-inch strip of property ended with an Old Orchard Beach lawyer receiving a stiff disciplinary action. In July, the lawyer, Neal Weinstein, was found by the Board of Overseers of the Maine Bar Association ˆ the group in charge of levying disciplinary action on the state's more than 4,000 active lawyers ˆ to have violated four sections of the Maine Bar Rules. As a result, the board issued Weinstein a public reprimand.
The disciplinary ruling stemmed from an altercation between Weinstein and his client's neighbor. His client, Pamela Hawk, contacted him about a property dispute with her neighbor, Nancy McBride. Hawk was concerned that a retaining wall McBride was having built between their properties blocked Hawk's driveway and wasn't actually part of McBride's property. But instead of a typical boundary dispute that pits neighbor versus neighbor in the ordered confines of a courtroom, Weinstein took matters into his own hands ˆ quite literally.
According to the report that outlines the Board of Overseers' disciplinary proceedings against Weinstein, he ripped out guide stakes and strips of lumber the landscaping crew had laid down to build the wall. He also threatened the crew with criminal trespass, according to the report, and told McBride and the workers that he'd "destroy with my bare hands" any continued construction on the wall. The report also contains references to "violent or enraged demeanor," language that was "saturated with obscenities" and a description of Weinstein "brandishing a piece of rebar." In short, not the kind of conduct one might expect from a respected attorney of law.
Weinstein disagrees with the events laid out in the board's report, claiming that facts were embellished or just plain wrong, and says he thinks "it was a political decision against me as much as anything else." Regardless of the veracity of the facts or the he-said-she-said nature of the disagreement, one immutable truth was evident at the end of the disciplinary proceedings: Thanks to the public reprimand issued by a panel of the Grievance Commission ˆ the three-member group that hears Board of Overseers disciplinary cases ˆ Weinstein now has a permanent mark on his professional record.
But what does a public reprimand mean to Weinstein and the handful of other lawyers slapped with such disciplinary action each year? There are no fines that go along with a public reprimand, and reprimanded lawyers aren't forced to close their practice, even temporarily. But in the eyes of the legal profession ˆ where integrity is a benchmark of success ˆ these guys are marked for life. "No one stands up at a department luncheon and regales [his colleagues] with a story about how he slipped on by," says Bill Kayatta, an attorney with Portland-based law firm Pierce Atwood and former chair of the Board of Overseers' Professional Ethics Commission. "You want the judge to look at you like you're above reproach."
Fixing the system
Weinstein isn't the only attorney in Maine to get into hot water with the professional organization that watches over legal eagles. In fact, 2003 saw 172 complaints reviewed by the Board of Overseers. Not many of those complaints go beyond the Grievance Commission; nearly 90% of them resulted in dismissals or dismissals with warnings before reaching a public hearing. Of the remaining cases, lawyers received reprimands nine times and four attorneys were suspended from practicing law after public hearings with panels of the Grievance Commission or before the Maine Supreme Judicial Court.
But despite the number of lawyers disciplined in Maine each year, the public typically isn't well informed when it comes to what happens in the confines of the Board of Overseers. Apart from reports about sensational and salacious behavior by lawyers ˆ the Portland Press Herald twice this year ran stories about lawyers facing discipline after engaging in sexual relationships with clients ˆ not much attention is paid to lawyer misconduct in Maine.
One reason for the lack of public awareness about lawyer misconduct is that such discipline happens much less frequently in Maine than in other states. According to HALT, a legal reform group based in Alexandria, Va., Maine's lawyer discipline system is the ninth best in the United States based on a number of criteria, including the openness of the process and the fairness of disciplinary procedures. But the group blasts Maine for being among the least likely states to discipline a lawyer. In 2002, according to HALT's most recent findings, Maine's Board of Overseers disciplined just two percent of the lawyers it investigated, compared to a national average of 9.75%. "Really, no matter how we slice it, Maine is one of the states that's trailing behind in imposing discipline," says Suzanne Mishkin, associate counsel of HALT. "A system that's not meting out discipline is a system that's not serving the communities in Maine. Our primary concern with Maine's system is that it doesn't sanction nearly enough attorneys."
Scott Davis, bar counsel of the Board of Overseers, disagrees with Mishkin's characterization. "I'd word it the other way," he says. "In terms of the number of complaints we have, those attorneys found to be engaged in misconduct are disciplined in an appropriate manner. To put a positive spin on it, maybe Maine lawyers as a whole conduct themselves better than the norm."
True, most of the disciplinary cases in Maine are relatively pedestrian by nature, regarding missed filing deadlines or failure to handle a conflict of interest. More than half of all grievance complaints filed with the Board of Overseers in 2003 charge attorneys with a conflict of interest or neglect ˆ not criminal convictions or trust violations. "There aren't many examples of the evil heart [or] evil mind of a lawyer doing their client wrong," says Kayatta.
The permanent record
Kayatta says that larger firms often have an edge over smaller law practices on keeping lawyer misconduct in check. Economies of scale allow Pierce Atwood, for example, to maintain a complex database of clients that can cross-reference names and red-flag any potential conflicts of interest. What's more, new attorneys at the firm are paired with veteran attorneys, which provides a backstop for deadlines and procedure. "We work more or less on an apprentice model," he says. "We do that for training purposes, but that also helps with quality of practice."
According to the Board of Overseers' annual report, nearly half of the grievance complaints received by the Board of Overseers in 2003 were about lawyers who ran a solo practice, while 88% of those complaints addressed lawyers at practices with six or fewer attorneys. Meanwhile, law firms with more than 50 lawyers were named in just one of the 146 complaints in 2003.
David Weiss, an attorney in Bath and a panel member of the Board of Overseers' Grievance Commission, says that sometimes it's just human nature that causes lawyers to make mistakes. In his eight years on the Grievance Commission, Weiss has seen the same attorneys come before the panel a number of times, and often for the same infractions. "There are at the board what you call frequent fliers," he says. "We all come from the human race. Some people are more ethical, and some follow the rules more than others. Some are just plain sloppy."
But regardless of what contributes to lawyer misconduct, the reality is that disciplinary action ˆ whether it's a public reprimand on a lawyer's permanent record or disbarment ˆ can have a real and lasting effect on an attorney's business. For example, a lawyer who specializes in litigation and travels to other states to try cases might be rejected by a judge in that state, as lawyers often are required to disclose to the judge any record of discipline. "That might well keep you from being admitted," says Kayatta. "That's a very tangible effect."
Meanwhile, attorneys must face their peers in the legal profession, where word travels quickly (such disciplinary notices often are published in each issue of Maine Lawyers Review right alongside recent court decisions). "I've seen some very fine people fall from grace in sort of Nixonian fashion," says Peter Mills, a partner at Wright & Mills PA in Skowhegan and a state senator for District 26. "It takes an enormous toll on people emotionally. There's the loss of prestige, and the respect of your peers is something that most of us value very highly."
Neal Weinstein doesn't expect his business to suffer from his public reprimand. For starters, he says his case was unusual in that it didn't involve any dishonesty or neglect. In fact, he says he's already received more than a dozen calls from prospective clients who were impressed by his aggressive, take-charge attitude. But the ignominy of the public reprimand he received this summer is something he knows will stay with him for his career. "It's a hurtful thing," he says. "It's an embarrassment to me and my family and my clients. It doesn't get purged." (Kayatta puts it more bluntly: "Most good lawyers would rather have their arm removed without a sedative than have a public reprimand.")
But the short-term effect of a public reprimand or other disciplinary actions on a law practice is minor compared to the harm unethical behavior will wreak on a practice in the long term. "If you take a long view, in any profession including law, there's a direct overlap between ethical behavior and professional interest," says Kayatta. "If you behave ethically, you'll do better in the long run."
The disciplinary ruling stemmed from an altercation between Weinstein and his client's neighbor. His client, Pamela Hawk, contacted him about a property dispute with her neighbor, Nancy McBride. Hawk was concerned that a retaining wall McBride was having built between their properties blocked Hawk's driveway and wasn't actually part of McBride's property. But instead of a typical boundary dispute that pits neighbor versus neighbor in the ordered confines of a courtroom, Weinstein took matters into his own hands ˆ quite literally.
According to the report that outlines the Board of Overseers' disciplinary proceedings against Weinstein, he ripped out guide stakes and strips of lumber the landscaping crew had laid down to build the wall. He also threatened the crew with criminal trespass, according to the report, and told McBride and the workers that he'd "destroy with my bare hands" any continued construction on the wall. The report also contains references to "violent or enraged demeanor," language that was "saturated with obscenities" and a description of Weinstein "brandishing a piece of rebar." In short, not the kind of conduct one might expect from a respected attorney of law.
Weinstein disagrees with the events laid out in the board's report, claiming that facts were embellished or just plain wrong, and says he thinks "it was a political decision against me as much as anything else." Regardless of the veracity of the facts or the he-said-she-said nature of the disagreement, one immutable truth was evident at the end of the disciplinary proceedings: Thanks to the public reprimand issued by a panel of the Grievance Commission ˆ the three-member group that hears Board of Overseers disciplinary cases ˆ Weinstein now has a permanent mark on his professional record.
But what does a public reprimand mean to Weinstein and the handful of other lawyers slapped with such disciplinary action each year? There are no fines that go along with a public reprimand, and reprimanded lawyers aren't forced to close their practice, even temporarily. But in the eyes of the legal profession ˆ where integrity is a benchmark of success ˆ these guys are marked for life. "No one stands up at a department luncheon and regales [his colleagues] with a story about how he slipped on by," says Bill Kayatta, an attorney with Portland-based law firm Pierce Atwood and former chair of the Board of Overseers' Professional Ethics Commission. "You want the judge to look at you like you're above reproach."
Fixing the system
Weinstein isn't the only attorney in Maine to get into hot water with the professional organization that watches over legal eagles. In fact, 2003 saw 172 complaints reviewed by the Board of Overseers. Not many of those complaints go beyond the Grievance Commission; nearly 90% of them resulted in dismissals or dismissals with warnings before reaching a public hearing. Of the remaining cases, lawyers received reprimands nine times and four attorneys were suspended from practicing law after public hearings with panels of the Grievance Commission or before the Maine Supreme Judicial Court.
But despite the number of lawyers disciplined in Maine each year, the public typically isn't well informed when it comes to what happens in the confines of the Board of Overseers. Apart from reports about sensational and salacious behavior by lawyers ˆ the Portland Press Herald twice this year ran stories about lawyers facing discipline after engaging in sexual relationships with clients ˆ not much attention is paid to lawyer misconduct in Maine.
One reason for the lack of public awareness about lawyer misconduct is that such discipline happens much less frequently in Maine than in other states. According to HALT, a legal reform group based in Alexandria, Va., Maine's lawyer discipline system is the ninth best in the United States based on a number of criteria, including the openness of the process and the fairness of disciplinary procedures. But the group blasts Maine for being among the least likely states to discipline a lawyer. In 2002, according to HALT's most recent findings, Maine's Board of Overseers disciplined just two percent of the lawyers it investigated, compared to a national average of 9.75%. "Really, no matter how we slice it, Maine is one of the states that's trailing behind in imposing discipline," says Suzanne Mishkin, associate counsel of HALT. "A system that's not meting out discipline is a system that's not serving the communities in Maine. Our primary concern with Maine's system is that it doesn't sanction nearly enough attorneys."
Scott Davis, bar counsel of the Board of Overseers, disagrees with Mishkin's characterization. "I'd word it the other way," he says. "In terms of the number of complaints we have, those attorneys found to be engaged in misconduct are disciplined in an appropriate manner. To put a positive spin on it, maybe Maine lawyers as a whole conduct themselves better than the norm."
True, most of the disciplinary cases in Maine are relatively pedestrian by nature, regarding missed filing deadlines or failure to handle a conflict of interest. More than half of all grievance complaints filed with the Board of Overseers in 2003 charge attorneys with a conflict of interest or neglect ˆ not criminal convictions or trust violations. "There aren't many examples of the evil heart [or] evil mind of a lawyer doing their client wrong," says Kayatta.
The permanent record
Kayatta says that larger firms often have an edge over smaller law practices on keeping lawyer misconduct in check. Economies of scale allow Pierce Atwood, for example, to maintain a complex database of clients that can cross-reference names and red-flag any potential conflicts of interest. What's more, new attorneys at the firm are paired with veteran attorneys, which provides a backstop for deadlines and procedure. "We work more or less on an apprentice model," he says. "We do that for training purposes, but that also helps with quality of practice."
According to the Board of Overseers' annual report, nearly half of the grievance complaints received by the Board of Overseers in 2003 were about lawyers who ran a solo practice, while 88% of those complaints addressed lawyers at practices with six or fewer attorneys. Meanwhile, law firms with more than 50 lawyers were named in just one of the 146 complaints in 2003.
David Weiss, an attorney in Bath and a panel member of the Board of Overseers' Grievance Commission, says that sometimes it's just human nature that causes lawyers to make mistakes. In his eight years on the Grievance Commission, Weiss has seen the same attorneys come before the panel a number of times, and often for the same infractions. "There are at the board what you call frequent fliers," he says. "We all come from the human race. Some people are more ethical, and some follow the rules more than others. Some are just plain sloppy."
But regardless of what contributes to lawyer misconduct, the reality is that disciplinary action ˆ whether it's a public reprimand on a lawyer's permanent record or disbarment ˆ can have a real and lasting effect on an attorney's business. For example, a lawyer who specializes in litigation and travels to other states to try cases might be rejected by a judge in that state, as lawyers often are required to disclose to the judge any record of discipline. "That might well keep you from being admitted," says Kayatta. "That's a very tangible effect."
Meanwhile, attorneys must face their peers in the legal profession, where word travels quickly (such disciplinary notices often are published in each issue of Maine Lawyers Review right alongside recent court decisions). "I've seen some very fine people fall from grace in sort of Nixonian fashion," says Peter Mills, a partner at Wright & Mills PA in Skowhegan and a state senator for District 26. "It takes an enormous toll on people emotionally. There's the loss of prestige, and the respect of your peers is something that most of us value very highly."
Neal Weinstein doesn't expect his business to suffer from his public reprimand. For starters, he says his case was unusual in that it didn't involve any dishonesty or neglect. In fact, he says he's already received more than a dozen calls from prospective clients who were impressed by his aggressive, take-charge attitude. But the ignominy of the public reprimand he received this summer is something he knows will stay with him for his career. "It's a hurtful thing," he says. "It's an embarrassment to me and my family and my clients. It doesn't get purged." (Kayatta puts it more bluntly: "Most good lawyers would rather have their arm removed without a sedative than have a public reprimand.")
But the short-term effect of a public reprimand or other disciplinary actions on a law practice is minor compared to the harm unethical behavior will wreak on a practice in the long term. "If you take a long view, in any profession including law, there's a direct overlap between ethical behavior and professional interest," says Kayatta. "If you behave ethically, you'll do better in the long run."
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