Board of Overseers of the Bar v. John M. Whalen, Esq.

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Docket No.: BAR-17-15

Issued by: Maine Supreme Judicial Court

Date: December 19, 2019

Respondent: John M. Whalen, Esq.

Bar Number: 000827

Order: Receiver Discharge Order

Disposition/Conduct: Receiver Discharge Order

Order to Discharge Receiver
M. Bar R. 32

Upon petition of Attorney Kenleigh A. Nicoletta for an order discharging her as Receiver of the law practice of John M. Whalen, Esq., a deceased attorney, the Court makes the following findings and conclusions:

FINDINGS OF FACT

  1. On September 1, 2017, upon petition filed by the board of Overseers of the Bar and pursuant to M. Bar R. 32, the Court appointed Attorney Kenleigh A. Nicoletta as Receiver of the law practice of John M. Whalen, for the purpose of obtaining possession of files belonging to Attorney Whalen’s clients, securing funds held in Attorney Whalen’s operating and trust accounts, obtaining Attorney Whalen’s trust account records, and protecting the interests of the clients and/or former clients of Attorney Whalen.

  2. Attorney Nicoletta ("Receiver"), acting in good faith, has taken all reasonable steps to fulfill her obligations as Receiver of the law practice of Attorney Whalen. She has returned or attempted to return all client files to their rightful owners. She has secured funds held in Attorney Whalen’s operating and trust accounts and has identified or attempted to identify the persons to whom those funds belong.

  3. The Receiver has reviewed Attorney Whalen’s clients’ files. An inventory of the client files is attached hereto as Exhibit A.

  4. The Receiver has distributed files to a significant number of clients and/or former clients of Attorney Whalen. The Receiver has returned, where possible, all active client files to the respective clients. A number of Attorney Whalen’s clients have not picked up their files, despite Receiver’s good faith effort to provide them notice that they should do so. Receiver now has in her possession approximately 771 client files for which she has written or otherwise provided notice to the respective clients and has received no instructions regarding the storage or return of the files. The inventory of client files attached hereto as Exhibit A details all client files that have been returned to Attorney Whalen’s clients, and all files that have not been claimed by the clients.

  5. Some disposition needs to be made of the remaining files of Attorney Whalen’s former clients. The Maine Board of Overseers of the Bar is the most appropriate caretaker of these remaining files and it is willing and able to execute these duties.

  6. The Receiver has disbursed all funds from any trust accounts held by Attorney Whalen to the appropriate persons. Orders approving said disbursements are attached hereto as Exhibits B and C.

  7. The Receiver has established a Receivership account into which she has deposited receivables due to Attorney Whalen collected after her appointment. After the payment of funds due to former clients of Attorney Whalen’s, the amount remaining in said Receivership account is $2,509.03.

  8. The Receiver has submitted a summary of the time and expenses incurred in serving as Receiver of the law practice of Attorney Whalen. A summary of her time and the time of office staff of Brann & Isaacson, as well as expenses, is attached hereto as Exhibit D. In carrying out her duties as Receiver, the Receiver and/or Receiver’s law firm, Brann & Isaacson, has provided services and incurred expenses with a reasonable value of $89,714.18.

Based upon these findings of fact, the Court makes the following:

CONCLUSIONS OF LAW

  1. The Court has jurisdiction of this matter pursuant to M. Bar R. 32 (c).

  2. Attorney Kenleigh A. Nicoletta has taken all reasonable steps to discharge her obligations as Receiver of the law practice of John M. Whalen, Esq., to return all client files, and to disburse all funds in Attorney Whalen’s operating and trust accounts.

  3. The Receiver’s law firm, Brann & Isaacson, is entitled to partial reimbursement for the services rendered by Receiver and her office staff and for expenses incurred while Receiver was serving as Receiver of John M. Whalen, Esq.’s law practice in the amount of $2,509.03, the amount currently remaining in the Receivership bank account established by the Receiver.

  4. The Maine Board of Overseers of the Bar is authorized to maintain in storage at its offices of the Board in Augusta and/or such other secure locations as determined by the Board those client files that have not yet been retrieved by the clients of Attorney Whalen.

THEREFORE, pursuant to Maine Bar Rule 32(c), it is ORDERED as follows:

  1. Attorney Kenleigh A. Nicoletta is discharged as Receiver of the law practice of John M. Whalen, Esq.

  2. The Maine Board of Overseers of the Bar is authorized to maintain in storage at its offices in Augusta and/or such other secure locations as determined by the Board those client files that have not been retrieved by the clients of John M. Whalen, Esq.

  3. Receiver’s law firm, Brann & Isaacson, is entitled to reasonable compensation for the services of office staff and of Attorney Nicoletta as Receiver for the law practice of John M. Whalen, Esq. and reimbursement for expenses incurred by Receiver in the amount of $2,509.03. Upon entry of this Order, Receiver shall pay said compensation and expenses from the Receivership account and shall thereafter close said account.

The Clerk is directed to incorporate this Order on the docket by reference.

Dated: December 19, 2019

Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court