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Board of Overseers of the Bar v. Jonathan A. Toof
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Docket No.: GCF 10-125
Issued by: Grievance Commission
Date: April 6, 2011
Respondent: Jonathan A. Toof
Bar Number: 003768
Order: Reprimand
Disposition/Conduct: Failure to Respond to Bar Counsel
FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION
On February 28, 2011, with due notice, Panel D of the Grievance Commission conducted a disciplinary hearing concerning alleged misconduct by the Respondent, Jonathan A. Toof. This disciplinary proceeding was commenced on November 10, 2010 through the Board of Overseers of the Bar's filing of a Disciplinary Petition. The February 28, 2011 hearing was open to the public pursuant to Maine Bar Rule 7. 1(e)(2)(E).
Mr. Toof failed to file an answer to the Disciplinary Petition. Therefore, pursuant to Maine Bar Rule 7.1(e)(1), the misconduct alleged in the Petition, as set forth below, was taken as admitted by Mr. Toof.
At the hearing, the Board of Overseers of the Bar (the Board) was represented by Assistant Bar Counsel Jacqueline L. L. Gomes. Mr. Toof was not represented by counsel and did not present any exhibits or witnesses, but did appear on his own behalf at the hearing. As well as admitting that he had failed to file a response to the original Bar Complaint and to the Disciplinary Petition, Mr. Toof also admitted that he was in violation of the Bar Rules cited in the petition and agreed that the hearing should focus only on the sanction, if any, that should be imposed for the violations.
Respondent Jonathan A. Toof (Toof) of Port Townsend, Washington was at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine. As such, Mr. Toof, a 1988 admittee to the Maine Bar, has been subject to the Maine Bar Rules. He is currently a suspended Maine attorney (see below.)
On his Fiscal Year 2006 Registration Statement dated July 11, 2005, Toof had indicated a desire to assume inactive status pursuant to Maine Bar Rule 6(c)( 1). Toof did not then file an affidavit certifying his compliance withMaine Bar Rule 7.3(i)(2) as required within 30 days of his notice to seek inactive registration. On March 9, 2007, the Board notified Toof of his failure to file the required affidavit. Toof never filed an affidavit. However, Toof did pay the annual registration fee amounts required to maintain inactive status for Fiscal Years 2007, 2008 and 2009.
On October 20, 2009 Mr. Toof was administratively suspended by the Board due to his failure to register and pay the necessary fees for Fiscal Year 2010 as required by Maine Bar Rules 6 and10. On March 9, 2010, Bar Counsel docketed a sua sponte grievance complaint against Toof related to his failure to comply with the affidavit requirements of M. R. Prof. Conduct 8.4(a) and M. Bar R. 7.3(i)(2)(A),(B).
As of the date of this hearing, Toof remains administratively suspended and has never responded to this grievance matter in violation of M. Bar R. 2(c) and M.R. Prof. Conduct 8.1{b). Further, he still has not filed any notification affidavit, even though he has repeatedly been instructed and directed how to properly do so. Toof's conduct resulted in his violations of the Maine Bar Rules and the Maine Rules of Professional Conduct.
Though he made no response prior to the hearing explaining why he failed to file the appropriate affidavit under M. B. R. 7.3 (i)(2)(A), (B) and M.R. Prof. Conduct 8.4 (a) or why he did not file a written response to the Disciplinary Petition, Mr. Toof did offer an explanation for these failures during his presentation to the Panel on the issue of what, if any, sanctions should be imposed. He basically stated that when he left the practice of law and requested to be put on inactive status, he had just retired from 13 years as an Assistant United States Attorney prosecuting criminal cases and he thus had no clients and no pending cases. He therefore thought it was a meaningless bureaucratic exercise to file an affidavit that stated that he had told any clients, and any Courts where he might have a case pending, that he was leaving the practice of law and becoming an inactive member of the bar. He pointed out that there was no harm to any member of the public from this technical violation of the rules. He further stated that he failed to file a response to the petition because he thought this was a further useless procedure not worthy of a response. In essence he stated it was form over substance.
Due to Toof's above-outlined failures, the Maine Bar Rules and the Maine Rules of Professional Conduct were violated by him. In order to obtain inactive status an attorney was required previously by Maine Bar Rule 7.3 (i)(2)(A), (B), and currently by M.R. Prof. Conduct 8.4 (a), to notify any clients of his inactive status and his consequent inability to act as an attorney as of the date of his inactive status, and to file with the Clerk and the Board an affidavit that attests that he has notified his clients and any Courts of his assumption of inactive status. He is then required for each of the next three years to file annual registration statements (with a reduced registration fee). After three years he is relieved of any obligation to file, and would no longer have any status as a Maine attorney and would presumably no longer be subject to the Maine Bar Rules or Maine Rules of Professional Conduct. Mr. Toof did in fact file his registration statements and pay his reduced registration fees for the required three years. However, since he never filed the required affidavits, he never actually achieved inactive status. As such he remained in the active category until he was subsequently administratively suspended when he failed to pay any registration fee for Fiscal year 2010. As a consequence of his administrative suspension, he is no longer a licensed member of the Maine Bar.
Mr. Toof clearly violated M. B. R. 7.3 (i)(2)(A), (B) and M.R. Prof. Conduct 8.4 (a) when he failed to file the necessary affidavits after deciding to leave the practice of law and assume inactive status. However, the panel has some sympathy for his argument that in his case the filing of such affidavits was a somewhat useless exercise in bureaucratic paperwork. Mr. Toof did travel all the way from Washington State to attend the hearing, and did inform the panel that he had no clients and no remaining cases pending when he left the practice of law in Maine four years earlier. M. B. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. In this instance, the public suffered no harm, nor was there any possibility of such harm in the future since Mr. Toof had effectively left the practice of law and had no clients or pending cases. Therefore, the Panel finds that a dismissal with a warning would be an appropriate disposition of this part of the disciplinary Petition against him.
The Panel views somewhat differently the issue of the Respondent's failure to respond at all to the complaint that had been brought against him. The Petition alleges a violation of Maine Rule of Professional Conduct 8.1 (b) in that the respondent never responded to Bar Counsel's original complaint. The panel finds that Mr. Toof was indeed in violation of this rule, and that this violation is more serious than his failure to file the affidavits connected with his request for inactive status. The whole disciplinary process is predicated on the requirement that an attorney who has a complaint filed against him will respond and provide the necessary information to Bar Counsel so that the complaint can be investigated and processed. In this case, if Mr. Toof had responded to the original request from Bar Counsel and had provided his explanation regarding his lack of clients as an Assistant United States Attorney and that he had no cases pending when he retired, it is possible that the case would have ended with a Bar Counsel dismissal. Instead it was presented to a Grievance Panel for a probable cause determination, resulting in a formal petition, further resulting in a costly and time-consuming formal public hearing. The Panel believes that it is of the utmost importance for the protection of the public from attorney misconduct that the disciplinary process functions smoothly and properly. Since the evidence is uncontroverted that Toof did in fact violate and the Maine Rules of Professional Conduct 8.1 (b) the Panel finds that a public reprimand is appropriate for that violation.
Therefore, the Panel concludes that the appropriate disposition for Mr. Toof's violation of Rule 8.1 (b) is a Public Reprimand which is now hereby issued and imposed upon him pursuant to M. Bar R 7. 1(e)(3)(C), (4). Bar Counsel shall deliver that Reprimand to Mr. Toof by U.S. Mail on this date.
For the Grievance Commission
William E. Baghdoyan Esq., Chair
Tobi L. Schneider, Esq.
Ms. Kathleen A. Schulz
