Board of Overseers of the Bar v. William A. Fogel, Esq.

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Docket No.: BAR 99-7

Issued by: Single Justice, Supreme Judicial Court

Date: March 10, 2000

Respondent: William A. Fogel, Esq.

Bar Number: 007435

Order: Suspension

Disposition/Conduct: Conduct Unworthy of an Attorney

ORDER

This matter came before the Court on March 10, 2000 pursuant to an information filed by the Board of Overseers of the Bar. The Board was represented by Bar Counsel J. Scott Davis. Defendant William A. Fogel was present and appeared pro se. The referring judge, U.S. District Court Chief Judge D. Brock Hornby was made aware by Mr. Davis of the parties' proposed resolution of this grievance matter and has taken no position in that regard. Other complainants were also made aware of the proposed resolution.

Stipulations

The parties have stipulated to the following material facts: On or about December 6, 1996 Fogel filed and represented the Plaintiff in a matter in the U.S. District Court, District of Maine at Portland, entitled Anne Dickstein v. State Farm Mutual Automobile Insurance Company, Civil No. 96-355-P-H. On December 15, 1997 Chief Judge D. Brock Hornby was informed that Fogel's current office manager had previously worked on the Dickstein case in her former employment as the Court's case manager. As a result, the Court suggested that counsel for both parties review the docket sheet to confirm whether that former case manager's service to the Court on that case had actually resulted in any issue for the Court or counsel. From that review it appeared that a case manager other than Fogel's employee had handled confidential settlement papers that State Farm had filed in camera on August 18, 1997. Fogel was not personally present for any December pre-trial hearing because he spent extensive time in California tending to his father, who was terminally ill.

Trial of the Dickstein matter commenced on January 28, 1998, Fogel having returned to Maine following his father's funeral. At the end of the first day's trial, Chief Judge D. Brock Hornby set forth on the record the Court's understanding of Fogel's office manager's limited earlier involvement on the Dickstein matter as the Court's case manager therein - as supported by each case manager's respective initial entries on the docket sheet - and that therefore nothing further needed to be done or corrected.

The Court at that time specifically stated on the record that the Court understood the in camera settlement papers filed by each of the respective parties on August 18, 1997 had not been handled by Fogel's employee in her previous case manager status. The Court stated: "Obviously, if she had had access to any kind of settlement papers, that would be a matter for concern, but she has not".

At the end of those comments on January 28th, the Court specifically invited both trial counsel to provide the Court with any other or contrary information either of them had "... about (that case manager) having had any involvement with confidential information..." Fogel's response to the Court was to state, "No, your honor". He made no further comment. The Court recessed for the day and the trial continued on January 29th.

In fact, after being filed with the Court by State Farm on or about August 18, 1997, its confidential documents were handled and reviewed by Fogel's employee in her former capacity as case manager. This action occurred in August 1997 after she had accepted but before she commenced her employment position with Fogel.

Fogel had actually first become aware that his employee had handled the confidential court documents in the Dickstein matter in late October 1997. At that time, Fogel interviewed a witness in preparation for the trial. Upon returning to his office, Fogel told his employee certain information he had just learned about other witness interviews conducted by State Farm's counsel. Upon hearing from Fogel, his employee stated to him that she "knew that". She then confirmed that she had previously been aware of the facts Fogel had just mentioned to her from documents filed in Court. Fogel admitted believing that his employee's knowledge had, as its source, the confidential documents submitted by State Farm in camera in preparation for the previously held settlement conference. The conversation ended with Fogel failing to make further investigation as to the nature, extent, source, or method by which she had obtained her knowledge. Fogel remained silent about that October conversation, informing neither his then law partner, opposing counsel, nor the Court.

Fogel first informed the Court about the above-mentioned facts on the morning of January 30th, the third day of trial, Fogel had alerted the Court's secretary late in the afternoon of January 29th that he intended to "put something on the record" pertaining to the issue at the beginning of the Court session the following day. Both parties agree that he had earlier opportunity to do so at the time of Chief Judge Hornby's January 28th inquiry, any time after court on January 28th", or during the entire trial day on January 29th. Before any such disclosure was initiated by Fogel, he knew that the Court would have received independent information concerning the employee's earlier involvement with the confidential papers had he not so acted. The Court did receive that independent information late in the afternoon of January 29th.

Fogel's failure on January 28, 1998 to immediately correct Chief Judge Hornby's stated misunderstanding of the case manager's prior involvement with State Farm's confidential settlement documents was improper conduct. He should have so informed the Court and opposing counsel by an immediate and truthful response to the Court's specific inquiry of January 28, 1998, i.e. that his employee had earlier access to and actual knowledge of the confidential papers and, more importantly, that he had previously been made aware by her that she had seen and must have read at least part of them.

It was Fogel's obligation as an attorney and officer of the court to immediately inform Chief Judge Hornby, thus correcting the record, rather than to permit the Court to conduct the trial for an additional day while still misunderstanding the facts. In doing so, Fogel acted to the detriment of his obligations to the Court and the orderly administration of justice. As a very experienced and competent trial attorney, Fogel was fully aware of the importance and requirement of complete candor with the Court on such matters.

Conclusions

The parties agree and this Court so finds that Fogel's conduct violated Maine Bar Rules 3. 1(a)(conduct unworthy of an attorney), 3.2(f)(4)(conduct prejudicial to the administration of justice), 3.7(b) (improper concealment of information) and 3.7(e)(I)(i)(improper adversarial conduct).

Sanction

Having found these violations of the Maine Bar Rules to be serious, the Court must impose an appropriate sanction. In that regard, Fogel has admitted that 1) because of his actions, Chief Judge Hornby was left with a misunderstanding that the former case manager had not had access to or knowledge of that confidential information; and 2) he failed to take the necessary action to immediately correct the Court's and counsel's misunderstanding about what earlier access and knowledge his employee had concerning those documents.

Therefore, the Court hereby ORDERS the following sanction as proposed by the parties:

William A. Fogel is suspended from the practice of law in Maine for 90 days. Imposition of 45 days of that period is suspended, and the remaining 45 days is hereby imposed effective this date. During that period of actual suspension, Mr. Fogel may continue to perform totally uncompensated legal services for his one current client at the Immigrant Legal Advocacy Project in Portland. For all other client matters, Mr. Fogel shall comply with the notification and reporting requirements of M. Bar R. 7.3(i) on or before 30 days of this effective date of suspension.

For the Court

Hon. Robert W. Clifford Associate Justice Supreme Judicial Court