Board of Overseers of the Bar v. Miklos M. Pongratz

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Docket No.: GCF 10-227

Issued by: Grievance Commission

Date: November 2, 2011

Respondent: Miklos M. Pongratz

Bar Number: 009563

Order: Dismissal

Disposition/Conduct: No misconduct.

Order of Dismissal

On October 17, 2011, pursuant to due notice, Panel C of the Grievance Commission conducted a disciplinary hearing at the Cumberland County Superior Courthouse, in accordance with Maine Bar Rule 7.1(e)(2) and open to the public, on a complaint concerning the Respondent, Miklos Pongratz, Esq. At the disciplinary hearing, the Board was represented by Bar Counsel J. Scott Davis, and Respondent was present and represented by Peter J. DeTroy, Esq.

The Panel Members were John Hutchins (lay member); Peter Fessenden, Esq. and Martha Gaythwaite, Esq. The parties stated that they had no objection to the composition of the Panel.

The Panel heard testimony from Attorney Pongratz; the complainant, Kimberly Nevers (f/k/a Johnson), Joseph Goodman, Esq. and Karen Greenleaf-Smith (Ms. Nevers? mother). Attorney Goodman and Ms.Smith were subpoenaed to appear. Board Exhibits 1-17 and Respondent's Exhibits 1-24 were admitted in evidence without objection.

Ms. Nevers?s complaint arises from Attorney Pongratz? representation of Ms. Nevers in a contested divorce proceeding from June of 2009 until March of 2010. The 74 paragraph Disciplinary Petition dated January 27, 2011 details various incidents allegedly arising during that representation including inappropriate physical contact and suggestive conduct, failure to provide Ms. Nevers with accurate and timely updates on her case, involving Ms. Nevers? mother in the divorce litigation without Ms. Nevers? consent, acting in an unprofessional manner towards the opposing side and his attorney, making misrepresentations to the Court and opposing counsel about Ms. Nevers?s position, and charging an unreasonable fee. At the hearing, Attorney Pongratz denied Ms. Nevers? allegations and contended that Ms. Nevers had no complaint about Attorney Pongratz?s legal services until he attempted to collect his fee. Attorney Pongratz further asserted that Ms. Nevers?s claims did not arise until after she had read Justice Levy?s Findings of Facts in another disciplinary proceeding which had resulted in Attorney Pongratz?s suspension from the practice of law. It is Attorney Pongratz?s belief that Ms. Nevers was attempting to use the threat of an ethics complaint to ?leverage? him into not pursuing his bill for legal services. Ms. Nevers testified that she has never read Justice Levy?s decision.

The Panel heard and considered all the evidence presented by the parties.1 The allegations against Attorney Pongratz are serious and raise significant concerns. However, the Panel?s decision must be based on a preponderance of the evidence that Attorney Pongratz violated one of the applicable disciplinary rules. After carefully weighing all the evidence, the Panel concludes that it does not support a finding of prohibited conduct by Attorney Pongratz.

Resolution of the allegations required the Panel to make a number of difficult determinations. Although the Panel finds that Ms. Nevers?s testimony was sincere, her memory is inconsistent with emails and other documents that were generated during the time the events were taking place. Her recollection was uncorroborated by the testimony of other witnesses with respect to certain key events.

At the time of the events, Ms. Nevers was challenged by financial and health issues. Given her situation, Attorney Pongratz should have provided better written communications to his client explaining the plan of action in the case and confirming that it was authorized. Nevertheless, in the face of insufficient evidence that his conduct breached his professional ethical obligations, the Panel dismisses the Petition.

For the Grievance Commission

Martha C. Gaythwaite, Esq., Chair

Footnotes

1 Some of the conduct at issue in this matter occurred prior to the abrogation of the former Maine Code of Professional Responsibility (former M. Bar R. 3), and the replacement of the Code by the Maine Rules of Professional Conduct, effective August 1, 2009. The Panel analyzes Respondent's conduct in this matter under the provisions of the now-abrogated Code of Professional Responsibility or the Maine Rules of Professional Conduct as appropriate.