Board of Overseers of the Bar v. Christopher R. Causey, Esq.

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Docket No.: GCF# 12-251

Issued by: Grievance Commission

Date: September 10, 2013

Respondent: Christopher R. Causey, Esq.

Bar Number: 009566

Order: Reprimand

Disposition/Conduct: Negotiation for employment with attorney for a party by mediator; Engaging in conduct prejudicial to the administration of justice

DECISION

The Board of Overseers of the Bar prosecuted a complaint of improper conduct by Respondent, Christopher Causey [hereafter Respondent or Causey], regarding his service as a private mediator in a divorce case during May and June, 2012. The Board contends that Causey violated Rule 1.12 of the Rules of Professional Conduct by negotiating for employment with a firm while serving as a mediator in a divorce in which one party was represented by that firm. The Board also contends that the Respondent?s conduct was prejudicial to the administration of justice and thus violated Rule 8.4(d).

The original complaining party was the husband involved in the divorce, Jeff D. Emerson. He was represented in that proceeding by David Abramson, Esq. of Verrill Dana, LLP. The wife in the divorce was represented by Diane Dusini, Esq. of MittelAsen, LLC. These two attorneys engaged Respondent in April, 2012 to mediate complicated financial issues arising from the divorce, which were made even more difficult by the parties? mutual hostility.

Early in his career, Causey was employed as a civil litigator, but for more than the 10 years before these events, he increasingly pursued a mediation practice, including a large volume of domestic relations cases, as a solo practitioner. Located in Portland, he became well known and respected among the bar handling those cases for his skill in promoting resolution of these matters through mediation. By early 2012, Causey was thinking about leaving solo practice to affiliate with a firm, and he decided to explore the job market to resume a more litigation-focused practice. His initial foray into this area consisted of putting out ?feelers? to lawyers and firms familiar with his recent work as a mediator.

Within a week or two after he agreed to mediate the divorce giving rise to this matter, Respondent was invited to have dinner with Michael Asen, a senior member of Diane Dusini?s law firm. Asen had recently decided to reduce his involvement in the daily practice of law, and his firm had also just lost another long-time partner. The remaining 6 or 7 partners at MittelAsen decided to look for at least one new attorney to fill the void created by these developments. Although the prior relationship between Causey and Asen was purely professional, Asen testified that the dinner was a social engagement prompted by an encounter and discussion with Causey at the supermarket. While the ostensible purpose of the dinner at the ?best sushi restaurant north of New York? was social, it seems clear that Asen had some interested in Causey as a possible colleague. See, e.g. the comment of Causey in a June 26, 2012 e-mail to Dusini: ?When Mike first approached me??

After small talk, the two men discussed Respondent?s interest in resuming civil litigation, as well as the possibility that MittelAsen might have an opening. No request for employment or offer was made, but Asen provided Causey with some information about how the firm was organized and told Respondent to contact Dusini if ?he was serious? to find out more about how the firm operated, particularly its financial structure. Asen testified that he was uninvolved in hiring decisions at that point, and that a consensus of all partners would be needed to bring in a new attorney. Both Asen and Causey stated that this meeting was somewhat abbreviated because Causey had to leave sooner than expected to take care of his children.

On May 9, 2012, Respondent emailed Attorney Dusini, asking her to discuss ?financial questions I have around MittelAsen.? She replied: ?I am very excited you are thinking about this as an option!? A few days after that, they spoke for about 20 minutes about the compensation structure at MittelAsen. In a later email, dated June 26, 2012, Respondent wrote: ?Regarding the percentages, I bought into the numbers a month ago.?

On May 22, 2012, Attorney Robert Mittel, another senior partner at MittelAsen, called the Board of Bar Overseers and discussed the meaning of M.R.P.C. 1.12 with Bar Counsel Scott Davis, apparently with reference to Causey. According to Bar Counsel?s notes, the focus of the discussion was whether there was any imputation of the rule to members of the firm not involved in the case with the mediator and also what would be the impact if the mediator joined the firm while the case was still pending. Mittel concluded at that point that a violation of the rule by the law firm was unlikely, as he did not feel that the firm and Causey were in ?negotiations? over employment. It is not clear from Bar Counsel?s Ex. 22 whose conduct was the subject of this inquiry. We cannot assume Mr. Davis gave Attorney Mittel advice that contradicts the interpretation of Rule 1.12 his office presses in this Complaint.

On May 30, 2012, Respondent conducted the subject divorce mediation, lasting over 3 hours at MittelAsen. Many of the financial issues could not be reached within the time he had allotted for the mediation, although the parties agreed on interim support and a division of some marital property. Complainant?s attorney (Abramson) testified that the parties and Respondent agreed they would reconvene to address the remaining issues. Respondent denied being under that impression, and in fact mailed a bill to the party for his services the following day.

The next day, Attorney Dusini emailed Causey that two other partners at MittelAsen wanted to meet him. Both Dusini and Respondent understood that these meetings would involve discussions about a possible new business relationship between the law firm and Respondent. On June 1 Abramson wrote to Dusini and stated that he would be working with Dusini?s office (while she was on vacation) and Chris Causey to set up another mediation with Causey. By letter dated June 5 Dusini stated that: ?We are happy to set up another mediation with Chris Causey at the end of the month?? On June 12 the parties to the divorce case scheduled a follow-up mediation session with Respondent to take place on July 6, 2012. By June 26, 2012, or early on June 27, the final terms of Respondent?s future employment with MittelAsen were ironed out in emails between him and Dusini. The second divorce mediation session was cancelled late in the day on June 26, 2012 by Dusini with the explanation that it was unlikely to be productive, and that a judicial settlement conference would be preferable. On June 27, 2013, Causey sent an email to Dusini, Mittel and others at the law firm thanking them for offering him employment and indicating that he was ?really looking forward to being part of your firm.? On June 28, 2012 Causey notified Abramson by e-mail that he was taking a position with MittelAsen. Abramson had no prior notice that Causey and MittelAsen were engaged in employment discussions.

In the aftermath of these events, Dusini recused herself from further participation in the divorce case, to avoid a conflict of interest, since Respondent was now a member of her law firm. (An effort to secure a waiver of the conflict was unsuccessful because the parties could not agree on the specific language of a waiver.) As a result of her withdrawal from the case, Complainant?s wife had to find a new lawyer to represent her in the divorce case. This resulted in the cancellation of a judicial settlement conference scheduled for the second week in July, delaying the conclusion of the divorce case until another date could be scheduled later that fall. The conflict of interest created by Respondent?s employment with MittelAsen resulted in additional legal expenses for Complainant, and intensified the discord between him and his spouse, due to a perceived breach of trust in the legal process that he ascribed, fairly or not, to his wife, her counsel, and Respondent.

At issue is whether or not Respondent?s conduct violates M.R.P.C. ?8.4(d) (?conduct prejudicial to the administration of justice?) and ?1.12(b), which provides in pertinent part:

?A lawyer shall not negotiate for employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral.?

We conclude that Respondent?s activities up to and including the May 30, 2012 mediation session violated this rule, because he was ?negotiating for employment?, as that phrase is commonly accepted and understood.

The apparent purpose of Rule 1.12(b) is to avoid actual bias or the appearance of bias by judicial or quasi-judicial officers in the discharge of their duties, thereby preserving public confidence in the administration of justice and in particular trust in the impartiality of the adjudicator or mediator. By itself, Causey?s dinner meeting with Asen could be characterized as an exploratory discussion rather than a negotiation. We conclude that dinner ended, however, with Asen extending an invitation to Causey to negotiate for employment. If Causey had not followed up on this invitation, there would have been no impropriety on his part. When Causey approached and met with Attorney Dusini, however, just a few weeks before the mediation in which she would appear on behalf of a litigant, his purpose was to learn about the compensation structure of MittelAsen. That was a concrete demonstration of his seriousness about ?this option? for employment. We conclude that at that point he commenced substantive discussions about employment with MittelAsen, that these discussions were negotiations about employment, and that he knew or should have known that his continuing service as a neutral mediator in the divorce case would be improper. We find that Causey?s characterization of negotiations as not commencing until June 22 to be an unduly constrained definition of the term. Minimizing his activity as merely, ?kicking the tires?, to use a colloquialism mentioned by both Causey and Dusini, is disingenuous.

For Rule 1.12 to accomplish its goal, ?bargaining for employment? should encompass any overt action intended to promoted the prospects of employment of the mediator or judicial officer with a party or lawyer for a party, at least in those circumstances when the party or the lawyer for the party has an employment opportunity available. This seems especially true if the lawyer for the party, Dusini, has an obvious interest in and influence over any decision to hire the mediator/judicial officer.

Waiting until a contract of employment has been finalized before withdrawing, as happened here, is not what Rule 1.12 envisions. Respondent?s continued participation in the divorce case even after the May 30, 2012 mediation, in light of his ongoing efforts to meet with and make a favorable impression upon the remaining partners in the law firm, compounded the seriousness of his pre-mediation rule violation. He should not have accepted the assignment to mediate the divorce a second time, knowing that he was being considered for employment at MittelAsen, and even by Causey?s own definition of negotiations, he should have notified Attorney Abramson of his discussions with MittelAsen no later than June 21-22. It is no excuse to say that his role as a mediator begins and ends with the actual mediation. If the party that is a potential employer of the mediator perceives it will have an advantage at a future mediation due to improper leverage or influence with the mediator, settlement of the case may be more difficult than if the mediator is free of taint.

In conclusion, we find that Respondent?s conduct, both before and after May 30, 2013, violated Rule 1.12(b) and Rule 8.4(d). Because we conclude that this violation resulted in significant financial harm, inconvenience and emotional distress to the litigants, we must impose a public reprimand as a sanction. Maine Bar Rule 7.1(e)(3)(C).

While we find that Respondent?s conduct was improper, Complainant and Bar Counsel agree that Causey never intended to, and did not in fact, prejudice the substantive legal rights of either party to the divorce litigation. By all accounts, he functioned competently, without bias and without revealing any confidences. His violation of the rules, while serious, resulted from eagerness to seize an inviting opportunity for a new job, which colored his ability to objectively assess his behavior. Furthermore, Respondent has no prior record of discipline. Finally, in our opinion there is little likelihood that Respondent is likely to cause future harm, as he has earned a reputation as well-respected and honorable person and attorney. Therefore, additional sanctions are unnecessary and would be excessive.

For Panel B

Maurice A. Libner, Esq., Panel Chair

Thomas H, Kelley, Esq., At-Large Member

Kenneth Roberts, Lay Member