Board of Overseers of the Bar v. James Scott Wheeler

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Docket No.: GCF# 13-036

Issued by: Grievance Commission

Date: April 23, 2014

Respondent: James Scott Wheeler

Bar Number: 004335

Order: Reprimand

Disposition/Conduct: Failure to file an affidavit attesting compliance with the provisions of M.B.R. 7.3(i)(2); Failure to respond to a lawful demand for information from a disciplinary authority

FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION M. Bar. R. 7.1(e)

Introduction

On March 24, 2014, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Bar Rule 7.1 (e) concerning misconduct by Respondent James Scott Wheeler. The Board of Overseers of the Bar ("Board") commenced this proceeding by docketing on or about January 29, 2013 a sua sponte Grievance Complaint.

This Complaint was precipitated by the following actions by Mr. Wheeler, who had ceased practicing law in Maine:

  1. failing to comply with the annual registration requirement of M. Bar Rule 6 (a); and

  2. failing to meet the continuing legal education credit hours required by M. Bar Rule 12 (a).

As a result of these Rule violations, the Board imposed on Mr. Wheeler a summary administrative suspension.

The Board's Grievance Complaint was then docketed when Mr. Wheeler failed to file with the Board the end-of-practice affidavit required by Bar Rule 7.3(i)(2)(A-B). This Rule required Mr. Wheeler to detail in an affidavit the names and addresses of all clients, attorneys, courts, administrative agencies and private dispute resolution forums to whom he had sent notice of his suspension, together with a copy of the text of the notices sent.

Hearing

The Board effected service on Mr. Wheeler of the Petition and Summons as required Maine Bar Rule 7.1(e)(1), effective January 14, 2014. Although Mr. Wheeler acknowledged service he failed to file the required written response. Therefore, pursuant to Maine Bar Rule 7.1(e)(1) the alleged facts were taken as admitted and the Panel considered only whether Mr. Wheeler should be sanctioned.

The hearing was held on March 24, 2014. The Board was represented by Alan P. Kelley, Assistant Bar Counsel. The Panel was James A. McKenna, Esq., Chair, Mary A. Denison, Esq. and Emilie van Eeghen. Mr. Wheeler attended via telephone from Clam Gulch, Alaska and was placed under oath. Board Exhibits 1 through 7, including the Disciplinary Petition, were admitted without objection.

Via telephone, Mr. Wheeler described his decision to cease practicing law in Maine and return to Alaska. He described his efforts to properly close up his practice. He did not contest that his notification of clients did not meet the requirements of Bar Rule 7.3(i)(2)(A-B). This Rule required Mr. Wheeler to affirm in an affidavit a listing of the names and addresses of all clients, attorneys, courts, administrative agencies and private dispute resolution forums to whom notice that he was no longer practicing law was sent, together with a copy of the text of the notices sent.

Public Reprimand

Because Mr. Williams failed to file a written response to the Board's Petition and Summons, the Grievance Panel's hearing was limited to deciding the proper disposition. See Maine Bar Rule 7.1(e)(1). The Panel believes that the client notices required by Bar Rule 7.3(i)(2) and the affidavit affirming that they had been sent are important safeguards for an attorney's clients.

The purpose of a bar disciplinary proceeding 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. See M. Bar R. 2(a). In considering an appropriate sanction under the Bar Rules, the Panel must consider the following factors set forth in M. Bar R. 7.1(e)(3)(C):

  1. Did the attorney violate a duty owed to a client, to the public, to the legal system, or to the profession?

    In failing to properly cease practicing law in Maine Mr. Wheeler violated a duty owed to his clients, the legal profession and the legal system.

  2. Did Mr. Wheeler act intentionally, knowingly, or negligently?

    Mr. Wheeler has yet to file with the Board the required affidavit. He has acted intentionally, knowingly and negligently.

  3. Did Mr. Wheeler's violation of Board Rules cause actual or potential injury?

    The Panel is not aware of whether Mr. Wheeler's Rules violations caused injury. Certainly there is the possibility of injury to his clients.

  4. Were there the existence of any aggravating or mitigating factors?

    In his testimony Mr. Wheeler did not describe significant mitigating factors.

The Board believes that an attorney's proper notice to clients when ceasing to practice law is an essential safeguard to the clients' interests. For these reasons the Panel issues a Public Reprimand to attorney James Scott Wheeler.

James A. McKenna, Esq.

Emilie van Eeghan, Public Member

Mary A. Denison, Esq.