Board of Overseers of the Bar v. Merritt T. Heminway, Esq.

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Docket No.: GCF#14-291

Issued by: Grievance Commission

Date: February 18, 2015

Respondent: Merritt T. Heminway, Esq.

Bar Number: 009870

Order: Reprimand

Disposition/Conduct: Competence, Diligence, Communication

STIPULATED REPORT of FINDINGS AND ORDER of Panel C of the GRIEVANCE COMMISSION

On January 29, 2015, with due notice and pursuant to Maine Bar Rule 7.1 (e)(2)(E), Panel C of the Grievance Commission conducted a public disciplinary hearing concerning alleged misconduct by Respondent Merritt T. Heminway, Esq. The Board of Overseers of the Bar (the Board) commenced this disciplinary proceeding by filing a Stipulated Disciplinary Petition on December 12,2014.

Attorney Heminway was present and represented by James M. Bowie, Esq. The Board was represented by Bar Counsel J. Scott Davis. The complainant in this matter, Okita Otolembo, and his current attorney, James Wagner, were each present at the stipulated hearing. Bar Counsel had provided Attorney Wagner with an advance copy of this proposed order.

Having reviewed the stipulated findings as presented by counsel, the Panel makes the following disposition:

FINDINGS

Respondent Merritt T. Heminway, Esq., of Portland, Maine has been an attorney duly admitted to the Maine Bar since October 2005, engaging in the practice of law in Maine. As such, he is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct).

With assistance from Attorney Wagner, Mr. Otolembo complained to the Board concerning the manner in which Attorney Heminway handled his immigration matter before the Dallas Immigration Court. The facts surrounding that grievance complaint are summarized as follows:

  1. On December 12, 2011, Attorney Heminway executed a written engagement agreement with Mr. Otolembo to handle asylum application proceedings;
  2. In his notes of that December 12, 2011 meeting with Mr. Otolembo, Attorney Heminway made the following entries: "Individual Hearing 3/14/12" and "Need to change venue to Boston;"
  3. Mr. Otolembo is a native of the Democratic Republic of Congo. The Notice of Hearing in his immigration matter - a "removal proceeding" - was dated May 16, 2011, and scheduled that hearing to take place on March 14, 2012 before the United States Immigration Court in Dallas;
  4. That hearing occurred on that date in the absence of either Mr. Otolembo or Attorney Heminway, the latter having failed to file a timely Motion to Change Venue and Continue. Attorney Heminway mailed a motion for filing in Dallas, Texas on March 12, 2012, and it appears not to have been received by the Immigration Court until March 15, 2012, one day after Mr. Otolembo's hearing;
  5. Prior to the March 14th hearing date, Attorney Heminway had been advised by an experienced immigration attorney at the Immigration Legal Advocacy Project (ILAP) in Portland, Maine that the court would most likely not rule on his motion prior to the March 14, 2012 hearing date;
  6. Attorney Heminway's request for continuance was denied and judgment was issued against Mr. Otolembo in his absence and without his knowledge;
  7. In an email dated March 10, 2012, Attorney Heminway specifically informed Mr. Otolembo that he had "not (yet) heard back from the Immigration Court in Dallas regarding our Motion to Change Venue (and Continue)." Attorney Heminway did not submit that motion until two days later, on March 12, 2012;
  8. By an email dated April 19, 2012, Attorney Heminway notified Mr. Otolembo that his motion had been denied;
  9. Attorney Heminway met with Mr. Otolembo on April 24, 2012 to review what should happen next with his immigration matter. Attorney Heminway agrees that he then informed Mr. Otolembo he would file a motion to re-open his case, that Mr. Otolembo shortly thereafter agreed and understood he would do so, but Attorney Heminway never made any such filing; and
  10. Mr. Otolembo obtained replacement counsel, Attorney Wagner, who thereafter commenced preparation of a motion to re-open Mr. Otolembo's immigration matter, based upon ineffective assistance of counsel by Attorney Heminway.

CONCLUSION AND SANCTION

Attorney Heminway admits and the Panel so finds that he failed to properly communicate with Mr. Otolembo, that he failed to request a continuance of the March 14, 2012 hearing date in a timely fashion, and that he failed to follow through with the preparation and filing of a motion to re-open the immigration proceeding as he promised to Mr. Otolembo.

Attorney Heminway further agrees and admits that his conduct violated the following provisions of the Maine Rules of Professional Conduct: Rule 1.1 (competence); l.3 (diligence); and Rule 1.4(a) (communication). He took responsibility for his misconduct, and expressed remorse by apologizing to Mr. Otolembo at the disciplinary hearing.

The Panel further notes that the purpose of bar disciplinary proceedings under the Maine Bar Rules is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to discharge their professional duties properly. See M. Bar R. 2(a). Bar Counsel confirmed that Attorney Heminway has no prior disciplinary or sanction record on file with the Board. Since the evidence supports a finding and Attorney Heminway agrees he violated referenced portions of the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves that purpose.

The Panel accepts the agreement of the parties, including Attorney Heminway's separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this complaint is a Public Reprimand. Pursuant to M. Bar R. 7.1(e)(3(C),(4) the Panel hereby issues that Reprimand to Merritt T. Heminway, Esq.

Peter C. Fessenden, Esq., Panel Chair
Robert S. Hark, Esq., Panel Member
Richard P. Dana, CPA, Public Member