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Board of Overseers of the Bar v. David Levesque, Esq.
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Docket No.: GCF#14-515
Issued by: Grievance Commission
Date: January 15, 2016
Respondent: David Levesque, Esq.
Bar Number: 008640
Order: Admonition
Disposition/Conduct: Candor toward the Tribunal
M. Bar R. 13(e)(7)(D)
On January 15, 2016, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, David Levesque. The disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on November 25, 2015.
At the January 15, 2016 stipulated hearing, the Board was represented by Deputy Bar Counsel Aria Eee and Attorney Levesque appeared with his counsel, James M. Bowie, Esq. Prior to the hearing, the parties had submitted a stipulated proposed sanction Report for the Grievance Commission Panel's review and consideration. Also prior to that time, Complainants Judy A. S. Metcalf, Esq. and Ryan P. Dumais, Esq. were notified of the hearing date and provided with a copy of the proposed sanction report. Attorneys Metcalf and Dumais did not attend the January 15 stipulated hearing.
Having reviewed the agreed proposed findings as presented by the parties, the Panel makes the following disposition:
Respondent David Levesque of Newcastle, Maine, was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Attorney Levesque was subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Based upon the stipulations by the parties, the Panel makes the following findings:
- In 2006, Doris C. Glidden executed a will that left her entire estate in trust for the benefit of her son, David Glidden, with the remainder reverting to the Second Congregational Church of Newcastle, Maine and her nephew, Craig Borgerson.
- In 2007, Ms. Glidden executed a new will revoking her 2006 will, and reducing the amount that would be set aside in trust for David's benefit to a set sum of $200,000.00.
- After his mother's death, in 2009 David retained Attorney Levesque to contest his mother's 2007 will, and seek probate of the earlier 2006 will.
- David signed a contingency fee agreement that entitled Attorney Levesque to 34% of any recovery achieved through a successful settlement or judgment, or for the payment of court ordered legal fees, whichever was greater.
- Prior to contesting the will in Probate Court, the Second Congregational Church, as the primary remainder beneficiary of the testamentary trust created under the 2006 will, also retained Attorney Levesque, entering into a contingency fee agreement that provided for 34% of any recovery to be paid to Attorney Levesque.
- After a two day trial in the Lincoln County Probate Court, on April 23, 2010 the court issued an order finding that Ms. Glidden lacked the testamentary capacity to execute the 2007 will, and the 2006 will was lodged for probate.
- Based upon the inventory of Ms. Glidden's estate, Attorney Levesque's successful challenge of the 2007 will resulted in between a seven and eight-fold increase over what would have been set aside in trust for David's benefit under the 2007 will. On May 19, 2010 Attorney Levesque filed a motion with an accompanying affidavit with the Lincoln County Probate Court seeking payment of his attorney's fees in the amount of $46,725.50 with additional costs of $4,783.08 from the estate of Doris C. Glidden.
- In seeking court-ordered attorney's fees from the estate, Attorney Levesque failed to advise the Probate Court of the existence of the contingency fee agreements that had been executed by David and the Second Congregational Church or of his intention to seek enforcement of those agreements from the trust created by the 2006 will.
- On June 17, 2010, the Probate Court granted Attorney Levesque's motion, and ordered the estate of Doris C. Glidden to pay $51,508.58 to Attorney Levesque as detailed in his motion and affidavit.
- Subsequent to the award of attorney's fees by the Probate Court, pursuant to the contingency fee agreements with David and the Second Congregational Church of Newcastle, Attorney Levesque sought to recover a contingency fee consisting of 34% of the recovery from the testamentary trust created under Doris C. Glidden's 2006 will.
- The trustee of the testamentary trust objected to payment of the contingency fee, initially resulting in litigation in the Probate Court and then in the Lincoln County Superior Court.
- After the filing of an action by Attorney Levesque in the Lincoln County Superior Court to collect the contingency fee, on September 10, 2013 David filed a Petition for arbitration with the Board's Fee Arbitration Commission (FAC).
- On March 20, 2014 the FAC found that a 34% contingency fee based upon the overall increase in the trust corpus was unreasonable as applied to David, who received only an annual income from the trust.1
The Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Although the above-outlined conduct amounts to a violation of those Rules, the Panel notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public. According to the ABA "Annotated Standards for Imposing Lawyer Sanctions," various factors should be assessed prior to imposing sanctions upon an attorney. Those factors include whether certain duties were violated, the lawyer's mental state, the actual or potential injury caused by the lawyer's misconduct, and the existence of any aggravating or mitigating circumstances.
The first consideration under the ABA Standards is to evaluate the duty that was breached by the attorney. Attorney Levesque sought payment of specified attorneys fees and costs from the Probate Court, but failed to advise the court of separate existing contingency fee agreements with his clients. Interpreting former Maine Bar Rule 8(c), the precursor to current MRPC 3.3, the Professional Ethics Commission (PEC) concluded that absent an expression of legislative intent to the contrary, it was proper for an attorney to enter into a contingency fee agreement with a client in matters where statutes provided for the awarding of attorney's fees. However, the PEC also expressed its opinion that: "... the existence of a contingent fee agreement must be disclosed to the Court or other authority determining the statutory award of fees. In making its determination regarding fees, the Court is entitled to be informed as to what the parties themselves considered to be reasonable." (See PEC Advisory Opinion #81, November 4, 1987) Attorney Levesque's unfamiliarity with the requirements of PEC Advisory Opinion #81 resulted in his failure to disclose the existence of the contingency fee agreements, and a violation of his duty of candor to the court under MRPC Rule 3.3(a).In mitigation, the Panel notes that the Board's regulation history reflects that Attorney Levesque has no prior disciplinary record. At the stipulated hearing, Attorney Levesque explained that his failure to advise the Probate Court of the contingency fee agreement was an unintended violation of the MRPC. At the hearing, he expressed regret for having neglected to follow through on his duties as an officer of the court.
In sum, the evidence of misconduct supports the Panel's findings, and Attorney Levesque agrees he did in fact violate the Maine Rules of Professional Conduct. However, the Panel agrees that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Attorney Levesque. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Attorney Levesque.
Therefore, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is the issuance of an admonition, which is now hereby issued and imposed upon David Levesque, Esq. pursuant to M. Bar R. 13(e)(10)(B).
Date: January 15, 2016
Thomas H. Kelley, Esq., Panel Chair
Vendean V. Vafiades, Esq., Panel Member
John C. Alfano, Public Member
1The Confidential Addendum to the decision indicates that the panel would likely find the overall fee structure as reasonable when applied to the Trust, the Church and David.
