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Board of Overseers of the Bar v. James B. Smith

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Docket No.: GCF 07-029

Issued by: Grievance Commission

Date: October 19, 2009

Respondent: James B. Smith, Esquire

Bar Number: 000350

Order: Reprimand

Disposition/Conduct:

Stipulated Report of Findings and Order of Panel C of the Grievance Commission M. Bar R. 7.1(e)(2)(4)

On October 19, 2009, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1 (e)(2)(E), concerning misconduct by the Respondent, James B. Smith, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on March 11, 2009.

At the hearing, the Board was represented by Bar Counsel J. Scott Davis, and Attorney Smith appeared with Attorney James M. Bowie. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration. The complainant, Jeffrey P. Buhrman, did not attend the Stipulated Hearing, but had previously received a copy of the Proposed Report and informed Bar Counsel that he did not object to the issuance of such a Report.

Having reviewed the agreed, proposed findings as presented by counsel and having heard from counsel and received testimony from Attorney Smith at that hearing the Panel now makes the following disposition:

Findings

Respondent James B. Smith, Esq. of Biddeford County of York State of Maine is and was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
The Board asserts upon information and belief within paragraphs #4 through #24 that Attorney Smith violated specific portions of the Code of Professional Responsibility as set forth below for which he should be disciplined.
Jeffrey P. Buhrman (Buhrman) Esq. of South Portland Maine filed a complaint on January 25, 2007. Attorney Smith filed his initial response on March 23, 2007 denying that he mishandled the representation of his client in her real estate transaction.
During the course of the Board?s investigation Attorney Buhrman and Attorney Smith were afforded opportunities for rebuttal and supplemental responses resulting in a fully developed investigation pursuant to M. Bar R. 7.1(b).
On August 16, 2007 a panel of the Grievance Commission reviewed Attorney Smith's actions in this matter, and based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.

Specific Facts of His Misconduct
Attorney Smith commenced representation of Felicidade Thurber on September 17, 2004. She was then 87 years old.
Ms. Thurber had been referred to Attorney Smith by another local law firm to provide representation to her concerning her daughter, Linda Wright-Phelps', proposed purchase of Mr. and Mrs. Thurber's residence in return for a life estate to her parents.
At the time of Attorney Smith's first meeting with Mrs. Thurber, he was aware that her 91-year old husband (and the adoptive father of Ms. Wright-Phelps), Everett Thurber, was residing in an assisted living facility.
Attorney Smith never met independently with Mrs. Thurber before the closing for that real estate transaction.
Hence, Mr. and Mrs. Thurber would lose the ability to sell or mortgage their home to privately pay for long-term care costs as well as lose approximately 80% of the value of their estate.
The life lease would be subject to a loan that Ms. Wright-Phelps was obtaining.
Attorney Smith was aware of the pending guardianship matter involving Mr. Thurber and had been informed by Ms. Wright-Phelps that it was uncontested. However, he did not independently confirm with the Probate Court whether the proceeding was in fact uncontested, whether Mr. Thurber had independent counsel in that proceeding or whether anyone opposed Ms. Wright-Phelps' petition.
Attorney Smith did not directly contact Mr. Thurber to determine whether he had any objections to the real estate transfer, believing that Ms. Wright-Phelps' appointment as his temporary guardian meant that he lacked the capacity to understand that transaction.
Mrs. Thurber held a Power of Attorney for her husband that had been executed by Mr. Thurber in February of 2004.
The Power of Attorney placed the following restriction on Mrs. Thurber's authorization to make gifts: "no distribution ... shall be made except upon review and written certification by an attorney from the Law Offices of Smith Elliott Smith & Garmey, P.A., or its successor, or any attorney experienced in estate planning and/or elder law that such distribution is appropriate (i.e. advisable as an estate planning and/or Medicaid planning measure) ... and is otherwise in my best interests."
While factual evidence supported a judicial finding that Attorney Smith assisted Mrs. Thurber in exceeding her authority under the Power of Attorney, and failed to appropriately evaluate her mental condition and competence which caused a drain on judicial resources and compounded the litigation and family distress, Attorney Smith denies that he knowingly did so.
Nevertheless, by Order dated August 1, 2006, York County Superior Court Justice Fritzsche ruled on a Motion for Summary Judgment filed by the personal representative for the estate of Everett Thurber (ALFSC-RE-06-053). By that Order, the court rescinded the deed from Felicidade Thurber to Linda Wright-Phelps on the grounds that the transaction ... "was for well below market value, fiduciary obligations were not met, and the restrictions on a power of attorney were not followed" (Page1 of Order on Pending Motions dated August 1, 2006).
Although Attorney Smith did not initially accept or understand the seriousness of his misconduct in this entire matter, he does so now. In fact, he has attempted to assist in resolving the disruption and disturbance suffered by the Thurber Estate as a result of the transaction at issue, including participating in a resolution which involved having him and his law firm pay a financial consideration.
Attorney Smith now agrees his conduct in this representation violated Maine Bar Rules 3.6(a) and (j) in that he did not employ reasonable skill and care or use his best judgment in the handling of Mrs. Thurber's transaction, and failed to recognize or appreciate her diminished mental capacity. Although at the time Mrs. Thurber appeared to him to have sufficient understanding and capacity to communicate her wishes and make decisions concerning her real estate, Attorney Smith now agrees the total facts showed otherwise.
Attorney Smith agrees that despite her apparent normal or satisfactory presentation and performance at meetings with him (which were never private), Ms. Thurber in fact had a variety of mental and physical conditions that impaired her judgment.
In hindsight, Attorney Smith agrees and admits he should have met privately with his client, Ms. Thurber, without the presence of her daughter, Ms. Wright-Phelps, and that he failed to ever do so.
Therefore, Attorney Smith agrees that by his conduct he engaged in violations of Maine Bar Rules 3.6(a)(standards of care and judgment) and 3.6(j)(client with diminished capacity).

Conclusion and Sanction

The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. As a result of Attorney Smith's actions, judicial and attorneys' time and resources were necessarily expended for participation In the resulting litigation in the York County Superior Court.

The Panel notes that Attorney Smith has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Smith expressed his remorse for his violations of the Code of Professional Responsibility. The Panel also expects that there is little likelihood of repetition of such misconduct by Attorney Smith. The Panel was informed that Attorney Smith was previously reprimanded in 1994 for conduct dissimilar to that involved here, i.e. improperly threatening prosecution, and has received no other misconduct sanctions.

M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Smith agrees that he did, in fact, violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.

Therefore, the Panel accepts the agreement of the parties, including Attorney Smith's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand of Attorney James B. Smith which is now hereby issued and imposed upon him pursuant to M. Bar R. 7. 1(e)(3)(C),(4).

For the Parties

J. Scott Davis, Bar Counsel
James B. Smith Esq., Respondent
James M. Bowie, Esq. Attorney for Respondent Smith

For the Grievance Commission

David S. Abramson, Esq, Panel C Chair
Martha C. Gaythwaite, Esq.
Christine Holden Ph.D.