Board of Overseers of the Bar v. Stephen M. Brett

Download Decision (PDF)

Docket No.: GCF 04-324 & 05-090

Issued by: Grievance Commission

Date: January 25, 2006

Respondent: Stephen M. Brett

Bar Number: 009277

Order: Reprimand

Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Conduct before a Tribunal; Referral Solicitation; Confidentiality

Report of Findings and Determinations

This matter came before Panel B of the Grievance Commission on a Petition of Bar Counsel, alleging in three separate Counts that Respondent Stephen M. Brett, Esq. of York Beach, Maine violated each of the following Maine Bar Rules:

?3.1(a) - conduct "unworthy of an attorney"
?3.2(f)(1) - conduct violating the provisions of the Maine Bar Rules
?3.2(f)(3) - deceitful or dishonest conduct
?3.2(f)(4) - conduct prejudicial to the administration of justice
??3.6(h)(1)&(3) - revelation of confidential information
?3.6(h)(5) - failure to call upon a client to rectify fraud on tribunal
?3.7(e)(1)(i) - misrepresentation to a judge, jury or tribunal
?3.7(e)(2)(v) - asserting a personal opinion as to the guilt or innocence of an accused
?3.7(e)(2)(vi) - engaging in conduct degrading to a tribunal
?3.9(f)(2) - engaging in solicitation of employment

A public hearing was conducted on December 15, 2005 in Portland, Maine to determine whether a Bar Rule violation had occurred and whether probable cause exists for filing an information pursuant to Maine Bar Rule 7.2(b).

The Board of Overseers of the Bar ("the Board") was represented by Aria eee, Esq. Respondent Stephen M. Brett, Esq. was represented by Peter J. DeTroy III, Esq. No objection was made to the composition of the Panel. At the hearing the Panel admitted Board Exhibits 1 - 11 and 13, as well as Respondent's Exhibit 15, all without objection. The Panel also heard testimony of Mr. Brett, Officer Jamie Rooney, Officer Paul Pomeroy, Jeffrey H. Moskowitz, Esq. and Thomas F. Lonnquist. In addition, counsel stipulated as the nature of testimony which would have been given by an Officer Ciampi if he had attended the hearing. On the basis of this evidence, Panel B finds that Respondent Stephen M. Brett, Esq. did not violate Maine Bar Rules 3.6(h)(1) or (3) or 3. 7( e )(2)(v) as alleged, but did violate each of the other Maine Bar Rules listed above. For the reasons described in greater detail below, the Panel issues three separate public reprimands to Stephen M. Brett, Esq. for violations embodied in Counts I, II and III of the Petition.

Findings of Fact

Count I: First Complaint of Judge John D. Kennedy (File No. 04-324).

On August 20,2004, Judge Kennedy facilitated a judicially-assisted settlement conference between two parties and their respective counsel, one of whom was Attorney Brett. Following an initial session with parties and counsel in the courtroom, Judge Kennedy met with both counsel in his chambers, and then, in split sessions, invited the respective parties and their counsel to meet with him separately. The party and counsel not meeting with Judge Kennedy were generally expected to stay in the courtroom adjacent to the Judge's chambers, so the Court Officer could find them when the Judge wished to see them again. That day Attorney Brett had gotten up early, failed to get lunch, and then discovered that the settlement conference process would move slowly that afternoon.

Attorney Brett testified that after about 35 to 40 minutes of initial discussion and another 30 minutes or more with Judge Kennedy, he and his client found themselves back in the courtroom, alone, waiting patiently to be called back into the discussions. In the course of their wait, Mr. Brett admits he first entered the area behind the bench (an area adjacent to the door leading directly to the Judge's chambers) to retrieve fresh water for his client and dispose of some trash. Mr. Brett also admits that somewhere between 2:30 and 3:00 PM, becoming overcome by hunger, he entered the area again with the express intent to eavesdrop on the Judge's discussions to attempt to ascertain how much longer they might need to wait. He states he could not actually translate the mumbled conversation coming from chambers. Neither Mr. Brett nor his client made any effort that afternoon to contact the Court Officer or the Clerk's office to explain their desire to leave the courtroom, even momentarily.

Court Security Officer Paul Pomeroy saw things somewhat differently. At approximately 3:00 PM, after he had closed another courtroom, he went looking for the Court Security Officer assigned to Judge Kennedy. His search began by peeking through that courtroom's entrance door window. Officer Pomeroy reports he observed Attorney Brett, whom he recognized, standing behind the Judge's bench, an uncommon event in his experience. Officer Pomeroy testified that he then saw Mr. Brett speak to a person he assumed to be Mr. Brett's client, who was on the other side of the bench. According to Officer Pomeroy, Mr. Brett next appeared to lean back to within two feet of the Judge's chambers door and cock his head, obviously eavesdropping. Rather than enter the courtroom immediately however, Officer Pomeroy continued to observe Mr. Brett for "a minute or two," although the actual time he spent in further observation remains debatable. At some point the Officer retreated from the courtroom door and spent "twenty seconds or so" entering a secure hallway alongside the courtroom and speaking with Judge Kennedy's Security Officer. He then claims to have observed Mr. Brett a second time, this time through another window between the hallway and the courtroom. In Officer Pomeroy's opinion, Attorney Brett was still engaged in eavesdropping at that time. The Officer then entered the courtroom directly from the hallway, and Mr. Brett left the area behind the bench.

Stephen Brett admits to eavesdropping, asserts it was nevertheless entirely innocent, and confesses in retrospect to exercising poor judgment, compounded by the fact he could not actually determine whether the settlement discussions were "winding down" in any event. Officer Pomeroy added that 1) logistically one would not need to enter the bench area to obtain water or dispose of trash, and 2) it is possible, in his opinion, to hear conversations clearly through the Judge's door, which is what, he maintains, Mr. Brett was doing. Panel B finds that eavesdropping by Attorney Brett, for whatever purpose, did occur for an undetermined length of time.

Count II: Second Complaint of Judge John D. Kennedy (File No. 04-324).

Judge Kennedy also passed along allegations he had heard that Attorney Stephen M. Brett had solicited business from a Town of York Police Officer. Further investigation by the Board and testimony of Officer Jamie A. Rooney (f/k/a Jamie A. Dodge) appears to confirm such an offer occurred. During the Winter of 2003 - 2004, Ms. Rooney took a bicycle "spinning" class at a facility in Portsmouth, New Hampshire known as Spinnaker Point. Although her preferred spinning instructor was a Tom Lonnquist, Mr. Lonnquist began sharing his instructor duties with his friend, Mr. Brett, during that Winter. Officer Rooney, Tom Lonnquist and Stephen Brett apparently all agree that Ms. Rooney and Mr. Brett each probably became aware of the other's occupation through Mr. Lonnquist, and likely through the class' "exercise chatter." But Officer Rooney testified that following one particular morning spinning session lead by Mr. Brett, he approached her to explain that he was building a house in York and, in fact, was already living in it. He went on to explain that he had just started out on his own and certainly could use more clients. It was then, according to Officer Rooney, that Mr. Brett made an explicit offer that she take his business cards and hand them out to her "arrestees." For each person who eventually retained Mr. Brett, he proposed to pay her $50.00. Mr. Brett then went on to regret he had no business cards to give her that day. Officer Rooney described her reaction as "being uncomfortable," although she did nothing in response to the proposal other than avoid Mr. Brett's classes in the future and then tell her fianc? about the incident.

Mr. Brett asserts the solicitation event never happened, and, along with Mr. Lonnquist, suggests Officer Rooney more likely remembers another "exercise chatter" discussion in which Mr. Lonnquist quipped that Mr. Brett should pay Officer Rooney for referrals. But Officer Rooney remains adamant that although a second referral discussion did occur, that event took place weeks later. She states the second "business referral" suggestion still made her uncomfortable, but concedes it was more clearly made entirely in jest by Mr. Lonnquist. As a young officer, she understandably was unprepared for such an unusual offer and now admits to being even somewhat disoriented in her response. To avoid being confronted with such offers again, Officer Rooney stopped attending the spinning classes entirely, until recently.

Panel B finds Officer Jamie Rooney's testimony credible. No obvious reason exists for her to embellish her story. In fact, when Officer Rooney revealed the original solicitation to her fianc?, he reported it to the York Police Department, which precipitated a regrettable, informal investigation into the matter by her superior officers. Panel B believes Ms. Rooney had every reason to minimize the first solicitation event under the circumstances, but nevertheless treated the conversation with Mr. Brett as a serious offer soliciting clients in return for cash.

Count III: Complaint of Jeffrey Moskowitz, Esq. (File No. 05-90).

The final Petition Count stems from Mr. Brett's representation of the defendant in the matter of State v. Keith Armstrong in a York County Superior Court criminal jury trial. Mr. Armstrong was alleged to have operated a motor vehicle while having a blood-alcohol level of .15 on June 16, 2004. Mr. Armstrong met Mr. Brett at the Biddeford District Court and asked that he be made his court appointed attorney. On September 28, 2004, after having spoken to Mr. Brett for only "approximately 15 - 20 minutes," the defendant and Mr. Brett appeared at the Bureau of Motor Vehicles Office in Kennebunk, Maine for Mr. Armstrong's administrative license suspension hearing. No one disputes that, at that hearing, Mr. Armstrong testified he had driven to a 7-Eleven Store, parked the car, walked to a nearby bar to have some drinks, and, when he returned to his car, he was arrested. In other words, he maintained that he had been drinking but that he had not been driving. Not surprisingly, the defendant's story differed from that of the arresting officer, an Officer Ciampi, who testified at the trial that he witnessed Mr. Armstrong driving while intoxicated.

During later plea negotiations with the Assistant District Attorney, Jeffrey H. Moskowitz, Esq., Mr. Brett explained that he expected his client to testify that he had not been driving. Mr. Moskowitz responded that if, in fact, that testimony would be presented, and he obtained a conviction, he would seek a harsher sentence because he believed the defendant would be lying under oath. Mr. Brett made no response, and continued to prepare for what would be his first jury trial. To make trial preparation somewhat more difficult for Mr. Brett, a few weeks prior to the trial Mr. Armstrong spent some time in a psychiatric ward. Mr. Brett complained that it became difficult to keep Mr. Armstrong focused. It is easy to see Mr. Armstrong may not have made a model client.

On January 24th, Mr. Armstrong did take the stand in his own defense as expected, but what he had to say caught at least the prosecuting attorney off guard. Under direct examination by Mr. Brett and again under cross examination, Mr. Armstrong insisted, under oath, that he had been very sick on June 16th, had had nothing alcoholic to drink that day, and had driven from his home to a 7-Eleven Store to buy cough medicine and cigarettes. Mr. Armstrong's story ends with the arresting officer stopping him at the store and later establishing a .15 blood-alcohol level.

Mr. Brett explained to the Panel at one point that he was "dumbfounded" by his client's testimony of no drinking and "didn't know what to do." But later he also insisted that he had not made any notes at the BMV hearing and did not recollect his client's previous testimony. In either case, the transcript of Mr. Armstrong's testimony, and specifically Mr. Brett's questioning of him, suggests strongly that Mr. Brett was aware of the story about to be told, a story on which Mr. Brett continued to rely obliquely in his closing argument to the jury. All parties agree that Mr. Brett did not request a sidebar or act in any other way during the trial to attempt to rectify his client's testimony. Despite Mr. Armstrong's testimony, the jury returned a guilty verdict, and true to his word, Mr. Moskowitz sought a slightly more caustic sentence. The presiding Justice ultimately imposed a much more rigorous sentence, noting in doing so that both he and the jury felt the defendant had lied.

After the trial, Defendant's testimony continued to bother both the arresting officer and Mr. Moskowitz, who obtained the Bureau of Motor Vehicles suspension hearing tape to compare the Armstrong testimony in both hearings and to also confirm Mr. Brett was in attendance at that earlier hearing. The result is the present complaint against Mr. Brett for allowing his client to materially deviate from his known, sworn testimony, effectively allowing a falsehood to be submitted to the Court.

Discussion

Stephen M. Brett, Esq. is alleged to have violated Maine Bar Rules in the course of his eavesdropping, business solicitation, and courtroom behavior. We chose to examine each matter independently.

Panel B views Mr. Brett's admitted eavesdropping as a deplorable and lamentable exercise of unsatisfactory judgment. We find no difficulty characterizing listening in on conversations behind closed doors, and particularly conversations between the opposing party and a Judge, as conduct 1) "unworthy of an attorney," 2) prejudicial to the administration of justice, and 3) degrading to a tribunal. In short, it is hard to imagine eavesdropping as the preferred course of action in any litigated matter, particularly since there were other avenues available to Mr. Brett to determine whether he could step out to find lunch. Moreover, we believe that, in the context of judicially assisted settlement discussions, an improper advantage could be achieved by listening in on the other party's discussions with the Judge. It is apparent to this Panel, in this instance, that Mr. Brett could have no logical or innocent reason to loiter behind the bench, near the Judge's chamber's door, other than to attempt to hear what was being said by his opponent. If it is true, as asserted by Mr. Brett, that one cannot discern the actual dialogue behind that door, then certainly no justification exists for remaining in that location more than a mere few seconds.

Panel B also views Mr. Brett's solicitation of business, whether light-hearted or deliberate, as serious lawyer misconduct. Maine Bar Rule ?3.9(f)(2) expressly prohibits engaging in solicitation of employment or giving anything of value to recommend employment by a client or as a reward for having made the recommendation resulting in employment by a client. As observed above, Panel B elects to believe the Town of York Police Officer's recollection of events surrounding Mr. Brett's offer to pay her for client referrals. The terms of Mr. Brett's business proposal could not have been more straightforward to Officer Rooney. She was to pass out Mr. Brett's business cards to solicit work for him, and in return would receive $50 for each successful referral. Such an explicit offer, even made in jest, would cause a reasonable person to conclude he or she may be receiving an actual business proposition. Mr. Brett's offer, coupled with his description of his current financial need at the time, causes this Panel to conclude that Mr. Brett violated Maine Bar Rule ?3.9(f)(2) prohibiting solicitation of employment. Panel B also chooses to find that the foregoing solicitation conduct is also a violation of Maine Bar Rule ?3.1(a), conduct "unworthy of an attorney," and Maine Bar Rule ?3.2(f)(1), conduct violating the provisions of the Maine Bar Rules.

Lastly, Mr. Brett's failure to take corrective action during his client's trial violates Maine Bar Rule ?3.6(h)(5). That particular Bar Rule compels each Maine lawyer, when he or she "receives information clearly establishing that a client ... has, during the representation, perpetrated a fraud upon any ... tribunal" to call upon the client to rectify the fraud on that tribunal. The Court in Board of Overseers v. Dineen, 481 A.2d 499 (Me. 1984), also observed:

A lawyer practicing before the Maine bar enjoys a privileged status. Upon entering the profession that lawyer takes an oath to "do no falsehood nor consent to the doing of any in court," 4 M.R.S.A. ?806 (1979). While the lawyer has a duty to act zealously on his client's behalf, that duty is subject to ethical limitations which the lawyer may ignore at his peril. Among these is the "affirmative obligation to inform the court of the falsity of the client's assertions." State v. Gilcott, 420 A. 2d 1238, 1240 (Me. 1980).

Id. at 503-504,

Panel B concludes that Attorney Stephen M. Brett was, or should have been, aware of his client's divergent, sworn testimony during his OUI and BMV hearings. Although Respondent's counsel correctly points out that Mr. Brett had no previous jury trial experience, Mr. Brett's very unfamiliarity with the process would suggest that he had committed the likely testimony of the trial's only two witnesses (the arresting officer and the defendant) to memory. In this Panel's view, Mr. Brett's response should have been obvious. Except where the information is protected (not the present circumstances), one must use the first opportunity to reveal the fraud to the tribunal, i.e. utilize a sidebar during the jury trial to explain your quandary and ask to be given the opportunity to rectify the fraud. No such effort was made by Mr. Brett.

Determinations

In the event the Panel concludes lawyer misconduct subject to sanction under the Maine Bar Rules has occurred, Maine Bar Rule 7.1 (e)(3) requires this Panel either to issue a dismissal with a warning or issue a public reprimand or a finding of probable cause for suspension or disbarment and direct Bar Counsel to commence an attorney disciplinary action by filing an information pursuant to Maine Bar Rule 7.2(b). This Panel finds that misconduct by Stephen M. Brett, Esq., subject to sanction under the Maine Bar Rules, has occurred in each matter before us.

A. The Panel finds Mr. Brett's courtroom eavesdropping violated Maine Bar Rules ?3.1 (a), ?3.2(f)(1), ?3.2(f)(4) and ?3.7(e)(2)(vi), and represents more than a minor departure from acceptable lawyer conduct The appropriate sanction is that Stephen M. Brett, Esq. be and hereby is issued a public reprimand.

B. The Panel also finds that Mr. Brett's solicitation of business referrals from Officer Jamie A. Rooney (f/k/a Jamie A. Dodge) is a conspicuous and distressing violation of Maine Bar Rule ?3.9(f)(2). The appropriate sanction is that Stephen M. Brett, Esq. be and hereby is issued a second public reprimand.

C. Lastly, the Panel finds that Mr. Brett's failure to rectify a fraud upon a tribunal to be a violation of Maine Bar Rules ??3.1(a), 3.2(f)(1), 3.2(f)(3), 3.2(f)(4), 3.6(h)(5), 3. 7(e)(1)(i) and 3.7(e)(2)(vi). This conduct represents a serious transgression of acceptable behavior during a trial. The appropriate sanction is that Stephen M. Brett, Esq. be and hereby is issued a third public reprimand.

For the Grievance Commission

David R. Weiss, Chair Panel B
John H. Rich III
Susannah White