Board of Overseers of the Bar v. Alice E. Knapp, Esq.

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Docket No.: GCF 06-248; GCF 06-358

Issued by: Grievance Commission

Date: November 10, 2008

Respondent: Alice E. Knapp, Esq.

Bar Number: 007017

Order: Reprimand

Disposition/Conduct: Conflict of Interest: Simultaneous Representation; Threatening Prosecution

Report of Findings M. Bar R. 7.1(e)(2)(E) and M. Bar R. 7.1(e)(4)

On November 10, 2008, with due notice, Panel C of the Grievance Commission conducted a public, stipulated disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Alice E. Knapp, Esq. 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 September 19, 2008.

At the hearing, the Board was represented by Assistant Bar Counsel, Aria Eee and the Respondent appeared pro se. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction order for the Grievance Commission Panel's review and consideration. The complainant, John Hurley, was provided with a copy of this Report (in its proposal form) and appeared / did not appear for the hearing on November 10, 2008.

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

Findings

Respondent Alice E. Knapp (Knapp) of Richmond, County of Sagadahoc, State of Maine, has been at all times relevant here to an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Knapp was admitted to the Maine bar in 1989 and she is in private practice.

On June 20, 2006 Bar Counsel docketed a sua sponte (GCF# 06-248) complaint against Attorney Knapp resulting from a previously issued District Court family matter decision forwarded to Bar Counsel. That decision considered Attorney Knapp's Motion to Remove Opposing Counsel For Conflict of Interest ('Motion") and ordered opposing counsel to remove himself from the pending divorce case at issue. Nine months after Attorney Knapp filed her Motion and subsequent to the District Court's decision on the Motion, opposing counsel's then client, John Hurley, Jr., filed a related complaint against Attorney Knapp. Mr. Hurley's October 18, 2006 complaint (GCF# 06-358) and Bar Counsel's sua sponte complaint both concerned Attorney Knapp's initial involvement in the Hurley divorce. That involvement included a period in which Attorney Knapp improperly represented both parties.

By way of background, Attorney Knapp explained in her initial response to the Board that the joint representation had been made at the request of one of the parties and was agreed to by both of the Hurleys. Apparently, the couple had expressed their wish to save money on legal expenses and at that time, they believed that they were generally in agreement on the terms of their divorce. Attorney Knapp had her initial reservations about the propriety of such a joint representation. Those reservations led her to consult with a colleague prior to forwarding a proposed joint representation agreement to the parties. Based on the colleague's advice, Attorney Knapp did send such an engagement letter to advise the parties of their need to retain separate counsel should they at any time find they were no longer in agreement regarding the terms of their divorce. Attorney Knapp asserted that until she was notified otherwise by Bar Counsel's letter, she had been unaware that the Bar Rules prohibit counsel from jointly representing divorcing parties. Attorney Knapp now knows such joint representation is prohibited by M. Bar R. 3.4(c)(1) even when the representation is intended for the limited purpose of drafting a settlement agreement. Prior to the sua sponte docketing, Attorney Knapp did not understand that the parties to a divorce are considered to be involved in litigation, no matter how the status of the proceeding is characterized. According to Attorney Knapp, after she drafted a settlement agreement on behalf of the parties, Mr. Hurley advised her that he had decided to engage his cousin, opposing counsel, to represent him in the divorce. According to Attorney Knapp, Mr. Hurley stated that he had no objection to Knapp's continuing representation of Ms. Hurley.

Attorney Knapp also explained that in an attempt to level the playing field and to avoid an unnecessary disruption of the pending divorce proceeding, she implored opposing counsel to withdraw from representing his cousin in the divorce. Attorney Knapp did so by letter and she likewise offered to withdraw from representing Ms. Hurley based upon opposing counsel's assertion that Mr. Hurley would no longer agree to waive her conflict. Attorney Knapp's letter advised opposing counsel of Ms. Hurley's strenuous objection to his continuing representation of Mr. Hurley unless both parties were prepared to waive their respective counsel's conflicts. That letter cited and excerpted the Bar Rules and Advisory Opinion #2 of the Professional Ethics Commission of the Board of Overseers of the Bar. The letter also threatened to file a complaint with the Board of Overseers if opposing counsel declined to either withdraw from Mr. Hurley's representation or alternatively, to instruct his client to sign the once promised waiver of conflict. When opposing counsel declined both options, Attorney Knapp withdrew from the case and filed a motion to disqualify to protect Ms. Hurley's interests while she helped transition her client to new counsel.

Following the Grievance Commission's authorization for a disciplinary hearing, Attorney Knapp acknowledged that she engaged in misconduct, having violated her duties under the Code when she undertook the representation of both Hurleys for their contested divorce pursuant to a "Joint Spousal Representation Engagement Letter" That "cost saving" effort resulted in a violation of M. Bar R. 3.4(c)(1). Additionally, while Attorney Knapp believes that the language of M. Bar Rule 3.6(c), prohibiting lawyers from threatening or suggesting that disciplinary charges will be brought "solely to obtain an advantage in a civil matter," bears clarification, she accepts the determination that her letter to opposing counsel was improper under that Rule. The combined violations ultimately resulted in a finding that Attorney Knapp likewise violated M. Bar R. 3.1(a) (conduct unworthy of an attorney).

Conclusion and Sanction

The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Under normal circumstances, Attorney Knapp's above-outlined and agreed upon misconduct would have to some extent delayed Ms. Hurley's case while she obtained new counsel. It may also have caused Ms. Hurley to incur additional, duplicative legal expenses. However, we acknowledge Attorney Knapp's argument that the delay in moving the divorce forward may have arisen as a result of opposing counsel's refusal to withdraw as Mr. Hurley's counsel.

Attorney Knapp has accepted responsibility for her violations of the Code. At the hearing, she expressed her remorse regarding those violations. Attorney Knapp has no history of prior discipline and she reiterates her desire to ensure that other colleagues learn from her mistakes.

Maine Bar Rule 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 Knapp agrees that she did in fact violate the Code of Professional Responsibility, a public reprimand serves those purposes.

By their signatures below, the parties hereby waive their right to a contested hearing and the formalities therein, pursuant to M. Bar R. 7.1(e)(2)(C),(E). Attorney Knapp further waives the right to file a Petition for Review under Maine Bar Rule 7.2(a).

Therefore, the Panel accepts and approves the Stipulated Report of Findings and concludes that for her violation of the above-referenced Bar Rules, the appropriate disposition of this case is a public reprimand to Alice E. Knapp, Esq. as provided by M. Bar R. 7.1(e)(3)(C) which is now issued and is now imposed upon her effective this date.

For the Grievance Commission

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