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Board of Overseers of the Bar v. Charles R. Oestreicher, Esq.

Docket No.: GCF 96-K-181

Issued by: Grievance Commission

Date: May 25, 2000

Respondent: Charles R. Oestreicher, Esq.

Bar Number: 001060

Order: Reprimand

Disposition/Conduct: Conduct Unworthy of an Attorney; Identifying Commencement, Continuation, and Termination of Representation

Report of Reprimand
M. Bar R. 7.1(e)

On May 25, 2000, pursuant to due notice, Panel B of the Grievance Commission conducted an attorney disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2) reference the above matter. The Board of Overseers was represented by Bar Counsel J. Scott Davis. Respondent Charles R. Oestreicher was present and represented by Gene Libby, Esq. The complainant, Nicholas Hubby, was also present at that time. Although no testimonial witnesses were presented, Mr. Hubby, was provided the opportunity to make comment to the panel, and did so. Prior to that hearing, counsel for both parties stipulated as to the following facts, and the panel now so finds:

Findings of Fact

Petitioner is the Board of Overseers of the Bar (Board).
The Board avers that Respondent Charles R. Oestreicher, Esq., (Oestreicher) of Portland, County of Cumberland, and 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.
As set forth below, Oestreicher has engaged in conduct unworthy of an attorney under the Maine Bar Rules.
On March 19, 1987, Nicholas Hubby (Hubby) engaged Bruce Bergen (Bergen), a partner at the law firm of Verrill & Dana, to represent him in his effort to purchase property off the Shore Road in Cape Neddick, Maine. An issue in that matter included advising Hubby as to the strength and validity of the right of way through the land that completely surrounded Hubby's prospective purchase.
The adjacent land included a farm called Cucklebottom Farm (the Farm) owned by Richard and Kathryn Thornburgh (Richard, Kathryn or the Thornburghs).
Hubby's access to that property is over a right-of-way along a driveway through the Farm property.
As early as 1987, Hubby started to explore ways to acquire the Farm property, partly in order to protect the right-of-way to his own property.
Hubby asked Bergen for legal advice, and Bergen asked for and received legal advice and information from his law partner, Oestreicher, concerning Hubby's plans.
Between 1987 and 1992 Hubby learned that the Thornburghs' Wills provided for the Farm to be placed in trust for the benefit of their daughter, Margaret.
During this time, Hubby continued to request and receive advice and information from Bergen about Hubby's plans to purchase the Farm when it became available for sale.
In 1992 Richard died leaving his entire estate to Kathryn.
In 1994 Kathryn died.
Margaret became Co-Personal Representative of Kathryn's Estate along with Jed Grover (Grover).a neighbor of Hubby.
A trust that was to hold title to the Farm was established in Kathryn's Will, with Margaret and Grover named as Co-Trustees.
John Kugler, Esq. (Kugler) represented Margaret as Co-Personal Representative of Kathryn's Estate.
During the summer of 1994, Bergen represented Hubby in his efforts to purchase the Farm, and in that context corresponded with Kugler.
During that period of time, Hubby told Bergen of a request by an abutter of the Farm that Hubby sell to that abutter a small piece of the Farm for a backyard. Hubby indicated to Bergen his concern and question as to whether such a "subdivision" would be legal.
In August of 1994, Hubby and Margaret agreed upon his purchase of the Farm, and each signed a separate copy of the same Purchase and Sale Agreement as prepared by Bergen.
As a result of Bergen's long-standing practice of taking a vacation the first two weeks of August and his resulting absence, at Bergen's request on or about August 1, 1994 Oestreicher became directly involved and covered the transaction concerning Hubby's proposed purchase of the Thornburgh property. Oestreicher had no prior involvement in this transaction, but had been previously involved in Hubby's property matters in assistance to Bergen.
Each party was to provide a copy of the Purchase and Sale Agreement to their respective attorneys, Hubby to Oestreicher and Margaret to Kugler, but the exchanges between attorneys did not actually occur, although both parties had agreed to its terms at this point.
Hubby subsequently orally proposed a reduction in price of $5,000.00 to Margaret.
At about that same time, i.e. during the summer of 1994, Kathryn Weare, owner of The Cliff House in York, was privately negotiating with the Kennebunk, Kennebunkport & Wells Water District (KK&WWD) and the Ogunquit Sewer District to have water and sewer line run down the Shore Road to service and benefit The Cliff House.
Verrill & Dana then acted as General Counsel to The Cliff House, with Michael Healey, Esq. of that firm specifically representing Weare in those negotiations with KK&WWD and the Ogunquit Sewer District.
In August and September of 1994, Hubby and some of his neighbors learned of Weare's plans and then formed a neighborhood coalition to obtain facts and information about KK& WWD's plans for the Shore Road, including the planned extension of water and sewer lines to The Cliff House.
Hubby was listed as nominal head of that coalition. The coalition retained Joseph Donahue, Esq. of the Portland law firm of Preti, Flaherty, Beliveau & Pachios to represent them before the Public Utilities Commission.
As a result, Healey, on behalf of Weare, served Hubby, represented by Oestreicher in Bergen's absence, with a request for information concerning his proposed purchase of the Farm. Weare thereafter became interested in purchasing the Farm.
With respect to the sale transaction, in early September, Oestreicher left a telephone message for Hubby stating that Grover was objecting to any sale to Hubby.
Hubby then informed Oestreicher that he was upset about the lack of direct communication as to the reversal of Margaret's intentions at this stage of the sale process.
At this time, two of Verrill & Dana's current clients, Hubby and Weare, had interests adverse to each other concerning a common subject matter of simultaneous, opposing representation - purchase of the Farm.
On or about September 25, 1994 Verrill & Dana attorneys properly advised each of those clients that they each needed different independent counsel from other firms on the matter of purchasing the Farm.
Hubby was never able to purchase the Farm, and on February 15, 1995, Weare, represented by Bruce Leddy, Esq. did purchase it.
The sale of the Farm was a component of a general refinancing for Weare which was handled by Oestreicher, e.g. he recorded the documentation that resulted from that refinancing.
When Weare offered the Farm for resale in 1995, she intended to retain the title to the land over which Hubby's right-of-way passed.
Weare then sold the Farm in a manner contrary to Hubby's interests and stated desires, namely, by her retention of the fee of his driveway. In that context, without the informed written consent of his former client, Hubby, from May 3 to August 28, 1995 Oestreicher provided legal services to Weare regarding the resale of the Farm, including issues having to do with the subject matter of the right of way.
Hubby offered to buy the Farm or just the right of way from Weare, but she rejected his offer and instead sold the Farm to a third party, Ann Gallop.
Oestreicher was Weare's attorney for that resale of the Farm to Gallop on August 28, 1995.
In that regard, Oestreicher knew that one of the conditions of that sale was that Weare would reserve title to the land over which Hubby's right of way passed.
Oestreicher drew up the description for the Seller's Deed, and by the terms thereof specifically reserved title to the real estate underlying Hubby's right of way.
Oestreicher had assisted Bergen in his representation of Hubby in his attempts to purchase the Farm in order to preserve the right of way to his property.
At the time of the resale of the Farm, another attorney at Verrill & Dana was still representing Hubby in an unrelated small subrogation matter.
Oestreicher did not disclose to Hubby that he was representing Weare in the resale of the Farm, and also failed to seek Hubby's written consent to his representation of Weare as required by the conflict of interest provisions of M. Bar R. 3.4(a),(b)(1),(c)(2), and (d)(l)(i).
Oestreicher's representation of Weare in selling the Farm to a third party and including provisions directly adverse to Hubby's interests, e.g. reserving title to the fee beneath Hubby's right of way, was conduct in conflict with Hubby's interest in purchasing the Farm and the right of way to his property, including representation of Weare on issues for which Oestreicher had previously represented Hubby's adverse interests.
The parties agree that Oestreicher's conduct was in violation of M. Bar R. 3.1(a) and 3.4(a)(b)(c) and (d).
Oestreicher has no prior disciplinary record.

Conclusion

This panel concludes, and Respondent admits he engaged in a conflict of interest in this instance by failing to seek or obtain Hubby's informed written consent for his representation of Weare in the resale of the Farm. The panel agrees with the parties' agreed recommendation and concludes that the appropriate disposition of this complaint is that Charles R. Oestreicher, Esq. be and hereby is reprimanded for violating the Maine Bar Rules as established in the Findings of Fact set forth in this Report.

For the Grievance Commission

Susan E. Hunter, Esq., Chair
David R. Weiss, Esq.
Marvin C. Chaiken