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Board of Overseers of the Bar v. John N. Whalen, Esq.
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Docket No.: GCF-00-143
Issued by: Grievance Commission
Date: November 8, 2001
Respondent: John N. Whalen, Esq.
Bar Number: 000827
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation; Standards of Care and Judgment: Reasonable Care and Skill
REPORT OF FINDINGS OF PANEL C OF THE GRIEVANCE COMMISSION
On November 8, 2001 pursuant to due notice, Panel C1 of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2) to determine whether there were grounds for the issuance of a reprimand or whether probable cause existed for the filing of an information concerning alleged misconduct by Respondent, John M. Whalen, Esq., (Whalen), as described in the Petition dated July 24, 2001 filed by the Board of Overseers of the Bar (Board).
Assistant Bar Counsel, Geoffrey S. Welsh, Esq., represented the Board, and Jennifer Nichols Ferguson, Esq., represented Whalen, both counsel being present at the hearing. The complainants, Jeffrey S. and Danielle Levasseur as well as Stacy Thornton, having been provided notice and an opportunity to be present, attended the hearing, and made statements to the Panel in opposition to the proposed report.2
Whalen 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.
On or about February 4, 1998 the Androscoggin County District Court (the District Court) ordered Hector Levasseur (Hector) to appear and answer a motion for contempt.
Hector?s appearance before the District Court resulted from a receivership order in a foreclosure action entitled People?s Heritage Savings Bank v. Hector and Susan Levasseur (Susan), Docket Nos. RE: 98-004 ? 98-011.
Hector and Susan were husband and wife, the couple having three adult children: Stacy Thornton (Thornton), Shane Levasseur (Shane) and Jeffrey Scott Levasseur (Jeffrey).
After service of the District Court?s appearance order on Hector, he consulted with E. Christopher L?Hommedieu, Esq. (L?Hommedieu), who later arranged for Whalen to represent him.
On or about May 8, 1998 Whalen later filed a petition for appointment of a conservator with the Androscoggin Probate Court (the Probate Court) requesting it to appoint Hector as Susan?s conservator because of her dementia. The petition stated that ?the Conservator? (Hector) planned on selling joint assets of Hector and Susan and it freely referenced the couple?s prospective Chapter 11 Bankruptcy filing (paragraphs 13 ? 20 below).
In the conservatorship action, Whalen submitted to the Probate Court waivers of notice (the waivers), which Thornton, Shane and Jeffrey allegedly had signed on April 10, 13 and 15, 1998 respectively.
Whalen signed all three waivers of notice attesting that Thornton, Shane and Jeffrey personally had appeared before him acknowledging that they had signed the waivers as their free act and deed.
In fact, Whalen signed the three acknowledgments without the affiants ever personally having appeared before him to acknowledge that they had signed the waivers as their free act and deed.
The signatures of Thornton and Jeffrey were valid. Shane?s purported signature on his waiver, however, might have been false because another person may have signed his name on it without his knowledge or consent. Petitioner and the Respondent agree that Whalen was unaware of any such forgery.
Having signed his waiver, Jeffrey was then on notice of the nature and importance of it, i.e., that Hector had petitioned the Probate Court to be the conservator of Susan?s estate.
Although under the Maine Probate Rules acknowledgements of waivers under oath are not required, Whalen admits acknowledging the three waivers without the affiants personally ever having appeared before him to acknowledge that they had signed the waivers as their free act and deed, which was improper and violated several provisions of the Maine Bar Rules, including 3.1(a) (Conduct unworthy of an attorney), 3.2(f)(3) (Other misconduct: conduct involving dishonesty, fraud, deceit or misrepresentation) and 3.6(a) (Standards of care and judgment: reasonable care and skill).
On or about May 12, 1998 the Probate Court appointed Hector to be the temporary conservator of Susan?s estate, and authorized him to prepare and file a Chapter 11 Petition with the United States Bankruptcy Court (the Bankruptcy Court).
On or about June 17, 1998 Whalen filed a Chapter 11 Petition for Hector and Susan with the Bankruptcy Court.
Hector and Susan owned assets, including real estate worth approximately $1.6 million dollars, and owed debts of about $2.3 million dollars.
The purpose of the Chapter 11 Bankruptcy filing was to try to preserve as much as possible Hector and Susan?s rental proprieties and the income derived therefrom.
On or about July 21, 1998 Hector and Susan and other principals signed an agreement (the agreement), which was designed to allow Hector and Susan to be relieved of their debt on the real estate, to have the case removed from Bankruptcy Court and to allow Susan to apply for governmental benefits.
The agreement called for Hector and Susan to obtain the dismissal of their Chapter 11 case with prejudice and to deliver deeds of the rental real estate to a third party who had previously acquired all mortgage rights from the various banks. In exchange, Hector and Susan were to be relieved of the real estate debt and were to receive a certain amount of cash. Additionally, the third party agreed that upon dismissal of the Bankruptcy case, the party would convey a residential property owned by it. To ensure, however, that Hector and Susan did not refile for Bankruptcy in a manner to expose the third party, it required a separate corporation to be formed by Hector?s brother, Paul Levasseur (Paul). Although the property initially was to be held in a corporate form, the intent was that it would provide a residence to Hector and Susan. It was expected that with the removal of the rental real estate, it would be easier for Susan to qualify for various governmental benefits.
On or about August 3, 1998 and pursuant to the agreement, Whalen filed a motion to dismiss Hector and Susan?s Chapter 11 Bankruptcy Petition.
On or about September 2, 1998 and after hearing, the Bankruptcy Court (Goodman, J.) dismissed Hector and Susan?s Chapter 11 Bankruptcy Petition.
Shortly after the Bankruptcy Court dismissed the Chapter 11 Bankruptcy Petition, Hector discharged Whalen from further representation.
After discharging Whalen and without approval from the Probate Court, the Hazel Street property was transferred to a corporation formed by a friend of Hector?s, Ruby Christiansen (Ruby), who failed to completely honor the agreement in other respects, thereby depleting Susan?s estate. All of this was done without Whalen?s knowledge and after his relationship with Hector had been terminated.
On or about March 2, 1999 the Probate Court ordered Hector to account for his handling of Susan?s estate. By then new counsel had entered his appearance for Hector in the Probate Court.
On or about May 18, 1999 the Probate Court terminated Hector?s conservatorship of Susan?s estate because, based on the inventory Hector had submitted, there were no longer any assets in it for Hector to manage.
Considering the above facts stipulated to by the parties, the Panel finds that Whalen?s acknowledging the three waivers without the affiants personally ever having appeared before him to acknowledge that they had signed the waivers as their free act and deed and later presenting them to the Probate Court violated the Maine Bar Rules cited above. Although the Maine Probate Code and Rules technically did not require the waivers to have acknowledgements and while Whalen ?acknowledged? the waivers without any malicious intent, executing the acknowledgements as he did was wrong and unethical.
The Panel understands that the complainants hold Whalen personally responsible for Hector?s abuse of his conservatorship powers and his depletion of Susan?s estate. Hector?s misconduct, however, occurred only after he discharged Whalen, and the Petitioner and the Respondent agree that no credible evidence exists, which establishes that Whalen improperly conspired with Hector to do anything unlawful.
In view of the foregoing, the Panel concludes, as Whalen so acknowledged at the hearing, that the appropriate disposition of this matter is that Whalen be, and he hereby is, reprimanded for violating Maine Bar Rules 3.1(a); 3.2(f)(3) and 3.6(a) as established in the findings of fact discussed in this report. The misconduct is not minor, and Whalen has a prior disciplinary record for misconduct different from that for which the Panel reprimands him today.
For the Grievance Commission
Alan G. Stone, Chair
Elizabeth A. McCullum, Esq.
Carol Rea
Footnotes 1Elizabeth A. McCullum, Esq., substituted for Barbara L. Raimondi, Esq. 1 By Letters dated October 26 and November 2, 2001 Mr. Welsh disclosed the proposed disposition of this matter to the complainants.
