Board of Overseers of the Bar v. Marsha Weeks Traill, Esq.

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Docket No.: GCF-07-155

Issued by: Grievance Commission

Date: February 17, 2009

Respondent: Marsha Weeks Traill, Esq.

Bar Number: 002509

Order: Reprimand Decision Appealed

Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation;Conduct Prejudicial to the Administration of Justice

NOTE: Public Reprimand Appealed - See Single Justice Decision 10/16/09

REPORT OF FINDINGS OF PANEL C OF THE GRIEVANCE COMMISSION M.Bar R. 7.1(e)(4)

On December 8, 2008, with due notice, Panel C of the Grievance Commission conducted a public hearing pursuant to Maine Bar Rule 7.1(c)(4). This disciplinary proceeding was commenced by the filing of a Disciplinary Petition on July 8, 2008.

At the hearing, the Board was represented by Assistant Bar Counsel Aria eee and the Respondent was present and represented by James M. Bowie, Esq. The Complainant, Mr. J,1 also was present during the December 8, 2008 hearing.

After due consideration or the testimony of the witnesses and the evidence presented, the Panel makes the following disposition:

FINDINGS

Mr. and Mrs. J were involved in the litigation of a divorce action in the Maine District Court in Biddeford, Maine, commencing in 2004. Mr. J was represented at all relevant times herein by Ray R. Pallas, Esq. of Westbrook, Maine and Mrs. J was represented at all relevant times here in by the Respondent, Marsha Weeks Traill, Esq. of Gorham, Maine.

Mr. J filed a Grievance Complaint on May 25, 2007 which alleged that Attorney Traill deliberately misrepresented the mental health of her client immediately prior to and on the date that the parties placed their entire settlement agreement on the record, April 12, 2006. Over the course of this divorce action, it is undisputed that the mental health of Mrs. J was at issue.2

On April 12,2006, Mr. and Mrs. J, through counsel, placed a comprehensive agreement for the resolution of their divorce action on the record in the Maine District Court in Biddeford. On April 7, 2006, five (5) days prior to the initially scheduled contested hearing, Mrs. J was admitted to the Spring Harbor mental health facility in South Portland, Maine where she remained until discharged on April 11, 2006 due to what has been described as imbalances in her medication regimen. Attorney Traill testified that she first became aware of her client's admission on April 10, 2006 by members of her church, and that Attorney Tram, thereafter, was instructed by her client not to disclose her hospitalization to Attorney Pallas.

Attorney Traill testified that her client's mental health had been a significant issue for Mr. J during the divorce proceedings. She anticipated a conversation with Attorney Pallas prior to the final hearing and was certainly conflicted by how she would answer Attorney Pallas' anticipated questions about her client's mental health. Attorney Traill recalls both the conversation she had with Attorney Pallas on the day of the scheduled hearing, April 12, 2006, and an additional telephone conversation with Attorney Pallas on April 10, 2006. Her recollection of the latter was that Attorney Pallas asked about the children who were unavailable for a scheduled weekend visit. When asked by Attorney Pallas if he had anything to be concerned about, Attorney Traill understood why Attorney Pallas was making the inquiry. Her stated recollection of her response to the question about whether Attorney Pallas had anything to be concerned about was, "Not that I am aware of or something of that nature". Attorney Pallas testified that he made a similar inquiry on the date of the contested hearing, April 12, 2006. Based on the representations Attorney Traill made, Attorney Pallas advised his client to move forward with an agreed upon judgment which provided, in part, for shared parental rights and responsibilities of the parties' two minor children and a sharing of the children's primary residence.

CONCLUSION AND SANCTION

The Panel credits Attorney Traill with accepting a contentious divorce case on a pro bono basis. The Panel also recognizes that Attorney Traill found herself in a difficult situation. She was part of a church community that was actively involved in assisting her client. Attorney Tram's daughter also babysat for her client's children on occasion. In addition, in the days before the hearing, the church community was apparently involved in an elaborate plan to keep Mr. J from knowing about her client's hospitalization and the whereabouts of his children. This personal connection to Mrs. J as well as their mutual church community no doubt played a role in Attorney Tram's decision to simply accept her client's request for secrecy without discussing the pros and cons of such an approach. It also apparently contributed to the poor judgment she displayed when she responded to Attorney Pallas' inquiries. She knew she would be speaking with Attorney Pallas prior to the April 12, 2006 hearing and that to the extent she disclosed her client's hospitalization, the parties would be moving forward with a contentious final hearing where the primary residence of the children would be squarely at issue.

Attorney Traill asks the Panel to consider her obligations to keep the information about her client's hospitalization confidential in accordance with Maine Bar Rule 3.6(h)(i). Attorney Traill was asked a question by Attorney Pallas that she knew was directed at the mental health of her client. She did not refuse to answer the question, but rather answered in a fashion that was deceitful at the very least.

Maine Bar Rule 3.2(f)(3) prohibits a lawyer from engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation." Black's Law Dictionary defines "deceit" as a "fraudulent and deceptive misrepresentation, artifice or device, used by one ... to deceive and trick another who is ignorant of the true facts, to the prejudice and damage of the party imposed upon. To constitute "deceit," a statement must be untrue, made with knowledge of its falsity or with reckless and conscious ignorance thereof ... in a manner apparently fitted to induce [one] to act thereon ... "

A determination of whether an attorney has fulfilled the obligations set forth in Rule 3.2(f)(3) should not depend on the parsing of words or a strained interpretation of precisely what was said. Attorney Traill knew that Mr. J would not go forward with the settlement agreement if he learned about his wife's hospitalization. While Attorney Traill may not have personally believed that the hospitalization was significant, she knew that her client's husband would have found it to be fundamentally important. By answering Attorney Pallas' question the way she did on April 12, 2006, Attorney Traill knew or should have known that she had provided Attorney Pallas and his client with a false sense of security which resulted in them moving forward with the settlement agreement without further inquiry.

Therefore, this Panel finds that Attorney Traill's actions violated Maine Bar Rule 3.2(f)(3) and that her conduct was prejudicial to the administration of justice in violation of Maine Bar Rule 3.2(f)(4) and as such, was conduct unworthy of an attorney in violation of Maine Bar Rule 3.1(a).

Based upon Attorney Traill's misconduct and for the reasons expressed in this Decision, the Panel finds that the appropriate disposition and sanction of this case is a public reprimand to Marsha Weeks Traill, Esq. as provided by Maine Bar Rule 7.1(e)(3)(C) which is now imposed upon her effective this date.

For the Grievance Commission

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

Footnotes

1The names of the Complainant and his former wife have been deleted to protect their privacy interests.

2Mrs. J suffers from bipolar and borderline personality disorders which were controlled with appropriate prescription medications.