Board of Overseers of the Bar v. William J. Smith, Esq.

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Docket No.: GCF-03-02

Issued by: Single Justice, Maine Supreme Judicial Court

Date: May 14, 2004

Respondent: William J. Smith, Esq.

Bar Number: 000893

Order: Report of Findings

Disposition/Conduct: (Vacated by 8/5/2004 Court Order)

NOTE: Public Reprimand Appealed - See Single Justice Decision 8/5/2004

REPORT OF FINDINGS OF PANEL A OF THE GRIEVANCE COMMISSION

On May 4, 2004, pursuant to due notice, Panel A 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 to issue a reprimand or if probable cause existed to file an information concerning alleged misconduct by the Respondent, William J. Smith, Esq. (Smith), of Van Buren, County of Aroostook and State of Maine, as described in a Petition dated and filed by the Board of Overseers of the Bar (the Board) on January 23, 2004. Assistant Bar Counsel, Nora Sosnoff, Esq., represented the Board, and Smith was represented by Kevin M. Cuddy, Esq. The Complainant, Rebecca Cyr (Complainant), and Smith attended and testified at the hearing.

The Panel finds and adopts the following:

  1. At all times relevant hereto, Smith was an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.

  2. By a Divorce Settlement Agreement date February 24, 2000, which was incorporated in a divorce judgment, in the matter of Rebecca A. Devost vs. Rodney L. Devost (Madawaska District Court Docket No. MAD-FM-00-2), Defendant Rodney L. Devost (Rodney) was thereby ordered and required to contribute to mortgage payments on the parties' former homestead at 25 High Street, Van Buren, Maine. This property continued to be owned by the parties as joint tenants, but sole possession was awarded to Plaintiff Rebecca A. Devost (Complainant).

  3. On March 13, 2002, Smith was appointed Conservator of the Estate of Rodney Devost.

  4. In June, 2002, Smith learned that Rodney's Veteran Administration benefits had been substantially reduced retroactively, effective April 1, 2000.

  5. Beginning in October, 2002 Smith stopped making any contribution to the mortgage payments, for the stated reason that there were insufficient funds available for both the mortgage payments and the support of Rodney. This resulted in foreclosure proceedings being initiated against Complainant and Smith as Conservator.

  6. The ultimate result of those foreclosure proceedings was that the property of Complainant and Smith as Conservator for Rodney was foreclosed upon and they lost the property.

  7. At no time did Smith take any action in any court seeking judicial direction or relief as to the reduction in Rodney's benefits or any inability of Smith to fulfill the financial obligations of Rodney. In particular, Smith did not seek a modification of the divorce judgment in the District Court to reduce Rodney's obligations thereunder to reflect the reduction in benefits.

  8. At no time did Smith make any effective efforts to attempt an extra judicial workout of what he perceived to be his inability to satisfy the court-ordered financial obligations of Rodney.

  9. We find that Smith?s conduct resulted in injury to Complainant and Rodney, although the extent of their injury is speculative owing to the overall financial difficulties faced by Complainant and Rodney, and that there is potential injury to the legal system and profession resulting from Complainant?s disregard of the District Court Judgment.

  10. Considering the above facts the Panel finds that Smith (a) violated Maine Bar Rule 3.2(f)(4) in that by failing to seek a modification of the District Court Order or take any other action other than to ignore such Court Order, he engaged in conduct which is prejudicial to the administration of justice, and (b) that Smith violated Rule 3.6(a), in that by the such inaction he failed to employ reasonable care and skill and to apply his best judgment and the prompt performance of his professional services as a lawyer in his capacity as Conservator of the estate of Rodney.

CONCLUSION

In viewing of the foregoing misconduct, the Panel concludes that the appropriate disposition of this complaint is that Smith be, and he hereby is, reprimanded for his violations of the Maine Bar Rules as established in the findings of fact discussed in this report.

For the Grievance Commission

Donald A. Fowler, Jr., Esq, Chair
Harold L. Stewart, II, Esq.
Raymond J. Cota, Jr.