Board of Overseers of the Bar v. Oscar Walker

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Docket No.: BAR-81-59

Issued by: Maine Supreme Judicial Court

Date: February 23, 1982

Respondent: Oscar Walker

Bar Number: 001585

Order: Suspension

Disposition/Conduct:

Opinion and Order

In May of 1979 the Law Court upheld a District Court judgment against Maurice Galen in favor of his former wife. Ireland v. Galen, Me., 401 A.2d 1002 (1979). This bar discipline proceeding arises out of the defendant's representation of Mr. Galen in that case. The Board of Overseers alleges that Oscar Walker, a member of the Bar of this state, (1) neglected his duty to his client in failing to respond to a request for production of documents by Ireland; (2) violated his ethical obligations to his client in failing to reveal a settlement offer to Galen and in advising successive appeals to the Superior Court and the Law Court; and (3) initiated an improper legal action against Bar Counsel and others in retaliation for their actions in this matter. Since this Court is satisfied that the Board has sustained its burden of proving that the defendant did violate his professional responsibilities under M. Bar R. 3, disciplinary sanctions must be imposed herein.1

FACTS

The procedural history of post-judgment motion proceedings in the Galen divorce case is quite complex. The Law Court opinion in Ireland v. Galen amply describes the District Court judgment which was entered as a sanction against Galen for failing to respond to Ireland's request for production of documents. The records of the District Court and Superior Court are in evidence. There is no need to recite these undisputed details except as appropriate to the discussion of controverted allegations.

In late 1975 Ireland, through Attorney Michael Griffin, relied upon a 1969 divorce judgment which ordered Galen to pay ten dollars per week for child support to demand payment from Galen of $1,355 in arrearage. The demand letter (Plaintiff's Exhibit #1) sought proof of any payment made from Galen to Ireland "so that we can locate the discrepancy." A year later, in October, 1976, Ireland filed and served a post-judgment motion seeking summary enforcement of Galen's support obligation. Galen and his new wife, Eleanor, engaged the professional services of the defendant, Oscar Walker, to represent Galen on Ireland's motion and to initiate a cross-motion for change of custody. Galen acknowledged the existence of some support arrearage, but his estimate was in the vicinity of $800. Walker advised him that he could deduct ten dollars for each week the child visited Galen even though the court order contained no such provision.

The custody issue was ultimately resolved by agreement in March of 1977. Appropriate professional conduct would suggest similar consultation with Griffin and a review of payment records in an attempt to reach agreement on the amount of arrearage. Walker, however, embarked upon a different, and unprofessional, course with regard to Ireland's motion. That course was not in Galen's best interests and, indeed, operated to his detriment. Walker sought to defeat Ireland's motion on the grounds that the return of service indicated that an unattested copy of the motion and court order was served, and that the hearing was scheduled before the time for production of requested documents had expired. The hearing was postponed and new service accomplished. While this procedural maneuvering was taking place, Galen traveled to Bangor with his records of payments in order that they might be inspected as requested. Despite his client's willingness to have opposing counsel inspect the records, Walker failed to offer Griffin an opportunity to inspect them. As a result, Griffin sought and obtained a jugment for $1,715 arrearage as a sanction for Galen's failure to produce.

Once again, on the motion for sanctions, Walker sought to interpose technical and unsuccessful defenses instead of producing the records and attempting to settle the dispute. At all relevant times Galen was willing, indeed anxious, to produce his records. The defendant's client still does not understand why he has never had an opportunity to show them. Throughout the proceedings relating to the production of Galen's financial records Walker persisted in a course of action best described as "stonewalling". Such conduct is not required of an attorney even if requested by the client. Here the client neither knew of nor agreed to such conduct. Moreover, in this case such conduct was directly contrary to the client's interests, and resulted in judgment being rendered against the defendants client.

As the Court records reflect, Walker continued to argue unsuccesfully to the Superior Court and then to the Law Court that the second service of the motion constituted a separate proceeding as to which a new request for production of documents had to be made. Even if correct, such dilatory tactics are hardly commendable. When patently incorrect, as well as damaging to a client's interest,2 they constitute a violation of the standards of car and judgment required of an attorney under M. Bar R. 3.6.

The Board also alleges that Walker knew or should have known the appeals were without merit, that he generated work that resulted in excessive fees, and that he failed to reveal a settlement offer from Ireland that was obviously in Galen's best interest. This Court is satisfied that Walker recognized the lack of merit in the appeals, that notwithstanding this recognition he pursued a course of appeal which generated unneccesary and excessive work and that he failed to reveal a settlement offer from Ireland that was obviously in Galen's best interest to accept.

Prior to the Law Court appeal, Walker resorted to the unusual procedure of asking Galen to sign a lengthy agreement which purports to place all responsibility for an appeal upon the client despite Walker's strong urging not to appeal. (Plaintiff's Exhibit #11 discussed further below.) An Attorney cannot escape the duty to exercise his best professional judgment by agreement with his client. Furthermore, a person of Galen's background could not be expected to understand the confusing and misleading recitals contained in the agreement. In addition, this Court is satisfied that those recitals did not reflect the true state of affairs. Even at the hearing before this Court Walker could not decide whether ultimately he had advised Galen of probable success or probable failure on appeal to the Law Court. The agreement between Walker and his client provides this court not only with evidence that Walker was aware of the lack of merit to the appeals, but also with direct evidence of Walker's attempt to limit any subsequent liability on his part in contravention of M. Bar R. 3.6(b).

Regarding the settlement offer, the testimony of various witnesses is conflicting as to events occurring on June 28, 1978 in the course of settlement negotiations. Galen claims to have produced $1,000 for settlement. Walker claims that offer was refused and that Galen became irate and insisted on the appeal. The Board alleges that the matter could have been settled for $1,000, but that Walker tricked Galen into paying for an appeal instead.2 Having in mind the Board's burden of proof, this Court is not satisfied that a settlement agreement could have been achieved on June 28, 1978. Given the original $800 offer and a counter-demand of $1,000 plus resolution of visitation disputes, it is likely that no agreement could be reached on June 28, 1978. Walker, however, was derelict when he subsequently failed to pursue any further settlement negotiations. Indeed, by a letter from Griffin, dated August 29, 1978, Ireland abandoned all side issues and agreed to accept $1,000 in settlement. (Plaintiff's Exhibit #17). Walker failed to communicate this offer to Galen.

The five-page agreement signed by Galen on June 28, 1978 (Plaintiff's Exhibit #11) is challenged by Galen. As indicated above, the document appears to be a transparent attempt by Walker to avoid responsibility for unprofessional conduct. See M. Bar R. 3.6(b). Recognizing the seriousness of Galen's challenge this Court is not persuaded that the document was prepared after Galen signed a blank page (as he contends) or that three pages were added after its execution (as Mr. Galen contends). It is more likely that Mr. and Mrs. Galen simply did not recognize the significance of a document prepared by their own lawyer. The authenticity of the agreement need not be finally resolved in this proceeding, however, because this Court is satisfied that Walker did generate unnecessary work and fail to communicate the advantageous August 29 settlement offer in violation of M. Bar R. 3.2 and 3.3

After the adverse decision of the Law Court, Galen obtained a new attorney, Andrew Mead. In December of 1979 Mead made a demand upon Walker to compensate Galen for the loss he had sustained. Walker's response was to complain about the demand to the Board which resulted in a reprimand to Walker. Thereafter, when the Board commenced an investigation of the Galen case Walker caused an action for defamation to be filed against Galen, Mead, Bar Counsel and, later, attempted to include the Chairman of the Grievance Commission as a party defendant. This Court is satisfied that Walker's action violates M. Bar R. 3.7 in that the suit is patently without merit and clearly intends to harras or intimidate those who complain against him or are charged with the investigation of such complaints.

While it is true that Walker's lawsuit has not been finally resolved as to all defendants, that fact does not preclude this Court's finding of a violation. Similarly, the fact that a pending third-party action in the District Court is unresolved does not affect this Court's evaluation of the evidence. The final disposition of those matters is not essential to this adjudication. Although the pretrial order herein specifically granted leave to submit evidence of the result of District Court proceedings prior to decision herein, there is no necessity to leave the record open for that purpose. M. Bar R. 7(h)(2).3

APPROPRIATE DISCIPLINE

This Court recognizes fully that responsibility for the determination of appropriate disciplinary action is the Court's alone. Sanctions must not be imposed as punishment, but rather this Court must act for the "protection of the public and the Courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties." M. Bar R. 2(a). The recommendation of the Board for a six month suspension is not binding upon this Court and does not establish any limitation upon the judgment herein.

Perhaps the most disturbing aspect of this case is the continued refusal of Walker to recognize his responsibility for the plight of his former client. That refusal suggests that he will in the future be "unable to discharge properly [his] professional duties." Disbarment, however, would be too severe a sanction for Walker's conduct. He has practiced law for 46 years without record before this Court of prior disciplinary action other than the reprimand which arose out of the Galen case. There has been no allegation of criminal misconduct. Disbarment, as the ultimate professional sanction, is rejected in this instance.

M. Bar R. 7(e)(6)(D) does not expressly authorize a judgment to be conditional in whole or in part. The Maine Bar Rules, however, are merely an aid to this Court in the exercise of its constitutional responsibilities. See Board of Overseers v. Lee, Me., 422 A.2d 998 (1980). This Court has the authority to frame its ultimate judgment in such terms as will best accomplish the purpose of those proceedings. Cf. Board of Oversers v. Ingeneri, Me., A.2d (1982) (period of suspension conditioned upon continued medical treatment).

Because this Court considers the conduct of the defendant as well as his continued intransigence to be a serious violation of the Maine Bar Rules, a suspension of one year is warranted. Because this Court seeks to require the defendant to discharge properly his professional duties without undue personal impact, a conditional reduction of that period of suspension appears appropriate. The conditions of such a reduction are designed to accomplish the aforementioned purposes of disciplinary proceedings.

Accordingly, it is ORDERED AND ADJUDGED that defendant Oscar Walker be, and he is hereby suspended from the practice of law for one year in accordance with M. Bar R. 7(e)(6)(D); and

It is FURTHER ORDERED that such suspension be reduced to a period of three months upon the following conditions:

(1) That Oscar Walker comply with the Maine Bar Rules in all future conduct, including without limitation the requirements of M. Bar R. 7(n);
(2) That Oscar Walker within 60 days of the date hereof make partial resitution to Maurice Galen in the amount of $3000.00 (such payment to be credited toward any liability to Maurice Galen, but not to constitute full settlement thereof and further such payment shall not be used to prejudice Maurice Galen's pursuit of any other legal remedy);
(3) That without the necessity of formal proceedings before the Board, Oscar Walker may be suspended for the balance of nine months, or any portion thereof, on motion of Bar Counsel for violation of condition (1) or (2) at any time within two years of the date hereof;
(4) That the Court may order extension of said two-year period for cause shown.

It is FURTHER ORDERED that both parties shall have an opportunity to seek modification or clarification of the conditions attached to the reduction of suspension provided herein by motion filed within 15 days of the date hereof and that for that purpose this judgment shall not become final until 30 days from the date hereof. The period provided under M. Bar R. 7(n)(1) shall commence on that date 30 days hence.

For the Court

David G. Roberts, Associate Justice - Maine Supreme Judicial Court

FOOTNOTES

1 The term "defendant" is consistent with the civil rules generally, although the bar rules use the term "respondent." See M. Bar R. 7(e)(6).

2 Galen has expended in legal fees to Walker more than the amount claimed in Ireland's motion and remains liable for the District Court judgment plus interest and additional costs.

2 Although Galen paid Walker a total of $1,875, this Court is unable to assess the appropriateness of the fees in relation to work actually performed. Walker's estimates of time (Defendant's Exhibit #41) are unpersuasive as his testimony relating to their preparation, but the Board has not established that the fees are excessive except to the extent that work was unnecessary, improper and caused by Walker's fault. In this connection the Court notes that Walker justifies his fees in part upon a charge of $65 each for preparation and service of vexation warrants upon several people pursuant to 17 M.R.S.A. ? 3703. Section 3703 was repealed by P.L. 1975 ch. 499 ? 20 which ultimately became effective May 1, 1976.

3 The order was intended to permit submission of the evidence after hearing if available prior to decision herein, but not to require delay of this decision to await results in the District Court.