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CUMBERLAND ss. SUPREME JUDICIAL COURT
DOCKET NO. BAR-01-01
BOARD OF OVERSEERS OF THE BAR )
v. ) STIPULATION OF FACTSRICHARD A. LORD, ESQ. )
) AND AGREED UPON ORDER
For many years the Defendant was the personal attorney for Denise Cloutier
(Cloutier), and he drafted her Last Will and Testament, which she executed
on April 2, 1997 when she was then 70 years old. Under the terms of her
will, Cloutier left all of her property to James A. McCourt (McCourt), and
she nominated the Defendant to be the Personal Representative (PR) of her
Cloutier's will also included the following provision:
I hereby nominate and appoint RICHARD A. LORD of Brunswick, Maine to be the sole Personal Representative of the MY LAST WILL AND TESTAMENT; and I direct that no bond be required of him the performance of his official duties in that said capacity, and that he solely shall determine the reasonableness of his fees in his capacity as both Personal Representative and as attorney for the estate.
Inserting this language into Cloutier's will was the Defendant's idea, not Cloutier's, and the Defendant did so in keeping with his practice of including such a provision in a will only when he is the PR named in the instrument. The Defendant explained his estate PR fee arrangement to Cloutier by analogy to a real estate broker's percentage fee, and he claimed that he had intended to charge Cloutier's estate a flat fee instead. Significantly, the Defendant did not have Cloutier's separate written consent to or other written confirmation of this unusual compensation arrangement.
On October 12, 1998 Cloutier died, and on October 20th the Defendant filed an Application for Informal Probate of Will and Appointment of Personal Representative with the Cumberland County Probate Court (the Probate Court). Shortly thereafter, the Probate Court appointed the Defendant as PR of Cloutier's estate, and informally admitted Cloutier's will to probate. As an experienced probate attorney, based upon the relevant provisions of the Maine Probate Code, 18-A M.R.S.A. §1-101, et seq., and because of Estate of Davis, 509 A.2d 1175 (Me. 1986), and Harrington v. Lord, 704 A.2d 1211 (Me. 1997), the Defendant knew or should have known before he sought or accepted appointment as PR of Cloutier's estate that: 1) Determining the PR's compensation, and that of any attorney employed by the PR, based upon a percentage of the estate was a violation of M. Bar R. 3.3 (a); and 2) Lord's total combined fees as the PR and as the PR's attorney were required to be reasonable.
Cloutier's estate totaled approximately $110,000.00 of liquid assets, and the Defendant initially charged the estate legal fees of $5,500.00, the Defendant deducting that sum from the McCourt bequest and claiming two separate legal fees: i.e., one for being the PR and one for being the PR's attorney. The Defendant concedes and acknowledges that it was improper and unreasonable for him to be compensated in two capacities from the assets of Cloutier's estate and to base that compensation upon the aforementioned provision, which he had drafted. Such misconduct constituted entering into an agreement for and charging an illegal and excessive fee in violation of M. Bar R. 3.3 (a), Davis and Harrington, supra. When, however, McCourt later complained through separate legal counsel about the amount of the fees, the Defendant immediately agreed to a reduction of these charges to the sum of $3,300.00, and promptly refunded the difference to him. On July 11, 1999 a Panel of the Fee Arbitration Commission confirmed the $3,300.00 charge as fair and reasonable.
On March 3, 1995 Lynn M. Currier (Currier) hired the Defendant to represent
her in a divorce from her then husband, Richard Currier (Richard), and on
June 28th the Sagadahoc County District Court granted her divorce. During
their marriage, the Curriers had one child, Darren A. Currier, who was born
on August 20, 1987. On March 14, 1997 the Defendant began representing Currier
in post divorce litigation concerning child support, and on that date he
filed a Motion for Contempt against Richard. On October 28, 1997 the District
Court mediator filed her child support worksheet showing Richard's weekly
child support obligation to be $54.00.
Sometime after the divorce, Richard was charged with having committed a number of criminal offenses, and he sought out the Defendant to represent him in them. Although the Defendant agreed to represent Richard in at least two of those criminal matters, he neither disclosed to Currier nor obtained her informed written consent to his representation of Richard. In fact, Currier did not become aware of the Defendant's representation of Richard until she herself checked with the District Court Clerk's Office in Lewiston. The Defendant's simultaneous representation of Richard and Currier was problematic for Currier since the Defendant repeatedly had informed her that he could not collect the past due child support because he could not locate Richard. By simultaneously representing Currier and Richard without Currier's knowledge and consent, the Defendant thereby violated M. Bar R. 3.4 (a), (b), (c).
The Defendant has been a practicing Maine attorney in good standing for
over 35 years. During the course of that time he has devoted numerous hours
to public service and pro bono work. He is now 65 years of age. Several
years ago he and his wife were granted custody of their 12 year old grandchild
who has numerous health problems, and the Defendant and his wife have devoted
an inordinate amount of time to her care. Because of the time and attention
necessary to assist in the care of his grandchild, focusing sufficient attention
on his sole practice has been difficult. These violations are the culmination
of that situation.
Bearing in mind the nature of the substantive misconduct described above
and the aggravating and mitigating circumstances surrounding that misconduct,
the parties hereby stipulate and agree to the entry of a decision and order
disposing of this case as follows:
It is hereby ORDERED: That the Defendant is suspended from the practice of law in Maine for a period of sixty (60) days, thirty (30) days of that suspension itself being suspended for a period of one year subject to the following terms and conditions:
The Defendant shall obtain the informed written consent of his clients in all cases where M. Bar R. 3.4 (c) (2) otherwise permits simultaneous representation of clients;
The Defendant's fee agreements with all of his clients shall be writing;
If after due notice and hearing the Court finds that the Defendant violated or failed to comply with any provision of this order, the Court may enter any additional order necessary or appropriate to protect the public, including but not limited to imposing the unsuspended portion of his suspension;
Bar Counsel may file an information against the Defendant directly with the Court concerning any professional misconduct occurring subsequent to the date of this order without the necessity of a Grievance Commission hearing, provided however that any such misconduct is first reviewed by the Grievance Commission pursuant to M. Bar R. 7.1 (d);
The Defendant's thirty (30) day unsuspended portion of his of his suspension shall begin on September 1, 2001, and he shall comply with the notification and reporting requirements of M. Bar R. 7 (i) by that date; and
With the exception of the Defendant's unsuspended portion of his suspension, all provisions of this order shall be effective on the date of this order.
Dated: July 10, 2001 /s/ Geoffrey S. Welsh
Geoffrey S. Welsh, Esq.
Assistant Bar Counsel
Dated: July 10, 2001 /s/ Philip P. Mancini
Philip P. Mancini, Esq.
Attorney for Defendant
Richard A. Lord
Dated: July 10, 2001 /s/ Richard A. Lord
Richard A. Lord, Esq.
Dated: July 10, 2001 /s/ L.I. Saufley
Supreme Judicial Court