No Guilty Knowledge

An interesting decision from a single justice of the Maine Supreme Court dismissed disciplinary charges against an attorney arising from his work as his law firm’s senior associate representing GMAC in a large number of foreclosure actions.

The attorney was the “nominal head” of the firm’s foreclosure practice group.

It was reported to the attorney by a junior associate that a GMAC employee testified in a deposition that affidavits signed and filed by the witness in a number of matters were false.

A grievance panel  found that the accused attorney’s failure to promptly respond to and rectify the situation violated Rules 3.3 and 8.4(a).

The panel imposed a public reprimand.

Associate Justice Andrew Mead found that the panel’s “should have known” standard did not correctly interpret the charged rule violations

The Panel stopped short of concluding that Peck had actual knowledge (1) that the problems
would not be fixed with an errata sheet and (2) of the thirteen cases noted above. Thus, the Panel’s Decision is founded upon a “should have known” standard rather than actual knowledge.

The distinction is critical. Sections 3.3(a)(1) and (3) and 8.4 are clearly predicated upon conscious malfeasance, not negligence or recklessness. The Panel does not conclude, nor does the record support the notion, that Peck knowingly undertook any course of conduct intended to foist false statements of fact upon the court in the form of the Stephan affidavits.

On the contrary, the record supports, and the Panel acknowledges, that Peck originally believed that Stephan’s deposition testimony, which he found astounding, would be resolved by an errata sheet He directed members of his firm to place the affected cases on hold until the matter resolved. When the errata sheet solution was not forthcoming, Drummond & Drummond earnestly undertook to notify every court (in which the affected cases were pending) of the flaws in the affidavits and either withdrew pending motions or supplemented them with appropriate affidavits.

The court held that the failure to sustain the Rule 3.3 violations doomed the 8.4(a) charge.  (Mike Frisch)