Reprimand Is First Sanction Imposed On Attorney Admitted In 1955

The Maine Board of Bar Overseers has reprimanded an attorney  who has had no other discipline since his admission to practice in 1955.

He did not have a written fee agreement with a longtime client and 

Attorney Foley acknowledges that while he discussed the Financial Durable Power of Attorney with R.P. and provided her a copy, in hindsight he did not fully and completely describe the breadth of the powers granted to him, including the breadth of the powers that would allow him to self-gift. He agrees that his failure to do so constituted a per se violation of M. R. Prof. Conduct 1.8(c).

Attorney Foley has represented that he believes his actions, regardless of the terms of the Financial Durable POA, were governed by his fiduciary and ethical obligations under the Maine Rules of Professional Conduct as well as by 18-A M.R.S. � 5914(a) which limits the agent acting pursuant to a POA to serve as a fiduciary to the Grantor of the Power of Attorney and to act in good faith and in accordance with the Grantor’s reasonable expectations.

Thus

Attorney Foley acknowledges that he is bound by Rules 1.7 and 1.8, (conflicts of interests) and specifically the portions of those Rules dealing with his transactions that could implicate Attorney Foley’s own personal interests in a way that is adverse to those of R.P., his client. While Attorney Foley did not solicit a gift from his client or prepare an instrument giving the lawyer a substantial gift, nonetheless the POA could be construed to have allowed Attorney Foley the power to make such a gift once the POA became effective. In so doing, Attorney Foley did not fully disclose and transmit in writing to R.P. the powers and transactions that she was granting him in a manner that could be reasonably understood by her, nor did he advise her of the desirability or opportunity for her to seek independent legal counsel with regard to that transfer. Attorney Foley’s failure in that regard constituted a violation of M. R. Prof. Conduct 1.8(a).

Attorney Foley also concedes that he relied upon his practice of sending periodic bills reflecting his services to R.P., but that he did not explain, specifically orally or in writing to R.P., the entire scope of his representation and the basis for his fees and expenses, except to the extent reflected in his bills. More particularly, he did not specifically advise R.P. that he would be charging her for the professional services he provided her with regard to her investments at his regular hourly rate. Attorney Foley agrees that his failure to do so constituted a violation of M. R. Prof. Conduct 1.2(a), 1.4 and 1.5(a)(b).

Probably there are few attorneys whose first sanction comes after 61 years of practice. (Mike Frisch)