The List

The Maine Supreme Judicial Court affirmed the reprimand of an attorney who had improperly gained access to the client list of a deceased colleague

The misconduct

On January 11, 2016, Attorney Paul Chaiken, serving as Special Assistant Bar Counsel, sent an email to a number of area lawyers, including Attorney Adams, asking for assistance on January 13 in “clearing out” Salewski’s files.  Chaiken’s email provided the location of the building in Damariscotta where the files were being stored. Attorney Adams received the email but did not participate in the effort on January 13. The next day, however, Attorney Adams was able to enter the building, which was secured and listed for sale (only West and the listing broker were in possession of the keys), because a client asked Attorney Adams to accompany him during a showing.

When Attorney Adams entered the building in the company of a realtor, he saw boxes of Salewski’s client files and a document entitled, “Rick Salewski Files Requests.” See Board Exhibit 11. The list had been prepared by the receivers. It was six pages long and contained 93 entries with corresponding notations of “Clients have all or some,” and “Clients Notified-Still Looking.” Some of the itemized entries are annotated with information about the legal matter involving that client, with references to such issues as estate planning, wills, and title matters.

When Attorney Adams saw the document, he told the realtor that he had been trying to obtain a list of Salewski’s clients for a long time and would like to take that one. The realtor told Attorney Adams the self-evident point that items of personal property are not to be removed during showings. Nonetheless, within 20 minutes of entering the building, and when no one else was around, Attorney Adams took the list and returned to one of his offices.

The single justice

Attorney Adams did not “inadvertently” acquire Salewski’s client list. Rather, it was a document he had wanted to obtain for more than a year, and he took it with full knowledge that doing so was wrongful because, at the very least, it violated the code of ethical conduct imposed on-and expected of attorneys licensed to practice in Maine. The panel concluded that the obligations imposed on an attorney who obtains confidential or privileged information in the circumstances presented here are the same as when an attorney acquires that type of information in more benign circumstances, and Attorney Adams does not contest the panel’s application of Rule 4.4(b) to this case. Attorney Adams did not respond as the Rule required-he did not take steps to notify the person who was authorized to possess the document, namely, either of the receivers, that he had it, and he did not promptly return, destroy or sequester the information. Instead of Attorney Adams taking the initiative, members of Bar Counsel’s office had to contact him about the matter when they determined that he likely had taken the document. And although Attorney Adams mailed the physical list to West the next day, he made an electronic copy, which at some point he provided to his own attorney.

The more significant of the breaches determined by the panel was of Rule 8.4. The aspects of that Rule that Attorney Adams violated provide:

It is professional misconduct for a lawyer to:
…
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice.

Id.

The record supports the panel’s conclusion that Attorney Adams engaged in these forms of misconduct, a conclusion he does not challenge. Attorney Adams engaged in dishonest conduct by taking the client list fully knowing what it was and fully knowing that he did not have any authority to take it.  Further, by wrongfully taking sensitive information without the knowledge and consent of those who had sought Salewski’s legal counsel, Attorney Adams engaged in conduct that prejudiced the administration of justice.

Sanction

I recognize that several lawyers had access to this information-and more-as they assisted the receivers and representatives of the Board of Overseers in organizing and disposing of Salewski’s client files. Justice Mead’s order appointing the receivers, however, explicitly stated that the receivers “shall not disclose any information contained in any file listed in the inventory” absent the client’s consent or as necessary for the receivers to carry out their duties. See Board Exhibit 3 (emphasis added). Further, West testified that the attorneys who volunteered to assist him with the boxes of files worked under his direction as receiver; that none of those attorneys was authorized to take any files unless that attorney also represented the person associated with any such file; and that although the assisting attorneys used the client list while organizing the files, none of them could copy the client list or take it off site. Attorney Adams, on the other hand, acted on his own and without the supervision or authority prescribed in Justice Mead’s order appointing the receivers.

Given these circumstances, and even without clear evidence of Attorney Adams’ motive for taking the client list, the availability of an admonition for his misconduct is foreclosed because not all of the conditions necessary for that sanction are present. Further, even when the nature of the conduct underlying the violations is viewed without the restrictive language found in Bar Rule 21(b)(l), I conclude that the non-disciplinary disposition of an admonition is not a sufficient response and that a reprimand is the appropriate result.

For those reasons, I affirm the decision of the Grievance Commission panel.