When The Victim Pays The Client’s Fee

The Maine Grievance Commission has admonished an attorney who had accepted payment of the client’s retainer from the alleged victim.

Facts

B.E. came to Respondent’s office on January 4, 2024, without an appointment to discuss legal representation on a charge of felony theft. The alleged victim was B.F., an elderly person for whom B.E. was performing work as a contractor on a camp. B.E. told Respondent that he was B.F.’s “caretaker.” Respondent advised B.E. that he was willing to represent him and quoted a flat fee retainer of $7,500. B.E. signed a fee agreement at the meeting. At this initial meeting, Respondent and B.E. discussed his bail conditions, which included a prohibition against any direct or indirect contact with B.F.

The following morning, January 5, “Pastor Pat” delivered a $7,500 check to Respondent. Respondent and Pat had no substantive discussion. The check was dated January 4. The check appeared to be (and actually was) signed by B.F. The “Pay to the Order of” line was blank. Respondent wrote his name on the line and deposited the check into his client trust account.

Respondent acknowledged at hearing that the check raised red flags, since it was signed by the victim, who was paying for B.E.’s defense on a charge of theft from the check signer.

Bail conditions

On February 23, 2024, the prosecutor told Respondent that her office would be charging B.E. with a violation of bail conditions related to Respondent’s receipt of a check from B.F. The prosecutor suggested that Respondent was a potential witness and had a conflict of interest. Respondent agreed and withdrew from the representation. At the initial appearance on the bail violation charge, B.E. told the Court that he had checked with Respondent about B.F. paying the $7,500 fee before B.E. went to B.F. to obtain the check, and Respondent agreed that B.E. could do so. Respondent testified that B.E.’s statement to the Court was not true.

Violations

When Respondent accepted the $7,500 check written by the alleged victim, B.F., he must have known, or at the very least should have known, that obtaining the check was a clear violation of B.E.’s bail conditions. Although Respondent had not seen the bail conditions by January 4 or 5, he knew those conditions must have prevented direct or indirect contact by B.E. with B.F. He also should have recognized that the only way B.F. could possibly write a check in the amount of Respondent’s flat fee of $7,500 was if B.E., or someone acting on B.E.’s behalf, went to B.F., told her that B.E.’s cost of defense was $7,500, and obtained a check in that exact amount. In other words, B.E. violated his bail conditions by either directly or indirectly contacting B.F. to obtain the $7,500 check.

This series of events places Respondent in a Catch-22 with respect to the Rules of Professional Conduct. If, as B.E. told the Court at his initial appearance on the bail violation charge, Respondent informed B.E. that he could obtain the funds to pay Respondent’s fee from B.F., then he assisted B.E. in violating his bail conditions in violation of Rule 1.2(e). If B.E.’s statement to the Court was not true, then Respondent violated Rule 1.8(f). On January 5, Respondent called B.E. to inform him that in order to accept payment from B.F., Respondent would need to speak to B.F. concerning the $7,500 check. B.E. consented, but it was not informed consent as required by the Rule. Respondent did not advise B.E. that obtaining the check from B.F. violated B.E.’s bail conditions, or that acceptance of the check by Respondent as payment of his fee would compound the violation of the bail conditions. He also did not advise B.E. that if B.E. later sought to modify his bail conditions, by accepting the check from B.F., Respondent’s ability to represent B.E. in his effort to modify bail conditions could be compromised by his knowledge that B.E. had paid his legal fees through obtaining a check from the alleged victim of the theft. While the Commission is unable to conclude on the evidence that Respondent actually assisted B.E. in violating his bail conditions, the evidence clearly establishes that Respondent failed to obtain informed consent. Respondent’s acceptance of the fee from B.F. also interfered with the independence of his professional judgment.

These same circumstances implicate Rule 3.7. Respondent testified that it was common practice for criminal defendants to request a modification of their bail conditions. It is also not uncommon for a defendant to be charged with a violation of those conditions. Once Respondent had knowledge that B.E. had violated his bail conditions, he was likely to become a witness adverse to his client’s interests if B.E. sought to modify the conditions, or was charged, as he ultimately was, with violating those conditions.

Rule 3.3 is entitled “Candor Toward The Tribunal.” Comment 3 to the Rule notes that: “There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.” Respondent learned directly from B.F. on February 9 that she did not want to have any contact with B.E. Three days later, Respondent urged the Court to permit B.E. to have direct contact with B.F. In response to the Court’s question about the prosecutor’s suggestion that B.F. wanted no contact with B.E., Respondent did not disclose that he had personal knowledge that the prosecution’s suggestion was correct, but instead urged the Court to put B.F. in a situation where she would have to tell B.E. to his face that she did not want to have contact with him. Respondent’s presentation to the Court was inconsistent with, and in violation of, the requirements of Rule 3.3.

Sanction

The ABA Standards lists a number of aggravating factors, including refusal to acknowledge wrongful nature of conduct and substantial experience in the practice of law. At no point in the disciplinary process has Respondent acknowledged any wrongdoing. The Commission takes administrative notice of the fact that Respondent was admitted to the Maine Bar in October1993, and thus has been practicing law for more than 30 years. He is the Probate Judge for Lincoln County, and although his conduct here did not arise from his service as a Judge, the public has heightened expectations that he will act with a higher level of propriety.

Mitigating factors include absence of a prior disciplinary record, timely good faith effort to make restitution or to rectify consequences of misconduct, cooperative attitude toward disciplinary proceedings, and reputation. Respondent has no prior disciplinary record. He returned B.F.’s payment, albeit it could have happened sooner. He appears to have cooperated in these proceedings. His reputation is enhanced by the fact that voters in Lincoln County have elected him to three terms as Probate Judge.

The Commission spent considerable time discussing the appropriate sanction. It is a close question. Ultimately, the panel concludes that the mitigating factors outweigh the aggravating factors.  The Commission imposes a sanction of ADMONITION upon William M. Avantaggio, Esq., pursuant to M. Bar R. 13(e)(10)(B) and 21(b)(1).

(Mike Frisch)