Opinion
BAR-23-11
08-24-2023
BOARD OF OVERSEERS OF THE BAR, Plaintiff v. DAN P. UMPHREY of Caribou, Maine Me. Bar #004502, Defendant
ORDER ON MOTION FOR SANCTIONS M. BAR R. 21
Hon. James F. Martemucci
FACTS
On April 21, 2023, Plaintiff Board of Overseers of the Bar ('the Board"), served a disciplinary Information on Defendant Dan P. Umphrey, of Caribou, Maine ("Umphrey"). Pursuant to M. Bar R. 13(g) and M. R. Civ. P. 12(a), Umphrey had twenty (20) days from the date of service of the Information to file a written answer with the Court. He failed to do so, and he also failed to otherwise enter an appearance. On June 8, 2023, as the result of Umphrey's failure to appear and answer the Board's Information, the Court entered an Order Regarding Failure to Appear or Answer and ordered Umphrey to file an answer to the Information or otherwise formally appear, within ten days, or the Court would, sua sponte or upon motion of the Board, default Umphrey and issue appropriate sanctions. Again, Umphrey failed to answer or otherwise appear. The Board filed a Motion for Sanctions, dated 08/02/2023, requesting that the factual allegations and misconduct alleged in the Information be deemed admitted, pursuant to M. Bar R. 20(a), and further requested that Umphrey be sanctioned for his misconduct by either disbarment or suspension from the practice of law.The motion was properly served on Umphrey.
M. Bar R. 20(a) states that "[failure to answer charges filed shall constitute an admission by the respondent of the factual allegations and the misconduct alleged in the formal charges."
Umphrey is and was at all times relevant hereto an attorney duly admitted to and engaged in the practice of law in the State of Maine, albeit he was administratively suspended on or about 07/13/2022. As such, he is subject to the Maine Rules of Professional Conduct and the Maine Bar Rules.
Despite being administratively suspended on or about July 13, 2022, and being provided notice of the suspension, Umphrey represented himself as a licensed attorney and represented client(s) before at least one court between July 13, 2022, and December 1, 2022. Umphrey also billed the Maine Commission for Indigent Legal Services ("MCILS") for legal work he had undertaken while under suspension. On February 3, 2023, an Information (complaint) and summons were served upon Umphrey at the email address he had submitted to the Board in conjunction with his annual registration. M. Bar R. 1(g)(4). The pleadings were also mailed to Umphrey by U.S. mail. Per the summons and the cover letter accompanying the summons and Information, Umphrey was notified that he had twenty (20) days from service of the pleadings to file a written answer with the Executive Clerk of the Maine Supreme Judicial Court. He failed to do so.
Service of the summons and Information is sufficient and complete pursuant to M. Bar R. 15.
Umphrey also has another separate Bar matter pending under docket number BAR-22-14, a matter in which he failed to respond to Bar Counsel during the investigation and failed to respond or appear to the Information. The Court defaulted him in that matter and the facts therein are taken as admitted; the case is pending a sanctions hearing.
After careful review of the pleadings, law, and relevant Maine Bar Rules, the factual allegations and misconduct alleged in the Information are deemed admitted, and Umphrey shall be suspended from the practice of law for one year.
DISCUSSION
M. Bar R. 21 sets forth the grounds for discipline of a lawyer, the types of sanctions which may be imposed, the factors to be considered in imposing sanctions, and the public nature of sanctions. "It shall be a ground for discipline of a lawyer to: (1) violate or attempt to violate these Rules, the Maine Rules of Professional Conduct, or any other rules of this jurisdiction regarding professional conduct of lawyers". M. Bar R. 21(a)(1). Umphrey's conduct in representing and/or holding himself out as a licensed attorney and in representing client(s) before the Court, including billing MCILS for legal work while he was under suspension, was the unauthorized practice of law in violation of M.R. Prof. Conduct 5.5. His conduct also involved dishonesty, deceit, and misrepresentation, and interfered with the administration of justice, in violation of M.R. Prof. Conduct 8.4(a), (b), (c), and (d). Furthermore, Umphrey's conduct in failing to respond to a lawful demand for information violated M.R. Prof. Conduct 8.1(b). The Court concludes, as a matter of law, that appropriate sanctions for such conduct are either disbarment or suspension.
In determining the appropriate sanction(s), M. Bar R. 21(c) specifically directs an adjudicator to consider four factors, "as enumerated in the ABA Standards for Imposing Lawyer Sanctions." See also Bd. of Overseers of the Bar v. Prolman, 2018 ME 28. In applying the ABA Standards, the presumptive sanctions for intentional acts of misconduct require the imposition of more significant sanctions than for misconduct which is committed knowingly, or negligently. Generally, the most severe sanction of disbarment appears to be reserved for intentional acts of misconduct. Suspension of a lawyer's privilege to practice law is generally appropriate for instances of knowing misconduct. The considerations of who the lawyer owed the duty to, the amount of actual or potential injury, and the existence of any aggravating and mitigating factors all factor into a determination of the ultimate sanction to be imposed. M. Bar R. 21(c).
Rule 21(c) provides:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer's misconduct; and
(4) the existence of any aggravating or mitigating factors.
ABA Standard 5.11(b) provides that disbarment is generally appropriate when a lawyer engages in intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice. ABA Standard 5.12 states that suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice. The unauthorized practice of law in Maine is a crime. 4 M.R.S. § 807. Courts have disbarred or suspended attorneys for failure to maintain personal integrity for practicing law while under suspension. See ABA Annotated Standards for Imposing Lawyer Sanctions (2015), at 211 (citing In re Davis, 43 A.3d 856 (Del 2012); In re Jones, 99 So.3d 20, 23 (La. 2012); In re Koliha, 9 P.3d 102, 105 (Or. 2000); In re Devers, 974 P.2d 191 (Or. 1999)).
M. Bar R. 29(a) provides that a disbarred lawyer may petition for reinstatement after the passage of five years, unless otherwise ordered by the Court.
ABA Standard 7.1 provides that disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another and causes serious or potentially serious injuty to a client, the public, or the legal system. Engaging in the practice of law while under suspension violates a duty owed as a professional and is subject to disbarment under Standard 7.1, when the lawyer has engaged in this activity with the intent to obtain a benefit for himself or another person and has caused serious injury or potentially serious injury. ABA Annotated Sanctions, at 345. ABA Standard 7.2 states that suspension is generally appropriate when the lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system. Practicing while administratively suspended and billing for the unlawful work performed falls within Standard 7.2 and merits suspension. ABA Annotated Sanctions, at 355 (citing People v. Davies, 883 P.2d 16 (Colo. 1994), Flowers v, Bd. of Prof'l Responsibility, 314 S.W.3d 882 (Tenn. 2010)).
ABA Standards 9.1, 9.2 and 9.3 set forth aggravating and mitigating factors. Aggravating factors include multiple offenses and a pattern of misconduct. Here, Umphrey also has pending BAR 22-14, a matter in which he similarly failed to respond to Bar Counsel during the investigation and failed to appear or respond to the Information. The Court defaulted him in that matter and the facts are taken as admitted. The matter is pending a sanctions hearing. In that case, Umphrey took fees from a client and did no work on the matter. Furthermore, Umphrey failed to communicate with the client, who only learned months after the fact that Umphrey had not filed a crucial immigration petition in court. The client proceeded before the Fee Arbitration Commission and the commission ordered Umphrey to refund the fees to the client within a certain time period. On the last day in which Umphrey had to comply with the order of the commission, he refunded the fees to the client. Umphrey's multiple instances of misconduct and pattern of misconduct are aggravating factors.
Mitigating factors can include personal or emotional problems, full and free disclosure to the disciplinary board, or cooperative attitude toward proceedings and remorse. ABA Standard 9.32(c), (e). Here, unfortunately, Umphrey has not cooperated with the investigation and neither appeared in this matter nor otherwise defended himself. Therefore, it is impossible to determine if Umphrey has any personal or emotional issues that may be mitigating factors, and he has certainly not provided full disclosure and a cooperative attitude toward the proceedings. Hence, the Court cannot apply any mitigating factors in determining the appropriate sanction(s).
In this matter, Umphrey intentionally or knowingly represented himself as a licensed attorney and billed MCILS after engaging in the unauthorized practice of law. His actions not only violated a duty he owed to the public and the legal profession, but it also delayed representation for at least one client who required successor counsel. Umphrey remains administratively suspended to this day. Even if he were to assert at this point that he did not know he was under administrative suspension at the time he represented himself as a licensed attorney and billed MCILS while committing the unauthorized practice of law, he has never raised that defense.
The ABA Annotated Standards note that suspension is also appropriate when a lawyer fails to cooperate with a disciplinary investigation. Annotated Standards for Imposing Lawyer Discipline, 2d Ed., p. 342. ABA Standard 6.22 observes that suspension is "generally appropriate when a lawyer knows that he or she is violating a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding."
As repeated several times herein, Umphrey failed to cooperate with the disciplinary investigation and knowingly failed to comply with a court rule, M.R. Prof. Cond. 8.1(b), causing interference or potential interference with the disciplinary proceeding. The presumptive sanction for his violation of Rule 8.1(b) is suspension.
Pursuant to both M. Bar R. 21(c) and the ABA Standards, the Court should consider Umphrey's state of mind, or mental state, in committing the various acts of misconduct which have been found. His dishonesty and misrepresentation were, apparently, intentional and knowing. Umphrey has chosen not to participate in this proceeding, and it is, therefore, impossible to conclude that his misconduct was motivated by any condition that might act as a mitigating factor in this case.
An examination of the aggravating and mitigating factors does not justify any mitigation of the presumptive sanction for Umphrey's misconduct. The presumptive sanction under the ABA Standards for his misconduct is disbarment or suspension from the practice of law. Mitigating factors do not apply in this case to decrease the presumptive sanction.
CONCLUSION
Based on all the above, and pursuant to the Court's required analysis as set forth in the ABA Standards and M. Bar R. 21, it is hereby ORDERED that:
1. The Board of Overseers of the Bar's Motion for Sanctions is GRANTED. 9 2. The factual allegations and alleged misconduct contained within the Information are deemed admitted. 3. The sanction for Dan P. Umphrey's misconduct is his immediate suspension from the practice of law for a period of one full year. As conditions of reinstatement, in addition to the requirements of M. Bar R. 29, Mr. Umphrey is required to satisfy any outstanding awards made by the Fee Arbitration Commission and the Lawyer's Fund for Client Protection for any awards resulting from his misconduct, and he is also required to reimburse MCILS for any monies it lost as a result of Mr. Umphrey's conduct.