Opinion
BAR-22-03
12-19-2022
BOARD OF OVERSEERS OF THE BAR Plaintiff v. CHRISTOPHER J. WHALLEY of Ellsworth, ME Me. Bar #007370 Defendant
STIPULATED FINDINGS, CONCLUSIONS AND ORDER OF DISBARMENT
As a result of the Board of Overseers of the Bar's (the Board) filing of its Petition for Immediate Interim Suspension M. Bar R. 24(a), the Court issued a February 11, 2022, Order suspending attorney Christopher J. Whalley. At that time, the Court also appointed a Receiver to assume responsibility for Whalley's law office. Through its subsequent June 1, 2022, filing of an Information, the Board commenced further disciplinary action. Counsel for Mr. Whalley, Walter F. McKee, filed a timely response to the Board's Information.
Prior to hearing in this matter, the parties notified the Court that they had reached agreement as to findings and a stipulated sanction. Appearing at the December 19, 2022, final hearing were Julia Sheridan, Bar Counsel, Suzanne E. Thompson, Assistant Bar Counsel, Christopher Whalley, and Walter F. McKee, Attorney for Christopher Whalley. Also present at the hearing was Receiver, William Devoe. On the record, the parties agreed that the recitations in the "Stipulated Findings, Conclusions and Order of Disbarment" should be accepted by the Court as stipulations of the parties. RECEIVED
Defendant Christopher J. Whalley (Whalley) of Ellsworth, Maine was at all times prior to February 11, 2022, an attorney duly admitted to and engaging in the practice of law. As such, he is subject to the Maine Rules of Professional Conduct and the Maine Bar Rules. Whalley was a solo practitioner of law with an office located in Ellsworth, Maine. He was admitted to the Maine Bar in 1991, and he is subject to the disciplinary authority of this Court pursuant to M. Bar R. 10(a). Whalley agrees to the entrance of the following findings and conclusions and does not contest them for purposes of this action. Whalley acknowledges that significant evidence exists to support the findings and conclusions. He further acknowledges that the misconduct, as alleged, is true or could be proven such that facts and circumstances amount to misconduct and warrant disbarment. Having reviewed the pleadings and the parties' stipulations the Court finds as follows:
COUNT I
Client W.B.K of Milbridge, Maine, died on October 5, 2018. In his Last Will 8b Testament, drafted by Whalley and dated September 15, 2017, W.B.K named Whalley as his Personal Representative (PR). The two witnesses to the execution of W.B.K's will were D.S and W.J., acquaintances of W.B.K who were not beneficiaries under the will.
The provisions of W.B.K's will were straightforward with eight (8) specific bequests of $10,000.00 each, and one (1) bequest of a wedding ring. The remainder of the Estate was divided equally between two (2) residuary beneficiaries.
On October 30, 2018, Whalley filed an "Application for Informal Probate of Will or Appointment of Personal Representative Under a Will or Both" in the Washington County Probate Court. The Estate matter was docketed and Whalley was appointed as the PR of the Estate on October 31, 2018.
On June 10, 2019, D.S. filed a complaint with the Board of Overseers of the Bar (the Board) against Whalley stating that Whalley was negligent in his handling of the Estate's administration, and that Whalley was allowing W.B.K's former residence to fall into disrepair. Whalley responded to D.S.'s complaint on July 18, 2019. In his response, he denied the allegations made by D.S. and represented that he anticipated that the Estate would be closed as of the first anniversary of W.B.K's passing.
On July 8, 2019, W.J. filed a complaint, and supporting documentation, with the Board against Whalley stating that Whalley was not taking care of W.B.K.'s residence, and that he was not carrying out W.B.K.'s wishes pursuant to the will. On August 12, 2019, Whalley responded to W.J.'s complaint indicating that the house had been properly taken care of and that it was listed for sale with a real estate broker. Whalley indicated that the heirs were notified. Whalley also stated that the personal property had been disposed of, including the sale of some of that personal property.
On October 29, 2019, Assistant Bar Counsel issued a stay of the investigation pursuant to M. Bar. R. 13(b)(1)(B) until such time as W.B.K.'s residence was sold, and Whalley filed his final accounting with the Probate Court. The real estate sold on or about August 17, 2020.
On November 4, 2020, Complainant D.S. notified the Board that W.B.K's residence was sold, prompting Bar Counsel to send Whalley a letter wherein the Board referenced the sale and requested an updated timeline for closing of the Estate. On November 10, 2020, Whalley responded to Bar Counsel, confirmed the sale, and stated that the conclusion of the affairs of the Estate would be done by the end of January 2021. On February 24, 2021, Whalley advised Bar Counsel that he needed more time to complete the accounting, and to hear back from all the devisees to complete distributions of the Estate. Whalley stated that he hoped to "conclude the Estate by the end of March 2021." Subsequent investigation demonstrated that Whalley did not contact beneficiaries regarding their bequests until April 6, 2021. On April 6, 2021, Bar Counsel advised Whalley that the stay of the investigation was lifted due to Whalley's failure to respond to Bar Counsel's inquiries regarding the status of the Estate. Bar Counsel also requested a copy of Whalley's file on W.B.K.'s Estate at that time.
Whalley failed to respond or provide a copy of the Estate file as requested by Bar Counsel during the investigation. At the end of April 2021, Bar Counsel contacted Whalley's counsel to determine if Whalley would comply with Bar Counsel's requests for information. Whalley again failed to provide a copy of the file. On August 16, 2021, a subpoena for Whalley's W.B.K. Estate file was served on Whalley's counsel. On September 13, 2021, in compliance with Bar Counsel's subpoena, Whalley's counsel provided what was represented to be a copy of Whalley's file in the W.B.K. Estate matter.
Whalley's file contained a copy of a September 8, 2021, Order from the Washington County Probate Court requiring that Whalley provide the court with the addresses of two devisees, or an Affidavit of Diligent Search, by September 30th. Upon further investigation, between 2018 and 2021, the Probate Court had sent five (5) letters requesting this information. Whalley did not respond to any of the Court's requests. The September 8, 2021 Order further required that Whalley file an Inventory of the Estate with the Court by October 15th. On September 23, 2021, Bar Counsel requested that Whalley provide copies of his responses to the Court's September 8th Order to Bar Counsel. Whalley did not do so. The Probate Court later extended the date for Whalley's compliance two (2) times, upon his Motion, with the final extension date set at November 24, 2021. Although Whalley did eventually file an Inventory with the Washington County Probate Court, he failed to provide a copy of that Inventory to Bar Counsel as requested.
On December 13, 2021, Bar Counsel requested through Whalley's counsel that Whalley provide copies of the bank statements for the Estate trust account as well as "a basic accounting showing any distributions or payments" from the Estate assets by December 31, 2021. Whalley failed to respond to Bar Counsel's request, or to provide the information requested. On January 10, 2022, Bar Counsel inquired of Whalley's counsel whether Whalley would voluntarily comply with the December 13, 2021, request for information, or whether Bar Counsel would have to pursue other means to obtain the information. Whalley again failed to respond to Bar Counsel's request, or to provide the information. On January 20, 2022, as the result of Whalley's continued failure to respond, with prior notice to Whalley's counsel, Bar Counsel issued a subpoena to the financial institution, Machias Savings Bank ("M.S.B."), for the account records of W.B.K.'s Estate. On February 7, 2022, in compliance with Bar Counsel's subpoena, M.S.B. provided the account records for W.B.K.'s Estate.
Finally, upon further investigation Assistant Bar Counsel identified a real estate transaction in a separate matter that occurred between Whalley's corporation Damn Yankees, Inc. and a different estate wherein Whalley served as the attorney for the personal representative. On May 17, 2022, Assistant Bar Counsel requested that Whalley provide information and documents regarding that transaction and estate by May 26, 2022. Whalley did not respond to Assistant Bar Counsel's request for information. Thereafter, on July 6, 2022, Assistant Bar Counsel filed a Subpoena for the requested material. The subpoena was served on Whalley, via counsel, on July 11, 2022, with a response deadline of July 29, 2022. Whalley failed to respond by July 29, 2022, and thereafter failed to respond to requests for compliance sent on August 16 and August 22, 2022. Ultimately, documents were provided on August 29, 2022, after the Board's filing of a Motion to Enforce.
Based upon the facts enumerated above and incorporated herein, between February 24, 2021, and January 20, 2022, Whalley failed to respond to Bar Counsel's inquiries regarding the status of W.B.K.'s Estate, including failing to provide a copy of the Inventory filed with the Probate Court. Whalley further failed to respond or provide a copy of the Estate file for W.B.K. as requested by Bar Counsel during the investigation. He also failed to respond to Bar Counsel's requests for copies of the bank statements for the Estate trust account as well as "a basic accounting showing any distributions or payments" from the Estate assets by December 31, 2021.
Whalley made false statements of material fact to Bar Counsel and failed to respond to Bar Counsel's lawful demands for information during the investigation of this matter. Whalley also failed to answer questions and provide documents to allow for further investigation regarding the transfer of real estate from an Estate, where Whalley was counsel for the personal representative, directly to Whalley's Corporation, Damn Yankees., Inc.
In response to the Board's allegations, Whalley offers no dispute and no explanation. Accordingly, the Court finds that Whalley engaged in violations of M. R. Prof. Conduct and 8.1(a), 8.1(b) and 8.4(d).
COUNT II
Whalley established the W.B.K Estate account with Machias Savings Bank on November 7, 2018, and had sole access to the account. A review of W.B.K.'s Estate account records reveals that total deposits of $378,335.95 were made into that account representing the entire liquid assets of the Estate, including the proceeds from the sale of W.B.K.'s residence. A review of W.B.K.'s Estate account records reveals that total withdrawals of $288,397.56 were made from the account in the form of checks signed by Christopher J. Whalley, Jr. as PR of the Estate, leaving a balance in the Estate account of $89,938.39.
A review of W.B.K's Estate account records reveals that of the checks signed by Christopher J. Whalley, Jr. as PR of the Estate, fourteen (14) checks totaling $99,022.56 were written to the beneficiaries named in W.B.K's Last Will and Testament, and to purported creditors of the Estate. Of that $99,022.56, payments of $8,131.72 were unsupported by records or made to payees with no identified connection to the estate.
The review of W.B.K.'s Estate account records reveals that of the checks signed by Christopher J. Whalley, Jr. as PR of the estate, thirty-eight (38) checks totaling $125,025.00 were written to the "Whalley Law Offices" and that nine (9) additional checks totaling $64,350.00 were written to Whalley's law office trust account.
In total, a review of W.B.K.'s Estate account records demonstrates that, out of total cash assets of $378,335.95, only $90,890.84 of disbursements were accounted for as paid to beneficiaries or estate creditors while $8,131.72 was unsupported by records. The account review further reveals that $189,375.00, more than fifty percent (50%) of the total assets of the Estate, were disbursed directly to Whalley's office and trust accounts.
While Whalley provided a copy of his client file in compliance with Bar Counsel's subpoena, he failed to provide any invoices paid on the Estate's behalf or billing records for his services to the Estate. In short, he failed to account for the $ 189,375.00 he received. Although Bar Counsel twice requested that Whalley provide an accounting of the Estate funds under his control as PR, Whalley failed to respond, or to provide any accounting.
Review of W.B.K's Estate account records showed that all checks written directly to Whalley's law office account are drafted for "round'' or "even" amounts and are inconsistent with payments to be made for specific services and expenses that may have been billed by him to the Estate. The balance in Whalley's Operating account, as of February 28, 2022, was $13,057.96. In addition, all but one of the checks (in the amount of $4,850.00) that were written directly to Whalley's Trust account are also drafted for "round" or "even" amounts that are inconsistent with payments Whalley made for specific services and expenses billed by him or the Estate. Although Whalley transferred $64,350.00 to his trust account, it appears that all bequests and expenses of the Estate have been paid out of the Estate account. The disposition of the $64,350.00 Whalley transferred to his client trust account is unknown and was not explained by Whalley. The balance in Whalley's IOLTA account, as of February 28, 2022, was $2,785.10.
The timing of the checks written to Whalley's law office and trust accounts was inconsistent with any regular "billing cycle," whether weekly, monthly, or otherwise. Moreover, the frequency of the checks written to Whalley's law office operating account and trust account varies and was not consistent with any supported legitimate payments to Whalley for services rendered and expenses incurred. For example: on November 13, 2018, six (6) days after opening the Estate account, Whalley drew a check for $2,000.00 from the Estate account which he then deposited into his law office operating account. Thereafter, Whalley drew a second check from the Estate account, for $10,000.00, which he deposited into his law office operating account on November 19, 2018. These transfers occurred, even though Whalley evidenced no work done on the estate's behalf in this timeframe, let alone work to justify a transfer of $ 12,000.00.
Similarly, review of the Estate file, as well as the probate docket record, demonstrates that between December 7, 2018, and May 27, 2019, Whalley wrote five (5) checks totaling $42,000.00 into his trust account, including one check for $30,000.00 on January 26, 2019, and five (5) checks to himself personally, totaling $17,000.00, despite the fact that the Estate of W.B.K appeared dormant during that time.
In June of 2019, Whalley wrote four (4) checks to his operating account and one (1) check to his trust account totaling $22,000.00. In July of 2019, Whalley wrote five (5) checks to his operating account and one (1) check to his trust account totaling $17,500.00. That includes a check on July 18, 2019, for $2,000.00, the same day Whalley responded to Assistant Bar Counsel indicating that the Estate closure was in a holding pattern.
In August of 2019, Whalley wrote eight (8) checks to his operating account totaling $29,500.00. The client file provided by Whalley in response to Bar Counsel's subpoena reveals only two (2) letters written by Whalley each accompanying an overdue payment to Estate creditors on August 8, 2019, and one (1) letter received from the Register of Probate on July 25, 2019, that Whalley failed to respond to. Whalley did not provide any documents or otherwise indicate that he performed any other work or services on behalf of the Estate during the June through August 2019 time-period. Nonetheless he wrote $69,000.00 in checks to his office and trust bank accounts during that same period.
Whalley's pattern of withdrawals continued from August 2019 through August 2020, with Whalley removing an additional $9,200.00 from the Estate with six (6) checks deposited into his law office operating account, eventually reducing the Estate account to $310.85 by February of 2020. Thereafter, when the real estate sold on August 18, 2020, Whalley's withdrawals resumed, on August 31, 2020. Between August 31, 2020, and January 15, 2021, Whalley transferred $40,175.00 from the W.B.K. Estate account to his law office operating account via ten (10) checks. On April 6, 2021, after Bar Counsel lifted its Stay, Whalley first reached out to beneficiaries, and thereafter wrote checks to six (6) beneficiaries on May 15, 2021, totaling $90,000.00.
On May 9, 2022, a subpoena was issued to M.S.B. seeking copies of Whalley's operating account, IOLTA account and personal bank accounts. Whalley, via counsel, accepted service of the subpoena on May 10, 2022, and records were produced on May 24, 2022.
Prior to obtaining records from the bank, and upon request by the Board, Receiver Devoe provided Assistant Bar Counsel with copies of Whalley's Operating and IOLTA Accounts on May 13, 2022. Thereafter, the IOLTA, Operating and Personal account records were received by the Board, directly from Machias Savings Bank on May 24, 2022. Review of these records allowed a complete tracing, such that the Board was able to confirm that the $189,375.00 in Estate funds, described in detail herein, were in fact deposited directly into either Whalley's Operating or IOLTA Account. This was subsequently verified via the Board's Expert Witness, Forensic Accountant Robert N. Brown, Jr., CPA, CFE. Additionally, review of the bank records evidenced further violations of the Maine Rules of Professional Conduct detailed infra.
Whalley's monetary withdrawals from W.B.K.'s Estate account follow a pattern that is consistent with his misuse, or outright conversion, of Estate funds, Whalley's repeated refusal to comply with Bar Counsel's "lawful demand(s) for information" as provided for by Rule 8.1(b) of the Maine Rules of Professional Conduct in relation to the financial records of the W.B.K Estate as well as an accounting of Estate assets, is consistent with an attempt to cover up his misuse of, or conversion of, W.B.K.'s Estate Funds.
In these actions, Whalley committed a criminal or unlawful act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects in violation of Maine Rules of Professional Conduct 8.4(b).
Whalley engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation to Maine Rules of Professional Conduct 8.4(c), and Whalley also engaged in conduct that is prejudicial to the administration of justice in violation of Maine Rules of Professional Conduct 8.4(d).
In response to the Board's allegations, Whalley offers no dispute and no explanation. Accordingly, the Court finds that Christopher J. Whalley engaged in violations of M. R. Prof. Conduct 8.4(a), 8.4(b), 8.4(c) and 8.4(d).
As a result of Whalley's professional misconduct, the Estate beneficiaries may file claims with the Lawyer's Fund for Client Protection (LFCP). Whalley affirms his intention not to dispute those claims. Whalley also reports that he does not have additional funds to fully reimburse the claimants or the LFCP, although he acknowledges that the LFCP and claimants may pursue any additional remedies available to them.
COUNT III
Whalley failed to diligently probate W.B.K's Estate and prolonged the Estate administration. As noted, Whalley became the PR of the Estate on October 31, 2018. From October 2018 to mid-July 2019 there was no activity in the Estate. Whalley listed the real estate for sale on July 18, 2019, following the two (2) complaints to the Board. From November 2018 through August 18, 2020, there is no evidence that Whalley took any action related to the Estate, despite his representations to Bar Counsel in the two (2) pending grievance matters. During this time-period, the Probate Court contacted Whalley seeking information via letter on five (5) separate instances, November 21, 2018, July 25, 2019, October 19, 2019, October 23, 2019 and March 25, 2021. Whalley did not respond to any of the letters or provide the information the Court requested. This ultimately prompted the Probate Court to issue an Order on September 8, 2021, requesting further action relative to devisees and the formal filing of an Inventory. Whalley ignored requests from beneficiaries regarding the status of the Estate during this time-period, failed to contact beneficiaries until April 6, 2021, and ultimately made initial payments of specific bequests on May 15, 2021, three (3) years after the decedent's passing.
In response to the Board's allegations, Whalley offers no dispute and no explanation. Accordingly, the Court finds that Whalley failed to diligently perform his services as the Personal Representative of W.B.K.'s Estate, or to comply with the requirements of the Maine Probate Code and therefore engaged in violations of M. R. Prof. Conduct 1.3.
As a result of Whalley's professional misconduct, the Estate beneficiaries may file claims with the Lawyer's Fund for Client Protection (LFCP). Whalley affirms his intention not to dispute those claims. Whalley also reports that he does not have additional funds to fully reimburse the claimants or the LFCP, although he acknowledges that the LFCP and claimants may pursue any additional remedies available to them, COUNT IV
Based upon the facts articulated above and incorporated herein by reference, the administration of W.B.K.'s Estate was not a complex matter and would not require extensive work by the Personal Representative to support a "fee" of between $120,025.00 and $189,375.00. Consequently, Whalley's *fees" were not reasonable, and his actions violated Maine Rule of Professional Conduct 1.5(a).
In response to the Board's allegations, Whalley offers no dispute and no explanation. Accordingly, the Court finds that Whalley engaged in violations of M. R. Prof. Conduct 1.5(a).
As a result of Whalley's professional misconduct, the Estate beneficiaries may file claims with the Lawyer's Fund for Client Protection (LFCP). Whalley affirms his intention not to dispute those claims. Whalley also reports that he does not have additional funds to fully reimburse the claimants or the LFCP, although he acknowledges that the LFCP and claimants may pursue any-additional remedies available to them.
COUNT V
Based upon the facts articulated above and incorporated herein by reference, Whalley's actions were in violation of Maine Rules of Professional Conduct 1.15(a) and 1.15(b).
In response to the Board's allegations, Whalley offers no dispute and no explanation. Accordingly, the Court finds that Whalley engaged in violations of M. R. Prof. Conduct 1.15(a) and 1.15(b).
As a result of Whalley's professional misconduct, former clients may file claims with the Lawyer's Fund for Client Protection (LFCP). Whalley affirms his intention not to dispute those claims. Whalley also reports that he does not have additional funds to fully reimburse the claimants or the LFCP, although he acknowledges that the LFCP and claimants may pursue any additional remedies available to them.
SANCTION
M. Bar R. 21 (c) delineates the grounds for lawyer discipline, the range of sanctions which may be imposed for ethical misconduct, and the factors that the Court must consider prior to imposing any such discipline.
M. Bar. R. 21(c) states:
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."
The ABA Standards for Imposing Lawyer Discipline (ABA Standards) define the purposes of lawyer disciplinary proceedings, the public nature of those proceedings and the purpose of the Standards themselves. The ABA Standards are designed to promote:
"(1) consideration of all factors relevant to imposing the appropriate level of sanction in an individual case;
(2) consideration of the appropriate weight of such factors in light of the stated goals of lawyer discipline;
(3) consistency in the imposition of disciplinary sanctions for the same or similar offenses within and among jurisdictions."
Standard 1.3, ABA Standards for Imposing Lawyer Sanctions.
In Board of Overseers of the Bar v. Prolman, 2018 ME 28, a six-member panel of the Law Court was evenly divided on the issue of whether M. Bar R. 21(c) incorporates the ABA Standards as a "matter of law." Id. at | 51. Although evenly divided over the incorporation of the ABA Standards, the Court concluded that an adjudicator should consult those Standards as guidance in making its determination of appropriate sanctions. Id.
Notably, M. Bar R. 21(c) is identical to ABA Standard 3.0. That Standard mandates the Court's consideration of "(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating and mitigating factors." In applying the ABA Standards, intentional acts of misconduct require the imposition of more significant sanctions than misconduct which results from a lawyer's negligence. Likewise, the amount of injury, or potential injury, to a client, the public, the legal system or the profession is a significant factor. Generally, the most severe sanction of disbarment is reserved for intentional acts of misconduct, or misconduct which results in significant injury, or a combination of both.
RULES VIOLATED
Based upon the above-referenced misconduct, the Court finds that Christopher J. Whalley violated M. R. Prof. Conduct: Rules 1.3 [diligence], 1.5(a) [fees], 1.15(a)(b) [safekeeping property], 8.1(a)(b) [bar admission and disciplinary matters], and 8.4(a) (b)(c)(d) [general misconduct; illegal conduct; deceit/dishonesty; and conduct prejudicial to the administration of justice].
VIOLATION OF DUTY OWED
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has considered the duty that Whalley violated as a result of his behavior. In each instance, Whalley's conduct demonstrated violations of duties owed directly to his clients. In addition, Whalley violated duties that he owed to the court, to the public, and to his profession.
The correlating ABA Standard for the rules concerning clients and their property is 4.1 and the correlating ABA Standard for the rules concerning a lawyer's lack of diligence is 4.4. As detailed below, the Court finds the ABA Standards to be both relevant and applicable.
ABA Standard 4.0 Violation of Duties Owed to Clients
4.1 Failure to Preserve Client's Property
4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
4.4 Lack of Diligence
4.41 Disbarment is generally appropriate when:
(a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.
The correlating ABA Standard for the rules concerning unlawful conduct is 5.0. As detailed below, the Court finds the ABA Standard to be both relevant and applicable.
ABA Standard 5.0 Violations of Duties Owed to the Public
5.1 Failure to Maintain Personal Integrity
5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the
administration of justice...fraud, extortion, misappropriation, or theft...or an attempt...to commit any of these offenses.
The correlating ABA Standard for the rules concerning unlawful conduct is 5.0. As detailed below, the Court finds the ABA Standard to be both relevant and applicable.
The correlating ABA Standard for the rules concerning a lawyer's violation of duties owed as a professional is 7.0. As detailed below, the Court finds the ABA Standard to be both relevant and applicable.
ABA Standard 7.0 Violations of Duties Owed as a Professional
7.1
Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.
The correlating ABA Standard for the rules concerning prior discipline orders is 8.0. As detailed below, the Court finds the ABA Standard to be both relevant and applicable.
ABA Standard 8.0 Prior Disciplinary Orders
8.1
Disbarment is generally appropriate when a lawyer:
(a) intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession, or
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further similar acts ofmisconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.
DEFENDANT'S MENTAL STATE
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has considered Christopher J. Whalley's mental state in committing the various acts of professional misconduct. Based upon the Court's findings and Mr. Whalley's lack of dispute with those findings, the Court concludes that his actions were intentional in nature.
ACTUAL OR POTENTIAL INJURY
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has considered the actual and or potential injury resulting from Christopher J. Whalley's misconduct. As noted above, in each of the five counts, there was serious and intentional misconduct that exacted both financial and emotional injury to a vulnerable client and beneficiaries of his client's estate.
APPLICATION OF AGGRAVATING AND MITIGATING FACTORS
Pursuant to M. Bar R. 21(c) and ABA Standards 9.2 and 9.3, the Court has considered the applicable aggravating and mitigating factors. While the correlating ABA Standards themselves warrant Mr. Whalley's disbarment, the following aggravating factors are also implicated:
(a) prior discipline offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(h) vulnerability of victim(s);
(i) substantial experience in the practice of law; and
(k) illegal conduct.
Conversely, there appear to be no mitigating factors for this court's consideration.
As is evident, the aggravating factors enumerated herein provide a stark contrast to the lack of mitigating factors present in this proceeding. That fact coupled with the serious harm resulting from Mr. Whalley's misconduct leaves no choice but for this Court to impose the sanction of disbarment.
As such, the Court hereby Orders that Christopher Whalley is disbarred from the practice of law and may not apply for reinstatement for a period of ten (10) years. Any subsequent reinstatement shall occur through Whalley's petition filing with the Court, pursuant to the Maine Bar Rules. Whalley may not petition for reinstatement until he has paid all costs ordered by the Court and reimbursed any amounts paid out by the Lawyers Fund for Client Protection.
Christopher J. Whalley shall repay the Board of Overseers in the amount of $8,162.88, representing costs incurred in prosecution of this matter. The Board shall provide Mr. Whalley an accounting of expenses no later than twenty-one (21) days from the date of this order and Mr. Whalley shall forward payment of the same within seven (7) days. Failure to remit payment shall result in a violation of this Order.
In the event that the Lawyers' Fund for Client Protection (LFCP) pays any claims resulting from Whalley's actions related to this matter (including after the effective date of this order), Whalley shall be responsible for reimbursement of those claims in a manner acceptable to the LFCP Trustees. Compliance with this provision shall be a precondition for Whalley filing any petition for reinstatement.