Opinion
GFC-19-489
03-10-2021
IN RE: PETITION FOR REINSTATEMENT OF GARY M. PROLMAN, Petitioner
BOARD OF OVERSEERS OF THE BAR Grievance Commission
TERESA M. CLOUTIER, ESQ., PANEL CHAIR
Petitioner Gary M. Prolman ("Petitioner" or "Prolman") has petitioned for reinstatement to the Maine Bar, pursuant to Maine Bar Rule ("M.Bar.R.") 29, following a disciplinary suspension of more than six months. The Board of Overseers of the Bar, through Bar Counsel, filed a timely objection to Prolman's reinstatement and the matter was scheduled for a contested hearing before a panel of the Grievance Commission. The duly-noticed hearing on Prolman's petition was conducted via video conference on August 20, August 21, September 16, and September 17, 2020. Petitioner attended all four days of the hearing and was represented by Mark Franco, Esq. The Board was represented by Assistant Bar Counsel Justin Andrus, Esq.
I. PRIOR DISCIPLINARY HISTORY
A. First Suspension and Reinstatement
Prolman was admitted to the Maine Bar in 1991, where he primarily engaged in a solo practice focusing on state and federal criminal defense work, with some handling of family law matters and work advising small businesses. See Findings, Conclusion, and Order, Board of Overseers of the Bar v. Gary M. Prolman, BAR-14-12, at 4-5 (March 7, 2016) ("2016 Reinstatement Order") (Board Exh. 901 J. He was first suspended from the practice of law on June 23, 2014, after a felony conviction for Conspiracy to Launder Money and Aiding and Abetting in violation of 18 U.S.C. § 1956(a)(1) and (h) and 18 U.S.C. § 1957(2), resulting from a guilty plea. See 2016 Reinstatement Order, at 9-11 (Board Exh. 901); see also Order of Suspension, Board of Overseers of the Bar v. Gary M. Prolman, BAR-14-12 (June 23, 2014).
The Panel has taken judicial notice of all the prior disciplinary decisions relating to Petitioner, without objection.
For many years prior to the events leading to his conviction, Prolman regularly used cocaine and sometimes drank alcoholic beverages excessively, with his cocaine use becoming more regular by 2012. At some point in 2012, Prolman's cocaine dealer introduced him to David Jones, who he soon learned was an illegal drug dealer, primarily involved in sales of large quantities of marijuana. Prolman agreed to assist Jones in incorporating certain business ventures and acquiring real estate for them. He was paid in cash for these legal services. Subsequently, Prolman accepted Jones' offer to infuse funds into a sports agent business Prolman had started, as well as a separate real estate venture. Prolman accepted $127,875 in cash from Jones, which he deposited into different banks in small amounts so as to avoid federal cash source reporting requirements. He later accepted an additional $50,000, which had been delivered to him by Jones' girlfriend, in cash. Prolman's plea eventually acknowledged participation in a felony-level conspiracy to launder $177,500 worth of marijuana trafficking proceeds received from Jones or Jones's girlfriend. 2016 Reinstatement Order, at 7-10 (Board Exh. 901).
Petitioner was sentenced to twenty-four months' imprisonment, to be served at a federal facility in Lewisburg, Pennsylvania, with an additional twenty-four months of supervised release. Mr. Prolman completed a 500-hour Residential Drug Abuse Treatment Program while in prison and was discharged to the supervision of Pharos House in Portland in October, 2015, for community confinement after only approximately nine months in Lewisburg. While at Pharos House, Prolman was subject to testing for alcohol and drugs and he continued to engage in substance abuse counseling. Prolman was released to home confinement with monitoring and reporting in February, 2016, and his supervised confinement ended in May, 2016, when his twenty-four month period of supervised release commenced. 2016 Reinstatement Order, at 11-14 (Board Exh. 901).
In November, 2015, the Board filed a motion seeking further discipline against Prolman, and Prolman responded with a motion seeking limitation or termination of his suspension. See Board of Overseers of the Bar v. Prolman, 2018 ME 128, ¶ 3 (Board Exh. 906). After hearing before a Single Justice of the Maine Supreme Judicial Court (Alexander, J.), Prolman was reinstated to the practice of law, conditioned on various items including: (a) compliance with all the terms and conditions of his federal sentence and community release and (b) continued engagement in substance abuse counseling and treatment to the satisfaction of the Board of Overseers of the Bar for a period of at least four years after the termination of any supervision pursuant to his federal sentence and community release. 2016 Reinstatement Order, at 24-25 (Board Exh. 901). Prolman's reinstatement was effective July 1, 2016. The conditions of Prolman's supervised release included no use or possession of any controlled substance, alcohol, or other intoxicant and no association with known felons except for business purposes. See Findings, Conclusions and Order, Board of Overseers of the Bar v. Gary M. Prolman, BAR-14-12, at 2-3 (September 14, 2017) ("2017 Suspension Order") (Board Exh. 905).
B. Second Suspension
On April 17, 2017, less than a year after Prolman's reinstatement, a client of Prolman's filed a complaint with the Board. The Board, in turn, filed a Petition for Immediate Interim Suspension against Petitioner on May 26, 2017. After a contested, three-day hearing before Justice Alexander, the Court made the following salient findings: Prolman represented or advised the female complainant in connection with three criminal matters in 2016-2017. In one of these matters, Prolman secured early termination of the client's probation, to be effective in June, 2017, so long as she complied with her terms of probation until then, including the condition that the client not consume alcohol. This probation, and related participation in a closely-supervised diversion program, had been part of the client's sentence for a felony drug conviction.
Another matter the client discussed with Prolman related to the client's status as a sex trafficking victim. In addition, during the time period that Prolman was representing her, the client lived in Topsham with a boyfriend. This individual was controlling and abusive and he assaulted the client on more than one occasion. Despite the involvement of law enforcement, these assaults were not prosecuted because the client refused to testify against her boyfriend. The situation culminated in a March, 2017, incident where the client sustained serious injuries, including broken bones in her face and marks on her throat due to an attempted strangulation. The Sagadahoc County authorities were concerned that the boyfriend, who had been arrested and held as a result of the incident, would soon return to the shared apartment, and believed the client needed to find other accommodations.
Prolman, who was in the process of returning from a vacation in Florida, spoke to the client on several occasions about the situation. Prolman also spoke with the Sagadahoc County Sheriffs Deputy who was the client's diversion supervision officer and told him that there was an apartment above his Saco law office where the client could stay. The Court found that Prolman conveyed the impression to the Deputy that the apartment was vacant and that the client would be living there by herself until she could find a permanent solution. Based on this, the Deputy agreed to place the client in the apartment.
Contrary to the impression given to the Deputy, Prolman was living in the three-bedroom apartment and a third person, who was not present at the time, was also living there. The apparent plan was that the client would occupy the third bedroom and share common areas with the others, including a bathroom next to Prolman's bedroom. Had the client's diversion officer known Prolman was living at the apartment, she would have terminated the living arrangement, Similarly, Prolman's federal probation office would have objected to Prolman allowing the client, with a felony drug conviction, to live with him. Prolman did not voluntarily disclose the co-habitation to either officer.
Also present in the building's basement was a brewery and tasting room, the staff of which regularly accessed the apartment's kitchen and laundry facilities.
Prolman returned from Florida either late on the day the arrangements were made for the client to move into his apartment, or the next day. Upon his return, he secured a cell phone for the client through his own cell phone account and assisted her in obtaining a waitressing job. At all relevant times, Prolman was aware of his client's history, abuse by and submissiveness to men, and her vulnerability to abusive physical and sexual relationships. Despite this:
On more than one occasion while Prolman and his client were residing at his apartment between March 29 and April 9, 2017, Prolman approached his client seeking sexual gratification and engaged in sexual acts with her. The client regarded Prolman's sexual acts as "gross." While she did not consent, she also did not object to Prolman's sexual acts, simply submitting to what Prolman demanded - "I went along with it" - as she had done in past relationships with men who had taken advantage of her vulnerabilities.2017 Suspension Order, at 11-12 (¶26) (Board Exh. 905). It should be noted that this sexual contact occurred between two to fourteen days after an incident when the client had been brutally assaulted, strangled, and had her nose broken.
On April 10, 2017, the client was able to obtain a vehicle with the assistance of her employer. That evening, Prolman prepared dinner for the client, during the course of which he provided wine, which they shared. He then approached the client in her bedroom and attempted to initiate sexual relations, which she refused. The next day, April 11, the client moved out. Shortly thereafter, she terminated their remaining attorney-client relationship. Prolman then filed a motion to withdraw in the matter involving early termination of the client's probation. In his motion, he represented to the Court that the client was in compliance with the terms of her probation and that early termination of that probation could proceed without further appearance of counsel. 2017 Suspension Order, at 13-14 (¶ 34).
At the 2017 hearing, Prolman denied that he had any sexual contact with the client. He claimed that he asked the client to leave the apartment because he learned she was using illegal drugs and that the accusations of sexual misconduct were a contrivance. The Court found that the evidence, as a whole, did not support Prolman's version of events and ultimately concluded that the Board had proven, by clear and convincing evidence, that the client's version of events was true. 2017 Suspension Order, at 16-17 ¶36).
Prolman continues to deny that he had sexual contact with this client, but the Court's finding is binding on this panel.
The Court found that the Board proved violations of Maine Rules of Professional Conduct ("M.R.Prof.C.") 1.7(a)(2), 2.1, 8.4(a), and 8.4(d), as well as the attorney's oath, and imposed a six-month suspension. The specific conduct providing the basis for this discipline was:
1. Arranging for a vulnerable client, with a history of physical and sexual abuse by and submissiveness to men she was living with, to move in with him and not disclosing this living arrangement to the client's diversion officer and others supporting her effort to comply with her terms of probation ... Creating this living arrangement, with this client, was a serious error of judgment. Not disclosing to the client or her support team that the offered apartment involved moving in with him was a failure to render candid advice ....
2. Initiating and engaging in a sexual relationship, including performing sex acts on more than one occasion, with a client he knew to be vulnerable and submissive ... In initiating the sexual gratification ahead of his client's interests ....
3. Consuming alcoholic beverages and providing alcoholic beverages for consumption to his client. While the Court's March 7, 2016, order prohibited only "excessive" consumption of alcoholic beverages, that order also required compliance with the conditions of Prolman's federal sentence. The federal probation conditions prohibited any possession or use of alcoholic beverages. Thus, Prolman's consumption of alcoholic beverages violated this Court's order, and violated Rule 8.4(d) prohibiting conduct "prejudicial to the administration of justice." Providing alcoholic beverages to his client caused the client to violate her conditions of probation, placing her freedom and the early termination of her probation at risk. This also violated Rule 8.4(d). And providing alcoholic beverages in those circumstances certainly was not acting toward the client using the best of Prolman's knowledge and discretion, as required by the Attorney's Oath.2017 Suspension Order, at 26-27 (Board Exh. 905). The Court ordered the six-month suspension to commence on November 1, 2017. Id. at 30.
Pursuant to the Maine Bar Rules, an attorney whose license is suspended for six months or less may be reinstated at the end of the period of suspension by submitting an affidavit stating the attorney has complied with the requirements of the suspension order and paid all required fines and costs. M.Bar.R. 28. In contrast, an attorney whose license is suspended for more than six months must go through the same reinstatement process as a disbarred attorney, establishing each of the eight criteria in Maine Bar Rule 29(e) through clear and convincing evidence.
The Board appealed Justice Alexander's imposition of a six-month suspension. The Maine Supreme Judicial Court unanimously agreed that this discipline was not sufficiently severe: "We all agree that the sanctions imposed were simply insufficient and represent an abuse of discretion .... Unanimously, we vacate the judgment and remand the proceedings to the court for the imposition of a sanction that reflects the serious behavior of the attorney and that, at a minimum, would require Prolman to reapply for readmission upon demonstration of a thorough understanding of the ethical obligations of a Maine attorney." Prolman, 2018 ME 128, ¶¶ 25-26 (Board Exh. 906). Three justices of the six-justice panel (Jabar, J., Mead, J., and Hjelm, J), reasoned that the Single Justice should have applied the American Bar Association's Standards for Imposing Lawyer Sanctions (Am. Bar Ass'n 1992) (ABA Sanction Standards) in deciding the appropriate sanctions for Prolman's violations. The other three justices (Saufley, C.J., Gorman, J., and Humphrey, J.) concluded that it was not necessary to find that the ABA Sanction Standards should have been applied to conclude that the sanction of six months was inappropriate:
When an attorney has been sentenced to federal prison for using his legal talents to commit serious crimes, and upon reinstatement to the Bar engages in behavior that is abhorrent to the profession, including taking sexual advantage of a client he knew to have been the victim of
ex trafficking, a six-month suspension, requiring no demonstration of rehabilitation in order to return to the practice of law, is plainly and compellingly insufficient.
The history of Prolman's actions as an attorney is particularly important in this case. Prolman is apparently a very skilled persuasive attorney. He used those considerable talents to engage in a course of conduct through which he laundered money for his clients in the drug trafficking business. For that behavior, he was sentenced to two years in federal prison, followed by two years of supervision. His license to practice law was suspended indefinitely. After he was released from prison, the court lifted that suspension and allowed Prolman to return to the practice of law.
Within a year after recovering his privilege to practice law, Prolman engaged in the conduct that brings this appeal before us. Again, he was able to successfully assist his client in several matters, and again he engaged in completely unacceptable behavior....
The error in the court's selection of a sanction does not lie in the failure to identify and analyze a lengthier list of factors to consider. The error lies in the sanction's brevity and its failure to require a substantial improvement in Prolman's understanding of the trust that the public reposes in an attorney. At base, the brief six-month suspension substantially minimizes the seriousness of the conduct in which Prolman was found to have engaged.
...We should say clearly that it is an abuse of discretion to impose a six-month period of suspension on an attorney who has sex with a vulnerable client who he knows has been the victim of sex trafficking and domestic abuse. We should say that with even more certainty here, where the attorney who committed these wrongs had recently been reinstated to the Bar following a two-year suspension arising out of felony convictions.
We would conclude that the court committed no error of fact or law, but that the sanction imposed in wholly insufficient to protect the public and it therefore an abuse of discretion.Prolman, 2018 ME 128, ¶¶ 54-59 (Board Exh. 906).
Although Justices Jabar, Mead, and Hjelm felt the ABA Sanctions Standards should have been applied, they made clear their agreement with the conclusion articulated by their colleagues that the court abused its discretion and that the six-month suspension, requiring no substantive demonstration prior to a return to practice, was insufficient to protect the public. Prolman, 2018 ME 128, ¶ 46 n. 10
After the Supreme Judicial Court issued its decision, Prolman filed a motion for relief from judgment claiming he had unearthed newly-discovered evidence, in the form of several witnesses who were prepared to attack the credibility of the client at issue in the 2017 proceeding, as well as the substance of her testimony. In the course of pursuing this motion, he texted the following comment about the client to a third-party: "...we will get that lying skank ... trust me!" Board Exhibit 802. He later noted to the same individual that the client would "get what's coming to her". Id. After an evidentiary hearing on April 23, 2019, the Court denied the motion for relief. The Court noted, on the record, that some of the information offered actually reinforced certain of its original conclusions. 2019 Sanctions Order (Board Exhibit 909), at 2-3.
Similarly, in a voice mail left with the same third-party later in 2019, Prolman references the client as a "fraudulent bitch". Board Exh. 110.
On remand on the sanctions issue, the Single Justice engaged in an extensive analysis of other disciplinary cases and sanctions. The Court examined the relative aggravating and mitigating circumstances present in Prolman's case, along with other relevant factors, including the fact that, at that point, Prolman had already served the original six-month suspension. The Court then amended its original sanction and imposed a two-year suspension, with all but nine months suspended, under the condition that Prolman engage in counseling regarding boundary issues and engage in ethics training and counseling with particular emphasis on issues regarding client communications and relationships, and what the rules of ethics require in terms of those relationships. See Sanctions Order, Board of Overseers of the Bar v. Prolman, BAR-14-12 (July 8, 2019) (Alexander, J.) ("2019 Sanctions Order") (Board Exh. 909). Prolman's additional three months of suspension began on October 1, 2019. Order, Board of Overseers of the Bar. v. Prolman, BAR-14-12 (July 22, 2019) (Alexander, J.) (Board Exh. 910). Neil Weinstein, Esq. was appointed receiver of Prolman's law practice. Order for Appointment of Receiver, Board of Overseers of the Bar v. Prolman, BAR-14-12 (September 18, 2019) (Petitioner's Exh. 73).
II. REINSTATEMENT
A. Governing Standard
In order to recommend reinstatement in this matter, this Panel must find that Prolman established, by clear and convincing evidence, that he meets each of the criteria set forth in Maine Bar Rule 29(e) or, if not, that there is a good and sufficient reason why the Petitioner should nevertheless be reinstated. To meet the clear and convincing evidence standard of proof, the party bearing the burden of persuasion may prevail only if that party can "place in the ultimate factfinder an abiding conviction" that the truth of their factual contentions is "highly probable." In re Estate of Home, 2003 ME 73, ¶ 18 n. 1, 822 A.2d 1177 (2003).
The criteria set forth in Rule 29(e) are as follows:
(1) the petitioner has fully complied with the terms and conditions of all prior disciplinary orders issued in Maine or in any other jurisdiction
except to the extent they are abated under Rule 30, unless such suspension, disbarment, or discipline is solely the result of reciprocal action resulting from disciplinary action taken by Maine authorities;
(2) the petitioner has not engaged or attempted to engage in the unauthorized practice of law during the period of suspension or disbarment;
(3) if the petitioner was suffering under a physical or mental disability or infirmity at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the petitioner's misconduct, the petitioner shall not be reinstated unless:
(A) the petitioner has pursued appropriate rehabilitative treatment;
(B) the petitioner has abstained from the use of alcohol or other drugs for at least one year; and
(C) the petitioner is likely to continue to abstain from alcohol or other drugs;
(4) the petitioner recognizes the wrongfulness and seriousness of the misconduct for which the petitioner was suspended or disbarred;
(5) the petitioner has not engaged in any other professional misconduct since suspension or disbarment;
(6) notwithstanding the conduct for which the petitioner was disciplined, the petitioner has the requisite honesty and integrity to practice law;
(7) the petitioner has met the CLE requirements of Rule 5 for each year the attorney has been suspended or disbarred, but need not complete more than 24 hours of approved credit hours for that entire period of absence from practice, provided that (i) no more than one half of the credit hours are earned through self study; (ii) at least two credit hours are primarily concerned with the issues of ethics or professionalism; and (iii) at least two credit hours are primarily concerned with issues of recognition and avoidance of harassment and discriminatory communication or conduct related to the practice of law; and
(8) In addition to all of the requirements in this provision, the attorney shall comply with Rule 4(a) and (b), and remit to the Board an arrearage registration payment equal to the total registration fee that the attorney would have been obligated to pay the Board under Rule 4(a) and (b) had the attorney remained actively registered to practice in Maine.
The Board stipulated that, as of the time of the hearing, Prolman had complied with the requirements of Bar Rule 29(e)(7) and (8).
B. Findings and Conclusions
(1) M.Bar.R. 29(e)(1): Compliance with Terms and Conditions of Prior Disciplinary Orders
(a) 2016 Reinstatement Condition: Four years of substance abuse counseling and treatment:
Pursuant to the terms of the 2016 Reinstatement Order (Board Exh. 901), Prolman's 2016 reinstatement was conditioned, in part, on:
No evidence was offered at the Hearing that any portion of the 2016 Reinstatement Order was abated or modified by the Court. M.Bar.R. 30.
• Continued engagement in substance abuse counseling and treatment to the satisfaction of the Board of Overseers of the Bar for a period of at least four years after the termination of any supervision pursuant to his federal sentence and community release.Prolman's period of probation ended on May 5, 2018.
Based on the evidence presented, the Panel finds as follows: Prolman completed an intensive, nine and a half-month residential substance abuse program while in federal prison. Prolman also completed the follow up and/or community components of that treatment program, see Pet. Exh. 15, while he was under supervised confinement at Pharos House. See Pet. Exhs. 16-17. There is no evidence in the record that Prolman engaged in any additional substance abuse counseling or treatment after he left Pharos House in May, 2016, despite the fact that Justice Alexander had conditioned his 2016 reinstatement on participating in such counseling/treatment for four years after the end of his probation, or until May 8, 2022. No evidence was offered that the Court abated or modified this reinstatement condition and nothing in the 2017 Suspension Order or the 2019 Sanctions eliminated this condition.
As will be discussed below, Prolman sought evaluation and counseling from Elise Magnuson, PsyD., LCSW, but that counseling did not address substance use.
At the reinstatement hearing, Prolman emphasized several times that the 2017 suspension did not involve the use of illegal drugs or excessive consumption of alcohol by him and minimized the role of alcohol in his 2017 violations. Although excessive drinking may not have been involved in the 2017 suspension, the conduct that led to that suspension involved a failure to observe the boundaries around alcohol use that were in place in both Prolman's probation conditions and the probation conditions of his client. See also M.Bar.R. 29(e)(3) ("Where alcohol and other drug abuse was a causative factor in the petitioner's misconduct, the petitioner shall not be reinstated unless ... the petitioner has pursued appropriate rehabilitative treatment...."). Prolman's failure to complete the substance abuse counseling required by the 2016 Reinstatement Order and his inability to maintain important boundaries around alcohol in 2017 cannot be said to be unrelated.
In short, Petitioner has failed to prove by clear and convincing evidence that he complied with the substance abuse counseling provision of the 2016 Reinstatement Order.
(b) 2016 Reinstatement Order: Association with Felons
The evidence at the hearing demonstrated that Prolman invited individuals serving felony convictions at Lewisburg to contact him upon their release. He did this despite the fact that his probation conditions prohibited him from associating with known felons. At least two individuals did, in fact, contact him and he willingly associated with them, at least in part during his probationary period. Although Petitioner justified this association because he was "helping them out", doing so crossed a boundary set by his federal probation conditions. Based on this evidence, the Panel finds that Petitioner did not prove, by clear and convincing evidence, that he met the 2016 Reinstatement condition that he comply the requirements of his federal probation.
(c) Receivership Order
The Board has taken the position that the Court's September 18, 2019, Order for Appointment of Receiver ("Receivership Order") qualifies as a "prior disciplinary order" and that Prolman failed to comply with the order. The Panel finds that the Receivership Order was directed at Neil Weinstein, Esq., the appointed receiver in this matter, not Prolman. To the extent that the provisions of the Receivership Order were not strictly met, the onus was not on Petitioner to ensure they were met. Therefore, the Panel does not consider proof of compliance with the Receivership Order part of Prolman's burden in establishing compliance with prior disciplinary orders.
That is not to say that Prolman's conduct or interactions with the Receiver Eire not relevant to other aspects of this proceeding.
(d) 2019 Conditions: Counseling/training
In his 2019 Sanctions Order, the Court imposed the following sanction:
... a suspension of two years with all but nine months suspended, with the suspended portion to be served subject to conditions to engage in counseling regarding boundary issues, and to engage in ethics training and counseling with particular emphasis on issues regarding client communications and relationships and what the rules of ethics require in terms of those relationships.
The Panel reads the Order to require Petitioner to continue to engage in counseling and training throughout the entirety of the suspended portion of his suspension, i.e. through September 30, 2021. In other words, the Court allowed Prolman to practice during that fifteen months, but only if he was in counseling throughout that period with respect to the issues listed. Prolman was placed under similar requirements in connection with his federal probation after the 2017 suspension, which he completed by attending regular counseling with Elise Magnuson, PsyD., LCSW, until his probationary period ended. See discussion of counseling with Dr. Magnuson, infra.
Prolman has failed to demonstrate that he is in compliance with the 2019 counseling conditions, for multiple reasons. First, at the time of the hearing, he had not attended any sort of counseling since he last saw Dr. Magnuson in December, 2019. Second, the 2019 Sanctions Order requires counseling with respect to both boundary issues AND client communications and relationships and what the rules of ethics require in terms of those relationships. Apart from the completion of 9-10 hours of CLE, half of which were self-study, Prolman offered no evidence that he has engaged in counseling with respect to client communications and relationships and what the rules of ethics require.While Dr. Magnuson may be skilled in assisting with boundary issues, which is discussed in more detail below, she was not established to have expertise with respect to the ethical rules governing attorneys or the standards governing client communications and relationships.
To the extent Prolman argues he no longer needs counseling on the relevant issues, the evidence at hearing did not support this assertion.
Five of these hours were self-study in seminars entitled "Lying, Loyalty, and Lots of Ethics Rules" (completed before the date of the 2019 Sanction Order), "Keeping Client Trust Even When Things Go Wrong", "Sexual Harassment: Understanding, Preventing, and Correcting", "Stuart Teicher Takes a Trip and Teaches about Misconduct", and "Law and the Good Life". Petitioner also completed five live CLE hours relating to harassment and discrimination and one live hour attending "Law and the Good Life". See Pet. Exh. 3(h). Three of the nine hours were ethics hours. Beyond the titles, no information was provided about the content of these seminars and how they comprised training that complied with the Court's order. Petitioner's testimony focused more on the volume of the hours than the relevance of the seminars to the issues he was ordered to address.
The only reference to the seminars in Dr. Magnuson's notes is a note that Petitioner informed her that he was taking CLE relating to harassment and discrimination and another note that Petitioner felt a particular CLE involved "man-bashing" and "no grain of truth". This last note was dated December 11, 2019, the same day he executed his final affidavit in support of his reinstatement. See Board Exhibit 202; Pet. Exh. 3.
For these reasons, Petitioner has failed to establish, by clear and convincing evidence, that he is in compliance with the counseling conditions of the 2019 Sanction Order.
(2) M.Bar.R. 29(e)(2): Engagement or Attempted Engagement in the Unauthorized Practice of Law During the Period of Suspension
As a result of the 2017 Suspension Order, Prolman's license was initially suspended from November 1, 2017, until May 1, 2018. The evidence presented at hearing was that Prolman complied with the terms of M.Bar.R. 31 in connection with this suspension, and, in conjunction with input from Bar Counsel, wound down his practice and abstained from the practice of law during that period.
As a result of the 2019 Sanctions Order and the Receivership Order, Prolman was again required to cease practice, effective October 1, 2019, and his practice was placed under the control and supervision of Attorney Weinstein. Attorney Weinstein, Petitioner, and Petitioner's longtime assistant testified as to the steps taken to transfer control of Prolman's practice to the Receiver in compliance with the Receivership Order. The Receiver testified that Prolman had done everything the Receiver considered necessary to comply with the Receivership Order and that, to his knowledge, Prolman had not engaged in, or attempted to engage in, the practice of law during his suspension.
The Board took issue with whether there had been strict compliance with certain provisions of the Receivership Order. The first question involved the requirement that the Receiver obtain signatory authority over all Prolman law office bank accounts. The Receiver examined Petitioner's IOLTA account and found there were no funds in the account and it appeared the account had been dormant for years. There was also an operating account that Attorney Weinstein testified was used by Petitioner to pay expenses relating to his Saco building, which housed his law office and other businesses. He testified that no lawyer funds relating to active cases were being deposited into that account and that it was being used strictly to pay building-related expenses. The Receiver did not interpret the Receivership Order as mandating that he obtain signatory authority of these accounts if he determined, in his discretion as Receiver, that it was not warranted. Despite questions about the propriety of leaving those accounts in Petitioner's control, no evidence was introduced that he actually used these accounts to engage in the unauthorized practice of law after his suspension.
With respect to the requirement that the Receiver obtain access to Prolman's mobile devices, Attorney Weinstein did not interpret that term to include cell phones and he did not take control of Prolman's phone. No evidence was introduced that Mr. Prolman used his cell phone to engage in the unauthorized practice of law after his suspension.
Finally, the Receivership Order requires the Receiver to secure the files of the Prolman law office. The testimony at the hearing was that Attorney Weinstein has custody of all active files and that the others are in a secure facility to which the Receiver has exclusive access. Attorney Weinstein testified that, at some point after control of the files had been transferred, Prolman informed him that a client asked for her closed file. He testified that he asked Prolman to pick up the keys from him, retrieve the file from storage, and send the file to the client via overnight mail. As far as he knew, Prolman did this and returned the keys to the Receiver. This version of events comports with Prolman's testimony to the Panel. Specifically, Petitioner testified that the client, L.L., discussed below, requested her file on November 20, 2019. According to Prolman, he then contacted the Receiver who asked him to get the file out of storage and send it. Prolman testified that he then performed the ministerial act of sending the file, as requested, with a simple enclosure letter, and that he did not provide any legal advice in connection with the provision of the file.
An examination of the cover letter to L.L., in conjunction with the other evidence in the case, contradicts Petitioner's characterization of the situation. See Pet. Exh. 55. The letter that Petitioner sent with the file materials is five paragraphs long. According to the letter, the client did not ask for her file. She asked for one particular document inside her file. Instead of just acting as a conduit for delivery of the material requested, as he told the Receiver, and as he told this Panel under oath, Petitioner analyzed the file and sent those portions of the file he determined she needed. He then made suggestions to L.L. as to what to review and advised her that certain missing information could be obtained by requesting a transcript of the relevant proceeding. At this point in his personal and professional relationship with L.L., she was angry with Prolman as to the result in the matter at issue and he was aware of it, as is discussed in detail below. The evidence supports a conclusion that, despite his suspension, Petitioner took L.L.'s request for information as an opportunity to provide advice in conjunction with his ongoing efforts to control the situation with L.L., while not being upfront with the Receiver about exactly what he was doing. The Panel concludes that Petitioner's letter to L.L. contained legal advice. Based on this, the Panel finds that Petitioner has failed to prove, by clear and convincing evidence, that he did not engage in the unauthorized practice of law during his suspension.
Prolman's denial, in the letter, that he is providing legal advice does not negate this conclusion.
(3) M.Bar.R. 29(e)(3): Removal of Any Physical or Mental Disability or Infirmity /Alcohol
Prolman offered evidence of his counseling work with Elise Magnuson PsyD., LCSW, in support of restatement, in light of the counseling condition contained in the 2019 Sanctions Order. Prolman's relationship with Dr. Magnuson began when the federal parole office overseeing his probation referred him to her for evaluation after the 2017 suspension of his license. Pertinent portions of her November, 2017, evaluation state:
See Pet. Exh, 11 for Dr. Magnuson's curriculum vitae.
Mr. Prolman denies both the original charges (of money laundering) and having engaged in sexual behavior with his client. He has completed drug and alcohol treatment while in prison and participated in out-patient treatment. Mr. Prolman does not present with signs or symptoms of mental health problems. The testing did not find evidence of depression, anxiety, or bipolar disorders. It is highly likely he does not have a mental health problem that requires mediation or treatment.
However, when looking at the behavior Mr. Prolman acknowledges engaging in, there appears to be a pattern of making very risky choices and not considering the potential damaging outcomes ... These situations [including bringing a client into his home] demonstrate a pattern of not paying attention to significant cues of potential problems for him.
Much of the documentation counters what Mr. Prolman said and suggests] he was not the "victim" in many of these situations. Even if he did not intend to cross legal or ethical boundaries, there is ample evidence that he did not pay attention to alarming factors and situations .... At minimum, Mr. Prolman continues to make risky decisions that have resulted in him making decisions that have negative consequences.
It is likely that Mr. Prolman's decision making was influenced by what he wanted to have happen, rather than being the result of others being "out to get" him. Mr. Prolman would benefit from therapy to address the thought patterns that underlie these decision-making processes. Some of these processes include hearing/seeing what he wants to and disregarding warning signs. Others appear expecting not to have to follow rules (such as pointing out his rules of release required he not associate with felons outside of work). It is unclear if his desire to manage the impressions others have of him, such as being "the good guy" or "successful" have encouraged him to take unwise risks. His therapist should consider the way narcissistic patterns have been problematic in the past and continue to be so.
Although she had not formally diagnosed him with the disorder initially, Dr. Magnuson testified at the reinstatement hearing that she would, in fact, diagnose Prolman as having narcissistic personality disorder. See infra.
Board Exhibit 203, at 8. Prolman sought to have Dr. Magnuson complete the recommended therapy and she agreed. Prolman engaged in approximately six sessions of therapy with Dr. Magnuson from December, 2017, through April, 2018, ending therapy in conjunction with the end of his federal probation. See Board Exh. 202 (Dr. Magnuson note) ("Doesn't wish to continue [treatment] - Reviewed when would need to return.").
According to Dr. Magnuson, Prolman's narcissistic thought patterns impact his feelings, behavior, decision-making, and interpersonal relationships. These narcissistic patterns are life-long and typically do not go away, but their impacts can be modified and lessened through therapy and related strategies. Dr. Magnuson testified that she considers all of Prolman's past, problematic behaviors - the money laundering, cocaine use, and 2017 client-related misconduct - to be related to his narcissistic patterns. Dr. Magnuson also testified that, as a result of his narcissistic personality, Prolman feels a need to present himself in the best possible light at all times, including presenting descriptions of his own goodness that do not fully comport with the facts.
Dr. Magnuson's initial work with Prolman focused on maintaining appropriate boundaries in the context of his interpersonal relationships, with emphasis on avoiding even the appearance of inappropriate sexual relationships with clients. See e.g. Petitioner's Exhibit ("Pet. Exh.") 14. As part of his narcissistic personality disorder, Prolman's strong desire to be seen as a "good guy" allows him to justify blurring the lines between attorney-client relationships and closer, more personal relationships. Petitioner struggled in counseling with the idea that, for him, the maintenance of healthy boundaries meant he would not be able to provide personal help to clients and others at the same level as in the past. To assist with this, Prolman and Dr. Magnuson worked on tools that could help him recognize and avoid troublesome situations and thought processes - so-called "stop signs". For example, Dr. Magnuson suggested meeting female clients during working hours only, when a staff person was also present in the office. Also, Petitioner was aware that he should treat his inclination to extend himself, financially or otherwise, to "save" people who are struggling, as a "stop sign", requiring him to avoid the situation or seek counseling with respect to whether his impulse is appropriate. Dr. Magnuson opined that any failure by Prolman to honor the stop signs flagged during counseling and employ the strategies put in place creates the risk that he will again cross an inappropriate boundary with a client.
Prolman told the panel at the reinstatement hearing that he had, in fact, implemented the strategies discussed with Dr. Magnuson, including keeping client relationships separate from personal friendships and avoiding meetings with his clients outside of his office, particularly after hours. See also Board Exh. 100, at 3, ¶ 7; id. at 4, ¶ 17 (Petition for Reinstatement); id. at 11, ¶ 24 (Final Affidavit of Gary M. Prolman).
In October, 2018, a couple of months after the Maine Supreme Judicial Court rejected the six-month suspension imposed by the Single Justice as too lenient, Prolman recommenced his sessions with Dr. Magnuson, seeing her approximately ten times between October 25, 2018, and May 23, 2019. The stated reason for returning to therapy was to deal with increased stressors in his life. Then, on October 15, 2019, Prolman returned to Dr. Magnuson to discuss the counseling requirements imposed by the 2019 Sanctions Order. During the October 15, 2019, meeting, Prolman and Dr. Magnuson "spent a lot of time" discussing whether Prolman needed further work on the issue of boundary maintenance. As a result of this session, Dr. Magnuson concluded that Prolman did not have a clinical need for counseling. Board Exh. 202, at 8. Prolman returned on November 3, 2019, and requested a letter to the Court outlining Dr. Magnuson's opinion that their 2017-2018 work had adequately addressed Prolman's boundary issues. Board Exh. 202, at 7; Pet. Exh. 14. Prolman had one last session with Dr. Magnuson on December 11, 2019. Board Exh. 202, at6.
The Court was under the impression, at the time of the 2019 Sanction Order, that Prolman's voluntary counseling after the Law Court decision {issued in August, 2018) related to boundary issues. See Board Exh. 909, at 25. That does not comport with Petitioner's position in this reinstatement proceeding, which is that the boundary work was complete as of April, 2018. The counseling relating to boundary issues was also not voluntary. Rather, it was done at the behest of the federal probation office.
Prolman testified at hearing that he did a "mountain of counseling". Prolman met with Dr. Magnuson about nineteen times over a two-year period.
Despite Dr. Magnuson's opinion of Prolman's progress, as expressed in the fall of 2019, it became clear during the course of the hearing that Prolman is not as capable of recognizing boundaries and "stop signs" as he would have had Dr. Magnuson or the Panel believe.
Evidence was presented at the hearing about Petitioner's relationship with L.L. L.L. is a long-time friend, and occasional client, of Prolman. She is one of the individuals who supported him in conjunction with his various disciplinary matters. Prolman admitted at hearing that he had a past sexual relationship with L.L., but testified that the sexual relationship did not overlap with any period of legal representation and that it ended in 2009. Prolman testified that he frequently gave funds to L.L. over the years to pay bills and meet other obligations, because she was often in difficult financial straits. He did not charge her for legal representation. See e.g Board Exhibit 1000, at 2 ("I did not charge her as she and her family have been on subsidized housing for years."). In 2018, L.L. was an active client of Prolman's from July 9th through the end of the year, in connection with two separate matters: (1) a burglary/ theft by unauthorized taking charge in Cumberland County and (2) a speeding ticket. During this time frame, Prolman made six separate payments to L.L. from his firm account that totaled $1,650. These payments were recorded on the checks as payments for cleaning; an exhibit submitted by Prolman to the Panel represented the payments were for cleaning, Pet. Exh. 69; and Prolman also so testified. This was all after Prolman had completed his counseling with Dr. Magnuson, where he told the Panel he had learned: (1) that it was important for him to keep attorney-client relationships separate from closer, personal relationships and (2) that he should see situations where he is inclined to extend financial help to struggling clients as a red flag, requiring caution and perhaps counseling.
As discussed below, the evidence appears to indicate that L.L. did not actually engage in cleaning for Prolman as represented, but that he would use money in his cleaning budget for the office to pass her funds.
In 2019, Prolman represented L.L. in multiple criminal matters. L.L. was an active client of Prolman's for the entire first half of 2019, extending through August 19, 2019, in connection with the following: (1) the speeding ticket matter that had commenced in July, 2018 (active 7/6/2018-1/9/2019); (2) charges of Aggravated OUI and Endangering the Welfare of a Child (active 12/6/2018-8/19/2019); and (3) a speeding and failure to display inspection ticket matter (active 2/17/2019-5/14/2019). See Pet. Exh. 67.
As noted above, one of the strategies Prolman testified he had put in place as a result of his work around boundaries was to meet with clients at his office, during office hours, preferably with his assistant present, and to avoid making himself available after hours. On March 12, 2019, while L.L. was a client, Prolman and L.L. had a text exchange at 7:17 p.m. in which Prolman asked her whether she wanted to "come over". Board Exh. 802, at 4. On March 31, 2019, he again contacted her via text to see if she wanted to meet at 9:30 p.m. Board Exh. 802, at 12. On April 5, 2019, Prolman texted L.L. and proposed meeting her at 8 p.m. to discuss her case and the hearing on his motion for relief from judgment. Board Exh. 802, at 17. On May 23, 2019, Prolman and L.L. communicated, via text, about meeting at approximately 10 p.m. so Prolman could congratulate her on her job "properly". Board Exh. 803, at 49.On May 26, 2019, they were arranging to meet at Prolman's house at around 6:30 p.m. Board Exh. 803, at 51. On June 11, 2019, they arranged to meet at 6 p.m. Board Exh. 803, at 55. On June 17, 2019, L.L. texted Prolman at 6:39 p.m. that she was on her way to meet him and was close. Board Exh. 803, at 56. On June 20, 2019, they had a text exchange at 8:29 p.m. about getting together later that evening. Board Exh. 803, at 57. A June 22, 2019, text exchange indicated that they were getting together at 6:21 p.m. Board Exh. 803, at 60.
On April 24, 2019, L.L. and Prolman have a set of text exchanges relating to a urinalysis done in relation to L.L.'s pending Aggravated OUI. L.L. states "there is cocaine in my system but I'm sure you're ready [sic] knew that". Board Exhibit 803, at 4. By May 10, 2019, Prolman had the test result indicating cocaine in her system at the time of the test in December, 2018. Id. at 19. There is no indication in the parties' text exchanges that knowledge of her substance use generated a red flag for Prolman at the time or had any impact on his ongoing relationship with L.L.
On this same date, Prolman wrote a check for $250 to L.L. for "cleaning". Pet. Exh. 69. The text exchanges between them that day do not discuss L.L. providing cleaning services for Prolman's office in Saco. Instead, they focus on L.L. attending to issues relating to a new job and plans to get together that evening. There is evidence elsewhere that Prolman would use office funds budgeted for "cleaning" to meet requests from L.L. for personal funds, with no expectation that cleaning services would be provided. See Board Exh. 803, at 167 (January, 2020, text exchange where L.L. states she is "broke" and needs to figure out how to get through the week; Prolman offers a check for $200 "which is what I've got in acct for cleaning").
The next day, June 18, 2019, Prolman writes L.L. a $200 check for "cleaning". Pet. Exh. 69.
On July 3, 2019, at 5:10 p.m., Prolman texted L.L. to say "I'm really excited to c u and hope u r too." L.L replied, asking if Prolman was planning to assist her with paying for her son's camp, and they had the following exchange:
Prolman: Yes, I can ... r u still excited to come here like I am
LL: What is the amount?
Prolman: Who do I make it out to?
Prolman: I'm jumping on shower ... when will u b here???
L.L replied that there was "$500 left" and that she was ten minutes away. Board Exh. 803, at 64. Prolman texted L.L. on July 21, 2019, that he was "home and showered, shaved, etc.", prompting further texts about getting together later that evening. Board Exh. 803, at 73. Prolman made payments to L.L. on or around the dates of several of these get-togethers.
Prolman wrote a check to L.L., from his firm account, for $500 toward the summer camp on July 3, 2019. Pet. Exhs. 69 and 69a.
L.L.'s OUI stop generated a hearing before the Bureau of Motor Vehicles in addition to criminal charges. Prolman represented L.L. at the BMV hearing in August, 2019, which resulted in the loss of her license. L.L. was very upset about this result and communications with Prolman broke off for a few months.
On August 9, 2019, L.L. had asked Prolman to help her with her car payment. Board Exh. 803, at 93-94. Prolman wrote L.L. a check for $150 on August 15, 2019, for bartending according to Petitioner's Exhibit 69 and Prolman's testimony.
In late November, 2019, L.L. restarted communications with Prolman. In a series of texts in late November, L.L. makes a series of statements questioning their past relationship and revealing she had contacted "the Board" to ask some questions. She accused Prolman of taking advantage of her, including expecting sexual favors from her in the context of his representation of her and in the context of her assistance to him in connection with his Bar disciplinary matters. Board Exh. 803, at 95-105; see also Board Exh. 803, at 207, 256, 263, 291, 315-317.
Although Prolman never explicitly admits, in response to L.L.'s allegations, that he had a recent sexual relationship with her, there are several texts where he appears to implicitly acknowledge that there was one, but that it was consensual. Board Exh. 803, at 208 (after accusation that he texted her three times a week for sex while he was handling her case, Prolman responded "...I never forced you to come here and helped you for so many years...the only time you had an issue is when I lost your first case ..."); Board Exh. 803, at 262-263 ("...if I was such a monster why did you keep coming over..."); Board Exhibit 803, at 290-92 ("I guess I forced you to come here for years [L] ... funny you had no problem when I helped everyone in your family, mother, boyfriend, daughter ... our 8 cases and never asked for anything in return from you ... if I was so bad [L] why did you keep calling me to come over ... everything happened between us was absolutely consensual and began long before I ever helped you or your family."); Board Exh. 803, at 292 ("funny when I got ur 8 cases dismissed or gave u money when u needed or helped your whole family over 8 ... years you had no problem w that... I never thought of our relationship as anything but consensual and u know u did too and I certainly never represented you in return for sex...."); see also Board Exhibit 1000 (police statement in which Prolman says he began a "relationship/friendship" with L.L. ten years ago, that lasted ""till today", further stating "she told me she had an on again/off again relationship with her boyfriend, so for several years she'd call me or I'd call her but she'd come to visit, and we became friends .. our relationship, although consensual was nothing serious from hers or my view"). Prolman's legal assistant, April Gardner, testified that Prolman told her that he and L.L. had an on-again/ off-again sexual relationship for years.
After they resumed communications in November, Prolman started making payments to L.L, paying her at least $13,177.22 between November 27, 2019, and March 25, 2020. Pet. Exh. 60. According to her text messages during this period, L.L. blamed Prolman for the loss of her license and the resulting inability to work and expected him to, in effect, replace that income. See e.g. Board Exh. 803, at 268, 284. Prolman responded to her frequent text messages about her economic needs with, at time desperate, attempts to mollify L.L., referencing his own financial difficulties, promising to make payments when he could, promising additional help once he got reinstated, and going to far as to tell her when he was going to receive funds in connection with his legal work that he could use to pay her. At the end of March, 2020, Prolman and L.L. started texting about him getting a loan and paying her a final, lump sum of $20,000 in exchange for a release and nondisclosure agreement. See e.g. Board Exhibit 803, at 270-271. On March 26, Prolman communicated that he had no funds and would not have any until he was paid by a particular client or his loan came through. Board Exh. 803, at 320.
See e.g. Board Exhibit 803, at 126 ("hopefully I'll b reinstated soon which will take away my cash crisis"); id. at 134 ("... I'm doing the best I can for you and look forward to helping ur family once reinstated"); id. at 215 ("...I'll give you half of that but that's the best I can do right now ... I'm so stressed out [L] as I know u r too not working ... hopefully the Bar will b ok any day").
In mid-March, 2020, as the exchanges with L.L. deteriorated, Prolman started to accuse L.L. of extortion. These accusations escalated until Prolman started raising the possibility of reporting L.L. to the police. See e.g. Board Exhibit 803, at 257; id. at 286-290; id. at 311-314, 317-318, 322-323; 327-328; 331-339. At no point before this had Prolman, an experienced criminal defense attorney, suggested to L.L. that her course of conduct or her receipt of payments from him were creating legal risk for her, nor did he advise her to seek counsel with respect to her course of action. Instead, he paid her and attempted to keep the situation under control, until he could no longer do so.
On March 27, 2020, Prolman, in fact, filed a complaint against L.L. with the Saco Police Department for theft by extortion. He eventually told the Saco P.D. that he did not want his funds back, but simply wanted L.L. to stop with her demands. According to the police reports provided, she agreed to this and police involvement ended. See Board Exh. 1000, at 34-38. In this same timeframe, L.L did also contact the Board about her experience with Prolman.
Prolman did not disclose or discuss his relationship with L.L. during his counseling sessions with Dr. Magnuson, nor did he seek assistance from Dr. Magnuson in addressing the escalating situation with L.L. When presented with the salient facts at the reinstatement hearing, even when making certain presumptions in Petitioner's favor, Prolman's interactions with L.L. were concerning and suggested to Dr. Magnuson that he had not made the changes he led her to believe he had made. She testified she could no longer opine that his narcissistic personality disorder has been sufficiently addressed/mitigated without additional investigation and work with Prolman. At a minimum, Dr. Magnuson would recommend continued treatment.
Another relationship that caused the Panel to question Prolman's mastery of the guidelines provided by Dr. Magnuson was Prolman's relationship with C.C. C.C. was called by Prolman to highlight his generosity and confirm he never made sexual advances toward her. C.C. is significantly younger than Prolman - she was twenty-seven at the time of the reinstatement hearing. They met in 2016 at an establishment where C.C. was bartending and they became friends over the course of a year or so. C.C. was economically vulnerable during the course of their relationship and was, for a period, a client. In 2017, Prolman represented C.C. in connection with a speeding ticket. He went beyond representation and ended up paying the fine for her. In 2017 and possibly 2018, Prolman also gave C.C. money towards a medical office skills class. C.C. then testified that she was struggling financially in June, 2019, so Prolman offered to allow her to stay in his guest room rent-free, echoing his actions towards the complainant in the 2017 matter. C.C. lived in Prolman's apartment in Saco, with him, from June, 2019, until December, 2019. Mr. Prolman did not disclose his relationship with C.C. to his counselor, despite the power differential between them, nor did he seek Dr. Magnuson's input with respect to extending financial help to C.C. by offering her his guest room and co-habiting with her for six months.
Dr. Magnuson testified that she would diagnose Prolman with narcissistic personality disorder and that the actions that resulted in his conviction for money laundering, his drug use, and his 2017 misconduct with his client all stemmed from this disorder. Based on this evidence, the Panel concludes that Prolman has a mental health diagnosis that impacts his ability to meet his ethical obligations as an attorney, that the condition existed at the time of the 2017 suspension, and that the condition directly related to the conduct that resulted in that suspension. Furthermore, Petitioner's work with Dr. Magnuson appears to have been inadequate to mitigate the risks associated with his narcissistic personality disorder. There is ample evidence in the record that Prolman is still unable to identify and maintain appropriate boundaries in situations that pose a significant risk of misconduct. Therefore, the Panel finds that the criteria set forth in M.Bar.R. 29(e)(3) apply to this matter and that Prolman has failed to demonstrate, by clear and convincing evidence, that he meets them.
In addition to the risks posed by his narcissistic personality disorder, Prolman has also failed to demonstrate any work relating to his failure to maintain boundaries around alcohol use in 2017. If that conduct qualifies as alcohol "abuse", this would provide another reason Prolman has failed to meet the Rule 29(e)(3) criteria. See supra Section II (B) (1) (a).
(4) M.Bar.R. 29(e)(4); Recognition of the Wrongfulness and Seriousness of the Misconduct for which the Petitioner was Suspended.
Prolman continues to deny that he had a sexual relationship with the client involved in the 2017 suspension, so he does not acknowledge the conduct at all. Prolman argued at hearing, however, that he has demonstrated recognition of the wrongfulness and seriousness of the conduct because he has educated himself about, and accepts, the wrongfulness of the type of conduct at issue, namely having a sexual relationship with a vulnerable client, even if he does not admit doing it, and that he does regret bringing the client into his home and otherwise blurring the boundaries of his attorney-client relationship with the client.
Prolman may regret bringing the client into his home, but he also appears to continue to place the blame for what happened at the client's feet. There was evidence at the hearing that, when discussing the matter with those in his circle, Prolman's explanation of what happened is that he helped someone who was not of "good character", who then victimized him. As discussed previously, there is evidence that, after the 2017 suspension order, Petitioner used extremely derogatory language when discussing the client with L.L, who also knows her, indicating that the client was going to "get what's coming to her". This does not support the conclusion that Prolman recognizes the wrongfulness and seriousness of his own conduct, including the negative impacts that he had on the client's life. It certainly does not evidence intent to make amends for those impacts, or even an intent to avoid inflicting additional harm to her. Instead, he has continued to malign the client to others and to blame her for what happened.
The Panel did consider Pet. Exhs. 19 and 20, which are sealed, and Petitioner's testimony relating to the import of those documents. Given the fact that Petitioner's own self-interest in risk mitigation was also served by the actions evidenced by these exhibits, this evidence does not alter the Panel's conclusions with respect to this reinstatement criteria.
Perhaps the strongest evidence that Prolman does not accept the wrongfulness and seriousness of the conduct that led to his discipline is the situation that developed with L.L. Despite giving lip service to his work on boundary issues, Prolman blew through all the relevant stop signs when it came to L.L. L.L. was economically vulnerable. There is evidence that she has or had substance use/abuse issues. Her circumstances were such that she faced repeated criminal charges for which she needed representation and she depended on him for that representation and additional financial support, which he provided. He had frequent meetings with her well after office hours, at his home. Despite his denials, based on the parties' contemporaneous text messages and other evidence described above, the Panel finds it likely that Prolman indeed had a sexual relationship with L.L. while she was a client, and that she perceived that sexual relationship, to some degree, as a quid pro quo for financial assistance and legal representation. When their attorney-client and personal relationship fell apart, Prolman then engaged in efforts to silence L.L. that continued to blur appropriate boundaries and that potentially exposed her to criminal liability, while then taking advantage of that exposure when it suited him. Much of the conduct described in the preceding sentence occurred after Prolman had submitted his Petition for Reinstatement.
For these reasons, and other relevant evidence cited herein, the Panel finds that Prolman has not met his burden of proving, through clear and convincing evidence, that he recognizes the wrongfulness and seriousness of the misconduct for which he was suspended.
(5) M.Bar.R. 29(e)(5): Professional Misconduct Since Suspension.
The evidence presented at hearing implicates Prolman's potential violation of M.R.P.C. 1.80), which prohibits a lawyer from having sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. The text messages between Prolman and L.L., when considered in the light of the other evidence, strongly suggest that they engaged in sexual relations while she was a client. The evidence indicates that they had an on-again/off-again sexual relationship driven, at least in part, by L.L.'s need for financial assistance or legal representation, which does not appear to be the sort of pre-existing, "consensual" sexual relationship contemplated by the rule. The power dynamics between Prolman and L.L. strongly suggest that any sexual relationship between them was not fully consensual. In light of the other evidence, Prolman's denials of inappropriate conduct with L.L. fall flat. Prolman simply failed to create an "abiding conviction" in the Panel that it was "highly probable" he did not violate Rule 1.8(j).
Based on the other findings made herein, the Panel also concludes that Prolman failed to establish, through clear and convincing evidence, that he has not violated various other Rules of Professional Conduct, including Rules 1.7(a)(2); 2.1, 3.3(a)(1); 3.3(a)(3); 8.1(a); 8.4(a), 8.4(c); 8.4(d), since his suspension.
(6) M.Bar.R. 29(e)(5): Requisite Honesty and Integrity to Practice Law.
With respect to Prolman's character as a general matter, evidence was presented at the reinstatement hearing of Prolman's extensive history of community involvement and various good works. This history has been cited by the Court in previous disciplinary orders relating to Petitioner, including the 2016 Restatement Order. Prolman outlined this history in his testimony before the Panel, including his actions coaching high school hockey while in college and beyond, his assistance to various alma maters with outside admissions, his fundraising efforts for the Make-A-Wish Foundation and various other groups, his organization of community fundraisers and charity events for various causes, his involvement in creating and supporting the Maine High School Hockey Invitational, his work assisting individuals sentenced to federal prison with respect to navigating the system, and his volunteer work for his synagogue. See also Pet. Exh. 66. He also testified about his involvement with the Portland Boxing Club, an amateur youth boxing organization, which was verified by the testimony of the individual who runs the club. In addition, evidence was presented with respect to pro bono legal work done by Prolman over the years.
Petitioner's Exhibit 7(a) contains seventy-seven (77) letters of support that were submitted at his original reinstatement hearing in 2016. Pet. Exh. 7(a). These letters were all drafted prior to Prolman's second suspension. With two exceptions, no evidence was provided that any of the letter writers in Petitioner's Exhibit 7(a) support Mr. Prolman's reinstatement at this time.
Petitioner also offered evidence of instances where he extended himself to provide financial help or other support to clients or others. This included two witnesses who had served sentences for felony convictions at the Lewisburg facility with Petitioner. Both of these witnesses testified that Prolman told them to let him know if they ever needed anything after they were released. Prolman, in fact, provided financial assistance and encouragement to both individuals.
As noted above, at least some of Mr. Prolman's interactions with these individuals, who had felony convictions, occurred during his federal probationary period, which ended in May, 2018, and prohibited Prolman from contacting felons.
Finally, Petitioner submitted evidence that many clients hold him in high regard and value his skill and service as their attorney. Petitioner's Exhibit 7 contains more than thirty letters of support from different individuals - all women - that were submitted to the Single Justice in connection with the 2017 Suspension and the proceeding leading to the 2019 Sanction Order. In addition to discussing Prolman's service as their attorney, many of these individuals write that Petitioner did not make sexual advances, nor did he otherwise, in their view, act inappropriately toward them or make them feel uncomfortable. These letter writers included L.L. and some of her family members. Two letter writers testified at the reinstatement hearing. With respect to the rest, the current status of their support for Petitioner was not provided.
The fact that Prolman gives significant time and resources to causes and people in his community cannot be disputed. The fact that many clients and others are willing to testify on his behalf also cannot be disputed. Similar evidence has been offered in every disciplinary hearing involving Mr. Prolman. Similar evidence was offered at his federal criminal sentencing. Back in 2014, the federal judge who sentenced Prolman noted:
Mr. Prolman has a genuine desire to help people. His charitable works, his reputation in the community for assisting people, young athletes, students was brought clearly to me with the multitude of letters that I received and read. There*s simply no issue that way beyond that of any average person, he had a significant impact on the lives of many athletes and non-athletes in the community and one should certainly not deny him credit for that....Board Exh. 911, at 118 (Singal, J.).
Despite these observations, Judge Singal also recognized another hidden side to Mr. Prolman - the Gary Prolman that operated outside of the cultivated public persona. The Prolman that crossed inappropriate boundaries in private and attempted to keep those actions hidden or cover them up with disingenuous explanations. See e.g. Board Exh. 911, at 119 ("Mr. Prolman is [deluding] himself if he believes that any reasonable person listening to this story would think that he was a babe in the woods."). Recognizing this, Judge Singal discounted the testimony of multiple witnesses who testified at sentencing because they had not been given the whole story:
What concerns me is that Mr. Prolman didn't level with me and he didn't level with anyone else. When the press called him, he didn't level with them because he was concerned about his reputation in the community and he didn't level with the people who wrote letters to me by making themfiilly cognizant of what was going on in this case before they would write a judge expressing their views. And I don't think he leveled with his family ... I think his family was learning today things that they didn't know ever.Board Exh. 911, at 119 (emphasis added).
These observations are still applicable today in assessing the relevance of the character witnesses Prolman offered in support of reinstatement. From the testimony at hearing, it can be concluded that Prolman minimized the reasons for his discipline to the character witnesses that appeared before the Panel. For example, the Executive Director of Prolman's temple testified as to her personal experiences with Prolman as a volunteer and wrote in support of his reinstatement on two occasions. See Board Exhibits 5, 5a. This witness was aware that someone had accused Prolman of sexual misconduct, which conduct he denied to her. She was not aware, however, that a Court had found that Prolman actually engaged in client-related sexual misconduct, which she had to admit on cross might impact her recommendation. Another example is the Director of the Boxing Club where Prolman volunteers. This gentleman testified that Prolman told him that he got in trouble because he agreed to help out a client who did not have good character, and that it backfired and resulted in a false sexual harassment allegation. Although these and the other character witnesses are well-versed with the face Prolman wants them to see, their testimony is of limited value in assessing the risk posed by what goes on behind closed doors.
Also countering Petitioner's character evidence are demonstrable instances of lack of candor on Prolman's part as he attempted to obscure or conceal his issues with L.L. First, as discussed in detail above, Prolman was not candid with the Receiver in November, 2019, about the nature of the file retrieval that took place relating to L.L.'s request for materials. In addition, Prolman specifically testified to this Panel that all he did was retrieve and provide the file with a simple enclosure letter when that was not the case.
Then, there was the lack of candor in Prolman's December 11, 2019, Petition for Reinstatement. The most blatant example of this is Prolman's submission of a 2018 letter from L.L. in support of his Petition. The letter was submitted in connection of paragraph 14 of the Petition, which stated:
...Petitioner has not had any complaints similar in character made in the Bar Complaint in the Petitioners lifetime, let alone during the practice of law, and in fact, has included letters of nearly all female clients that the Petitioner has represented over the last four (4) years, or females he has interacted with at his office through employment, (see Exhibit 4. Letters of female clients, female business associates, and female personnel.)Board Exhibit 100, ¶ 14. Exhibit 4 attached to the Petition contains a November, 2018, letter from L.L. Board Exhibit 100, at 50-51.
The submission of this letter was an implicit representation to the Board, on December 11, 2019, that L.L. supported his reinstatement. This was accompanied by the explicit representation in paragraph 14 of the Petition, that the 2017 Bar Complaint was an aberration and no one else, in any context, had ever accused him of an inappropriate sexual conduct. See also Board Exhibit 100, ¶ 14 ("Petitioner has not engaged in any other professional misconduct like this before or after this suspension."}. This representation was made despite the fact that L.L. had recently told Prolman she felt he had taken advantage of her through their sexual relationship and referenced calling the Board. The representation was made on the same day Prolman made a car payment on behalf of L.L. in his ongoing attempt to control the situation and prevent L.L. from making a complaint. See Pet. Exh. 60 (12/11/2019 Payment); see also Board Exh. 803, at 114-115. None of those details were disclosed. Instead, Prolman represented that no one had any complaints about him and held L.L. up as an example.
See also Final Affidavit of Gary M. Prolman, dated 12/11/2019 ("I also know and recognize that any type of sexual relationship with any client is inappropriate for me and I assure Bar Counsel and this Court I will never ever place myself or anyone else in this situation again."). Board Exhibit 100, at 11, ¶ 24.
The Petition also stretches the truth with respect to Petitioner's counseling with Dr. Magnuson. The Petition states that Prolman underwent "significant counseling to assess the issues surrounding the suspension voluntarily before this Sanctioning Order." Board Exhibit 101, at 3, ¶ 7; see also id. at 4, ¶ 17 ("...Petitioner recognizes the wrongfulness and seriousness of the allegations made by his former client which the suspension revolved around, and has engaged in every possible way in exhaustive counseling (24 sessions to date) ...."). The evidence at hearing was that Prolman's work around boundaries - six sessions only - was not voluntarily completed. Rather, it was required by his federal probation. To the extent he engaged in other counseling, that was to deal with stressors in his life, not to work on boundary issues.
Prolman goes on to say he continued counseling after the 2019 Sanctions Order and had reached an endpoint. Board Exhibit 100, at 3, ¶ 7. The implication of this is that Prolman continued to work earnestly on the issues relevant to his suspension after the Sanctions Order. Again, we know that his boundary work ended in April, 2018. Furthermore, after the July, 2019, Sanctions Order, Prolman did not go to see Dr. Magnuson until October 15, 2019, and he had a total of three visits before the Petition was filed. During the October 15, 2019 visit, Prolman did not tell Dr. Magnusson about his relationship with L.L. He did not mention that C.C., a financially vulnerable, former client, was, at that moment, living in his apartment. Rather, he selectively shared information to lead Dr. Manguson to conclude that he did not need further work on boundaries. On November 13, 2019, he went back to see her to request a letter in support of his Petition. His final session with Dr. Magnusson was on December 11, 2019, the day he filed the Petition, during which session he revealed he was struggling with the CLEs he was attending. The reality of Prolman's counseling just does not comport with his spin on the facts as presented to the Board and the Panel.
Also problematic, in the Final Affidavit submitted with his Petition, executed under oath on December 11, 2019, Prolman stated that the Receiver, Attorney We in stein had maintained the key to the storage facility where his closed files were kept "throughout the entire suspension process”. Board Exhibit 100, at 9, ¶ 9. He also reiterated that his clients knew that they would be able to obtain any file materials through the Receiver, an implicit assurance to the Board that all client contact and file retrieval would go through the Receiver. See Board Exhibit 100, at 8, ¶ 8; id. at 9-10, ¶ 13. It is now clear, from the evidence presented at trial, that the key was not continuously in the Receiver's possession. As noted previously, Prolman convinced the Receiver to let him have the key in connection with L.L.'s request for file materials, without disclosing that there was more going on with this former client than a simple file request and without disclosing that he was going to be doing more than just copying the file with a simple, one-line enclosure letter. This calls into question Petitioner's candor with the Board and his candor with the Receiver.
Furthermore, representations made in some of the exhibits prepared and submitted by Prolman at hearing do not hold up under scrutiny. Already discussed is the documentation, and Prolman's supporting testimony, that L.L. was paid certain sums over the years for "cleaning", when the evidence suggests this was not the case. Then there is Petitioner's Exhibit 60, which is a summary prepared by Prolman describing the circumstances of his payments to L.L. between November 27, 2019, and March 25, 2020. The summary was submitted to the Saco Police Department and also to this Panel as evidence. Petitioner's Exhibit 60 references multiple dates when Prolman alleged that he was forced to make payments due to "threatening" phone calls from L.L. The summary states that he made a February 19, 2020, payment after several threatening calls. A review of Prolman's phone bills shows one phone call from Prolman to L.L. on February 19, but not one incoming call from her number. The payment made on Sunday, February 23, 2020, was allegedly made in response to "multiple calls on Friday and Saturday3' where L.L. made threats and demands for money. Prolman's phone records for Friday, February 21, and Saturday, February 22, 2020, show one single phone call from Prolman to L.L., but no incoming calls from her number. According to the log, L.L. then made many phone calls on February 25, 2020, demanding more money with multiple threats, during which calls she was "high as a kite". There are no incoming calls from L.L. to Prolman on February 25, 2020. More threatening phone calls were then allegedly made on February 28, 2020. Prolman's phone records show no calls to or from L.L. on February 28, 2020. Indeed, there were no calls to or from L.L. between February 25 and February 28, 2020. Prolman's summary alleges multiple calls from L.L. over multiple days leading up to March 11 and repeated calls and threats for several days leading up to March 18, 2020, with four calls on the morning of March 18 alone. The summary also states that, on March 25, L.L. made multiple calls to Prolman "speaking irrationally to [him] with all kinds of lies she was going to tell the Bar". He stated that, as a result, he paid her $350.00, but she still "continued to call several times during the day to continue her threats and intimidation." Pet. Exh. 60 (second page). Prolman's phone records show that there were two incoming calls to Prolman from L.L.'s number for the entirety of the month of March. The first such call was on March 3 and it lasted two minutes. The second such call was on March 12 and it lasted eleven minutes.
When confronted with these inconsistencies at the hearing, Petitioner claimed that he was using the terms phone call and text exchange interchangeably and that his references to "calls" were intended to include "texts". This seems unlikely, particularly after a review of the language used in Pet. Exh. 60, a review of the relevant text messages, the fact that Prolman knew how to specify texts in other places, and the fact that Prolman, an experienced criminal defense attorney, was crafting this document for use by the police to pursue criminal charges against L.L. Furthermore, Prolman's reference to the fact that the communications were calls rather than texts permitted him to make claims such as the fact that L.L. was "high as a kite" when they spoke and that she was "speaking irrationally". Referencing phone calls would also permit him to make assertions about the content of the communications that could not be contradicted by a writing. For these reasons, the Panel does not find credible Prolman's assertions that the alleged phone calls from L.L. enumerated in the exhibit were meant to reference texts. In sum, the factual assertions made in Petitioner's Exhibit 60 simply do not hold up under examination. Rather, it appears the summary was an attempt by Prolman to paint an inaccurate picture of his interactions with L.L., first to gain traction with the police and then to discredit L.L. during the course of this reinstatement proceeding.
Prolman's conduct surrounding L.L. again harks back the decisionmaking that led to his criminal conviction. To again quote Judge Singal:
Mr. Prolman will understand fully that he made several serious mistakes. Number one, he thought he wouldn't get caught and that the short period of collecting $250,000 in drug money would go by, he would get on his financial feet... and his dreams of becoming a sports agent would come true. And number two, perhaps more disastrously for him, he believed that because he had always been able to convince people that his side of the story was accurate, that the same would work in the criminal justice system here. He was wrong in both cases.See Board Exh 911, at 120-121. The evidence at hearing indicates that he is still making these mistakes, i.e. internally justifying a course of unethical conduct to get himself out of difficulty and trusting that he can use his persuasive skills to spin the facts and avoid consequences if his conduct is discovered.
Turning to the issue of integrity, in order to have the integrity needed to practice law, an individual must, at the least, have the reasonable ability to align one's actions with the boundaries, rules, and standards that one is expected to abide by as a practicing Maine attorney. The record in this matter is replete with evidence that Petitioner still struggles with aligning his actions with relevant standards and boundaries in this way. This is particularly so when Petitioner is operating in his "danger" areas, where his inclination to find justifications for ignoring relevant boundaries is high.
Based on all of these factors, and other relevant facts found elsewhere in this decision, the Panel cannot conclude that Petitioner has met his burden of proving that he has the requisite honesty and integrity to practice law.
III. RECOMMENDATION
Based on the findings contained in this decision, the Panel concludes that Petitioner has failed to demonstrate, by clear and convincing evidence, that he has met the criteria set forth in M.Bar.R. 29(e)(1)-(6). Furthermore, Petitioner has not demonstrated any other reason why he should, nonetheless, be reinstated. As a result of the findings and conclusions set forth herein, the Panel recommends that Petitioner's Petition for Reinstatement be DENIED.
The Board requested a recommendation that Petitioner not be permitted to apply for reinstatement for a period of three years after the Court's order denying his Petition. The scope of the Grievance Commission's jurisdiction in this matter is to render findings and recommendations as to whether Petitioner met the Rule 29(e) criteria or should otherwise be reinstated. M.Bar.R. 29(g). The length of any prohibition against re-filing is squarely within the jurisdiction of the Court. M.Bar.R. 29(h). Having said that, many of the facts found herein suggest strongly that Petitioner should be prohibited from refiling a Petition for Reinstatement for more than one year. Petitioner's issues are not minor and his showing at hearing was not close to establishing that he should be reinstated. The instant Petition was disingenuous and lacking in candor in many respects, yet the Board, Bar Counsel's Office, and the Panel were required to expend considerable time and resources to evaluate and litigate it, including four full days of hearing. In light of the resources required to litigate each filing and the multiple ways Petitioner fell short, a significant moratorium on refiling would be appropriate.
JANE CLAYTON, ESQ.
SOPHIA LEOTSAKOS-WILSON, PUBLIC MAMBER