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Board of Overseers v. Lefebvre
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1998 ME 24
Docket:		Yor-97-77
Argued:		October 9, 1997
Decided :		January 29, 1998

Panel:	WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN , and LIPEZ, JJ.



BOARD OF OVERSEERS OF THE BAR v. ALBERT P.C. LEFEBVRE




PER CURIAM

	[¶1]  Albert P.C. Lefebvre, an attorney admitted to practice law in
Maine, appeals from an order of a single justice of the Supreme Judicial
Court (Glassman, J.), acting on a two count information filed by the Board of
Overseers of the Bar, finding that he violated several provisions of the Maine
Bar Rules, and suspending him from the practice of law for eight months.  
Lefebvre contends inter alia that the court made clearly erroneous findings
of fact; erred by concluding that he violated the Bar Rules; denied him due
process of law by ruling on issues beyond the parties' stipulation of issues;
and violated his free speech rights by sanctioning him for the content of his
speech.  We affirm the order with respect to count I of the disciplinary
information.  Because, in sanctioning Lefebvre for the conduct described in
count II, the court went beyond the issues the parties stipulated as being
before the court, we vacate the order with respect to count II.
I. Representation of Muriel Crocker
	[¶2]  Muriel Crocker, the sister of George Brunelle, was appointed as
the personal representative of Brunelle's estate.  Crocker hired Lefebvre to
represent her in connection with the administration of the estate.  Lefebvre
told Crocker that his fee would not exceed $5,000.{1}  Monies were collected
from Brunelle's various bank accounts and deposited into an estate checking
account.  At Lefebvre's request, Crocker signed several blank checks and
authorized him to co-sign checks drawn on the estate's account.
	[¶3]  Lefebvre prepared an undated, single-page accounting of the
estate.  The document, signed by Crocker in her capacity as personal
representative, showed a zero balance in the estate and contained the
following type-written language:  "Distribution of checks January 27, 1993
as above."  The accounting listed $7,926.41, or 5% of the value of the estate,
as Lefebvre's legal fee.  Although there was some question about the purpose
of the document, Lefebvre testified that it was his "final report" to Muriel
Crocker and the beneficiaries.
	[¶4] Concerned that this accounting did not reflect her
understanding of Lefebvre's fees and the amounts to be distributed to the
beneficiaries, Crocker requested from Lefebvre a clarification and all checks
representing disbursements from the estate.  When Lefebvre did not
respond, Crocker retained another attorney.  That attorney informed
Lefebvre that Crocker's primary complaint was that his $7,926.41 fee was
excessive and requested a statement for legal services rendered.  Lefebvre
did not respond.  Crocker obtained copies of cancelled checks from the
bank and discovered that four checks had been deposited in Lefebvre's
account.  One of the checks was dated March 3, 1993.  The checks totalled
$13,379.22, an amount not shown on the final accounting.  
	[¶5]  Crocker filed a complaint against Lefebvre with the Board and a
petition for fee arbitration.  See M. Bar R. 3.3(c).  In connection with the
arbitration, Lefebvre prepared an itemized statement of his services,
something he had not done previously.  A panel of the Fee Arbitration
Commission found that there were no novel or difficult questions in settling
the estate, although there were disputes between beneficiaries concerning
some items of personal property.  The panel determined that a fair and
reasonable compensation for the services rendered by Lefebvre was $3,000. 
See M. Bar R. 9.  
Rice v. Lefebvre litigation
	[¶6]  For several years, Lefebvre has been embroiled in a boundary
dispute with his neighbor, June Rice, and her late husband Dr. Robert Rice. 
Mrs. Rice brought an action for trespass and damage to her property against
Lefebvre in the Superior Court.  Following a nonjury trial, the court
(Fritzsche, J.) found that Lefebvre had intentionally trespassed on Rice's
land, damaged her fence, and harassed her.  In August, 1993, the court
entered judgment for Rice, awarded treble damages and attorney fees, and
assessed punitive damages as a result of Lefebvre's "very malicious
conduct."{2}  
	[¶7]  Attorney S. James Levis represented the Rices in the protracted
litigation with Lefebvre.  In a May 1, 1995 letter to a local attorney, Lefebvre
accused Levis of stalking him and concluded "that there is a developing law
theory which can be called legal stalking based on Mr. Levis' conti[n]uing
representation of [the Rices]."  Lefebvre sent copies of the letter to
Governor King, Attorney General Ketterer, several members of the Maine
Senate, the mayor of Biddeford, and the Biddeford building inspector. 
Lefebvre also wrote a letter to Attorney General Ketterer, dated June 21,
1995, stating:

	It has been suggested that the "Punishment Order" of
Justice Fritzsche bears the marks of a pay off.  The Order is
primarily a payment to the opposing attorney, James Levis, Jr.
Esq. whose law firm represented both, the Plaintiff Rice and
the City of Biddeford, and does not cite constitutional or case
law. . . .  The matter of the financial punishment should be
investigated and reverse[d] as in the best interest of all Maine
citizens. 

Levis obtained a copy of Lefebvre's May 1, 1995 letter and forwarded it to
the Board.	
	[¶8] Pursuant to M. Bar R. 7.1(e), a panel of the Grievance
Commission held a public disciplinary proceeding concerning Lefebvre's
conduct.  Pursuant to Rule 7.2(b)(7), the Grievance Commission authorized
Bar Counsel to file a disciplinary information.  The first count of the
information, relating to Lefebvre's representation of Muriel Crocker, alleged
that Lefebvre violated Maine Bar Rules 3.1(a){3}; 3.2(f)(2), (3), and (4){4};
3.3(a){5}; 3.4(f)(2)(ii){6}; and 3.6(a)(3).{7}  The second count, relating to the Rice
litigation and the accusations against Justice Fritzsche and Attorney Levis,
alleged that Lefebvre violated Maine Bar Rules 3.1(a); 3.2(c)(2), (e)(1), and
(f)(4){8}; and 3.7(a).{9}
	[¶9]  The parties stipulated to the following issues for litigation: (1)
whether Lefebvre charged Muriel Crocker an excessive fee and whether his
accounting was inaccurate; (2) whether Lefebvre purchased a safe from an
estate that he represented; (3) whether Lefebvre took legally unreasonable
positions and filed frivolous appeals in Rice v. Lefebvre; (4) whether Lefebvre
observed allegedly unethical behavior by Attorney Levis, but did not report it
to the Board; (5) whether Lefebvre accused Justice Fritzsche and Attorney
Levis of conspiring and participating in a bribery scheme.  Not included in
the stipulation were the discrete issues of whether Lefebvre had good moral
character or had engaged in turbulent, intemperate, or irresponsible
behavior.  
	[¶10]  Following a hearing, the court concluded, with respect to
count I, that Lefebvre had violated Maine Bar Rules 3.3(a), 3.4(f)(2)(ii), and
3.6(e)(2)(iii){10} and had conducted himself in a manner unworthy of an
attorney.  With respect to count II, the court found that Lefebvre's May 1 and
June 21, 1995 letters were intemperate, irresponsible and manifested a
lack of the good moral character necessary for the practice of law.  See
4 M.R.S.A. § 805-A (1989 & Supp. 1997); Sanborn v. Kimball, 64 Me. 140
(1875).  The court did not conclude that Lefebvre had violated any of the Bar
Rules cited in count II of the information.  This appeal followed.  See
M. Bar R. 7.2(b)(5). 
II.
	[¶11]  In an attorney discipline case, we review the inferences drawn
by the court from the evidence presented at the hearing, and must uphold
its findings of fact unless they are clearly erroneous.  Board of Overseers of
the Bar v. Dineen, 481 A.2d 499, 502 (Me. 1984).
Count I
	[¶12]  Lefebvre argues that the record does not support the court's
conclusion that he violated M. Bar R. 3.3(a) by charging Muriel Crocker an
excessive or illegal fee.  We disagree.  A fee is excessive "when, after a
review of the facts, a lawyer of ordinary prudence would be left with a
definite and firm conviction that the fee is in excess of a reasonable fee." 
M. Bar R. 3.3(a).  Although Lefebvre initially estimated his legal fees for
handling the estate at $5,000, he paid himself fees totalling over $13,000. 
A panel of the Fee Arbitration Committee determined that $3,000 was fair
and reasonable compensation for Lefebvre's services.  The record clearly
supports the finding that Lefebvre charged an excessive fee and the 
conclusion that Lefebvre violated Rule 3.3(a). 
	[¶13]  Lefebvre also challenges the court's conclusion that he violated
M. Bar R. 3.6(e)(2)(iii), which obligates a lawyer to maintain complete
records of a client's properties possessed by a lawyer and to "render
prompt and appropriate accounts to the client regarding them."  Lefebvre's
records in connection with his representation of Muriel Crocker were
neither promptly prepared nor were they appropriate.  Lefebvre's "final
report" listed $7,926.41 as his fee, although it appears that he had paid
himself over $10,000 by January 23, 1993.  The fourth check, in the amount
of $2,124.85 and payable to cash, was deposited into Lefebvre's personal
account sometime after March 3, 1993.{11}  The record supports the court's
findings that Crocker requested a clarification and copies of all checks
representing disbursements from the estate, and that Lefebvre failed to
respond.  Further, Lefebvre concedes that he did not respond to a similar
request from the attorney Crocker hired to look into the accounting of the
estate.  Crocker did not receive an itemized statement for Lefebvre's
services until she filed a petition for fee arbitration.  In these circumstances
the court did not err by concluding that Lefebvre violated
M. Bar R. 3.6(e)(2)(iii).  Accordingly, we affirm the order with respect to
count I of the information.{12} 
Count II
	[¶14]  A disciplinary information filed pursuant to M. Bar. R. 7.2(b) is
analogous to a civil complaint, Board of Overseers of the Bar v. Rodway,
461 A.2d 1062, 1064 (Me. 1983), and for that reason, "absent surprise or
other prejudice, the [court] may consider more than the specific sections of
the Bar Rules cited in the information."  Id.  In this case, the court did not
find that the Board had sustained its burden of proving by a preponderance
of the evidence that Lefebvre had violated any of the Bar Rules cited in count
II of the information.  See M. Bar R. 7.2(b)(4).  Instead, the court concluded
that the accusations against Attorney Levis and Justice Fritzsche in
Lefebvre's May 1 and June 21, 1995, letters were intemperate and
irresponsible.  See In re Feingold, 296 A.2d 492, 500 (Me. 1972) (stating
that "[t]urbulent, intemperate or irresponsible behavior is a proper basis for
the denial of admission to the bar.").  The court also concluded that the
letters evinced a lack of good moral character and constituted conduct
unworthy of an attorney.  See 4 M.R.S.A. § 805-A(2)(A) (1989 &
Supp. 1997); M. Bar R. 3.1(a).  We agree with Lefebvre's contention that, in
the circumstances of this case, he did not have fair notice of the possibility
that he would be sanctioned for lack of good moral character or intemperate
or irresponsible conduct. 
	[¶15] The Due Process Clauses of the Maine and Federal
Constitutions{13} require that an attorney must be given a hearing before he is
deprived of the right to practice law on the ground that he lacks character
and fitness.  Willner v. Committee on Character and Fitness, 373 U.S. 96,
83 S. Ct. 1175,  10 L. Ed. 2d 224 (1963); Board of Overseers of the Bar v.
Lee, 422 A.2d 998, 1003 (Me. 1980).  This requirement includes fair notice
of the charges against the attorney.  In re Ruffalo, 390 U.S. 544, 550,
88  S. Ct. 1222, 1226, 20 L. Ed. 2d 117 (1968).
	[¶16]  In this case, following a pretrial conference, the court
requested that the parties enter into a stipulation of issues for litigation. 
The parties filed the stipulation.  There is no indication the parties waived
the stipulation or otherwise consented to the court's consideration of issues
beyond those in the stipulation.  Cf. O'Neill v. Williams, 527 A.2d 322
(Me. 1987) (stating that court's decree should be limited to issue as framed
by the parties stipulation).  Given that the issues were stipulated by
agreement of the parties, Lefebvre did not have fair notice that he could be
sanctioned on the basis of lack of good moral character.  There is
fundamental unfairness in predicating a sanction on the overarching
requirement of good moral character, when lack of good moral character is
not identified as an issue in the stipulation of the parties, and when the
Board has failed to persuade the court with respect to violations that have
been specifically alleged.  Had Lefebvre known that his moral character
would be evaluated by the court, he could have adduced evidence and
constructed arguments to refute that theory of misconduct.  The court's
consideration of issues beyond the scope of the information and the parties'
stipulation can constitute surprise.  Board of Overseers of the Bar v. Rodway,
461 A.2d at 1064.{14}
	[¶17]  We recognize that modern pleading is not a "game of skill in
which one misstep by counsel may be decisive of the outcome" of the case. 
61A Am. Jur. 2d Pleading § 3 (1981).  We also recognize that litigants should
be encouraged to enter into stipulations whenever possible.  Nevertheless,
when neither the information nor the stipulation explicitly designates the
intemperate, irresponsible, or turbulent nature of the attorney's conduct or
the attorney's good moral character as issues for litigation, fundamental
notions of fairness underlying the Due Process Clauses prohibit the
imposition of a sanction on either basis.
	[¶18]  Further, we are unpersuaded by the Board's contention that its
allegation that Lefebvre violated M. Bar R. 3.1(a) was sufficient to put
Lefebvre on notice that his good moral character was at issue.  Any such
notice was superseded by the parties' stipulation, which governed the
proceedings and limited the issues to be decided by the court.  
	The entry is:
Judgment affirmed in part and vacated in part. 
Remanded for a determination of the
appropriate sanction related to count I of the
information. 


Attorney for plaintiff: Karen G. Kingsley, Assistant Bar Counsel (orally) Board of Overseers of the Bar P O Box 1820 Augusta, ME 04332-1820 Attorneys for defendant: John C. Bannon, Esq. (orally) Michael D. Traister, Esq. Murray, Plumb & Murray P O Box 9785 Portland, ME 04104-5085
FOOTNOTES******************************** {1} Lefebvre testified that the beneficiaries of the estate "kept pressing" for a fee calculated as a percentage of the estate. He also testified that, despite his awareness of a case prohibiting percentage fees in estate matters, see Estate of Davis, 509 A.2d 1175 (Me. 1986), he quoted a percentage fee "to try to work with the family." The court did not find, and we need not decide, whether Lefebvre charged an illegal percentage fee in connection with his representation of Muriel Crocker. As discussed below, the court's conclusion that Lefebvre collected an excessive fee in violation of M. Bar R. 3.3(a) is amply supported by the record. {2} On appeal, we affirmed the judgment and sanctioned Lefebvre for filing a frivolous appeal. Rice v. Lefebvre, 644 A.2d 1032 (Me. 1994). {3} M. Bar R. 3.1(a) provides that Maine Bar Rule 3, the Code