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					STATE OF MAINE

CUMBERLAND, ss.					SUPREME JUDICIAL COURT
									DOCKET NO. Bar-99-6


BOARD OF OVERSEERS OF THE BAR	)
									)
				Plaintiff			)
									)
			v.						) 		FINDINGS,
									)		CONCLUSIONS
									)		and SANCTION
KAREN M. BURKE, Esq.				)
									)
				Defendant			)



	This matter was heard by the court on February 23, March 1, and
March 2, 2000, pursuant to an information filed by the Board of Overseers of
the Bar.  The Board was represented by Assistant Bar Counsel, Geoffrey S.
Welsh.  Karen M. Burke, Esq., Maine Bar #2940, was present and
represented by Philip P. Mancini, Esq.
	The information filed by the Board alleged violations of the Maine Bar
Rules occurring in the course of Burke's representation of three separate
clients.  Specifically, the Board charged Burke with violating Bar Rules
3.1(a), 3.2(f)(2)-(4), 3.3(a), 3.4(f)(2)(i), 3.6(a)(1), (2) & (3), and 3.7(b) &
(e)(1)(i).
	During the hearing, both sides submitted a number of exhibits and the
court heard testimony from Burke's former clients, Gail and Robert Beesley,
Carolee Weglarz, and Stephen Weston; attorneys Waldeman Buschmann,
Daniel Peterson, and Donald Gasink; Heidi Pushard; Rhonda Cook and Cheryl
Cutliffe, as well as testimony from Burke, herself.  Based on this testimony
and the record evidence, the court finds the following facts and draws the
following conclusions:
I.  FINDINGS AND CONCLUSIONS
1.Karen Burke, a sole practitioner, operates a law practice in Winthrop,
Maine.
A.  THE BEESLEYS
2.In May 1996, Gail and Robert Beesley sought the services of Burke
with regard to their financial situation.
3.Burke was relatively experienced in the bankruptcy field having
clerked for the United States Bankruptcy Court following law school.
4.After contacting Burke and meeting with her in person, the Beesleys
were under the impression that Burke would handle all matters
associated with their Chapter 7 bankruptcy for a flat fee of $750, in
addition to the filing fee of $175.  Supporting the Beesleys' belief that
a flat fee arrangement had been agreed upon is Burke's own Rule
2016(b) statement (Fed. R. Bankr. P. 2016(b)) dated June 13, 1996, in
which Burke represented that the $750 was to cover all the routine
tasks associated with what proved to be an unremarkable Chapter 7
bankruptcy.
5.The Beesleys paid $750 to Burke the day of their first meeting and
paid the $175 filing fee roughly a month later.  
6.Burke filed the bankruptcy petition on behalf of the Beesleys in June
1996.
7.Burke believed that the $750 was merely a retainer to be applied
toward her fees and expenses, and she billed the Beesleys monthly for
her services on an hourly basis.  Although Burke was unable to produce
a fee agreement signed by the Beesleys, she did produce an addendum
to the fee agreement signed by the Beesleys agreeing to hourly charges
for work done by a newly hired paralegal.
8.Burke billed the Beesleys for $903.24 in addition to the original $750,
and was paid $478.24 beyond the $750.
9.The Beesleys paid the monthly bills for a period of time and, as the
bills mounted, worked out a payment plan with Burke which allowed
them to pay $25 a month and thereby avoid interest charges on the
remaining balance due.
10.	The Beesleys received their bankruptcy discharge in October 1996.
11.Eventually, however, the Beesleys retained other counsel because they
felt they had been misled about the nature of their fee arrangement
with Burke.
12.Through their new attorney, the Beesleys sought to reopen their
bankruptcy case and sought an order compelling Burke to disgorge the
fees they had paid to her up to that point in time.
13.As a result, it came to the attention of the Bankruptcy Court that
Burke's Rule 2016(b) fee disclosure statement to the court either did
not accurately state the terms of her fee arrangement with the
Beesleys, or Burke had billed her clients not in accordance with that
arrangement.
14.Burke's response to the Beesleys' motion to reopen was aggressive. 
She claimed that the additional charges were entirely appropriate
pursuant to her fee agreement with the Beesleys and that her Rule
2016(b) statement accurately disclosed this fee arrangement.
15.The Bankruptcy Court made short but painful work of this "first line of
defense."  In addition to concluding that Burke "abused her clients
badly" and "misled the court" with her Rule 2016(b) statement, the
Bankruptcy Court wrote:
	Were I to conclude, as Attorney Burke contends, that
she and her clients agreed to an "hourly against retainer"
fee arrangement, she would be left to explain why her Rule
2016(b) statement misrepresented that arrangement to
the trustee, to creditors, and to the court.  As it stands,
her situation is little different.  Having undertaken the
Beesleys' representation for a flat fee, and having disclosed
that arrangement to the court in plain English, she
deliberately proceeded to bill the debtors on an altogether
different basis.

Beesley v. Burke (In re Beesley), Case No. 96-10686 (Bankr. D. Me.
Aug. 15, 1997) (footnote omitted).
16.The court granted the Beesleys relief, ordered that Burke disgorge all
fees paid to her by the Beesleys ($1139.42); and determined that the
Rule 2016(b) disclosure statement described a flat fee arrangement
that was inconsistent with the hourly charges for which Burke had
been billing the Beesleys.
17.The court also ordered that Burke discharge the Beesleys' remaining
balance ($425) and pay their attorney fees associated with the
disgorgement petition ($1776.04).
18.Finally, the court ordered that Burke appear at another hearing,
pursuant to 11 U.S.C.A.  105(a) (1993) and Fed. R. Bankr. P. 9029:
to show cause why additional sanctions, including
suspension from practice in this court and enjoining
collection of post-petition fees from clients similarly
situated to the Beesleys, should not be ordered.

Beesley, Case No. 96-10686.

19.Between the show cause order and the hearing, Burke softened her
approach.  She explained in an affidavit to the court that the
inconsistencies between her billing practices and the Rule 2016(b)
statement, the form for which she had borrowed from another lawyer,
were the result of inattention rather than any "intent to deceive this
Court or my clients."
20.Burke wrote to all her bankruptcy clients with outstanding balances
(6) and canceled their unpaid balances ($6,400).
21.At the show cause hearing, the court determined that no further
sanctions were appropriate, noting the remedial measures Burke had
taken to address the issue of the accuracy of future Rule 2016(b)
statements and her efforts with respect to other bankruptcy clients.
22.The court accepted Burke's disclaimer that she did not harbor a
subjective intent to mislead the court regarding her fee arrangements.
23.The court admonished Burke, however, about her reliance on a form
that she had used routinely but that did not accurately reflect her fee
arrangements with her bankruptcy clients.
24.This court concludes that the Beesley matter was caused by Burke's
failure to clearly explain and document her fee arrangement with the
Beesleys which resulted in their perception that they had not been
treated fairly by the individual that was their advocate.  Her subsequent
remedial measures, however, which included revising the form in
which she discloses her fee agreements to the court and discharging
the balance owed by former clients, reflect a renewed attention to the
details of her bankruptcy practice and her dealings with bankruptcy
clients.  When the shortcomings in her conduct before the Bankruptcy
Court were brought to her attention, she corrected them in an
appropriate manner.
25.With respect to her specific representation to the court regarding the
source of the initial $750 payment made by the Beesleys, Burke had
indicated in her fee disclosure statement that the money had come
from the Beesleys' wages and earnings.
26.In their first interview with Burke the Beesleys told Burke that they
had taken a cash advance the previous week.{1}
27.Because the advance was not more that $1000, it was of marginal
relevance on the issue of the dischargeability of the Beesleys' credit
card debt.  See 11 U.S.C.A.  523(a)(2)(A) & (C) (1993) (establishing
the presumption that cash advances greater than $1000 taken 60 days
before filing a bankruptcy petition are extensions of credit obtained by
false pretenses or fraud and therefore constitute nondischargeable
debt).
28.Burke also testified that she did not believe that the money used to pay
her had come from the cash advance.
29.The record reflects that Mr. Beesley's average weekly income at the
time was in excess of $800.
30.Notwithstanding Burke's attempt to "paint the Beesleys as bad people
by pointing to credit card cash advances they supposedly took on the
eve of bankruptcy," Beesley, Case No. 96-10686, this court accepts
Burke's testimony that she did not believe these credit card funds
were used to pay her fees.
31.The court concludes with regard to this issue that, regardless of
Burke's good faith belief, the recent credit card cash advance should
have prompted more inquiry from Burke regarding the disposition of
this cash advance for purposes of her Rule 2016(b) statement.  While
Burke may not have willfully misrepresented the source of the
Beesleys' payment to her, Burke's failure to inquire further may have
resulted in the court not being fully informed on matters relevant to
the bankruptcy proceedings.  As noted above, however, Burke has
since amended her practice to provide both more accurate and more
detailed disclosures regarding her fee arrangements, demonstrating
an appropriate response to the problem.
32.The court is satisfied that Burke's conduct was prejudicial to the
administration of justice in violation of Maine Bar Rule 3.2(f)(4).  The
court is not persuaded as the Board has alleged that Burke's conduct
amounted to a violation of Maine Bar Rules 3.2(f)(2-3), 3.3(a), 3.7(b)
and 3.7(e)(1)(I).  The court is also satisfied that Burke's bankruptcy
billing practice and her representations regarding it were the product
of negligence rather than venality.
B.  CAROLEE WEGLARZ
33.In November 1992, Carolee Weglarz and Daniel Austin contacted
Burke regarding the purchase of a piece of property.  Burke had
represented Weglarz previously in a divorce.
34.Prior to contacting Burke, Weglarz and Austin had entered into a
purchase and sale agreement with respect to the property.
35.At their request, Burke issued a certificate of title opinion indicating
that the seller of the property had marketable title to the property,
free and clear of all encumbrances.
36.The title opinion specifically excepted matters that a physical
inspection or survey of the property would reveal.  Burke admitted,
however, that she came to the legal conclusion at the time of her title
opinion that the sellers had a right of way to a nearby lake.
37.	Burke then prepared a warranty deed for transfer of the property. 
	The deed purported to convey the property and a right of way to the
	lake.  Additionally, the deed contained a warranty of title on behalf of
	the seller.
38.When searching and certifying the title, and drafting the deed, Burke
made several mistakes.  She did not appreciate that the deed did not
convey a right of way over retained lands of the grantor, Manter; the
out-conveyances referenced by Burke in the deed had conveyed the
previous owner's, i.e., Haskell's, property abutting the lake; Haskell
had retained only a personal (and probably) nontransferable right of
way to the lake; and Haskell's deed to Manter only conveyed the first
segment of Haskell's three-segment right of way to the lake. 
39.These deficiencies should have been apparent without physically
inspecting the property or obtaining a survey.
40.Two years later, Burke represented Weglarz in matters surrounding
the end of her relationship with Austin.
41.Burke prepared and Austin executed a quitclaim deed ceding his
interest in the property to Weglarz.
42.Burke's representation of Weglarz in these and other matters had been
concluded by April 1996. 
43.In late August 1996, Burke received a letter from an attorney
representing the owners of the land over which Weglarz believed she
had a right of way.
44.The attorney, having been informed that Burke had done the title
work, indicated that before contacting Weglarz he was contacting her
to provide her an opportunity to clear up the question of whether a
right of way in fact existed across his clients' property.
45.Burke testified that she believed that she forwarded a copy of the
attorney's letter to Weglarz.
46.Weglarz testified that she did not see a copy of the letter until
December of 1998.
47.The court finds that Weglarz's recollection in this regard is not
reliable.  A copy of the letter was sent to her directly by the attorney
for the landowners in June 1997 and she references the letter in her
complaints to the Board of Overseers of the Bar in July and October
1998.
48.Additionally, Weglarz testified to a contact between herself and the
property owners in the summer of 1996 regarding the right of way. 
Both Burke and Weglarz testified to a conversation occurring roughly
contemporaneously with the August 1996 letter in which Burke
informed Weglarz that a right of way did not entitle her to keep her
canoe in the vicinity of the landowners' dock.
49.Furthermore, this court credits Burke's testimony that Burke did not
formally respond to the August 1996 letter from the landowners'
attorney because she had not been authorized by Weglarz to
communicate with this attorney on her behalf, i.e., Weglarz had not
asked Burke to represent her at that time in the dispute concerning
the right of way.
50.The attorney for the landowners sent a letter to Weglarz directly in
June 1997 enclosing a copy of his earlier letter to Burke and
informing Weglarz that she did not have a right of way to the lake.
51.Weglarz and Burke communicated in the fall of 1997 about the
disputed right of way.  Although Weglarz did not recall specifically
authorizing Burke to enlist the services of another attorney, she did
recall telling Burke to take care of the problem.
52.It was reasonable for Burke to conclude from her communications
with Weglarz that she was authorized at that time to represent Weglarz
in the matter, including doing what was necessary to confirm the
existence of the right of way to the lake.
53.Burke's client notes indicate that she spoke with Weglarz in the early
part of November 1997 and she testified that Weglarz agreed to a
retainer of $200 at that time.  Burke failed to memorialize this
agreement, however.
54.Although Burke did not receive the retainer, she nevertheless pursued
the right of way matter.
55.Burke at this point admittedly had two reasons to resolve this dispute: 
first, she had given a title opinion arguably certifying the existence of a
right of way to the lake; and second, her client had asked her to take
care of the problem.
56.Burke asked a colleague to research the existence of the right of way.
57.Burke conceded that if the colleague found a title problem that she
should have caught in her prior research, she would have taken
responsibility for her colleague's charges and for resolving the dispute.
58.The colleague, mistakenly, as it turns out, confirmed the existence of a
right of way to the lake and indicated that any ambiguity could be
resolved by a couple of corrective deeds from the client's grantor
(Manter), and the estate of the grantor's grantor (Haskell).
59.Burke forwarded the results of her colleague's research to both
Weglarz and the attorney for the landowners contesting the right of
way.
60.The attorney for the landowners promptly responded that the twenty-
foot right of way referenced in Weglarz's deed did not run to the lake
and Haskell's fifteen-foot right of way to the lake was personal to him
(i.e., could not have been conveyed to others), had been abandoned by
Haskell before his death, and in any event had not been conveyed to
Manter, Weglarz's grantor.
61.Notwithstanding opposing counsel's response, Burke, again
aggressively, took the position with Weglarz that the defect, if any, in
the right of way conveyed by Manter was not attributable to the quality
of Burke's title search or her drafting of the warranty deed.
62.Although in this regard she was in error, based on the memorandum
prepared by her colleague claiming that Weglarz had a right of way to
the lake, Burke's position was not necessarily unreasonable, at least
originally, and did not constitute a misrepresentation on her part.
63.Consistent with her view that she had not erred, Burke sent her client
a bill for her services and that of her colleague.
64.When her client filed a grievance, Burke persisted in her belief that
her performance was entirely appropriate.{2}
65.Although Burke's actions in 1996 and 1977 were not unreasonable,
the title problem was the result of Burke's inadequate title work.
66.The court is satisfied that Burke's handling of the original title work
was "without preparation adequate in the circumstances" in violation
of Maine Bar Rule 3.6(a)(2).  The court is not persuaded, as the Board
has alleged, that Burke's conduct amounted to a violation of Maine Bar
Rules 32.(f)(3), 3.2(f)(4), 3.3(a), 3.6(a)(1) and 3.6(a)(3).
C.  STEPHEN WESTON
67.Burke first represented Stephen Weston in a lengthy and protracted
divorce.
68.She continued to represent him in post-divorce proceedings and in a
foreclosure action related to the divorce.
69.	These matters were concluded by the early fall of 1997.
70.In the course of these proceedings, Weston incurred substantial
attorney fees pursuant to two written fee agreements between himself
and Burke which also provided for the accrual of interest on unpaid
balances.  By the fall of 1997, Weston had an outstanding balance of
roughly $11,000 with Burke.
71.Although Weston's and Burke's testimony conflict about who first
proposed the arrangement, they agreed that Burke would lease office
space in a building owned by Weston and that the rental payments
would be applied to offset Weston's outstanding balance.{3}
72.Burke moved into the space at the end of November 1997 without a
written lease.
73.Burke asked Weston repeatedly for a written lease, but he did not
provide one.
74.Weston stated in his testimony to this court that he did not do
business that way.
75.Burke eventually took the initiative and, following discussions with
Weston, attempted to memorialize the terms of their rental agreement
in a written lease which they both signed at the end of January 1998.
76.Weston testified that, although he had not read the final draft of the
lease at the time he signed it, the lease did not in fact reflect his
understanding of the terms of his agreement with Burke. 
77.Simultaneously with these lease negotiations, Burke assisted Weston
with an application to the Winthrop Planning Board that would allow
Weston to make commercial use of his property, including renting
space to Burke and using the remaining portion of the building for his
furniture restoration business.
78.	Burke appeared before the Planning Board along with Weston.
79.Although the parties did not have a written fee agreement specifically
addressing her representation of Weston in the Planning Board
matter, Burke billed Weston for her Planning Board services.
80.The Board has failed to demonstrate that Burke's lease of office space
in lieu of a collection action was tantamount to an impermissible
business transaction with a client.
81.Even if such an arrangement were a business transaction requiring the
opportunity to consult outside counsel, Burke urged Weston to contact
another attorney on several occasions in her efforts to secure a written
lease.
82.Although Weston testified that Burke never suggested that he see
another attorney, this court credits Burke's testimony on this point.{4}
83.Lastly, while Burke's monthly rental amounts were being credited
against Weston's balance, interest continued to accrue on the unpaid
balance as provided in the written fee agreement.
84.Although Burke had a practice of suspending interest accrual if a client
made monthly payments, Burke was not required to make this
accommodation pursuant to the terms of her fee agreements with
Weston.
85.There is no evidence that the lease arrangement incorporated an
agreement to suspend interest.  Therefore, it does not appear that
Burke's failure to suspend interest was unreasonable.
86.The court is not persuaded, as the Board has alleged, that Burke's
conduct amounted to a violation of Maine Bar Rules 3.2(f)(3) & (4),
3.3(a), 3.4(b)(f)(1) & (2), 3.5(a)(2), 3.6(e)(2)(iv), 3.7(b), 3.7(e)(1)(i)
and 3.7(h)(2).
II.  SANCTION
	The Court must consider the appropriate sanction in light of the
findings and conclusions stated above and the violations found.  In this
consideration, the Court's determinations must be guided by the Maine Bar
Rules' directive that the purpose of this disciplinary action "is not
punishment but protection of the public and the courts from attorneys who
by their conduct have demonstrated that they are unable, or likely to be
unable, to discharge properly their professional duties."  See M. Bar R. 2(a).
	The Board urges the Court to briefly suspend Burke as a result of her
violations of M. Bar R. 3.2(f)(4) (conduct prejudicial to the administration of
justice) [Beesleys] and 3.6(a)(2) (handling a legal matter without preparation
adequate in the circumstances) [Weglarz].    The Board's recommendation is
based on what it considers to be aggravating factors:
First, Burke had substantial experience in practicing law,
especially doing bankruptcy work.  Second, she engaged in
multiple violations of the bar rules.  Third, Burke did not timely
acknowledge the wrongful nature of her misconduct, doing so
only after she had initially and aggressively responded to those
allegations.  Fourth, as bankrupt clients, the Beesleys were
vulnerable victims.  Fifth, Burke took a particularly crabbed,
indifferent view to making restitution to the Beesleys, the
Bankruptcy Court completely rejecting her defense that her Rule
2016(b) statement accurately disclosed her fee arrangement
with them.

Although, not unmindful of these factors, the Court is also aware of several
mitigating factors:
	Burke practices alone in a largely rural area of Maine.  The breadth of
her practice and perhaps that of many solo practitioners is substantial.  A
solo practitioner offering a large menu of legal services is going to make
mistakes.  Even a specialist in a department of specialists in a large law firm
makes mistakes.  When the State is required to provide an indigent person
with a lawyer, we do not require perfection only the performance of an
"ordinary fallible attorney."  See Aldus v. State, 2000 ME 47, ¶ 12, 748 A.2d
463, 467.  Mistakes are a fact of life.  We should not suspend or disbar
lawyers for garden variety negligence.  I will not do so here.
	Secondly, Burke's "aggressive," "see no error," posture may have been
taken on the advice of counsel.
	Third, to the extent that Burke tended to exacerbate the situation
when she was challenged by clients, it may have been caused by the stress of
being overworked and understaffed.
	Finally, consistent with the many written testimonials submitted in
her behalf, the Court is satisfied that Burke is a thoughtful, caring,
hardworking professional.
	Although Burke violated two bar rules, neither a disbarment nor a
suspension is necessary to protect the public, secure compliance with the
rules or acknowledge the seriousness of the violations.  The violations are
sufficiently serious however, that the Court will impose a reprimand.
	It is therefore ORDERED that respondent Karen M. Burke is hereby
reprimanded for her violations of M. Bar R. 3.2(f)(4) and 3.6(a)(2).


Dated:  09/15/00
			
						_____________________
						Howard H. Dana, Jr., Associate Justice
FOOTNOTES******************************** {1} . Burke's interview notes, as well as her testimony, fixes the amount at $1000. Mrs. Beesley testified, however, that the amount was $750. {2} . Weglarz has warranty covenants from her grantor and, so far as the record indicates, has chosen not to remedy her situation by pursuing them. This is particularly puzzling because, it appears, that h