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DOCKET
NO. BAR-03-6
BOARD OF OVERSEERS OF THE BAR
Plaintiff
v.
ORDER
Philip L. Ingeneri, Esq.
of
Bangor, Maine
Me. Bar #1443
Defendant
Defendant Philip L.
Ingeneri, Esq. of Bangor is an attorney admitted to practice law in Maine and
subject to the Maine Bar Rules.
In early l999, Richard Parks Anderson had renovation
work done at his furniture business in Ellsworth, known as the "Richard Parks
Furniture Store." For that purpose
he entered into a fixed-price contract with John Wilbur, d/b/a John Wilbur
General Contractor. A
dispute arose between Anderson and Wilbur. From Anderson's perspective, Wilbur failed to complete the
work and had done an inadequate job on the work he had completed.
Wilbur filed a civil complaint against Anderson in the
Superior Court (Hancock County) alleging that Anderson owed him money under their
construction contract. On
Anderson's behalf, Ingeneri filed an answer, a motion to dismiss Wilbur's
complaint, and a counterclaim seeking damages for the inadequate and incomplete
work.
On
or about December 21, 2000, Ingeneri contacted Anderson requesting information
and documents. Anderson promptly
provided those materials to Ingeneri.
Anderson was never told by Ingeneri that any further papers or answers
were required.
Commencing
in January 2001, Anderson began to telephone Ingeneri for case status updates,
and did so at least a dozen times over the next several months. Ingeneri did not respond to those
inquiries.
On or about
June 7, 2001, Wilbur's filed a motion for sanctions for failure to supply
discovery. Ingeneri failed to
inform Anderson that this motion for sanctions had been filed, and Ingeneri
failed to provide discovery to Wilbur.
An order to compel discovery was entered against Anderson. Anderson was not notified.
Subsequently,
Ingeneri allowed an order of default to be entered against Anderson. Ingeneri did not inform Anderson that a
request for default judgment had been filed, and failed to file any objection
to the default being entered. Ingeneri
recognized his own misconduct in his letter to opposing counsel of January l0,
2002, and in his related motion to continue the hearing on damages of that same
date. In the January letter,
Ingeneri stated that "[t]he failure to provide the [requested] discovery . . .
was entirely attributed to [Ingeneri's] non-action and not to that of Mr.
Anderson." Ingeneri did not send
copies of the letter or the motion to Anderson. Anderson continued to be uninformed as to the true status of
his case. The damage hearing
resulted in a February 25, 2002 judgment being entered against Anderson in the amount
of $64,015.36.
Anderson
was never informed by Ingeneri of any court judgment being entered against him,
and learned of that judgment on or about June 11, 2002, when he was served with
a disclosure subpoena in connection with Wilbur v. Anderson. Shortly
after being served with the subpoena, Anderson went to Ingeneri's office to
obtain his file materials. At that
time Ingeneri apologized for his misconduct, had no excuse, acknowledged that
it was his fault, and stated he "would not walk away" from it.
Anderson's
subsequent attempts to have the judgment vacated were unsuccessful, and he was
forced to settle with Wilbur, and to pay Wilbur $50,000. Anderson had to sell his wife's real
estate to pay the settlement and he lost his retirement savings and his
children's college fund savings.
Anderson
sued Ingeneri for malpractice in the Superior Court (Penobscot County) and a
default judgment in the amount of $50,000 was subsequently entered.
Anderson
complained to the Board of Overseers of the Bar concerning Ingeneri's
misconduct. By Bar Counsel's
letter of November l3, 2002, Ingeneri was notified and provided with a copy of
Anderson's grievance complaint, and directed to respond to Bar Counsel by
November 27, 2002. Ingeneri failed
to respond despite Bar Counsel's second notice letter of December 2, 2002, sent
by certified mail and received on December 4, 2002, by Ingeneri's agent.
Pursuant
to M. Bar R. 7.1(d)(e), a Grievance Commission panel disciplinary hearing was
held on April 3, 2003. The panel issued
its report on the same date, finding probable cause for the suspension or
disbarment of Ingeneri, and pursuant to M. Bar R. 7.2(b), directed Bar Counsel
to commence this attorney disciplinary action with the Court.
At that April 3
hearing, Ingeneri testified under oath and made the following admissions and/or
statements about his misconduct:
a. He had mishandled Anderson's legal matter;
b. When confronted by Anderson, he did tell him that he
"had dropped the ball on his case" and was "sorry" for that;
c. He had made no payment on the $50,000 default judgment
Anderson had obtained against him;
d. He has no malpractice insurance coverage;
e. He had "no explanation . . . as to a matter of law" to
provide why he never informed Anderson about his case between July 26, 2001,
and December 19, 2001; and
f. he did not return all of Anderson's calls about the
status of his case.
Subsequent to the
entry of default being entered against him, Ingeneri filed for bankruptcy
protection resulting in an automatic stay, which stay remains in place. As a result of that stay, the Superior
Court's default judgment in favor of Anderson in the amount of $50,000 was set
aside. Anderson has filed a claim
in the Bankruptcy Court seeking to collect the $50,000.
The
Court finds, and Ingeneri does not challenge the findings, that Ingeneri has
violated Bar Rule 2(c), failure to respond to Bar Counsel; Bar Rule 3.1(a),
conduct unworthy of an attorney; Bar Rule 3.2(f)(3), conduct involving
dishonesty, fraud, deceit, or misrepresentation; Bar Rule 3.2(f)(4), conduct
that is prejudicial to the administration of justice; Bar Rule 3.6(a)(2),
inadequate preparation of a client's matter; and Bar Rule 3.6(a)(3), neglect of
a client's matter.
PRIOR HISTORY
Attorney Ingeneri has the following significant prior
disciplinary record history on file with the Board of Overseers of the Bar:
1. March 11, 1978: "Letter of Reprimand" issued by the
Court (Godfrey, J.) for "repeated delay in filing a brief on behalf of a
client."
2. November 30, 1981: Three-month suspension from
practice issued by the Court (Archibald, J.) for violation of M. Bar R. 2(c),
3.2(f)(3), and 3.6(a)(2)(3).
Ingeneri's appeal was denied by the Law Court by Decision dated February
9, 1982.
3. April 11, 1995: public reprimand issued by Panel C of
the Grievance Commission for violation of M. Bar R. 2(c) and 3.6(a)(3).
The Court finds that Ingeneri's misconduct involving
Anderson was serious and resulted in significant injury and harm to the client,
which has yet to be addressed or rectified by Ingeneri.
There
is also a marked similarity between the misconduct which resulted in Ingeneri's
suspension in 1981, and the misconduct in the present matter involving
Anderson.
SANCTION
The
seriousness of Ingeneri's violations of the Bar Rules require that he be suspended
from the practice of law. Ingeneri
argues that any imposed suspension of his right to practice be suspended,
conditioned upon his compliance with certain conditions. Bar Counsel agrees that those
conditions should be imposed, but because of Ingeneri's prior disciplinary
history and the serious harm suffered by Anderson, urges the Court to impose a
suspension from the practice of law for a period of at least six months. Anderson testified, and urged that a
serious sanction be imposed based on the harm Ingeneri caused to him.
M.
Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not
punishment, but rather the protection of the public from attorneys who, by
their conduct, have demonstrated that they are unable, or likely to be unable,
to discharge properly their professional duties.
Ingeneri,
in his representation of Anderson, has demonstrated such an inability to
properly discharge his professional duties. He has recognized his problem, identified by Fred A. Bloom,
M.D., as major depression, an illness that can, as it did in this case, impair
his ability to carry out his responsibilities as a practicing attorney. The illness is treatable and Ingeneri
is taking steps to address his problem, and is treating with Dr. Bloom. It appears that with sufficient
conditions involving monitoring, Ingeneri will be able to meet his professional
responsibilities, and resume his practice.
Upon consideration of all the facts and evidence before this Court, the Court, imposes the following sanction: Ingeneri is suspended from the practice of law in the State of Maine for a period of six months, commencing July 1, 2004. All but three months of said suspension are hereby suspended, subject to the following conditions:
1. Winfred A. Stevens, Esq. is hereby appointed by the Court to serve as the Monitor for Ingeneri for a period of one year commencing October 1, 2004, unless terminated earlier as herein provided or by other order of this Court.
2. During the period of supervision, the Monitor shall receive monthly written reports from Ingeneri concerning the current status of matters in which he has been retained to act as counsel.
3.
The Monitor is a volunteer who shall receive no compensation and who shall be
expected to incur no expense.
4.
Ingeneri will meet with the Monitor within twenty-five (25) days of the date of
this Order and thereafter at the call and convenience of the Monitor on a
monthly basis, unless the Monitor should determine more frequent meetings are
appropriate.
5.
The Monitor shall have the right to withdraw and terminate that service at any
time for any reason the monitor deems sufficient, including for reasons set
forth in Paragraph 6 below. In the event of a withdrawal, the Monitor
shall notify the Court and Bar Counsel, and Ingeneri shall then cooperate to
obtain the services of an alternate Monitor to complete the remainder of the
original Monitor's term.
6.
If any aspect of the monitoring procedure creates a situation that is, or might
be interpreted to be, a conflict of interest under the Maine Bar Rules (for
example, if Ingeneri is or becomes opposing counsel concerning a matter
involving the Monitor), then the Monitor may adopt any one of the following
courses with the proposed result:
a.
the Monitor shall cease to act as such and a potential conflict is
avoided;
b.
the Monitor shall continue as Monitor but totally exclude Ingeneri's
client and matter in question from the monitoring process, so that no
conflict is deemed to exist;
c.
the Monitor shall continue as Monitor, and obligate his
firm to withdraw from the conflicting matter; or
d. the Monitor shall continue as Monitor, and obligate Ingeneri not to participate in the matter and to obtain new counsel for his client(s).
7.
If in the Monitor's judgment it is appropriate, the Monitor shall have the
right to contact clerks of court, judges, or opposing counsel to determine the
accuracy of Ingeneri's reports to
him.
8.
The Monitor shall have no contact with any of Ingeneri's clients and his only
contact in the performance of the Monitor's duties shall be with Ingeneri or
other persons contemplated by this Order. The participation by the
Monitor in the monitoring of Ingeneri's practice shall be deemed not to create
an attorney‑client relationship between the Monitor and Ingeneri, or
between the Monitor and Ingeneri's clients.
9. The Monitor shall file a confidential report with the Court on or before November 15, 2004, and quarterly thereafter or sooner if the Monitor deems it necessary, with copies to Ingeneri and Bar Counsel concerning any professional assistance the Monitor has provided to Ingeneri.
10. The Monitor will have the duty to report to Bar Counsel and to the Court any apparent or actual professional misconduct by Ingeneri of which the Monitor becomes aware or any lack of cooperation by Ingeneri with the provisions of this Order.
11. In the event a grievance complaint is received by Bar Counsel concerning alleged misconduct by Ingeneri occurring on this date or thereafter, such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as appropriate. In the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1(d)(5), the matter shall then be filed directly with this Court under Bar Rule 7.2(b).
12. Any apparent violation of the conditions of this Order by Ingeneri shall be filed by Bar Counsel directly with the Court.
13. Ingeneri shall refer himself to the Maine Assistance Program for lawyers and judges (MAP) on or before June 1, 2004, and will undergo assessment and treatment to the satisfaction of the Director of MAP.
14. Ingeneri shall comply with notice provisions of Bar Rule 7.3(i)(1).
Dated: May 17, 2004
_____/s/______________________
Robert W. Clifford, Associate Justice
Maine Supreme Judicial Court