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STATE OF MAINE

 

SUPREME JUDICIAL COURT                                   Docket No.  BAR-04-1

 

 

BOARD OF OVERSEERS OF THE BAR   )

                                                               )

Plaintiff                                                   )

                  v.                                          )        DECISION AND ORDER

                                                               )

JOHN P. FRANKENFIELD                       )

                                                               )

Respondent                                               )

 

 

         The Board of Overseers of the Bar filed an Information against Respondent setting forth numerous factual averments and alleging violations of Maine Bar Rules 2(c), 3.1(a), 3.2(f)(2)-(4), 3.3(a), 3.5(b)(2), 3.6(a), 3.6(e)(1)-(3), and 3.7(a)(b).[1]  In his answer, Respondent admitted many of the factual averments.  While this matter was pending, the Board moved to amend its information to add a third count alleging additional violations of Maine Bar Rules 3.1(a), 3.2(f)(1)-(4), 3.5(b)(2)(ii), 3.6(a), and 3.7(a).[2]  The Court granted that motion.  In light of his admissions and stipulations entered on the record, the parties agreed that it was unnecessary to conduct an evidentiary hearing before the Court on the charges filed by the Board.  The averments and stipulations reveal the following:

 

         1.      On or about December 9, 1998, Frankenfield's grandfather, Wayne Frankenfield (Wayne), passed away.

 

         2.      On or about March 9, 1999, the Cumberland County Probate Court appointed Frankenfield as the Personal Representative (PR) of Wayne's estate.

        

         3.      On or about July 23, 2002, the Probate Court issued its general notice concerning formally probating Wayne's estate and Frankenfield's removal as the estate's PR.

 

         4.      On or about September 27, 2002, the Probate Court entered an order appointing Patricia Nelson-Reade, Esq., as visitor and independent supervisory attorney of Wayne's estate.

 

         5.      On or about October 28, 2002, and January 17, 2003, Nelson-Reade requested Frankenfield's assistance in accounting for Wayne's estate.

 

         6.      On or about February 14, 2003, Nelson-Reade filed her interim report regarding Wayne's estate stating that:

 

a.             Frankenfield repeatedly failed to return Nelson-Reade's telephone calls or respond to her written requests for information or even provide the names of the financial institutions in which he had deposited estate assets;

 

b.             Beginning in September 2000 Frankenfield had written a total of fifty-one (51) checks to himself with additional cash withdrawals by him from the account in the amount of $11,352, all of those transactions being unexplained and unaccounted for by him;

 

c.             Frankenfield had utterly failed to cooperate with Nelson-Reade's investigation or otherwise satisfactorily explain to her his handling and disposition of the estate assets including the above-referenced funds;

 

d.             Frankenfield had not prepared any inventories or any interim accountings as ordered by the Probate Court; and

 

e.             Except for five cents ($0.05), Frankenfield had completely exhausted and depleted the estate bank account.

 

7.      Nelson-Reade's interim inventory of Wayne's estate establishes that at one time Frankenfield possessed and controlled at least $166,583.90 of estate funds.

 

8.      Frankenfield has failed to account either to estate beneficiaries, their counsel, Nelson-Reade, or to the Probate Court concerning his handling and disposition of the assets and funds controlled by him in the estate bank account at the Skowhegan Savings Bank.

 

9.      Frankenfield has either converted the estate assets and funds to his own use or has failed to keep adequate financial records showing how he has handled and disposed of those funds and assets or both.

 

10.     On or about November 25, 2002, Leigh R. Frankenfield (Wayne's brother) filed a grievance complaint against Frankenfield.

 

11.     The Court finds that:

 

a.             Since his appointment as PR of Wayne's estate on March 12, 1999, Frankenfield consistently has refused to timely perform his duties as PR;

 

b.             Frankenfield repeatedly and consistently failed to communicate with estate beneficiaries or their counsel and has not rendered timely accountings of his handling and disposition of estate income and assets despite repeated requests by those estate beneficiaries, counsel, and the Probate Court;

 

c.             Despite his initial promise to do so, Frankenfield never timely resigned his position as the estate's PR;

 

d.             Frankenfield failed to timely develop a plan and schedule for distribution of estate assets to its beneficiaries and he falsely represented that he was close to doing so; and

 

e.             Any fees charged by Frankenfield to perform his duties as PR were excessive either because of his tardiness in doing the required work or because of his complete failure to do it.

 

12.     On or about December 17, 2003 a Somerset Grand Jury indicted Frankenfield on criminal charges alleging that he had violated 17-A M.R.S.A. §§ 352, 353, 362 and 903 by his theft and misuse of estate assets with an aggregate value exceeding $10,000.

 

13.     On or about July 16, 2003, Dianne V. Dickey (Dickey) submitted a Fee Arbitration Commission Petition (Fee Petition) concerning her having paid Frankenfield $1,000 to represent her in divorce proceedings.

 

14.     Dickey's Fee Petition alleges the following facts:

 

a.             On or about May 2, 2003, she paid Frankenfield a $1,000 retainer to represent her in divorce proceedings;

 

b.             On or about June 2, 2003, Frankenfield notified her that his attempted service of the divorce complaint and summons on her husband by mail was not successful, and that he was then going to have the Somerset County Sheriff's Office serve her husband in hand;

 

c.             On or about May 27, 2003, he claimed to have mailed Dickey a letter updating her on the status of her case, but she later confirmed with the North Anson Post Office that it had not received anything from Frankenfield by certified mail concerning service of process;

 

d.             On or about July 8, 2003, Dickey determined through telephone conversations with the Sheriff's Office that Frankenfield had never sent any divorce documents to serve on her husband; and

 

e.             On or about July 9, 2003, Dickey telephoned Frankenfield leaving a message which he never returned.

 

15.     On or about August 13, 2003 Frankenfield responded by facsimile to Dickey's Grievance Complaint and:

 

a.             Admitted his neglect of Dickey's case by failing to ensure proper and timely service of process of her husband;

 

b.             Stated that he had no office help or staff to assist him in returning telephone calls; and

 

c.             Acknowledged that Dickey was entitled to a full refund of her retainer because Frankenfield had conferred "no value" to her.

 

16.     On or about November 20, 2003, John W. Youney, Esq. (Youney), filed a complaint in the Somerset County District Court (Skowhegan) involving real estate, naming Frankenfield as a party defendant in the above case because as the closing agent he was holding $55,267.02 of escrowed funds.

 

         17.     On or about January 12, 2004, Frankenfield answered Youney's complaint, inter alia, admitting that he was holding $55,267.02 of escrowed funds.

 

         18.     On or about March 8, 2004, one of the parties, Burle Jones wrote Youney and Frankenfield proposing that the funds being held by Frankenfield be placed in escrow with the Court or in another trust account.

 

         19.     On or about April 14, 2004, Van W. Ames, President of Whitemore's Century 21 Real Estate Agency, informed Frankenfield that he had no objection to the transfer of the escrowed funds to the District Court.

 

         20.     On or about June 2, 2004, the District Court ordered Frankenfield within one business day to deposit with the Court all monies in his possession regarding the litigation including, but not limited to the $55,267.02.

 

         21.     Frankenfield failed to obey the District Court's Order of June 2, 2004, and also failed to obey the District Court's further order of June 30, 2004, which extended the date by which he was required to pay the escrowed funds into the Court to July 8, 2004.

 

         22.     The Court concludes that:

 

a.    Frankenfield has failed to account to the District Court concerning his handling and disposition of the $55,267.02 in escrowed funds as described above;

 

b.    Frankenfield improperly converted the $55,267.02 in escrowed funds to his own use.

 

         Frankenfield advised the Court that had it proceeded with an evidentiary hearing in this matter he would have invoked his privilege against self-incrimination.  Although Frankenfield is entitled constitutionally to invoke the privilege, the court can draw adverse inferences against Frankenfield on the basis of that invocation.  As we stated in State v. Horton, 561 A.2d 488, 491 (Me. 1989):

 

Disciplinary proceedings are civil in nature, and a lawyer has no constitutional right to prevent the factfinder in that proceeding from considering the implications of his silence, along with other evidence against him, in making a determination . . . . If he chooses to invoke his Fifth Amendment privilege and remain silent, a lawyer might be disciplined for the underlying misconduct charge by the Board . . . .

 

See also Board of Overseers of the Bar v. Charles Kadish, Docket No. BAR-96-17.

 

         In light of the Court's findings of fact, Frankenfield's promised invocation of his privilege against self-incrimination, and the money that remains unaccounted for from the funds of his grandfather's estate and the McCarthy/Jones escrow account, the Court concludes that Frankenfield has taken substantial funds for his own use.  He has thus engaged "in illegal conduct that adversely reflects on a lawyer's honesty, trustworthiness, or fitness as a lawyer . . ." in violation of Maine Bar Rule 3.2(f)(2) and has engaged "in conduct involving dishonesty, fraud, deceit or misrepresentation" in violation of Maine Bar Rule 3.2(f)(3). 

 

         Wherefore it is ORDERED and ADJUDGED:

 

Respondent is disbarred from the practice of law in the State of Maine.  Such disbarment is to take effect as of 5:00 p.m., Friday, September 3, 2004 and is subject to the requirements of Maine Bar Rule 7.3(1) and (j).

 

 

 

Dated:  September 2, 2004                                  /s/HHD                        

                                                               Howard H. Dana, Jr.

                                                               Associate Justice

                                                               Maine Supreme Judicial Court