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BOARD
OF OVERSEERS OF THE BAR )
)
Plaintiff )
v. )
) ORDER
Stephen M. Brett,
Esq. )
of York Beach, ME )
Me. Bar #9277 )
Defendant )
This matter came before the Court on June 20, 2006
pursuant to the Court's Order of May 11, 2006. The Board of Overseers of the Bar (the Board) was
represented by Bar Counsel J. Scott Davis. Defendant Stephen M. Brett was present and represented by
Attorney Peter J. DeTroy. Most of
the various complainants have generally been made aware of counsel's stipulated
proposed order, were invited to be present, but did not appear. The Court received two written
statements from police officers involved in the criminal matters pending in the
Cumberland County Superior Court.
These statements will be made part of the record in this matter.
Stipulations
The
parties have stipulated to the following material facts now found and adopted
by the Court:
Stephen M. Brett has been licensed to practice law in
Maine since 2001. His practice has
generally focused on criminal defense and civil litigation. Mr. Brett has accepted numerous court
appointments and maintained a smaller base of retained clients. Five years into his practice, Mr. Brett
received three separate reprimands by a Grievance Commission hearing panel's
decision dated January 25, 2006.
That Grievance Commission hearing panel made the following findings:
"Panel B views Mr. Brett's admitted eavesdropping as a
deplorable and lamentable exercise of unsatisfactory judgment. We find no difficulty characterizing
listening in on conversations behind closed doors, and particularly
conversations between the opposing party and a Judge, as conduct 1) unworthy of
an attorney, 2) prejudicial to the administration of justice, and 3) degrading
to a tribunal."
The Panel further determined that the balance of Attorney
Brett's conduct as outlined in the decision amounted to "serious
lawyer misconduct."
Approximately one month after those reprimands had been
issued, on or about February
20, 2006, Cumberland County District Attorney Stephanie Anderson filed
a grievance complaint with the Board against Mr. Brett which is now the
subject of a pending criminal complaint to which he has entered a plea
of not guilty. Ms. Anderson's
complaint and the supporting statements therein detailed Mr. Brett's alleged
violation of a client's conditions of release.
Specifically, on or about February 20, 2006, Mr. Brett was charged
with violation of those conditions because of his role in providing his
then client with access to the client's victim/partner, which was in violation
of a District Court order. Although Mr. Brett disputes the State's complete
version of those events, he agrees
a finding that he engaged in misconduct under the Bar Rules is warranted.
On or about April 25, 2006, Mr. Brett was arrested and
again charged with new violations of the Maine Criminal Code (theft) based
upon his alleged request and receipt of money from a client whom he had
been court-appointed to represent on her criminal charge. District Attorney Anderson once again notified the Board of
those new pending charges against Mr. Brett. He again pled not guilty
and that criminal matter(s) remains pending against him.
During the time period between Mr. Brett's two
arrests, other grievance complaints were filed against him. One of those complaints involved Mr.
Brett's handling of his client's (Jeffrey Brisset's) arraignment in the
Biddeford District Court. Although
the District Court issued proper
notice to Mr. Brett of the scheduled arraignment date for his client, neither
Mr. Brett nor Mr. Brisset (who was already incarcerated in another county jail
but had not been notified or arranged to be present by execution of a writ of
habeas corpus) appeared at the initial arraignment. Due to Mr. Brisset's non-appearance, the court forfeited the
bail money that his parents (complainants Ernie and Donna Hamel) had posted on
their son's behalf. The District Court
later vacated that default and returned the forfeited bail money to Mr. and
Mrs. Hamel.
In his response to the Board concerning the Hamels' grievance
complaint, Mr. Brett was less than completely candid when he wrote that
the District Court failed to provide the necessary notice to him. Assistant Bar Counsel investigated that complaint and on March
27, 2006, a Grievance Commission review panel found probable cause to
believe that concerning both his neglect of Mr. Brisset's arraignment
and the inaccuracy of his written response to the Board, Mr. Brett had
committed misconduct subject to sanction under the Maine Bar Rules.
A subsequent grievance revealed that Mr. Brett also exhibited
poor judgment and a lack of impulse control during his interactions with
another complainant, Tracy D. At
the time they met, Ms. D. was the former partner of Mr. Brett's then client,
Taylor S. On more than one
occasion, Ms. D. had been assaulted by Mr. S. In order to discuss whether she intended to testify against
Mr. S., Mr. Brett repeatedly contacted Ms. D., who met with him to discuss
the case. After Mr. S.'s case was resolved, the two met socially
on a few occasions as friends, and subsequently Mr. Brett attempted to
initiate a romantic relationship with her.
Ms. D., however, became uncomfortable with those interactions and
ceased contact with Mr. Brett. Mr.
Brett, however, persisted trying to reinitiate contact with her. Despite
her non-response, he requested to see her again by mailing or hand-delivering
two letters. Ms. D. did not respond to his correspondence,
and changed her residence, cancelled her cell phone and changed her email
address. Ms. D. then complained
to the Board about Mr. Brett's actions.
All of the above-outlined investigations
culminated in the Board's expedited filing of a "Petition for Temporary
Suspension." On May
11, 2006, counsel for both parties appeared before this Court by teleconference
and agreed to a resolution of the Board's Petition. Later that day, this Court issued an order temporarily suspending
Mr. Brett, effective May 26, 2006, from the further practice of law in
Maine.
Just prior to the issuance of
that order of temporary suspension, (on May 10, 2006) the Board received
a new complaint from an opposing party concerning Mr. Brett's conduct
between September 2004 and August 2005 when he allegedly mishandled a
mechanic's lien action, including having direct contact with the opposing
party without the consent of that party's attorney.
Mr. Brett now agrees he should not have acted as he did in that
matter.
On May 12, 2006, the Maine Law
Court issued its Per Curiam decision in the matter of Hayden v. Orfe, 2006 ME 56, finding among other things that "the
appeal is interlocutory and must be dismissed." Mr. Brett served as Appellant Orfes' attorney. In its decision, the Court imposed sanctions
upon Mr. Brett's clients because the ". . . appeal (was) obviously
without any merit and (had) been taken with no reasonable likelihood of
prevailing. . . ." The Law Court also found that Mr. Brett
had stated inconsistent positions at oral argument concerning the facts
as they related to the "notice" issue and he was also undecided
about those facts. In that
opinion, Mr. Brett's clients were assessed sanctions of "treble costs
and reasonable attorney fees in the amount of $1000.00."
As recently as June 12 and 13,
2006, the Board received an audio recording of Mr. Brett and a written
complaint that confirmed that on June 12th Mr. Brett still acted and spoke in
such a manner as to cause a recent former client, and/or his power of attorney,
to believe Mr. Brett was still serving as his lawyer or was at least providing
some informal legal assistance concerning an appellate matter. The Court hereby stresses that during
his suspension from practice, Mr. Brett must completely abstain from providing
any advice, assistance or counseling of any kind to anyone.
Taken in their totality, these
continuing new allegations against Mr. Brett are serious and disturbing. Mr.
Brett acknowledges collectively these allegations exhibit impulsivity, serious
lapses of judgment and serious professional misconduct by him. Mr. Brett further agrees that it is
necessary and appropriate for him to discontinue his practice of law for an
indefinite amount of time.
It is apparent that this misconduct
all occurred after Mr. Brett became a solo practitioner without any office
support in 2004 and then became financially unable to pay for health insurance.
Based upon that lack of insurance, he could not afford to pay for
medical care or medications essential for his mental health
functioning and his ability to make reasoned decisions.
While he accepts responsibility for his behavior, Mr.
Brett has asserted that he intended no harm and believed that he was justified
in his actions. Regardless of Mr.
Brett's intent, his actions and inactions referenced above all resulted in
various violations of the rules of criminal and civil procedure and the Code of
Professional Responsibility. Mr.
Brett's misconduct and poor judgment provide the rationale for this Court to
protect the public by providing that (at a minimum) Mr. Brett's current
suspension from the practice of law remain in effect until further order of
this Court.
Conclusions of Law
The
parties agree and the Court so finds that Attorney Brett's conduct violated
Maine Bar Rules 3.1(a) (conduct unworthy of an attorney); 3.2(f)(1) (conduct
subverting any provision of the Maine Bar Rules); 3.2(f)(3)(conduct involving
dishonesty, fraud, deceit or misrepresentation); 3.2(f)(4)(conduct prejudicial
to the administration of justice); 3.6(a)(3)(neglect of a client's matter); and
3.6(f)(communicating with adverse party).
Sanction
Recognizing that the primary
purpose of attorney discipline is not punishment, but protection of the public,
the Court hereby ORDERS the following sanction in this matter as proposed by
the parties:
1.
Stephen M. Brett remains
suspended from the practice of law until further order of the Court and must
proceed pursuant to M. Bar R. 7.3(j)(reinstatement) prior to being
readmitted to practice;
2.
Within 30 days of this
Order, Mr. Brett shall arrange to meet with the Director of the Maine
Assistance Program for Lawyers and Judges (MAP) and enter into a contractual
relationship with MAP that shall be incorporated by reference in this
order. All conditions contained
within the contract shall be completed to the satisfaction of and as directed
by the Director of MAP;
3.
Prior to seeking reinstatement to practice
under M. Bar R. 7.3(j), Mr. Brett shall be and remain in compliance with
the MAP contract and shall undergo a forensic evaluation by such clinical
psychologist as directed by Bar Counsel;
4.
Prior to filing any such petition for reinstatement,
Mr. Brett shall obtain malpractice insurance coverage in an amount satisfactory
to the Board as confirmed by Bar Counsel;
5.
Within 90 days of this
Order, Mr. Brett shall ensure that all of the sanctions imposed by the Law
Court in Hayden v. Orfe have been
paid as required;
6.
In the event a grievance
complaint is received by Bar Counsel concerning alleged misconduct by Mr. Brett,
such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as
appropriate, but 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
before the Court under Bar Rule 7.2(b) instead of before the Grievance
Commission under M. Bar R. 7.1(e);
7.
Any apparent violation
of any of the conditions of this Order shall be filed by Bar Counsel directly
with the Court; and
8.
On or before June 30, 2006, Mr. Brett shall
comply with all the provisions and requirements of Maine Bar Rule 7.3(i)(1)(A),
(B) and (C).
Dated:
June 20, 2006
/s/
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