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Board of Overseers of Bar v. Prolman

Supreme Court of Maine

August 28, 2018


          Argued: June 12, 2018

          Aria Eee, Esq. (orally), and J. Scott Davis, Esq., Board of Overseers of the Bar, Augusta, for appellant Board of Overseers of the Bar

          James M. Bowie, Esq. (orally), Thompson Bowie & Hatch LLC, Portland, for appellee Gary M. Prolman

          Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          PER CURIAM

         [¶1] The Board of Overseers of the Bar appeals from the judgment of a single justice of the Supreme Judicial Court [Alexander, /.) concluding that Gary M. Prolman violated the Maine Rules of Professional Conduct and the attorney's oath, 4 M.R.S. § 806 (2017), and suspending him from the practice of law for six months. The Board argues that the court abused its discretion by imposing a six-month suspension without considering and applying the disciplinary framework set out in the American Bar Association's Standards for Imposing Lawyer Sanctions (Am. Bar Ass'n 1992) (ABA Sanction Standards).[1] Although we are evenly split in determining the basis of the error, we unanimously agree that the judgment must be vacated and the matter remanded for a redetermination of the sanction.[2]

         I. BACKGROUND

         A. Factual Findings

         [¶2] The court made the following factual findings, which are supported by the record. See Bd. of Overseers of the Bar v. Brown, 623 A.2d 1268, 1270 (Me. 1993).

         [¶3] In June 2014, as a result of his guilty plea to, and resulting conviction of, federal charges of conspiracy to launder money and aiding and abetting, 18U.S.C.S. §§ 1956(a)(1), (h) 1957(2) (LEXIS through Pub. L. No. 115-231), Prolman was suspended indefinitely from the practice of law in Maine. Following his guilty plea, Prolman received a sentence of twenty-four months' imprisonment and twenty-four months' supervised release. In November 2015, the Board filed a motion seeking further disciplinary action against Prolman, and Prolman responded with a motion seeking limitation or termination of his suspension. After a hearing on those motions in February 2016, a single justice of the Supreme Judicial Court [Alexander, /.) issued a decision concluding that Prolman had violated M.R. Prof. Conduct 8.4(a)-(d) but nonetheless ordering the termination of Prolman's suspension as of July 1, 2016, thereby reinstating him to the practice of law.[3] Pursuant to that order, Prolman's reinstatement and continued active practice was conditioned upon his compliance with the terms and conditions of his federal supervised release. The Board did not appeal from that order.

         [¶4] In late 2016, the woman who later filed the complaint in this matter contacted Prolman and asked him to represent her in two separate matters. One of those matters involved an outstanding warrant from Florida for the woman's arrest after she was charged with theft. Prolman agreed to represent the woman for a flat fee and successfully resolved the matter. Prolman also agreed to assist her in having the period of probation arising from a felony drug conviction terminate early. In March 2017, Prolman arranged for early termination of her probation, effective in June 2017, provided that his client complied with terms of her probation until that time. Prolman received another flat fee to represent her in that matter.

          [¶5] Beyond the two matters for which Prolman was retained, the woman also discussed with Prolman whether he could assist her with a third matter. At the time, criminal charges for sex trafficking women, including Prolman's client, were pending against an individual in Massachusetts. Because the client was concerned about the risks associated with testifying against that individual, and because she wanted to put her history of sex trafficking victimization behind her, the client asked Prolman to assist her in arranging to avoid testifying in that matter.

         [¶6] At the time the client retained Prolman, she was living with a boyfriend. The boyfriend was controlling and abusive; the client gave her boyfriend the money she earned from her job, and in return, he paid her expenses, including the flat fees paid to Prolman for his representation. The boyfriend also paid for and controlled the client's cell phone. On at least two occasions in early 2017, the boyfriend assaulted the client. Although law enforcement officials had indications that the assaults had occurred, the assaults were not prosecuted because the client indicated that she would refuse to testify against her boyfriend.

         [¶7] On the evening of March 26, 2017, the client's boyfriend savagely assaulted her at their apartment. In addition to causing other injuries, he broke bones in her face and attempted to strangle her, leaving marks on her throat. The client fled to another residence and the police arrested the boyfriend.

         [¶8] On March 27, 2017, law enforcement authorities anticipated that the boyfriend would be bailed and would return to the apartment that he and the client shared. As such, they believed that it was necessary that the client promptly find other accommodations where her boyfriend would not have access to her. At the time, the client had no money and no one in the community to whom she could turn for assistance.

         [¶9] On March 27, Prolman was in Florida, preparing to return from a ten-day vacation. Prolman and the client spoke by phone on several occasions. During these calls, she apparently described the assault and informed Prolman of her need to find safe accommodations. Prolman also spoke with the deputy who was the client's diversion supervision officer. Prolman indicated to the deputy that there was an apartment above his law office in Saco where the client could stay. The impression Prolman conveyed to the deputy was that the apartment was an otherwise vacant apartment where the client could stay, by herself, until more permanent living arrangements could be found.

         [¶10] In fact, the apartment above Prolman's law office was Prolman's residence and had three bedrooms and one bathroom. The first bedroom, located next to the only bathroom on that floor, was occupied by Prolman. The second bedroom was occupied by another individual who was not then present. The third bedroom was where the client would stay. Because the deputy did not know that Prolman lived in the apartment and because, from the deputy's perspective, no other living arrangement was available and a living arrangement for the client was urgently needed, the deputy agreed to place the client in the apartment above Prolman's law office. The deputy arranged for the client to travel to the apartment where, by prior arrangement, Prolman's office assistant had left directions for the client to get into the apartment.

         [¶11] Prolman arrived home from Florida late in the evening of March 27 or very early in the morning on March 28. During the day of March 28, Prolman purchased a cell phone for the client that was added, as a second phone, to Prolman's cell phone account. The cell phone was intended to provide the client with a means of communication that was not known to or accessible by her abusive boyfriend. Prolman also assisted his client in obtaining a job as a waitress at a local restaurant.

         [¶12] On March 29, Prolman and the client met with law enforcement officials and probation officers to discuss the client's probation status and the prosecution of her abusive boyfriend. At the meeting, the fact that the client was living in an apartment above Prolman's law office was discussed, but at no point did Prolman or his client indicate that Prolman was also residing at the apartment. Had she learned that Prolman was living at the apartment, the client's diversion officer would have acted to terminate that living arrangement. Because Prolman's conditions of supervised release prohibited him from associating with felons, except for providing service as an attorney, Prolman's federal probation officer also would have objected to Prolman allowing the client, who had a felony drug conviction, to live with him.

         [¶13] When he arranged for his client to live in his apartment, Prolman was aware of his client's social history, history of abuse, submissiveness to men, and vulnerability to abusive physical and sexual relationships. Despite this knowledge, on more than one occasion while Prolman and his client were residing at his apartment between March 29 and April 9, 2017, Prolman approached his client seeking sexual gratification and engaged in sexual acts with her. The client regarded Prolman's sexual acts as "gross." Although she did not consent, she also did not communicate her objection to Prolman's sexual acts, simply submitting to what Prolman demanded as she had done in past relationships with men who had taken advantage of her vulnerability.

          [¶14] Pursuant to the client's intensive supervision as part of the diversion program, the deputy was in regular contact with the client while she was residing at Prolman's apartment. At no time while the client was residing in Prolman's apartment did the deputy receive any indication that there was reason to be concerned about the relationship between Prolman and the client. Consistent with the client's past practice of minimizing or not disclosing problems she had with men abusing or taking advantage of her during the course of her probation supervision, the client did not disclose Prolman's actions until she moved out of the apartment.

         [¶15] On April 10, the client, with the assistance of her employer, acquired a vehicle. That day, Prolman prepared dinner for his client, which they shared with glasses of wine. The meal was festive, and its purpose was to celebrate the client's increasing independence. Late that evening, Prolman approached the client in her bedroom and attempted to initiate sexual relations with her. She refused, and he left the room. The next day, April 11, the client moved out of the apartment. Prolman and the client did not have in-person contact again.

         [¶16] When Prolman discovered that the client had moved out of his apartment, he contacted her through text messages and asked, in friendly-sounding words, where she was and whether she was "alright." The client responded to those text messages, indicating that she wanted to terminate their attorney/client relationship and would handle her pending probation matter on her own. Approximately two weeks later, by a motion dated April 26, 2017, Prolman sought and was granted leave to withdraw from representing the client. The motion to withdraw asserted that the client had been in compliance with the terms of her probation, and that the hearing for early termination of her probation-to which the State had already agreed- could proceed without further appearance of counsel.

         [¶17] During the time his client was residing at the apartment, Prolman consumed and provided his client with wine. Prolman's conditions of supervised release prohibited his use or possession of alcoholic beverages, and a violation of those conditions also would be a violation of the March 17, 2016, disciplinary order requiring compliance with the terms of his supervised release.[4]

         B. Procedural History

         [¶18] On May 26, 2017, the Board filed a petition for Prolman's interim suspension pursuant to Maine Bar Rule 24, alleging that Prolman violated Maine Rules of Professional Conduct 1.5(a), 1.7(a)(2), 1.16(a)(1), 2.1, 3.4(c), 8.4(a), (d), and the attorney's oath, 4 M.R.S. § 806.[5] The court held a hearing on the matter beginning on August 30, and evidence was heard over the course of three days. During closing argument, the Board argued that the court should consider the ABA Sanction Standards in imposing Prolman's sanction, and specifically referenced Standards 4.3, 5.2, 6.1, and 6.3.

         [¶19] On September 14, 2017, the court issued the order that is the subject of this appeal, making numerous findings of fact and concluding that the Board had proved, by a preponderance of the evidence, that Prolman violated M.R. Prof. Conduct 1.7(a)(2), 2.1, 8.4(a), 8.4(d), and the attorney's oath, 4 M.R.S. § 806. See M. Bar R. 14(b)(4). The court also stated that "[d]uring closing argument, Bar counsel argued that violations of Rules of Professional Conduct not indicated in the initial petition, specifically violations of Rules of Professional Conduct 4.3, 5.2, 6.1, and 6.3(1), were also being asserted." However, the court concluded that the Board had not proved violations of those rules. C. Sanctions

         [¶20] After finding the violations, the court considered what would be the appropriate sanction for Prolman's violations. It observed that, as articulated in comment 12 to Rule 1.7, "Maine has not adopted the ABA Model Rules [of Professional Conduct's] categorical prohibition on an attorney forming a sexual relationship with an existing client" M.R. Prof. Conduct 1.7 cmt. (12). For that reason, as well as others, the court concluded that opinions from other jurisdictions addressing attorney discipline for sexual activity with clients-which the Board had submitted to the court-were "not particularly helpful in determining the appropriate sanction" for Prolman.

         [¶21] The court further observed that he was required to apply Maine Bar Rule 21(c) in determining Prolman's sanction. Rule 21(c) provides,

(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer's misconduct; and
(4) the existence of any aggravating or mitigating factors.

         [¶22] Pursuant to Rule 21(c)(1), the court concluded that "by initiating a sexual relationship with his client and by providing her alcoholic beverages to consume, Prolman violated duties owed to his client and the legal system." In determining Prolman's state of mind pursuant to Rule 21(c)(2), the court reasoned that "Prolman's actions in his treatment of his client and in his failure to disclose to her support team that she would be living with him was negligent and reckless, though probably not so well thought out or planned in advance sufficiently to be considered intentional." Addressing the injury caused by Prolman's misconduct pursuant to Rule 21(c)(3), the court concluded that "[i]mposing oneself sexually on a nonconsenting, vulnerable, and submissive person inevitably causes psychological injury to the person subject to such advances and caused psychological injury to the client in this case."

         [¶23] Finally, in determining aggravating and mitigating factors for Prolman's sanction pursuant to Rule 21(c)(4), the court included as mitigating factors the facts that (1) "Prolman's professional services were successful in achieving the client's objectives in the two cases for which he was retained"; (2) he got "involved in trying to help his client reestablish her independence after her necessary separation from her dangerously abusive boyfriend"; and (3) "[h]e arranged for her to get a new cell phone, and he arranged for her to get a job." The court's recitation of aggravating factors included the facts that (1) Prolman's "effort to help his client became misguided when he had her move into his apartment and then initiated the sexual relationship that took advantage of the living arrangement and his client's vulnerability"; (2) "[t]he injury caused by Prolman's conduct essentially continued and confirmed the pattern of men victimizing and oppressing the client that she had endured for most of her life;" and (3) he "placed his client at risk by providing her alcoholic beverages that could have caused her probation to be revoked."

         [¶24] After considering the factors expressly contained in Rule 21(c), the court imposed a six-month suspension from the practice of law, effective November 1, 2017. The Board's timely ...

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