December 29, 2010

Judge clears Verrill Dana lawyers in theft ethics case

By Trevor Maxwell

PORTLAND — Six lawyers with the Verrill Dana law firm broke no ethics rules and will not face professional sanctions for their handling of the John D. Duncan theft scandal three years ago, a judge ruled Wednesday.

The lawyers acted reasonably and in good faith on the information they knew at the time, Maine Supreme Judicial Court Justice Donald Alexander wrote in the 35-page order.

Alexander presided over a disciplinary hearing earlier this month for Verrill Dana lawyers David Warren, James Kilbreth III, Eric Altholz, Mark Googins, Roger Clement Jr. and Juliet Browne. The hearing was the result of a complaint filed against the lawyers by the Maine Board of Bar Overseers, the state board that governs the conduct of lawyers. J. Scott Davis, lead counsel for the board, argued that the lawyers broke a variety of ethics rules in the summer of 2007.

But Alexander agreed with the Verrill Dana lawyers, who said that while they were deceived by Duncan, they handled the situation appropriately.

“When the true extent of Duncan’s misconduct was revealed, they promptly reported it and proceeded to make betrayed clients whole,” Alexander wrote. “With the clarity of hindsight, the respondents were perhaps too trusting when they had good reason to trust, but they committed no violations of the Code of Professional Responsibility.”

Duncan’s secretary, Ellie Rommel, brought the misconduct to light in June 2007 by turning over a folder of evidence to another partner in the firm.

Warren, who was the firm’s managing partner, confronted Duncan, who had a reputation as one of the most trustworthy and dependable lawyers in Maine. Duncan admitted that he had taken $77,500 in fees that were properly billed but should have been turned over to the full partnership.

Warren and the other five respondents, who made up Verrill Dana’s executive board at the time, voted to accept Duncan’s apology and a repayment check to the firm. According to testimony from the lawyers at this month’s hearing, they viewed the misconduct as a breach of the partnership agreement, not a crime and not something that had to be reported to the Maine Board of Bar Overseers.

Not until early October 2007 did the truth of Duncan’s misconduct begin to emerge. On Oct. 2, Warren told the head of Duncan’s department, Kurt Klebe, about the apparent misappropriation of the firm’s funds. Within a few days, Klebe began to uncover evidence of other wrongdoing by Duncan.

In the next week or so, the firm received a letter from lawyer Daniel Lilley, indicating that Rommel intended to sue Verrill Dana for wrongful termination. Both of those events apparently put into motion a full audit of Duncan’s books by outside firms.

That audit revealed that Duncan had stolen roughly $300,000 from clients and the firm over the previous decade.

When the firm learned the extent of Duncan’s wrongdoing, and that he had lied to the partners about what happened, the partnership expelled Duncan. Verrill Dana also then reported the matter to the Board of Bar Overseers, the Cumberland County District Attorney and the U.S. Attorney’s Office.

Duncan ultimately pleaded guilty to theft and tax evasion. He served two years in federal prison and received a lifetime disbarment, the toughest punishment ever imposed on a Maine lawyer.

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