A state ethics board is seeking professional sanctions against six lawyers from Verrill Dana who allegedly “engaged in willful blindness” to the misconduct of their former partner John D. Duncan three years ago.
Duncan was disbarred and served two years in federal prison for stealing about $300,000 from clients and the prestigious Portland law firm. The lifetime disbarment was the toughest sanction ever imposed on a Maine lawyer, and the case shocked the state’s legal community.
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Questions have lingered about the response to Duncan’s thefts within Verrill Dana, and whether other lawyers — most notably former managing partner David Warren — would be charged criminally or brought up for sanctions by the Maine Board of Bar Overseers.
While it appears that no one other than Duncan will face criminal charges, the lead counsel for the Board of Bar Overseers has accused six Verrill Dana lawyers of breaking ethics rules. After investigating the matter for nearly three years, J. Scott Davis recently filed a court complaint outlining the allegations against Warren and James Kilbreth III, who chaired Verrill Dana’s executive board in the summer of 2007.
Davis also seeks unspecified sanctions against lawyers Eric Altholz, Mark Googins, Roger Clement Jr. and Juliet Browne, who served on the firm’s executive board at the time. Disciplinary hearings for all of the lawyers have been scheduled for Dec. 13 and 14 in District Court in Lewiston.
Justice Donald Alexander of the Maine Supreme Judicial Court will hear arguments from the parties. He alone will decide whether the lawyers broke any professional rules, and whether they should be sanctioned. If Alexander finds that rules were broken, potential sanctions will range from simple reprimand to disbarment.
All six lawyers remain with Verrill Dana. The most serious claims are against Warren, who had led the firm since 1994 and stepped down as managing partner in the wake of the scandal.
According to Davis, Warren should have begun a thorough investigation of Duncan’s billing practices immediately after his legal secretary came forward with concerns about suspicious checks. Instead, Davis alleges, Warren accepted a false explanation from Duncan and told secretary Ellie Rommel not to seek legal advice from her private attorney.
If Rommel had listened to that advice, Davis alleges, “Duncan’s misconduct would have remained hidden, covered up and never properly reported by any of the firm’s board members as they were required to do.”
But Rommel continued to blow the whistle and consulted with attorney Daniel Lilley, whose interaction with Verrill Dana forced the firm to bring in outside auditors, Davis wrote.
Warren denies the allegations and says he was not part of any cover-up. In a written answer to Davis’ claims, Warren’s attorney said Verrill Dana was still investigating the matter and was going through Duncan’s files before it had any contact from Lilley.
“The scope and nature of Duncan’s misconduct was uncovered by Verrill Dana’s own inquiries and promptly reported to the Board of Bar Overseers,” Peter Murray wrote.
Murray, of the firm Murray, Plumb & Murray, represents Warren. Melissa Hewey of Drummond Woodsum represents Kilbreth. Peter Rubin of Bernstein Shur represents the other four lawyers.
Hewey spoke for all of the respondents Thursday. She said the complaint filed by Davis, called an “information” in the court proceedings, is not an accurate account of what happened inside Verrill Dana in 2007. The case should be dismissed, she said.
“None of the six respondents ever lied, ever stole any client funds, ever covered anything up,” Hewey said. “All they did was believe their law partner. That is not unethical, it is not a violation of the bar rules. We’re confident that this will be clear when the whole story is told.”
Verrill Dana also issued a statement Thursday, standing behind its lawyers.
“We appreciate the fact that the board has a process for dealing with these matters, and look forward to the completion of that process,” spokeswoman Crystal Canney said in a written statement. “We firmly support our colleagues as the process enters its final, public phase and believe that at the end of that process their names will be cleared.”
Duncan began working with Verrill Dana in 1978. He primarily handled wills, estates and trusts during his 29 years with the firm.
In June 2007, his secretary, Rommel, reported to another lawyer at the firm that she had suspicions about checks that Duncan wrote to himself from the account of an elderly client. Rommel left the firm soon after turning over the evidence against her boss. She and leaders at the firm gave conflicting accounts of whether she left voluntarily or was forced out.
Warren confronted Duncan, who admitted that he had taken $77,500 in legal fees that were supposed to have been shared with all of the partners. Duncan was extremely apologetic, and gave his word to Warren that no clients’ funds were involved and he had never before done anything like that.
Warren accepted the story and the apology, and on his advice the executive board accepted a repayment check from Duncan.
The sides disagree about how it happened, but in October 2007, Verrill Dana hired auditors to review Duncan’s files. Davis claims that review happened because Rommel gave notice of a potential lawsuit for wrongful termination and other claims. Warren says the potential lawsuit had nothing to do with the probe.
The audit revealed that Duncan had lied, and that he had in fact stolen from several clients and embezzled from the firm over a 10-year period. Duncan illegally wrote checks to himself from several clients’ accounts, totaling $109,000.
A second scheme involved trustee fees that were supposed to go to the full partnership at Verrill Dana, but were instead pocketed by Duncan. The total of that scheme was $187,500.
Duncan was expelled from Verrill Dana in November 2007. The firm and Duncan himself reported his misconduct to the Board of Bar Overseers, law enforcement and prosecutors. Rommel ultimately settled a lawsuit against Verrill Dana for an undisclosed amount. Duncan pleaded guilty to felony theft and tax evasion.
Davis alleges that the members of Verrill Dana’s executive board violated bar rules when they approved Duncan’s “repayment” of the $77,500 to the firm, when the money had in fact belonged to a client.
“By mishandling Duncan’s theft and receiving his improper repayment to the firm of monies actually belonging to the Janice Thomas estate, all six defendants thereby engaged in willful blindness and received stolen property from Duncan,” Davis wrote in the information.
Staff Writer Trevor Maxwell can be contacted at 791-6451 or at:
tmaxwell@pressherald.com
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