PORTLAND – A judge will decide in the coming weeks whether six lawyers with Portland’s prestigious Verrill Dana law firm broke ethics rules in their response to theft by their partner John D. Duncan.

Justice Donald Alexander of the Maine Supreme Judicial Court heard closing arguments in the lawyers’ disciplinary hearing Friday in Cumberland County Superior Court, after three days of testimony earlier in the week in Lewiston District Court.

Alexander must decide whether David Warren, James Kilbreth III, Eric Altholz, Mark Googins, Roger Clement Jr. and Juliet Browne violated any bar rules, and whether they should face professional sanctions.

The closing arguments covered an array of issues raised earlier in the hearing, but the focus was on a single question: Did the Verrill Dana lawyers do the right thing when they accepted Duncan’s explanation for suspicious checks he had written to himself on a client’s account?

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 this week, 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. They could not imagine that Duncan had committed other transgressions.

“They were deceived,” said Peter Murray, who represented Warren at the hearing, during his closing argument Friday.

“They were deliberately lied to and they were deceived by their partner,” Murray said. “The story Duncan told was consistent with the facts and circumstances then known.”

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. 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.

Murray, along with Melissa Hewey, who represented Kilbreth, and Peter Rubin, who represented the other four executive board members, argued Friday that the lawyers broke no ethics rules when they believed Duncan.

Murray noted that once Verrill Dana discovered the truth about Duncan, the firm reported the matter to the Board of Bar Overseers, the district attorney and the U.S. attorney. The firm and the lawyers have suffered enough harm because of Duncan’s actions, he said.

“It’s time to put an end to it,” Murray said. “This case should be dismissed in its entirety.”

J. Scott Davis, lead counsel for the Board of Bar Overseers, filed the complaints against the Verrill Dana lawyers. He seeks professional sanctions, which could range from simple reprimand to disbarment.

In his closing argument on Friday, Davis said it was inappropriate for Verrill Dana’s executive board to simply believe Duncan. Davis said the board had a duty to fully investigate the matter and report the situation to the ethics board.

“There was enough information in early June (2007)” to require such reporting, Davis told Justice Alexander.

“It sure looks like a cover-up,” he said, noting the three or four months it took Verrill Dana to fully investigate. Davis, however, presented no evidence during the hearing that the Verrill Dana lawyers knew the scope of Duncan’s misconduct before late October 2007.

Lawyers in Maine are required to report the misconduct of a colleague if there is a substantial question about that lawyer’s honesty, trustworthiness or fitness to practice law. The Verrill Dana respondents said that despite what Duncan initially admitted, they believed him to be honest, trustworthy and fit to continue as a partner.

Davis described that judgment call as “blind denial.”

“Taking of funds, including firm funds, is serious misconduct,” Davis said. “It doesn’t matter if it was client or firm money. It wasn’t his. That’s fraud.”

Staff Writer Trevor Maxwell can be contacted at 791-6451 or at:

[email protected]