Following up on “Handling Unethical Attorney Conduct: An Example”

A short while back I posted “Handling Unethical Attorney Conduct: An Example,” a post that came close to setting a record for views, pingbacks, and views for this blog. That post contained excerpts from a news story regarding an ethics proceeding involving six members of a Portland, Maine, firm, that emanated from a discovery made by a firm paralegal regarding unethical conduct by one of the firm’s top attorneys and disclosed by that attorney’s legal secretary. The proceeding was against six members of the firm who where charged with failure to promptly investigate and report the attorney’s unethical conduct, but I focused on the dilemma faced by paralegals and other legal staff when they discovered unethical conduct on the part of the attorney for whom they worked. I ended up stating, “Hence my modification of my original advice [given in The Empowered Paralegal: Effective, Efficient and Professional: a paralegal in this position should consult an outside attorney not only if they decide to report, but in determining whether a report should be made. This case, whether or not the allegation is true, demonstrates the folly of seeking that advice within the firm.”

Today’s report from the Portland Press Herald and ABAJournal.com states that all six of the attorneys were cleared of ethical violations in that the court found they had reported the original attorney’s violations in a timely manner. Once again, though, my focus in on the employees who made the initial discoveries. I am including here the portion of court’s order that describes their experience. It may be helpful to put yourself in their position and consider now what you would do as you may indeed find yourself in their position at some time. I’ll try to post something a bit more upbeat tomorrow so the year does not end on this.

From the court’s decision:

In late 2006, a Verrill Dana paralegal, reviewing a bank statement, noted a discrepancy between the check register for an account managed by Duncan for Janice Thomas and the bank statement of that account. The check register indicated a payment to Verrill Dana. The bank statement, with a copy of the face of the check appearing on the back, indicated a payment to Duncan.
This paralegal had been filling in for Ellie Rommel, the regular secretary for Duncan in the private clients group. Rommel also was the secretary to another attorney working in the private clients group, Gregory L. Foster. Foster was a counsel to the firm and usually worked in the office two days each week. Rommel had a very good professional relationship with, and high respect for, both Duncan
and Foster.

In January 2007, the paralegal told Rommel of the discrepancy she had discovered between the check register and the bank statement. Rommel was extremely surprised by this disclosure. She assumed, initially, that the discrepancy would be based on an error in entry and not indicative of any impropriety. She then checked banks statements against the check registers going back to 2003.

Over that period, she discovered fourteen checks that Duncan, using his power of attorney authority, had written to himself from the Janice Thomas account. The check registers indicated that each of these checks had been written to Verrill Dana. The faces of the checks were reproduced on the bank statements.Therefore, confirming the party to whom the check was written, and comparing it with the check register, was a relatively simple process. Rommel was shocked and greatly disturbed by this discovery. To her, it appeared that Duncan had been embezzling funds from the Janice Thomas account.

However, considering Duncan’s impeccable reputation in the firm, and his very good professional relationship with her, Rommel hoped that there would be some legal and proper explanation for these discrepancies. She was unsure, however, to whom she should disclose her discoveries, to seek an explanation. She decided that she did not want to seek an explanation directly from Duncan because the facts, in her mind, looked like he had committed crimes. Duncan had been having some other health issues at the time, and Rommel was concerned that if she was correct that these facts indicated embezzlement, and they were disclosed, Duncan might be driven to suicide, a tragic event in itself, and one that would have tragic consequences for Duncan’s family and the firm.

Knowing these facts, and having no one to discuss them with, was a cause of considerable anxiety and stress for Rommel, making it more difficult to confidently do her job and live her life. These difficulties were enhanced when she observed that Duncan was viewing pornographic materials on his computer, sending and receiving e-mails with a sexual content, in violation of firm policy, and engaging in an affair out of the office with another individual at times when Rommel was aware that Duncan was billing some clients for time spent on their accounts.

Over several months, Rommel’s stress level and anxiety grew as she knew, but did not disclose, this information. In May, Rommel resolved to leave the firm and gave notice that her last day would be June 15, 2007. Rommel also began seeing a therapist. The therapist advised Rommel that she needed to disclose the information to someone for her own good and peace of mind and for the good of the firm.

Ultimately, in early June 2007, Rommel disclosed what she knew to Greg Foster. She made the disclosure by meeting with Foster, advising him that she believed that Duncan was improperly writing checks to himself from the Janice Thomas account, and giving Foster a file of the materials that she had gathered comparing the bank statements and the check registers. She stated that she believed that Duncan was embezzling money from the client.

Foster reported it to the firm’s managing attorney who eventually met with Rommel:

Following this investigation, Warren met with Rommel on June 13, 2007. At this meeting, he thanked her for providing this information and indicated that he would be addressing the matter appropriately with Duncan. Rommel testified that Warren complimented her, stating that her actions “took a lot of courage.” They also discussed Rommel’s status with the firm, whether Rommel might qualify for disability payments, and whether she should rescind her resignation. There are differences in the testimony regarding the extent to which the issues of disability payments and rescinding the resignation were of significance in the discussion. However, as the parties recognized at closing argument, these differences are not material to the issues the Court must resolve.

The outcome of the June 13 meeting was that Rommel’s resignation was not rescinded, there was a commitment to explore the issue of whether disability payments would be pursued further, and because of her emotional state, Rommel was excused from having to appear at the firm for her last two scheduled days of work. Warren also advised Rommel that, although she was leaving the firm, he would keep her apprised of developments relating to Duncan.

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