A CASE OF THE TRICKY NATURE OF LEGAL ETHICS.
Posted by Edmund R. Folsom, Esq., June 26, 2017.
DISCLAIMER: The following is not legal advice. It is not intended as legal advice and should not be taken as legal advice. I offer it to, potentially, aid understanding only.
Last week, in In the Matter of Robert M.A. Nadeau, 2017 ME 121, the Maine Supreme Judicial Court suspended ex-York County Probate Judge Robert Nadeau from law practice for 2 years, effective August 1, 2017. The Court imposed the suspension because it found that Nadeau committed multiple violations of the Maine Code of Judicial Conduct, and because this was Nadeau’s fourth trip to the judicial woodshed for ethical breaches. There is one part of this opinion I find particularly interesting. Acting in his capacity as a probate judge, Nadeau issued an order to attorney Pam Holmes. Holmes did not comply with that order. Because Holmes did not comply, Nadeau filed a complaint against her with the Maine Board of Bar Overseers. The Board found that Holmes’s failure to comply violated the Maine Rules of Professional Conduct. In In the Matter of Robert M.A. Nadeau, the Supreme Judicial Court found that Nadeau violated the Maine Code of Judicial Conduct by issuing the order, because he had no authority to issue it. In other words, the Maine Board of Bar Overseers found that Holmes had an ethical duty to comply with an order that the Maine Supreme Judicial Court found Nadeau had no authority to issue. But maybe not — maybe it was something other than Holmes’s failure to comply, in and of itself, that was unethical. Maybe the only thing that was unethical was the passive form of her non-compliance.
Nadeau was the York County Probate Judge from 1996 through 2008. In 2007, he was censured for judicial misconduct. He lost the probate judge election in November of 2008, but was elected again in November of 2012. After the 2012 election, but before he was seated as Probate Judge, Nadeau decided he had personal conflicts of interest with seven attorneys that were serious enough to remove those attorneys from the list of attorneys eligible for court-appointed probate court cases. Nadeau sent an email to the York County Register of Probate, instructing her to remove the attorneys from the court-appointed list. One of the attorneys was Pam Holmes. Holmes had been involved in contentious litigation with Nadeau that related to the breakup of their joint law practice. In his email to the Register of Probate, Nadeau said Holmes should be removed from the list because he lacked confidence in her “veracity.” That email is a public record under Maine’s Freedom of Access law. Holmes found out about the email and acquired a copy from the attorney for York County. Upon learning that Holmes had received a copy of the email, Nadeau, who had at this point been sworn-in as Probate Judge, issued an order to Holmes. Nadeau ordered the email “sealed,” ordered Holmes to destroy all copies in her possession, and ordered Holmes to certify within 7 days that she had complied. For reasons not important to this discussion, Nadeau issued this order in a case in which, at Holmes’s request, he had recused himself.
Holmes intended to appeal the case in which Nadeau entered the order. She was concerned that, if she destroyed her copy of the email, all other copies might be destroyed either by Nadeau or at his direction, leaving her without evidence of the email’s existence in the record on appeal. Holmes did take steps to ensure that nobody else had access to her copy, but she did not destroy the email or certify her compliance in accordance with Nadeau’s order. Nadeau reacted by filing a complaint against Holmes with the Maine Board of Overseers of the Bar, alleging that her non-compliance violated the Maine Rules of Professional Conduct. In The Board of Overseers of the Bar v. Pamela S. Holmes, 13-145 (Dec. 15, 2014), a Grievance Commission Panel of the Board found that Holmes had in fact violated Maine Rule of Professional Conduct 3.4(c), which provides: “A lawyer shall not…knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”
In its written decision, Holmes’s Grievance Commission Panel rejected an additional claim that Holmes’s conduct violated Rule 4.4, governing the handling of inadvertently disclosed materials that may contain privileged or protected material, on grounds that the email was a public record, accessible to all. The Panel also rejected a claim that her conduct violated Rule 8.4(d), which prohibits lawyers from acting in ways prejudicial to the administration of justice. Because of the unusually difficult circumstances Holmes faced, and because the Panel found that virtually no harm resulted from Holmes’s failure to comply with Nadeau’s order, the Panel issued a public dismissal of the complaint with a warning to Holmes. But the bottom line is, the Panel found that Holmes’s conduct violated Maine Rule of Professional Conduct 3.4(c).
Now let’s return to the case against Nadeau. One of the complaints against Nadeau was that he allegedly violated Cannon 2(A) of the Maine Code of Judicial Conduct when he ordered Holmes to destroy an email that was actually a public record. Cannon 2(A) provides: “[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” In its decision suspending Nadeau, the Supreme Judicial Court held that Nadeau’s order to Holmes violated Cannon 2(A) because it ordered Holmes to destroy a lawfully obtained public document in a case in which Nadeau had recused himself. In other words, Nadeau had no authority to issue his order to Holmes. And yet, the Grievance Commission Panel found that Holmes violated the Maine Rules of Professional Conduct by ignoring that same unauthorized order. That means an attorney can be found to have violated the Maine Rules of Professional Conduct by failing to comply with a judge’s order even when the judge has no authority to issue it. Whoa! What if a judge orders an attorney to commit an unlawful or unethical act? Is the attorney’s choice to either commit the act and comply with the order or violate Maine Rule of Professional Conduct 3.4(c)? That’s quite a dilemma. In footnote 8 of its decision suspending Nadeau, the Supreme Judicial Court opined that it is difficult to understand how Holmes’s actions could be deemed to violate the Maine Rules of Professional Conduct. But Holmes’s Grievance Panel saw it differently. Why?
For all I can see, Holmes’s violation of Maine Rule of Professional Conduct 3.4(c) must have been that she failed to openly refuse to comply and state that she had no obligation because Nadeau had no authority to issue the order. Again, though, Rule 3.4(c) states that a lawyer is not to “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” I suppose that when a lawyer knows the court has no authority to issue an order, the lawyer also knows she has no obligation to comply, so non-compliance cannot constitute knowingly disobeying an obligation under the rules of the tribunal. After all, what is the obligation to comply with an order that is issued without authority? But because Holmes’s Grievance Panel did not see it this way, there must be something more that a lawyer must do, other than simply not comply with an unauthorized order. Imagine that you are a lawyer who is ordered to do something that the judge so lacks authority to order that the order violates the Code of Judicial Conduct. What do you do? Pam Holmes’s Grievance Panel told us that simply failing to comply will violate the Maine Rules of Professional Conduct. Maybe if you openly refuse to comply and tell the court you have no obligation to comply, that will save you from a Board of Overseers finding that you committed an ethical violation — then again, maybe not. In any event, if a judge orders you to do something that would either be unlawful or would violate the Rules of Professional Conduct in and of itself, it is still probably better not to comply. I’m thinking non-compliance, active refusal to comply, and a declaration that no obligation exists to comply is probably the way to go. Contempt, anyone? Nothing is ever easy.
This post is not legal advice and should not be taken as legal advice. It is intended for informational purposes only.