LEWISTON — Clients of a former Brunswick lawyer who allegedly embezzled hundreds of thousands of dollars of their money are likely to be reimbursed, at least in part, by a statewide lawyers fund aimed at bolstering public confidence in the legal profession, according to a lawyer at the Maine Board of Overseers of the Bar.
James Whittemore, 69, of Bath was disbarred in November by the Maine Supreme Judicial Court for violation of multiple ethics rules, including rules related to competence, diligence, communication, fees, conflict of interest, safekeeping of property, candor toward the tribunal and truthfulness in statements to others.
Whittemore’s misconduct was intentional and serious in nature, and he exacted both severe emotional and financial injury to vulnerable clients, according to the high court’s order.
Whittemore also faces related criminal charges.
Earlier in the year, the Maine Board of Overseers of the Bar had received several complaints that Whittemore mishandled and misspent clients’ money.
Specifically, Whittemore is alleged to have:
• Mishandled and is suspected of converting “approximately $151,981.06 derived from the assets” of a trust in “a matter then pending in the Cumberland County Probate Court.”
• Improperly received and converted $100,000 in a settlement of two wrongful death claims, which had been made directly payable to his client’s trust account instead of the client and her son.
• Misappropriated $15,000 sent by a donor to the Brunswick-Topsham Land Trust to be held in escrow for an easement purchase.
• Accepted $18,790 from a client he was representing in a “right of way easement issue … without performing the requisite legal work.”
• Accepted a $1,500 retainer from a client and “performed minimal legal services for (the client) and then converted the remaining advanced fee for his own use.”
Enter the Maine Lawyers Fund for Client Protection.
Created in 1997 to promote public confidence in the legal system, lawyers and the integrity of the legal profession, the fund has paid out claims totaling nearly $600,000 to 122 claimants involving 41 Maine lawyers, according to Special Bar Counsel Angela Morse, who investigates fund claims fund at the Maine Board of Overseers of the Bar.
The fund pays claims for lawyer misconduct, usually stealing money, but can also be used to reimburse clients of deceased lawyers whose retainers were never recovered after their lawyers’ deaths. The fund doe not pay malpractice claims or other civil matters, Morse said.
If a former client later successfully sues the offending lawyer for damages that include the type of money paid by the fund to that former client, such as a retainer or money in a trust, the former client must pay back the fund, Morse said.
In some cases, the board may sue the offending lawyer directly in an effort to recover claims the fund has paid out to that lawyer’s wronged clients.
“It depends on the situation because a lot of the time there is no money” in the lawyer’s assets to be recovered, she said. “We’re going to use our best judgment.”
So far, the board has received 15 claims totaling $233,000 involving Whittemore, she said. And that figure is expected to grow.
The fund pays up to $50,000 per claim or $100,000 per lawyer, Morse said. The board is considering whether those caps should be increased, she said.
Claimants are paid on a first-come, first-served basis. The fund’s trustees decide which claims to pay and for how much based on Morse’s investigative summary, she said. The trustees, composed of five lawyers and two nonlawyers, meet four times a year.
If a receiver has been appointed by the court to take over a suspended or disbarred lawyer’s accounts, that receiver may advise former clients to seek claims from the fund and refer them to the board’s website, Morse said. The receiver is “the point person for the attorney who is no longer practicing,” Morse said.
In some cases, a first step for the former client might be through the board’s fee arbitration process, where former clients who believe they have been overcharged for services or have not received the services for which they’ve paid may seek redress.
Maine lawyers are required to set up Interest on Lawyers Trust Accounts when they establish a law practice where they must deposit all escrow and retainer money they receive from clients. The interest earned on those accounts is earmarked to provide civil legal aid to the poor and support improvements to the justice system.
The IOLTA account is the first place a receiver would look for money to reimburse former clients. But often, as in Whittemore’s case, that fund is empty and the money that should be there is gone.
That is where the fund for client protection can play a valuable role, Morse said, in helping to make the former clients whole.
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