Wednesday, September 23, 2015

"Neither Accurate Nor Helpful"

The Maine Supreme Judicial Court denied reconsideration of the dismissal of an appeal in a probate matter due to the attorney's deficient briefs.

A pro se appellee had objected to the initial brief because "it contained myriad substantial errors."

The attorney admitted the errors but replied in part

However inartfully presented, counsel submits that the issues presented in this appeal are very important substantive issues for the future of the probate law and that the Arguments presented are persuasive.

Justice demands form should not be elevated over substance.

The court permitted the attorney two weeks to file a new brief.

Once again the pro se appellee "then filed a motion requesting that we reject the amended brief, which still contained numerous errors, including erroneous record citations."

The attorney 's response in part

Counsel is, however, a one man office without benefit of any secretary or any clerk, or law student, who like many sole practitioners scratches out a living during not the best economic times. Every expense is out of pocket.

The court

As he admits, Attorney Robinson’s amended brief still contains errors he was ordered to resolve in the July 30, 2015, order. Instead of accepting the opportunity to correct the errors that even he acknowledged, he used the time to chart a different path of analysis for the appeal. He again provided the Court and the appellee with a document replete with so many errors that no reader is able to evaluate the assertions on appeal.

"Limited resources" do not excuse

Although we are sympathetic, we cannot overlook two facts: first, he failed to comply with our order of July 30, 2015, and second, the document he filed in response to that order requires any reader—be it members of this Court or the appellee—to refer to an eight-page errata sheet in order to even attempt to assess the accuracy, persuasiveness, or merits of his arguments. Moreover, this errata sheet was not even filed until after [appelle] Gero filed a second motion to strike pointing out the errors in his replacement brief...

Robinson’s references to sole practitioners in the Maine Bar as individuals who cannot be expected to comply with the Rules of Procedure does Maine lawyers a serious disservice. Every day, Maine lawyers, in sole practices, small practices, and other firms, work diligently and successfully to comply with the Rules.

Substance counts, but so does form

Robinson’s assertion that the dismissal places form over substance is simply wrong. A failure to comply with the Maine Rules of Appellate Procedure in fact compromises both the appellee’s ability to defend against the appeal and our ability to decide it.

Time to dismiss the appeal

Ultimately, despite being afforded the opportunity to correct his initial brief, and despite a full two-week timeframe to do so, Robinson failed to comply with a direct order from this Court, and the result of his work is a document that is neither accurate nor helpful.

The attorney who initially represented the client (replaced by the attorney taken to task here) was reported to be the subject of a bar complaint in the matter by the Portland Press-Herald. The complainant is the appellee.

He was reinstated after his disbarment for a federal drug conviction.

The conviction also led to his disbarment in the District of Columbia. I handled that case. (Mike Frisch) 

http://lawprofessors.typepad.com/legal_profession/2015/09/the-maine-supreme-judicial-court-denied-reconsideration-of-the-dismissal-of-an-appeal-in-a-probate-matter-due-to-the-attorney.html

The Practice | Permalink

Comments

Post a comment