Wednesday, September 13, 2017

Overzealous

A reprimand was imposed by the Maine Board of Bar Overseers on an attorney for misconduct in a paternity matter as described by this summary

In 2015, Attorney Shusta represented James L. in a paternity suit. The Department of Health and Human Services (DHHS) filed a complaint in Skowhegan District Court against Mr. L., seeking to establish that he was the father of a child borne by Amy C. in 2012. AAG Spooner represented DHHS in the matter. Separately, Attorney Shusta filed a parental rights and responsibility action regarding the minor. In turn, AAG Spooner filed a motion to consolidate the two cases, which the court granted without objection by Attorney Shusta. The court then issued a case management order, scheduling mediation followed by a status conference on March 9, 2015.

Prior to mediation, Attorney Shusta contacted Ms. C., who was unrepresented, asking her if she would consent to the termination of Mr. L.’s parental rights, suggesting to her that her child could be adopted by her boyfriend. Attorney Shusta claimed that the “the word on the street was” that Ms. C. wanted to terminate the parental rights of Mr. L. In her interactions with Attorney Shusta, Ms. C., who has an 11th grade education, did understand that he was not representing her legal interests. Attorney Shusta states that at a case management conference he informed Ms. C. about the effect of termination, including giving up all future child support from Mr. L. At this time Ms. C. was not interested in termination.

At some point, Attorney Shusta and AAG Spooner had discussed the termination of parental rights issue: AAG Spooner informed Attorney Shusta that she would object to the termination unless there was a finding that it was in the child’s best interests, and that DHHS would not bring such a case under the present circumstances.

On March 9, 2015, Attorney Shusta met with Ms. C. in the Skowhegan courthouse prior to mediation, presenting her with a petition to terminate his client’s parental rights, which he had not provided to AAG Spooner. Ms. C. signed the paperwork. Denise Bemis, a DHHS enforcement agent, was running late and did not take part in mediation discussions overseen by Attorney Rob Washburn, which lasted 20 minutes. Eleven minutes later, Attorney Shusta, Ms. Bemis, and Ms. C. appeared in front of Family Law Magistrate Stephen J. Chandler. AAG Spooner was not in attendance, nor was her presence required by DHHS policy.

Attorney Shusta informed Magistrate Chandler that an agreed-upon petition for termination of parental rights and responsibilities would be filed. Magistrate Chandler asked Ms. Bemis about her understanding of the agreement. The transcript shows the following colloquy (emphasis added):

Ms. Bemis: I understand the agreement. I still – I feel that AAG Spooner should be given the opportunity to review that agreement.

Mr. Shusta: She has had the opportunity to review the agreement. She has had the opportunity to review the petition. She requested a change in the petition and we made that change today.

The Court: And she knows that this – there’s going to be no ongoing child support?

Mr. Shusta: Yes. And I suspect that there’s going to be a name change and an adoption in the near future

As a result, Magistrate Chandler signed Attorney Shusta’s draft order, which ended the parental rights and responsibilities matter and severed the DHHS paternity action. Attorney Shusta claims when he used the term “she” in the above dialogue, he was referring to Ms. C., who was present in the courtroom, and not to AAG Spooner, who was not present.

At the June 14, 2017 Grievance Commission hearing, AAG Spooner testified that Attorney Shusta never gave her an agreement or petition to review. Magistrate Chandler testified at this hearing that he had no independent recollection of what occurred during the status conference, adding that he was unsure of whom “she” referred to because the hearing was a long time ago and since then he had heard many other cases. He stated that under the circumstances he probably would have still signed the same order even if he knew that AAG Spooner had not received the documents from Attorney Shusta. However, Magistrate Chandler opined that it would be logical that the first “she” addressed AAG Spooner. Ms. Bemis credibly testified that she thought Attorney Shusta was referring to AAG Spooner. Initially, Ms. C. thought “she” referred to AAG Spooner, but upon further questioning was unsure.

At the grievance hearing, AAG Spooner testified that Maine law only allowed DHHS or a custodial parent to a file termination of parental rights action. Because Mr. L. was not the custodial parent, he could not initiate termination of parental rights proceedings. There is no dispute that Attorney Shusta prepared the paperwork for Ms. C. even though he was solely representing Mr. L.

The context strongly suggests that the “she” referred to by Attorney Shusta in the colloquy was AAG Spooner, whom he knew had a strong interest in this case. Arguably, Attorney Shusta was vigorously representing his client, who did not want to pay child support because he was not involved in his son’s life. However, Ms. Bemis informed the court that she felt AAG Spooner should be given the opportunity to review the agreement, which set the reference point for the colloquy. The evidence strongly weighs against Attorney Shusta who suggests that he was referring to Ms. C. because she annotated the agreement in front of the court. Furthermore, the electronic recording of the colloquy indicates that Attorney Shusta emphasized that “she” has reviewed the agreement, which supports the conclusion that “she” referred to AGG Spooner, who had not reviewed the agreement.

Even if Attorney Shusta had quickly explained to Ms. C. that she would never receive child support from Mr. L. upon termination being approved by the court, he was the one who planted the idea in her head that it would be a good idea because the child could be adopted. Attorney Shusta was the one who called Ms. C., who earlier rejected termination, to see if she would reconsider. In fact, he called her two times to review the details in the proposed agreement. At the July 17, 2017 Grievance Commission hearing, Attorney Shusta’s attorney asked him the following questions:

Q. And do you believe that you explained things to [Ms. C.] in a way that she could understand?

A. Yes.

Q. And did you provide her with opportunities to ask you questions.

A. Yes.

Q. And did you make it clear to her that she could always back out of the termination process at any point if she wanted to?

A. Yes. And I pointed out that if she did, she wasn't losing on the child support.

Yet, Ms. C. had no idea that only DHHS or herself could initiate termination. She signed paperwork prepared by Attorney Shusta, who says that he orally, but never in writing, encouraged her to get her own counsel to review everything. It appears that Attorney Shusta may have been hoping that Ms. C., who has struggled financially, would not get an attorney to review the paperwork, to the benefit of his client, Mr. L. When all the facts are viewed together, Attorney Shusta provided legal advice to an unrepresented adverse party by encouraging her to sign a petition, which his client was not legally authorized to submit to a court, to the detriment of the unrepresented party.

Attorney Shusta knew that he could only represent one party, which was Mr. L. and not Ms. C.

a period of probation also was imposed. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/09/a-reprimand-was-imposed-on-an-attorney-for-misconduct-in-a-child-support-matter-as-described-by-this-summary.html

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