Tuesday, January 30, 2018

Three-Hole Punch (Rosemary) And Twine

The Maine Supreme Judicial Court ordered a 12-month suspension of an attorney

The basis for the grievance complaint against Burbank, leading to the filing of the within Information, is the matter of Lincoln v. Burbank, 2016 ME 138, 147 A.3d 1165, decided by the Supreme Judicial Court, sitting as the Law Court, on August 30, 2016. This court takes judicial notice of and adopts the findings and conclusions set out in that decision.

The case of Lincoln v. Burbank involved an appeal of a Northport property dispute litigated in the Superior Court in Penobscot County, in which neighbors of property owned by the Burbank family filed claims against the Burbanks seeking a prescriptive easement over the Burbank property and a declaratory judgement, for conversion, and for punitive damages against Burbank himself. Id. ¶ 18. Burbank represented himself; his father, Harold Burbank I; his brother, David Burbank; and his sister, Lori Darnell. Id. ¶ 2. After a jury-waived trial, the Superior Court found in favor of the neighbors and against Burbank's position. Id. ¶ 21. In addition, the Superior Court found in favor of other members of the Burbank family, who were co-owners of the Burbank property, on their cross-claim for partition by sale of the Burbank family property. Id. ¶¶ 19, 22. Only Harold Burbank II appealed the Superior Court's judgment. Id. ¶ 5 n.4.

The appeal was originally filed by Attorney Mariah A. Gleaton, who later withdrew as the attorney. Thereafter, Harold Burbank II represented himself.

The misconduct focused on the appeal

By Order dated January 5, 2016, the Law Court rejected Burbank's brief, which was punched with three holes and bound with twine, see M.R. App. P. 7A(g)(3). The Law Court also ordered Burbank to show cause why he should not be sanctioned for failing to show why he should not be disqualified from representing three appellees-the family members he represented before the trial court-while representing himself as appellant. Burbank then moved to withdraw as counsel for the appellees.

The Law Court affirmed the Superior Court's decision, and also sanctioned Burbank for his serious misconduct in prosecuting the appeal.1 Id.¶¶ 61-64. In particular, the Law Court noted that Burbank stated facts not in the trial record, id. ¶ 24; raised issues without any further argument, id. ¶ 39; listed "meritless" and "frivolous" issues, id. ¶¶ 40-41; and made arguments "devoid of legal authority to support them," id. ¶ 52. The Law Court ultimately determined that there was "no merit in any of Burbank's arguments on appeal, including those raised in his reply briefs." Id. ¶ 45. At the conclusion of its decision, the Law Court summarized,

Throughout the various stages of this appeal, in his briefs, his Supplement of Legal Authorities, his request for oral argument, and his responses to opposing parties' motions, Burbank has consistently disregarded standards of law and practice that govern appellate review. He has asserted legal arguments that are frivolous and baseless, and, contrary to governing precedent, he has sought to have us consider and decide the appeal on new facts and new evidence that were not part of the trial record on appeal. Burbank's efforts have been disrespectful to the proper role of the trial court, unfair to and expensive for the other parties, and contrary to Maine appellate law. Burbank's frivolous and baseless actions are egregious conduct that has confused the issues on appeal, delayed final resolution of this matter, and significantly driven up the costs to other parties. Although the actions taken by Burbank would be concerning if he were a litigant unschooled in law, we note that Burbank is not only an attorney, but an attorney who is licensed to practice in Maine. He is therefore, presumed to be familiar with our case law, our statutes, and our Rules; his actions demonstrate either a complete lack of understanding or an intentional flouting of these guides.

Id.¶ 61.

Burbank's actions continue to be problematic. In his Answer to the within Information in this case, Burbank has admitted to making errors in applying and interpreting the applicable rules of court, but has asserted that some rules were not published, and thus he could not interpret or apply them; some rules were ambiguous; and his failure to file timely responses was due to his suffering a stroke. Burbank has failed to pay the $10,000 in sanctions imposed on him by the Law Court, nor has he fully paid the $20,000 judgment against him imposed by the Superior Court in the underlying litigation, and has since filed a Chapter 7 bankruptcy action in the Bankruptcy Court in Connecticut. Burbank also did not properly offer all the exhibits at this Bar Discipline Hearing that he made reference to in his post-hearing submission. In short, he does not appear to have a good grasp of the procedural rules of litigation.

Based on the findings and conclusions of the Law Court in Lincoln, in conjunction with the evidence presented at the hearing in this matter, this court finds and concludes that Burbank has violated the following Maine Rules of Professional Conduct...


There are many aggravating factors in this case. The misconduct at issue is very serious. Burbank's conduct in the underlying litigation, and especially in the appeal in Lincoln, has caused substantial injury to the parties involved in the litigation as well as a waste of judicial resources. Although this court does not find that all of Burbank's misconduct was deliberate, as a practicing attorney, he certainly should have known that his conduct was far afield from the standards expected of a reasonably competent attorney, and that his actions constituted misconduct.

There are some mitigating factors that the court feels compelled to consider. Burbank has no prior disciplinary record in Maine, he was under great stress due to his father's poor health, and he himself has suffered from a stroke and is not in good health. There is also evidence that Burbank provided competent legal representation in Maine in the past, namely, in the effort by Ralph Nader to be placed on the Maine ballot as a presidential candidate in the early 2000s.

The main purpose of imposing a sanction in these disciplinary proceedings is the protection of the public. The sanction to be imposed must be significant because of the serious misconduct that is involved here, and must require that Burbank file a petition for reinstatement in order for him to be reinstated as an attorney in good standing.

Accordingly, pursuant to M. Bar R. 13(g)(4), and 21(b)(6), Harold H. Burbank II is suspended from the practice of law in Maine for a period of twelve months. The suspension is effective immediately.

(Mike Frisch)


Bar Discipline & Process | Permalink


One of your better titles, Mike ... among many good ones.

Posted by: ALAN CHILDRESS | Jan 30, 2018 11:37:36 AM

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