Judge Clears Verrill Dana Attorneys of Ethics Charges

The Maine Supreme Judicial Court has cleared six Portland attorneys of ethics charges in connection with the misconduct of former partner John Duncan. In a ruling issued late this afternoon, Justice Donald Alexander finds that prosecutors with the Board of Overseers of the Bar failed to prove that Duncan's former colleagues at Verrill Dana violated codes of professional conduct by failing to uncover and report evidence of his crimes in a timely way.


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The board of Overseers of the Bar had sought sanctions against the six lawyers after a three-year investigation raised questions about whether they had properly reported Duncans' actions, including the theft of $300,000 in client funds. 

In their case against the six attorneys, who served on the firm's executive board, prosecutors argued that if they suspected that Duncan might have been guilty of unethical--if not illegal--conduct, it was their duty under bar rules to report him. 

In his 35-page ruling, Justice Donald Alexander found that prosecutors had failed to prove the allegations.

"Well, it's gratifying, although certainly not suprising, that the judge was able to capture what this case was really about," says Portland attorney Melissa Hewey, who represented Verrill Dana attorney James Kilbreth in the case.

"The bar rules are clear, that you examine these things based on what people know when they know it, and one incident doesn't form anybody's complete picture of another person," Hewey says. "So knowing John Duncan, knowing who he was, really made these people decide to do what they did."

Duncan was a well-respected and long-serving attorney with Verrill and Dana in 2007 when evidence emerged within the firm that he had improperly written checks to himself from client accounts. 

The opinion concludes that it was understandable that Duncan's colleagues at the time believed his explanation, and that while they thought Duncan may have broken the firm's partnership agreement, it wasn't clear that he had broken any laws. 

Justice Alexander's ruling also finds that his colleagues were understandably concerned about his mental health. Further, Alexander found that when it later came to light that Duncan had, in fact, stolen much more from clients, and from the firm, proper steps were taken to report him. 

Justice Alexander concludes: "With the clarity of hindsight, the respondents were perhaps too trusting when they had good reason to trust, but they committed no violations of the Code of Professional Responsibility."

"I don't think that the decision changes the rules," Hewey says. "I think that what it highlights is that these are ethical rules, and that attorneys have a lot of different obligations--the obligations to each other, the obligations foremost to their clients, but that acting humanely and trusting people is not unethical." 

Calls to the Board of Overseers of the Bar were not returned by airtime. Duncan was disbarred and served two years in federal prison.