Updated Dec. 23 at 3:00 p.m.
A panel of the Maine Board of Overseers of the Bar’s Grievance Commission heard arguments Friday, Dec. 19 on whether a Waldoboro attorney should be disciplined for alleged rule violations.
Attorney Philip S. Cohen, 46, is the subject of a Sept. 17 petition by the board alleging he knowingly disobeyed court obligations, engaged in conduct prejudicial to the administration of justice, and engaged in criminal conduct that reflects adversely on his fitness as a lawyer.
Assistant Bar Counsel Alan Kelly argued Cohen’s actions, including admittedly violating bail conditions by having repeated contact over eight months with a woman he was alleged to have assaulted in November 2013, injured or affected the outcome of that assault case.
The alleged victim had shown, at various points, reluctance in testifying in the case, including, at one point, allegedly emailing Cohen’s attorney, Walter McKee, indicating she was unwilling to return to Maine to testify, according to police and court documents.
Cohen pleaded guilty to disorderly conduct and violation of condition of release in July; the domestic violence assault charge was dismissed.
At the disciplinary hearing Dec. 19, Andrew Matulis, the Androscoggin County assistant district attorney who served as prosecutor for the criminal case against Cohen, testified the alleged victim was initially uncooperative with police the night of the alleged assault in November 2013.
After reaching out to her through her attorney, the woman began to cooperate with the investigation and shared information about ongoing contact with Cohen, according to Matulis.
The nature of the communication was “generally benign” and not related to the alleged assault, but it was determined there was probable cause Cohen had violated his conditions of release and he was arrested on that charge, Matulis said.
At the hearing, Cohen admitted to repeated contact with the woman over the eight months following his initial arrest, including traveling internationally twice to visit her.
Cohen acknowledged he understood the argument for no-contact conditions was to protect the judicial process, and that he agreed to those conditions as part of his bail.
Cohen testified at various points in the hearing that his contact with the woman was to help her or out of concern for her regarding legal issues and alleged medical or substance abuse issues.
Cohen said he did block the woman from communicating with him for periods of time, but not continuously. “I was worried about her,” he said.
When things were going well between them, the woman would not want to cooperate with the prosecution in the original domestic violence case, Cohen testified, but when she felt he was ignoring her or things weren’t going well, she would allegedly threaten him.
“In a lot of ways, my case would have been better off if she had come back and we had just had that trial,” Cohen said. “I was never afraid of being convicted of that original charge, even with her testimony.”
During cross-examination by McKee, Matulis testified the criminal case against Cohen was solely concerning the relationship between Cohen and the alleged victim and there were no suggestions of any professional issues in relation to Cohen.
However, Matulis testified it was because of Cohen’s contact with the woman he recommended the maximum incarceration for Cohen after his deferred disposition in the disorderly conduct and violation of condition of release case was terminated in October.
Superior Court Justice Roland Cole terminated Cohen’s deferred disposition after ruling a preponderance of the evidence showed Cohen had committed domestic violence assault against the woman on July 12, a day after his plea deal dismissing the original domestic violence assault charge had gone through.
It was at the Oct. 3 hearing “I found out [the contact between Cohen and the woman] was substantial, to say the least, and I made my recommendation based on the fact that I believed the integrity of the judicial system had been impaired by the contact,” Matulis said.
Two retired district court judges, John David Kennedy and Michael Westcott, gave high praise for Cohen’s work as an attorney and advocate.
According to Kennedy, Cohen always did a “first-rate job” and would “fight hard within the rules.”
Cohen always seemed to work for his clients’ best interests and exhibited “great integrity” as a lawyer, Westcott said. “I have the highest regard for him.”
Cohen was someone who could be trusted, Westcott said. “If he gave you his word, he’d follow it.”
McKee said it was clear through documentary evidence and testimony Cohen “has never wavered from being nothing but the best in serving his clients and the profession in the best way possible.”
Though Cohen’s conduct was “directly in violation of the rules,” Cohen was dealing with a “toxic” relationship in an “imperfect way,” and his contact with the woman was a sincere attempt to help her, not obstruct the judicial process, McKee said.
Cohen said he has never, in a professional capacity, treated the courts with any disrespect. “I’m sorry for what I did in my personal life,” he said.
Under the Maine Bar Rules, the disciplinary panel can dismiss a petition, dismiss it with a warning to the attorney, issue a public reprimand of the attorney, or, upon a finding of probable cause for suspension or disbarment, send the matter to be heard before a single justice of the Supreme Judicial Court.
Kelly argued the facts support probable cause to send the case to a justice, which McKee acknowledged there may be a basis for.
However, McKee argued the entirety of the facts, including having already served a “de facto suspension” from practicing law during a 23-day jail term, support a reprimand for Cohen due to his conduct.
The disciplinary panel’s deliberations are private under the bar rules, but any forthcoming decision is required to be made public.
