by Richard W. Millar, Jr.

Rules, rules, rules. Love them or hate them, lawyers’ lives are subject to them virtually every time we turn around. Federal rules, state rules, local rules, local-local rules, and then there are the rules that you can’t find anywhere except on the rejection slip you received.

Rules are necessary to place structure on court proceedings, elsewise there would be chaos. They are usually logic based if you think of them from the court’s perspective, although occasionally they seem to just be a vehicle a judge can use to avoid a decision on the merits. In a way, some rules can be a judge’s best friend.

There is, of course, the old saying that “rules are meant to be broken.” That saying presumably means that rules can be broken when the circumstances call for it, or there are exceptions to every rule.

Try telling that to a court clerk.

And local rules govern. I remember not all that long ago seeing a sign on a clerk’s desk that succinctly stated: “I don’t give a damn how they do it in L.A.”

I am sure it would not surprise you to know that Maine has rules governing, among other things, how Appellate Briefs should be bound:

“Binding. Briefs shall be bound on the left-hand margin with comb or spiral binding that permits the pages to lie flat when the document is open.” (Me. R. App. Proc. 7A(g)(3).)

That’s the rule. It neither references, nor suggests, exceptions. Although I confess I had to look up “comb binding.” Once I did, the rule seemed clear or, if I were to write fancier, unambiguous. Until now, it would not have occurred to me that the rule permitted using a three-hole punch and binding it with twine.

That hadn’t occurred to the Maine Supreme Court either.

It not only occurred to Harold H. Burbank II; he did it.

The clerk’s office must have passed it upstairs with a note saying something to the effect of “what do we do with this,” because the court rejected it with a written order. That’s right; probably fearing an onslaught of twine-tied briefs, the court went to the trouble of preparing a written (thou shall not twine) order.

Although the reports I have read do not mention it, I assume that Mr. Burbank ultimately filed a properly bound brief because the court read it. He would have been better off just taking his twine-tied brief and going home.

The case involved a prescriptive easement dispute between various Burbank family members on the one hand, and their neighbors on the other hand. Mr. Burbank represented himself, his father, his brother and his sister. (The family that sues together stays together.) The neighbors won.

Mr. Burbank, and no one else, appealed. The Supreme Court didn’t just affirm the trial court; it sanctioned Mr. Burbank for “serious misconduct in prosecuting the appeal.” It found that he raised facts not in the record, raised issues without further argument, raised “meritless” and “frivolous” issues, and made arguments “devoid of legal authority to support them.”

The court noted that not only was Mr. Burbank an attorney, he was licensed in Maine and presumptively knew its rules, concluding that he had either “a complete lack of understanding” of them or was “intentionally flouting” them.

That led to the Board of Overseers of the Bar filing an information seeking his suspension. In his answer, Mr. Burbank admitted errors in interpreting the rules, claiming that some were not published and some were ambiguous, a position the justice hearing the case labeled “problematic.”

In mitigation, the justice noted that Mr. Burbank had acted competently in the past when he assisted in the effort to get Ralph Nader placed on the Maine ballot as a presidential candidate in the early 2000s. (If that was the only good thing that could be said about me, I would be worried, but I digress.)

In any event, Mr. Burbank was suspended from practice for twelve months, effective immediately. To be reinstated, he must file a petition in accordance with Maine Bar Rule 29.

I looked up Rule 29. It is silent as to whether such a petition can be hole-punched and bound with twine.

Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.