Carey v. Board of Overseers of Bar

          Submitted On Briefs: July 19, 2018

          Seth T. Carey, Esq., L/A Law, Auburn, for appellant Seth T. Carey

          Janet T. Mills, Attorney General, and Susan P. Herman, Dep. Atty. Gen., Office of the Attorney General, Augusta, for appellees Office of the Clerk of Courts et al.

          Janet T. Mills, Attorney General, and Thomas A. Knowlton, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellees Maine Board of Overseers of the Bar et al.

          Bryan M. Dench, Esq., Stephen B. Wade, Esq., and Amy Dieterich, Esq., Skelton Taintor & Abbott, Auburn, for appellee Lewiston Sun Journal

          Hillary J. Bouchard, Esq., Thompson Bowie & Hatch LLC, Portland, for appellee Matthew J. Donovan

          Panel: SAUFLEY, C.J., and ALEXANDER, HJELM, and HUMPHREY, JJ.

          PER CURIAM

         [¶1] Seth T. Carey appeals from a judgment of the Superior Court (Kennebec County, Anderson, J.) granting motions to dismiss and motions for summary judgment. The court's order resulted in judgment for all defendants on Carey's wide-ranging complaint against judges and other court employees, the Board of Overseers of the Bar, the Maine Commission on Indigent Legal Services (MCILS), and the Lewiston Sun Journal. Carey's complaint was based on the defendants' actions related to or participation in an attorney disciplinary proceeding before the Board that resulted in the court [Brennan, J.) accepting an agreed two-year suspended suspension from the practice of law with many conditions imposed on Carey's practice.

         [¶2] Carey appeals, contending that the court improperly ruled that most defendants were protected by statutory or common law immunities, that there were no disputes of fact regarding his claims against the defendants, and that the defendants are entitled to judgment as a matter of law. We affirm.

         I. CASE HISTORY

         [¶3] In 2016, the Board of Overseers of the Bar brought three disciplinary informations, M. Bar R. 13(g), against Seth T. Carey. Board of Overseers of the Bar v. Carey, BAR-16-15 (Nov. 21, 2016) [Brennan, J.). After negotiations, Carey and the Board agreed to the entry of a negotiated order "identifying Attorney Carey's misconduct and the resulting sanctions imposed by the court." Id. at 1. The agreed order identified Carey's misconduct and supporting evidence organized by the three disciplinary informations. Id.

         [¶4] The first disciplinary action was based on evidence presented by four Maine judges at a Grievance Commission proceeding where those "four jurists recounted their experiences, observations, and concerns about Attorney Carey's lack of core competence."^[1] Id. at 2. The order recognized that Carey had been "adamant that the jurists ['] accounts were inaccurate and that they had colluded in a conspiracy against him." Id. The order noted, however, that Carey agreed that the testimony of the judges at the hearing before the Grievance Commission comprised "sufficient evidence for this Court to find that he had demonstrated a lack of core competence in the handling of his clients' respective litigation matters." Id. at 3.

         [¶5] Based on that information, and apparently by agreement, the court found that Carey had committed violations of Maine Rules of Professional Conduct 1.1 (incompetence), 1.3 (lack of reasonable diligence in representing clients), 3.3(a)(3) (offering material evidence that is false), 3.3(b) (failure to disclose false evidence to a court), and 8.4(d) (conduct prejudicial to the administration of justice).^[2] Id.

         [¶6] The second disciplinary action was based on a complaint by a physician who had served as an independent medical examiner in a proceeding in which Carey represented a claimant before the Maine Workers' Compensation Board. Id. The physician's complaint expressed concern regarding Attorney Carey's conduct both in preparation for and during a deposition. Id. at 4. A hearing officer of the Workers' Compensation Board found that Carey had failed to provide relevant medical reports to the physician prior to his deposition and had asked the physician many questions, during the deposition, relating to medical evidence that had not been admitted into evidence in the proceeding. Id. at 6.

         [¶7] The agreed order found that "Attorney Carey's failure to timely provide the necessary medical documents to [the physician]" constituted violations of Maine Rules of Professional Conduct 1.1 (incompetence) and 1.3 ...