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Board of Overseers of Bar v. Carey

Supreme Court of Maine

August 15, 2019

BOARD OF OVERSEERS OF THE BAR
v.
SETH T. CAREY

          Submitted On Briefs: July 18, 2019

          Seth T. Carey, appellant pro se

          Aria Eee, Esq., Board of Overseers of the Bar, Augusta, for appellee Board of Overseers of the Bar

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

          PER CURIAM

         [¶1] In November of 2016, Seth T. Carey-an attorney admitted to the Maine Bar-consented to the entry of a disciplinary order [Brennan, J.). The order established that Carey had committed multiple violations of the Maine Rules of Professional Conduct, which prescribe ethical standards for lawyers, and imposed a two-year suspension of Carey's law license-a suspension that was itself suspended contingent on Carey's compliance with nearly thirty specific conditions. In April of 2018, in response to an "expedited petition" filed by the Board of Overseers of the Bar to activate the suspended portion of Carey's suspension, a single justice [Warren, J.) suspended Carey's law license, effective immediately and pending a full hearing, after making an initial finding that Carey had engaged in conduct that led to the issuance of a protection order against him. See M. Bar R. 24(a)-(b). The Board later filed a new disciplinary information against Carey, alleging that he had committed other violations of the Maine Rules of Professional Conduct. See M. Bar R. 13(g)(1).

         [¶2] In September of 2018, following a three-day hearing on the pending matters, the single justice entered an order finding that Carey had, on numerous occasions, engaged in criminal conduct and violated court orders, all in contravention of the Rules. After holding a sanctions hearing several months later, the single justice entered an order suspending Carey's license to practice law for three years, see M. Bar R. 13(g)(4), 21(a)(1), (a)(3), (b)(6), with certain conditions to be satisfied while the suspension is in effect. Carey appealed to us,[1] see M. Bar R. 13(g)(4), and we affirm the judgment.

         I. BACKGROUND

         [¶3] The following facts are drawn from the findings of the single justice, all of which are supported by competent record evidence, see Bd. of Overseers of the Bar v. Prolman, 2018 ME 128, ¶ 2, 193 A.3d 808, and from the procedural record.

         [¶4] Carey is no stranger to attorney disciplinary proceedings. Since he was admitted to the Maine Bar in 2006, his license to practice law in this State has been suspended no fewer than three times-not including the most recent suspension order-for violations of the rules of ethics governing attorney conduct. In 2009, Carey was sanctioned for misconduct twice. First, his license was suspended for six months and one day after a single justice concluded that Carey had, among other things, improperly communicated with other lawyers' clients, demonstrated "a profound lack of candor and a clear willingness to mislead [Bar Counsel] and the [Grievance Panel]," and exhibited "a lack of fundamental skills, competencies, and preparation in trial work in general, and criminal defense in particular"-all in violation of the Maine Bar Rules.[2] Bd. of Overseers of the Bar v. Carey, BAR-08-04, at 6-7 (Feb. 12, 2009) (Mead, J.). The single justice also noted that Carey's testimony at the disciplinary hearing was "evasive, combative, and accusatory." Id. at 5.

         [¶5] Later in 2009, Carey was sanctioned for other misconduct he had committed while the earlier disciplinary action was pending. Bd. of Overseers of the Bar v. Carey, BAR-08-10 (Oct. 6, 2009) (Mead, J.). The second order was entered by agreement on the basis of a complaint made by an acquaintance of Carey that, during a visit to her home, Carey became emotionally out of control and, among other things, acted violently toward her puppy. Id. at 1-3. Without admitting to all the conduct alleged in the complaint, Carey agreed that "his conduct was unworthy of an attorney in violation of then applicable M. Bar R. 3.1(a)," and the single justice imposed a sixty-day suspension of Carey's license to practice, to run concurrently with the earlier suspension. Id. at 3-4.

         [¶6] That brings us to the first of the two proceedings directly at issue here. In November of 2016, a single justice entered an agreed-to order finding that, over the course of several years, Carey had violated the Maine Rules of Professional Conduct in several respects. Bd. of Overseers of the Bar v. Carey, BAR-16-15, at 1-8 (Nov. 21, 2016) (Brennan, J.). First, based on a grievance complaint filed against Carey by a judicial officer, the single justice found that Carey had "failed to follow applicable rules, procedures and directives issued by the trial courts," thereby demonstrating, among other things, a lack of core competence and violations of numerous Rules of Professional Conduct: Rule 1.1 (competence);[3] Rule 1.3 (diligence);[4] Rules 3.3(a)(3) and 3.3(b) (candor toward the tribunal);[5] and Rules 8.4(a) and 8.4(d) (misconduct).[6] Id. at 3. Second, the single justice found that Carey had engaged in professional misconduct during a workers' compensation proceeding and again violated rules pertaining to basic attorney competence and diligence. Id. at 6; see M.R. Prof. Conduct 1.1, 1.3; see also supra nn.3-4. Finally, the single justice determined that Carey had failed to abide by the rules governing client trust accounts (IOLTA), which the single justice found particularly troubling because, "as an attorney licensed for more than ten years, Attorney Carey knew or should have known that he could not commingle funds or draw upon his IOLTA account for personal and other non-client expenses." Bd. of Overseers of the Bar v. Carey, BAR-16-15, at 8 (Nov. 21, 2016). Although not explicitly finding that Carey had violated the rules governing the management of client trust accounts, the single justice determined that Carey's conduct had, once again, demonstrated his incompetence as an attorney in violation of Rule 1.1, see supra n.3. Bd. of Overseers of the Bar v. Carey, BAR-16-15, at 8 (Nov. 21, 2016).

         [¶7] Based on these violations, committed against the backdrop of a history of serious and repeated misconduct, the single justice entered an order suspending Carey's license to practice for two years.[7] Id. at 8-9. That suspension, however, was itself suspended so that Carey could continue to practice law subject to twenty-eight conditions. Id. at 9-17. In pertinent part, the conditions required Carey to commence treatment with a psychiatrist[8] and "follow the recommendations of the psychiatrist and any other treatment providers he may subsequently be referred to," and to "refrain from all criminal conduct." Id. at 14-15.

         [¶8] In April of 2018, while Carey was still subject to the conditions established in the 2016 order, the Board learned that he had engaged in conduct that resulted in an order for protection from abuse being entered against him the previous month by the District Court (Rumford, Mulhern, J.).[9] The Board petitioned the court to immediately activate the 2016 suspension of his license. Later that month, after holding a hearing, the single justice [Warren, J.) entered an order suspending Carey's license pending the final resolution of the case based in part on a preliminary finding that Carey had engaged in criminal activity, namely, unlawful sexual contact and assault.[10] See M. Bar R. 24(b).

         [¶9] After further investigation, the Board discovered other potential criminal conduct and violations of the Rules, as well as additional instances of Carey's noncompliance both with the conditions of the 2016 order and with the single justice's April 2018 order of interim suspension. The Board subsequently filed a separate disciplinary information, later amended twice, framed in five counts: a claim based on Carey's conduct that resulted in the protection order and Carey's subsequent attempt to induce the protected person to recant (Count 1); a grievance complaint filed against Carey by a former client (Count 2);[11] a claim that Carey violated the court's April 2018 order of interim suspension (Counts 3 and 5); and a claim that Carey violated conditions of the November 2016 order (Count 4).

         A. The Factual Findings

         [¶10] After holding a three-day hearing on the Board's disciplinary information in August of 2018, the single justice entered an order determining, by a preponderance of the evidence, see M. Bar R. 14(b)(4), that Carey had violated the Rules of Professional in Conduct in the following ways.

         1. Criminal or Unlawful Conduct (Count 1)

         [¶11] In the spring of 2017, Carey rented a room in his house to a woman whom he had met years before when she was a client of his father, who is also an attorney.[12] While the woman lived in his house, Carey propositioned her for sex a number of times, but each time the woman declined, at one point telling him that his repeated advances were offensive.

         [¶12] After moving out of Carey's house in late 2017, the woman lived with her boyfriend, but that relationship became abusive, and the woman returned to Carey's home. Carey agreed that she could stay in his home without paying rent in exchange for cleaning and doing other work around the house, but as part of the arrangement he expected the woman to have sex with him, and he continued to ask her to do so. Having just left an abusive relationship, the woman was dependent on Carey for housing, so despite Carey's unwelcome advances, she had little choice but to stay there.

         [¶13] While the woman lived in Carey's house during both periods, Carey made unwanted physical advances toward her a number of times, including one time when he entered her bedroom at night and touched her legs and between her thighs, and another time when he stepped in front of her while she sat on the couch, pulled her head against his crotch, and in crude terms asked her to perform oral sex on him. Each time, the woman rebuffed Carey.

         [¶14] In March of 2018, Carey evicted the woman from his house, admitting in a text message that he was doing so in part because she would not have sex with him. Following her eviction, based on Carey's unwanted physical advances while living in the home, the woman filed a complaint for protection from abuse. After a lengthy trial held that same month, the District Court [Mulhern, J.) issued an order of protection against Carey.

         [¶15] Based on the evidence presented during this disciplinary proceeding, the single justice determined that Carey's conduct toward the woman "would constitute criminal or unlawful conduct that would qualify as unlawful sexual touching and domestic assault under 17-A M.R.S. §§ 26O(1)(A), 25l(1)(G), and 207-A(1)(A) [(2018)]" and "reflects adversely on Carey's trustworthiness and fitness as a lawyer." The single justice concluded that Carey's conduct constituted a violation of Maine Rule of Professional Conduct 8.4(b).[13]

         [¶16] There is more. Carey had appealed the protection order.[14] While the appeal was pending, Carey met with counsel for the woman and, in what Carey later described as an offer of "settlement," provided the attorney with a number of documents he had drafted. One of the documents contained a statement that the woman would sign and submit to the single justice in this matter and to the Board, stating that "things have been blown out of proportion and Seth Carey did not abuse me." Another document drafted by Carey was an agreement that would require the woman to file a motion in the disciplinary proceeding to "vacate the prosecution" of Carey. That agreement would also require the woman to file a motion to vacate the findings of abuse made by the District Court in the protection proceeding,[15] and it provided that once the protection order was vacated, Carey would convey title to his car to the woman. Pursuant to the proposed agreement, if Carey's law license were reinstated by October 1, 2018, Carey would pay the woman ...


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