Carey v. Bd. of Overseers of the Bar

Decision Date16 August 2018
Docket NumberDocket: Ken-18-22
Citation192 A.3d 589
Parties Seth T. CAREY v. BOARD OF OVERSEERS OF the BAR et al.
CourtMaine Supreme Court

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 (lack of reasonable diligence in representing a client). Id.

[¶ 8] The third disciplinary action was initiated by a complaint filed on behalf of a bank managing Carey's client trust accounts (interest on lawyers trust accounts (IOLTA accounts) ) pursuant to Maine Bar Rule 6 and Maine Rule of Professional Conduct 1.15. Id. at 7. The complaint asserted that Carey improperly used his client trust account to make payments for both personal and professional expenses during the course of many months. Id. Carey had characterized these payments from his client trust accounts as "mistakes." Id. The agreed order found that even if Carey's explanation was accurate, "Attorney Carey admits that he failed to abide by the rules governing client trust accounts. This failure is troubling because as an attorney licensed for more than ten years, Attorney Carey knew or should have known that he could not comingle funds or draw upon his IOLTA account for personal and other nonclient expenses." Id. at 7-8.

[¶ 9] Despite this finding, the agreed order did not explicitly find a violation of Maine Bar Rule 6 or Maine Rule of Professional Conduct 1.15 relating to this disciplinary information. Instead, regarding this information, the court found a violation of only Maine Rule of Professional Conduct 1.1 (incompetence). Id. at 8.

[¶ 10] Proceeding to address sanctions, the court noted that "Attorney Carey has previously been sanctioned for misconduct, some of which is similar to the instant matters and some of which is unrelated to those concerns. See two Orders of Suspension, February and October 2009, respectively." Id. at 8.

[¶ 11] With that background and based on the parties' agreement submitted in the proceeding "as supplemented by the Court," the court ordered Carey suspended from the practice of law for two years but suspended all of that suspension—so that no actual suspension from practice was imposed. Id. at 9. The suspended suspension was subject to twenty-eight conditions that primarily required supervision and monitoring of Carey's practice, improvements in his management of his practice, and continuing legal education and other courses to improve his practice management and compliance with his professional ethical obligations. Id. at 9-17.3

[¶ 12] Less than two months after the entry of the November 2016 agreed-upon suspended suspension disciplinary order, in January 2017, Carey filed in the Superior Court a wide-ranging complaint, later amended, against three judges who had presented evidence in the Grievance Commission proceedings, several other court employees who had worked with the judges, the physician who had filed the complaint against Carey, the Lewiston Sun Journal, MCILS and its director, the Board of Overseers of the Bar, the Board's attorneys who had prosecuted the grievance complaint against Carey and negotiated the agreed disposition of the grievance complaint, the Maine District Court, and the Office of the Clerk of Courts.

[¶ 13] Carey's amended complaint asserted numerous causes of action and allegations against the defendants including: negligence, abuse of process, invasion of privacy, false light, malicious prosecution, fraud upon the court, misrepresentation, conspiracy, tortious interference with prospective and actual economic advantage, tortious interference with contractual relations, violation of the Maine Unfair Trade Practices Act (MUTPA), negligent infliction of emotional distress, intentional infliction of emotional distress, violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), and M.R. Civ. P. 80C appeal of an administrative action.

[¶ 14] The court, the Board of Overseers of the Bar and their related individual defendants, and the MCILS filed motions to dismiss in February of 2017; the Lewiston Sun Journal filed a motion to dismiss in May of 2017; and the physician filed a motion to dismiss in June of 2017.

[¶ 15] The court (Anderson, J. ) granted each of the defendants' motions to dismiss on October 25, 2017. Specifically, the court concluded that: (1) Carey's tort claims against the judges and court employees were barred by judicial immunity, pursuant to 14 M.R.S. § 8111(1)(B) (2017) ; (2) Carey's tort claims against the MCILS director were barred by discretionary immunity, pursuant to 14 M.R.S. § 8111(1)(C) ; (3) Carey's tort claims against the Board's attorneys who had prosecuted the disciplinary action against him were barred by discretionary function immunity and prosecutorial immunity, pursuant to 14 M.R.S. § 8111(1)(C)-(D) ; (4) Carey's tort claims against another Board employee were legally insufficient because the claims did not allege anything specific that that employee had done to harm him; (5) Carey's MUTPA and RICO claims against all defendants were barred by sovereign immunity; (6) Carey's M.R. Civ. P. 80C appeal was not timely filed, and even if it had been timely filed, Carey had failed to prosecute the appeal; (7) Carey's claims against the physician were barred pursuant to Maine's Anti-SLAPP statute, 14 M.R.S. § 556 (2017) ; and (8) Carey's claims against the Lewiston Sun Journal were dismissed pursuant to M.R. Civ. P. 12(b)(6), based on his failure to plead all necessary elements of his claims.

[¶ 16] The motions to dismiss filed by the governmental entities (the Board, the Maine District Court, the Office of Clerk of Courts, and MCILS), "with respect solely to the state law tort claims," were converted to motions for summary...

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