Board of Overseers of the Bar v. Matthew E. Clark

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Docket No.: BAR-14-15

Issued by: Single Justice, Maine Supreme Judicial Court

Date: November 18, 2014

Respondent: Matthew E. Clark

Bar Number: 010030

Order: Suspension

Disposition/Conduct: Competence; Diligence; Communication; Excessive Fees; Misrepresentation and Prejudicial Conduct.


ORDER of SUSPENSION
M. Bar R. 7.2


The Board of Overseers of the Bar initiated this attorney disciplinary action on July 25, 2014 by the filing of an Information pursuant to M. Bar R. 7.1(e)(1). Mr. Clark filed an Answer to the Information on August 20, 2014, generally denying the Board’s allegations of professional misconduct.

Following subsequent discussions, the parties notified the Court that Mr. Clark was no longer contesting the Information. The Court scheduled final hearing for November 18, 2014. Notice of the hearing was also given to Frederick Black, complainant and former client of Mr. Clark.

At the hearing, Mr. Clark was pro se and the Board was represented by Deputy Bar Counsel Aria Eee. While Mr. Black did not attend, he did review the proposed Order the Board provided to him in advance of the hearing.

FINDINGS AND CONCLUSIONS

Matthew E. Clark was admitted to the Maine bar in 2006. From 2009 until his suspension in 2014, Mr. Clark practiced at a Waterville law firm. Prior to his January 2014 three-month suspension (also related to client neglect), Clark had not otherwise been disciplined for attorney misconduct. Since that suspension, Clark has either not worked or restricted his work to work not requiring a license to practice law.

Following a review of the pleadings and the parties’ proposal, the Court finds and Clark agrees that he engaged in several violations of the Maine Rules of Professional Conduct.

(Frederick G. Black/MSR Recycling, LLC)

On February 3, 2014 Frederick G. Black filed a grievance complaint against Mr. Clark. That complaint related to his company, MSR Recycling and its need for appellate representation during a building permit dispute with the Town of Madison. Black’s complaint outlined his retention of Clark in January 2013, for prosecution of a Superior Court appeal matter. By October, 2013 however, Black became frustrated with Clark’s lack of contact and information concerning that appeal. He then discharged Clark from the representation.

In his 2014 complaint, Black detailed Clark’s failure to communicate, excessive fees and neglect of the appellate matter. Moreover, despite Clark’s assurances that he had filed MSR’s brief, he actually had not done so. Black did not learn of Clark’s neglect until successor counsel obtained his file.

Clark agrees that he failed to adequately communicate with Mr. Black, that he was untruthful and that he failed to pursue Black’s appellate rights. Due to Clark’s failures, Black was barred from filing an appeal regarding his loss of the building permit. The Court finds and Clark agrees that his failure to file the brief exacted serious harm to MSR Recycling’s legal interests. The Court also finds that Clark’s billings to Black for work he did not perform were improper and excessive.

Based upon all of the above-outlined findings, the Court concludes that Clark committed violations of M. R. Prof. Conduct 1.1[competence]; 1.3 [diligence]; 1.4 [communication]; 1.5(a) [excessive fee]; and 8.4(a) (c)(d) [misrepresentation and prejudicial conduct].

SANCTION

As the Court concluded during Mr. Clark’s initial suspension matter, Clark’s multiple violations of the Maine Rules of Professional Conduct were serious and warranted the Court’s imposition of a meaningful sanction. The Court notes, however, that Clark’s misconduct toward Black occurred contemporaneously with his earlier misconduct toward a different client. The parties agree that significant for the Court’s consideration is the fact that Clark’s misconduct occurred during a time when he was experiencing a very debilitating depression. That fact certainly does not excuse Clark’s behavior but the parties agree that it is a mitigating factor for the Court’s consideration.

The Court is mindful that the primary purpose of attorney discipline proceedings is not punishment but rather protection of the public. Clark has not practiced law since January 2014 and he does not intend to return to the practice of law. He informed the Court that with the assistance of MAP and others, he participated in intensive treatment for his depression and has experienced some relief from that serious condition. Clark expressed remorse and regret for the manner in which he treated Mr. Black. He agrees that such treatment was unfair, improper and unprofessional.

The Court has also considered as a mitigating factor the fact that Clark does not intend to request a return to the practice of law. As such, there is no purpose served in further suspensions of his license. By the terms of this Court’s January 2014 Order, Clark was suspended and then directed to remain on inactive status. Before he may return to practicing law in Maine, Mr. Clark will be required to petition the Court for such reinstatement. See M. Bar R. 7.3(j)(5)(6).

Accordingly, effective November 18, 2014, the Court retroactively suspends Matthew E. Clark for the three (3) month period, January - April 2014, that he previously served pursuant to this Court’s January 27, 2014 Order, nunc pro tunc. The Court also orders that Clark remain upon the list of registered, inactive attorneys. The Court further orders the following conditions in this matter:

On or before December 1, 2014, Mr. Clark shall provide to any remaining clients notice of his suspension, consistent with M. Bar R. 7.3(i)(1).

Mr. Clark may not appear before any tribunal and is prohibited from advising, consulting or meeting with any clients.

If Mr. Clark intends to resume the practice of law, the parties have agreed and the Court hereby orders that Clark agree to submit his practice to monitoring by an attorney proposed by the parties or otherwise approved by Bar Counsel. Prior to any return to practice, the parties shall submit a proposed Order for Monitoring to the Court. Clark shall not be permitted to resume practicing law until the Court has reinstated him and issued the aforementioned Monitoring Order.

Prior to his petitioning for such reinstatement, Clark shall contract with the Maine Assistance Program (MAP) for appropriate services and/or supports. Attorney Nugent or his successor at MAP shall notify the Court and Bar Counsel if Clark fails to make contact or otherwise follow the MAP recommendations.

Finally, in the event a grievance complaint is received by Bar Counsel after November 19, 2014, Bar Counsel may elect to file a new disciplinary matter directly before the Court pursuant to the terms of this Order and Maine Bar Rule 7.2(b).

Date: November 18, 2014


Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court