Board of Overseers of the Bar v. Seth T. Carey, Esq.

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Docket No.: GCF#14-529

Issued by: Grievance Commission

Date: February 2, 2016

Respondent: Seth T. Carey, Esq.

Bar Number: 009970

Order: Report of Findings and Order

Disposition/Conduct: (Superseded by 11/21/2016 Court Order)


REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION
M. Bar R. 7.1(e)(7)

Panel C of the Grievance Commission conducted a public hearing pursuant to Bar Rule 13(e)(7) concerning alleged misconduct by Respondent Seth T. Carey, Esq. (Respondent or Attorney Carey). Trial was held over four full days – September 17, September 18, October 19 and November 20, 2015.

The disciplinary petition was brought by Petitioner Board of Overseers of the Bar (Petitioner or Board) and is dated June 19, 2015, prompted by a complaint filed by State Court Magistrate Maria A. Woodman dated December 2, 2014. The petition asserts violations of Maine Rules of Professional Conduct 1.1, 1.3, 1.4(a), 1.7(a), 3.1(a), 3.3(a), 3.3(c), 3.4(c), 4.1(a), 8.4(a), 8.4(b), 8.4(c), and 8.4(d), to which the Respondent filed separate answers dated July 27 and August 31, 2015, and a supplemental answer dated August 31, 2015.

Numerous motions were filed by the parties prior to the commencement of hearings and during the intervals between hearings. All were resolved by the panel chair, pursuant to the Maine Bar Rules. Motion practice in other Grievance Commission proceedings has been limited and nuanced. In this case, it has been extensive and sweeping. Many were sent by e-mail late at night and on weekends, directed to the Clerk of the Grievance Commission but copied directly to the panel chair and requesting immediate action.

The Board was represented by Bar Counsel J. Scott Davis. Respondent appeared on his own behalf along with co-counsel Thomas S. Carey, Esq. No objections were raised to the composition of the panel. Board Exhibits 1 through 28 were marked and admitted. Respondent Exhibits 1 through 49 were marked and provided to the panel. Testimony was received from the Respondent, Judge Nancy D. Carlson, Rumford District Court Deputy Clerk Jennifer Merrill, Judge Susan E. Oram, Jessica Houston, Judicial Branch Deputy Marshall Alex James, Justice Lance Walker, Rumford District Court Clerk Darlene Richards, Farmington District Court Deputy Clerk Lauri Pratt, Detective Peter Casey, Rumford Police Sergeant Tracey Higley, Jr., Rumford Police Chief Stacy Carter, Assistant District Attorney Richard Beauchesne, Assistant District Attorney Alexandra Winter, Darrell Houston, Attorney Jennifer Kreckel, and Magistrate Maria A. Woodman. All witnesses other than the Respondent appeared pursuant to subpoena.

FINDINGS

The gravamen of Petitioner’s case was the alleged incompetence of Attorney Carey. Petitioner requested that the panel refer the case for further proceedings before a single justice of the Maine Supreme Judicial Court where the Board could press for disbarment or a period of suspension. At the conclusion of the Board’s case, the Respondent moved for judgment as a matter of law, asserting that the Petitioner failed to present sufficient evidence justifying the relief it sought. Respondent argued that the evidence justified no more than a reprimand – the most severe final disposition a panel could impose.

Because the motion for judgment as a matter of law was a dispositive motion, it was considered in private by the panel. After deliberation, a majority of the panel concluded that all of the evidence presented by Petitioner would not justify further proceedings that could result in disbarment or a period of suspension. The parties were advised of the panel’s conclusion.

Pursuant to Maine Bar Rule 13(e)(8), Bar Counsel advised the panel of its duty to consider the statement from the Board Clerk as to the existence or absence of any sanction record in determining the extent of discipline if the panel found any violation of the Maine Rules of Professional Conduct. Bar Counsel stated, and the panel chair ruled, that the panel could not be informed of any disciplinary history unless and until it made a finding of misconduct by the Respondent. The panel deliberated further in private.

After careful consideration, a majority of the panel concluded that Attorney Carey violated certain provisions of the Maine Rules of Professional Conduct, but that there was no possible disciplinary history of the Respondent which, in combination with the Petitioner’s evidence in this proceeding, would convince the panel to refer the matter to a single justice for further disciplinary proceedings. Our conclusion is both compelled and constrained by the evidence.

Respondent was admitted to the Maine bar in 2006. He practiced in Oxford County until February 2009 when he was suspended for six months and a day by Justice Mead. From early 2009 until 2013, Respondent lived in Florida. For the past two years, he returned to private practice with offices in Rumford. Attorney Carey has done all of the work that a rural Maine lawyer is called upon to perform: criminal defense, family law and domestic relations, bankruptcy, worker’s compensation, Social Security, real estate and land transactions, simple wills, and other general civil litigation. Based on his testimony and pleadings in this case, Attorney Carey appears to view himself very much as Atticus Finch in To Kill a Mockingbird. He asserted that he advocates for poor people as their lives intersect with the law. He gives them caring and vigorous representation for fees that are within their means. He stoutly maintained that his work is competent. Attorney Carey testified that he has a “winning record” in both criminal and civil cases, and that he has a steady stream of clients who want and need his services.

The Board presented a more troubled narrative of Respondent’s performance since resuming his Maine practice in 2013. Judge Carlson, Judge Oram, Justice Walker and Magistrate Woodman described Attorney Carey in proceedings before them as a lawyer who knows where he wants to go, but whose approach is to substitute volume and bombast for skill. Each of them testified that the Respondent was either unfamiliar or uncomfortable with criminal and civil procedure and with the rules of evidence. While Attorney Carey came to court prepared with notes and outlines, he was unable to deviate from his prepared script when testimony did not go as expected. They recounted cases where opposing counsel’s objections were sustained but Attorney Carey persisted in the same line of questioning either because he did not understand the court’s ruling or because he did not know what else to do. Hearings that should have taken one hour would drag on for two or more while the Respondent groped for direction. Especially in family law matters, Attorney Carey’s paperwork was often incomplete or erroneous. Justice Walker, recalling his time on the District Court bench, observed that there “was a fair piece of real estate between the lower end of competence and [Attorney Carey’s] performance,” and that he was “close to the bottom of the barrel” of all lawyers he had seen. There was little, if anything, in Respondent’s performance of his own defense at the hearing to suggest that the testimony of these members of the bench was anything but accurate.

Judicial Branch Deputy Marshal James testified that the Respondent was belligerent and disruptive at the Lewiston District Court when asked to remove his belt to pass through the metal detector. Rumford Police Chief Carter and Sergeant Higley of the Rumford Police Department testified that Attorney Carey was so aggressive in pursuing extra-judicial discovery that the Chief refused him entrance to the Rumford Police Department and Sergeant Higley requested and obtained a harassment notice against him pursuant to 17-A M.R.S.A. § 506-A.

Clerk Richards and Deputy Clerk Merrill and Pratt recounted multiple instances where Attorney Carey made demands on the clerks’ offices that were beyond its authority and ability to perform. After several judges and magistrates recused themselves when they became involved in the present disciplinary proceeding, Attorney Carey insisted to the clerks that the judicial officers could not do so because it affected his clients’ cases, and that he would “wait all day” until the presiding judges/magistrates changed their minds.

ADA Beauchesne and ADA Winter described criminal cases where the Respondent returned repeatedly to arguments that he had been instructed by the bench to cease. In another case, Attorney Carey appeared to “plea bargain” with the judge during a Criminal Rule 11 sentencing hearing. The prosecutors stated that the Respondent’s approach to criminal litigation was unfair to clients who were unable to distinguish between professional skill and his flamboyant style.

Attorney Carey entered a general appearance on behalf of Jessica Houston in her divorce from Darrell Houston in 2014. Both parties testified that he was casual and inattentive in concluding the case. Attorney Carey did not provide a copy of the proposed divorce judgment to Mr. Houston, which turned out to contain multiple errors. He did not assist Ms. Houston in completing the child support paperwork requested by the magistrate, although he repeatedly urged her to do so. Believing that he was not still representing Ms. Houston, Attorney Carey failed to appear for a status conference scheduled to address that deficiency for which he was sanctioned by the magistrate in the amount of $500.

Attorney Jennifer Kreckel testified that the Respondent was a well-meaning and hard-working lawyer who often floundered and appeared frequently flustered in her encounters with him. In addition to corroborating the empirical observations made by others, she testified that she observed Attorney Carey to be late on multiple occasions for hearings, conferences and appointments. She stated that she was not qualified to express an opinion regarding his competence, but would let the facts speak for themselves. In response to a question from the panel, she indicated that Attorney Carey could use help and guidance in dealing with clients.

Magistrate Woodman testified that she was deeply concerned that the Respondent presented a serious risk to the public and to the profession in his litigation practice. She stated that she fully shared Justice Walker’s assessment of Attorney Carey. Based on her observations of Attorney Carey both before his suspension by Justice Mead and after his reinstatement, she saw no demonstrated improvement in his ability to present a case in court.

The panel had an extended opportunity to observe Attorney Carey defending himself in this proceeding. His questions on cross examination were frequently confused and confusing. His repeated attacks on witnesses’ motives and competence were unwelcome and ineffective. They reinforced the allegations of the Petitioner.

CONCLUSION AND SANCTION

We have no doubt – and Attorney Carey admitted in response to questions from the panel at the conclusion of Petitioner’s case – that his courtroom performances in the examples adduced by Bar Counsel were deficient and in violation of the Maine Rules of Professional Conduct, specifically Rule 1.1 which provides, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” He is deserving of a Public Reprimand, which we hereby issue.

Our conclusion to impose a reprimand for demonstrated and admitted incompetence in violation of Rule 1.1 of the Maine Rules of Professional Conduct is guided in part by the decisions of the Court and other Grievance Commission panels in other proceedings. We look to those cases to analyze Attorney Carey’s actions in the light of the discipline they imposed. The Board neither alleged nor proved that Attorney Carey acted without his clients’ consent, unlike the recent reprimand in Board v. Williams (GCF#15-050, December 7, 2015), where the respondent engaged in settlement discussions and reached a settlement agreement with the opposing party without first communicating with and obtaining his clients’ approval and agreement. Attorney Carey has not been convicted of any crime, unlike the recent 90-day suspension imposed in Board v. Winger (BAR #15-12, December 28, 2015), where the respondent had been convicted of possessing sexually explicit material of a minor. There is no suggestion that Attorney Carey engaged in self-dealing, unlike the recent six-month suspension imposed in Board v. Campbell (BAR#14-8, October 27, 2015), where the respondent both drafted and prosecuted wills granting him substantial testamentary gifts of real and personal property, and prepared deeds conveying real estate to him.

The purpose of bar disciplinary proceedings is not punishment but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge their professional duties properly. The panel believes that expert testimony was necessary to permit a conclusion that Attorney Carey’s violations of the Maine Rules of Professional Conduct transcend the instances of his conduct presented to us such as to expose him to a formal suspension or disbarment. There was no evidence or testimony about the Respondent’s abilities and performance other than in an adversarial context. There are many lawyers who never set foot in court and who have successful and rewarding careers doing estate planning, real estate, tax or transactional work. All of the judicial/attorney witnesses testified that the Respondent was competent and effective in other cases. Nonetheless, the goal of protection of the public requires that we craft appropriate discipline and restrictions sufficient to protect the public.

PROBATION

Maine Bar Rule 21(b)(4) permits a panel of the Grievance Commission to impose probation and conditions of probation where “there is little likelihood that the respondent will harm the public during the period of rehabilitation and the conditions of probation can be adequately supervised.” Pursuant to Maine Bar Rule 21(b)(4), the panel imposes a two-year period of probation, commencing this date, on Attorney Seth T. Carey upon the following terms and conditions:

  1. During the first 18 months of probation, Attorney Carey shall not appear in any court proceedings representing any party other than himself. With respect to now-existing cases, within 30 days of the date of this Order, Attorney Carey shall provide a copy of this decision to his litigation clients and arrange for substitute or successor counsel to appear on behalf of such clients in their litigation cases. A copy of this Order shall also be provided to any co-counsel, counsel for adverse parties, and any tribunal in which there are pending matters.
  2. During the first 18 months of probation, Attorney Carey shall not file any pleadings or documents in any court or tribunal on behalf of any client other than himself, except as may be necessary to arrange for substitute or successor counsel to assume the representation of those existing clients.
  3. During the period of probation, Attorney Carey shall not accept any new cases that reasonably could require resort to litigation for resolution of a client’s rights or interests.
  4. On or about the first business day of May, August, November and February of 2016 through February of 2018, Attorney Carey shall certify his compliance with above-named conditions 1, 2, and 3 in writing to the office of Bar Counsel.
  5. During the last six months of probation, Attorney Carey may – and is encouraged to – work with experienced trial counsel on cases conducted by such counsel, either pro bono or on such fee arrangements as they may negotiate. Attorney Carey may participate in court proceedings and/or prepare and file such pleadings or documents to the extent such lead counsel permits. Attorney Carey shall provide such lead counsel with a copy of this grievance decision. Attorney Carey shall immediately advise the office of Bar Counsel of the name(s) of all such trial attorneys with whom he works during this period.

  6. During his probation, Attorney Carey shall attend and/or participate in at least four trial practice oriented CLE programs qualified for credit by the Board of Overseers of the Bar; at least two such CLE programs must include role-playing or other active participation in mock trial(s). Evidence of participation in these programs must be provided to the office of Bar Counsel within 10 days of completion.
  7. Within four weeks of the date of this Order, Attorney Carey shall meet with and execute a contract satisfactory to the Maine Assistance Program for Lawyers and Judges (MAP). He shall execute and deliver releases for MAP to monitor his legal practice and the course of his mental health counseling as set forth in condition 8.
  8. Within 30 days of the date of this order, Attorney Carey shall commence psychological counseling with a licensed clinical psychologist. He shall instruct this mental health professional to consult with MAP to address such concerns as identified by MAP. Attorney Carey shall provide the name and address of the mental health professional to the office of Bar Counsel and shall advise Bar Counsel promptly of changes in the counseling arrangement.
  9. At least 3 months prior to the expiration of the period of probation, Bar Counsel shall report to the Grievance Commission whether he or she will seek an extension of the period of probation, pursuant to Bar Rule 21(b)(4). In such event, Bar Counsel shall timely file an appropriate motion, and this Panel or a successor Panel shall hold a hearing to determine whether to extend the period of probation.
  10. Attorney Carey shall reimburse the Board of Overseers its costs of investigation, service of process, witness fees, court reporter services and related expenses totaling $4,109.19 in the processing of this disciplinary matter. This reimbursement shall be made to the office of Bar Counsel within 1 calendar year of this Order.
  11. Attorney Carey shall comply with all registration, CLE and IOLTA requirements pursuant to Maine Bar Rule 4.

Had the Panel been confronted with the same facts adduced at this hearing prior to the adoption in 2015 of the amended Bar Rules, specifically, Maine Bar Rules 13 (e)(10)(D) and 21(b)(4), a majority of the panel would have concurred in the Chair’s dissent and determined that this matter should be presented to a single justice. However, in light of the expanded choices available to Grievance Commission panels under the amended Rules and the ability to fashion a period of probation, it appears appropriate to impose the period and terms of probation set forth above.

Date: January 29, 2016


ROBERT S. HARK, Esq.
JUD KNOX, Public Member


Concurrence & Dissent

I concur that Attorney Carey should not engage in litigation and that the conditions of probation imposed by the majority are wise and appropriate. I respectfully dissent because I believe that the case should have been presented to a Single Justice.

The testimony of Magistrate Woodman and Justice Walker, coupled with the Respondent’s conduct during the arc of this case, persuade me that Attorney Carey’s incompetence is of such depth to justify the further discipline that could be imposed by the Court. Two disparate examples of Attorney Carey’s conduct stand out. The first was his insulting and ineffective ad hominem attacks on witnesses that persisted despite repeated rulings from the chair that they had no relevance to the issues presented in this case. The second was a steady flow of bizarre pleadings and pre-trial motions that betrayed a profound disregard of Due Process and applicable procedures under the Maine Bar Rules. By itself, the Respondent’s defense of this disciplinary petition justifies a referral to a Single Justice.

Date: January 29, 2016


PETER C. FESSENDEN, Esq.
Panel Chair