Board of Overseers of the Bar v. Thomas M. Mangan
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Docket No.: BAR 99-5
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 28, 2000
Respondent: Thomas M. Mangan, Esq.
Bar Number: 001743
Disposition/Conduct: Neglect; Conflict of Interest; Preserving Identity of Funds and Property; Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation
Judgment and Findings
This matter came on for trial before a single justice of the Supreme Judicial Court, pursuant to Maine Bar Rule 7.1(e)(3)(C) and 7.2(b)(1), upon the information filed by the Board of Overseers of the Bar alleging that Attorney Thomas Mangan has, among other things, conducted himself in a manner unworthy of an attorney. Trial was held over three days, January 11 through 13, 2000. The Board was represented by Attorney J. Scott Davis. Mr. Mangan was represented by Attorney Leonard Sharon. The Board presented six: witnesses: Thuy Thi R., Officer Randy Haussman, Barry R., Attorney Richard Berne, Sgt. Michael McGonagle, and Be Tucci-Gagne. In addition to his own testimony, Mr. Mangan presented six: witnesses: Officer Lee Jones, Thuy Thi R., John Violette, James D. Amerault, Roland Berry, and Leo Soucy.
The Board alleges multiple violations of the Code of Professional Responsibility, but at the heart of the Board's allegations are its contentions that Mr. Mangan engaged in a sexual relationship with a client, Thuy Thi R. The Board must prove its allegations by a preponderance of the evidence. See Maine Bar Rule 7.2(b)(4).
1. The Allegations
The Board has alleged four specific instances or courses of conduct undertaken by Mr. Mangan in violation of the following provisions of the Code of Professional Responsibility: 3.1(a); 3.2(f)(2), (3), (4); 3.4(b)(1); 3.4(f)(1); 3.6(a)(3); 3.6(e)(l), (2); and 3.7(d). The specific allegations may be summarized as follows:
Mr. Mangan made inappropriate use of his client escrow account to pay a retainer on Ms. R.'s behalf to Attorney William Cote.
Mr. Mangan neglected legal matters entrusted to him and failed to account for receipts related to his work on behalf of Ms. R. regarding payment of certain medical bills and his search for the fathers of two of her daughters.
Mr. Mangan physically forced Ms. R. to have sex with him against her will. (This allegation does not turn on the existence of an attorney-client relationship.)
Mr. Mangan engaged in a sexual relationship with Ms. R. at a time when Ms. R. was a client of Mr. Mangan, the relationship adversely affected his representation of her, and Mr. Mangan abused the attorney-client relationship in the context of the sexual relationship.
II. Findings of Fact
One of the most important issues for determination by the court is the credibility of the two primary witnesses to the events at issue: Ms. R. and Mr. Mangan. Although both individuals were credible in part, neither were credible on all issues. Having considered their testimony as well as the testimony of all other witnesses along with the documentary and other evidence offered by both parties, I make the following findings.
Mr. Mangan is an attorney licensed to practice law in the State of Maine. He has been practicing in the Lewiston area since approximately 1975. He maintains a relatively small private practice and is a sole practitioner. He is subject to the provisions of the Code.
Ms. R. was born in Vietnam. She came to America in 1972. She has three daughters. The oldest, Sue, is now 30 years old. Sue's father is Donald A., an American serviceman. Ms. R. did not marry Donald A. Cathy, now 28, is the daughter of Robert B., also an American serviceman. Ms. R. was not married to Robert B. Ms. R. married Keith N. sometime in 1972, and he adopted Cathy and Sue. Ms. R. was later divorced from Keith N. Ms. R. married Barry R. in 1978, and they have one daughter, Marie. Ms. R. and Barry R. are now separated.
Ms. R. has been in this country for approximately 28 years. She understands English quite well and speaks relatively clearly except when she is under pressure. She also reads English relatively well, but does not write well. She has a history of psychological fragility and depression. She has been treated by a number of physicians and has been prescribed antidepressant medication. She has intentionally overmedicated herself upon occasion.
Sometime in the early eighties, probably 1983, Ms. R. approached Mr. Mangan to seek his legal assistance in obtaining child support from Keith N. He agreed to assist her, but shortly thereafter he received a letter from Attorney John Hamilton, indicating that Hamilton had been asked to take over Ms. R.'s representation and asking that Mr. Mangan turn over Ms. R.'s file. Mr. Mangan did so.
Mr. Mangan had no further contact with Ms. R. until she sought him out again in 1990. She had been prosecuting a worker's compensation claim through Attorney John Sedgewick. Although she had been less than successful in her claim, she had received $4000 for the payment of medical bills. Because her medical bills exceeded that amount, she asked Mr. Mangan if he would negotiate with the medical providers in order to pay her obligations at less than the outstanding amount due. Mr. Mangan agreed to take her case. He did not enter into a fee agreement with Ms. R. and expected to do the work pro bono. He took the check, deposited it in his client escrow account, and paid a number of her medical bills. He was successful in obtaining a reduction in the debt on several of the bills. By sometime in July of 1992, Mr. Mangan had paid out approximately $4100 on behalf of Ms. R. Nonetheless, Ms. R. continued to receive phone calls from creditors and was never clear on what had been paid and what had not.
Mr. Mangan did not tell her when he had concluded that work, he never gave her an accounting of the payments he made on her behalf, and he never sought payment from Ms. R. for his work. Although the exact dates are uncertain, Ms. R. next approached Mr. Mangan about locating the fathers for her two older girls. Her first contact with Mr. Mangan's office regarding this issue was with Mr. Mangan's secretary. It is probable that this occurred in the summer of 1992. Ms. R. wanted to find the fathers for the girls' peace of mind and for medical history information even though the adoption by Keith N. meant that the fathers would have no legal obligation to Ms. R. or the girls. Mr. Mangan told her that he was good at such searches and that he would undertake the search for her. He expected the search would take approximately six months, and he told her that she could pay him when the search was completed. Again, he did not specify his expected compensation, and he did not enter into a fee agreement of any kind. Ms. R. expected that she would pay somehow, but did not know when or how much.
Sometime after agreeing to undertake the search for the fathers, in 1992 or 1993, Mr. Mangan began having a consensual sexual relationship with Ms. R. Mr. Mangan initiated that relationship, and Ms. R. was, for a while, a willing participant. At the time the sexual relationship began, Mr. Mangan had given her no final accounting on the medical bills,1 and he was still searching for her daughters' fathers. He did not ever clarify the completion of the medical bills work, nor did he tell her that he should not act as her lawyer while they were having a relationship. He did not ever formally notify her that he had ceased his work on the search for the fathers, and he did not attend to it diligently.
The two met for sex regularly over several years. During part of this time Mr. Mangan was separated from his wife, and he made that known to Ms. R. He was not honest with Ms. R., however, about the length of that separation, and Ms. R. later learned that Mr. Mangan had reconciled with his wife and returned to the home.
Ms. R. was still living with Mr. R. and their daughter when the relationship with Mr. Mangan began. One evening when Ms. R. was at Mr. Mangan's law office for a sexual encounter, her husband appeared at the office. After an unpleasant moment or two, Ms. R. left and went home. Mr. R. did not explicitly accuse Mr. Mangan of having an affair with Ms. R., and the pair was not sure what he knew. Ms. R. eventually separated from her husband.
Sometime after the relationship began, Mr. Mangan began giving Ms. R. money. This occurred primarily after her separation from her husband. Ms. R. felt that her husband was not giving her enough money to run the household, and Mr. Mangan gave her the money to help her with extras. In the beginning, Mr. Mangan gave her cash, but later wrote checks. Frequently, he gave her $150 a week. He continued to give her money throughout most of the relationship.
After Ms. R. and her husband separated, Ms. R. wanted to obtain a court order to require him to pay child support for Marie. Mr. Mangan understood that he might become a witness in the proceeding because of the incident at his office. He referred Ms. R. to Attorney Bill Cote. Although Mr. Mangan points to that referral as evidence that he knew he could not act as her attorney and have a relationship with her, I conclude that he referred her to Mr. Cote because of the potential embarrassment to himself if he continued representing her and was called as a witness.
In order to pay Mr. Cote's retainer, Mr. Mangan put his own money into his client escrow account. He then wrote a check to Mr. Cote from that account in the amount of $2000 on Ms. R's behalf. Mr. Cote undertook the representation.
The Board's first allegation regarding forced sex relates to an incident on December 5, 1993. Ms. R. testified that on that day, she went to meet Mr. Mangan at his office; that he wanted to have sex; that even though Ms. R. did not want to have sex, she "did anyway;" and that Mr. Mangan did not wear a condom, as he usually did. Afterwards, Ms. R. began to be afraid that she might have contracted a disease or become pregnant. Eventually that afternoon, she drove to the sexual assault unit of Central Maine Medical Center. She did not disclose the person with whom she had sex, but she did indicate her fear of pregnancy and she received an oral contraceptive to prevent pregnancy.2 She indicated that she had been assaulted in the early afternoon.
On the day that Ms. R. received that treatment, Mr. Mangan went with his wife and several members of the Lions Club to a Lions Club meeting in Kittery. The group left at approximately 8:00 A.M. and returned in late afternoon. Ms. R. went to the hospital at 3:40 in the afternoon after having waited several hours while deciding what to do. It isn’t likely that Mr. Mangan spent any time with Ms. R. on December 5, 1993. I cannot conclude that it is more likely than not that this incident occurred as Ms. R. said it did. In any event, the relationship continued, and Ms. R. continued to have consensual sex with Mr. Mangan.
Eventually the relationship between Mr. Mangan and Ms. R. became strained. Ms. R. was continuing to struggle with depression. In approximately October of 1996, she demanded more money than Mr. Mangan was willing to give her.3 She began calling his office incessantly when he did not give her what she asked. Many of those calls were "trapped," with the assistance of the phone company, by Carol Mangan, Mr. Mangan's wife, who worked at that time as a secretary in his office. The police investigated, and Ms. R. initially blamed the calls on her daughter. She later admitted she had made the calls herself.
Mr. Mangan attempted to convince Ms. R. to stop making the calls and told her that he would continue giving her money for several weeks. She pressed him for information on the fathers and for more money.
The second allegation of forced sex relates to an incident in January of 1997. Late in that month, Mr. Mangan took a trip to see his son in Florida. He told Ms. R., inaccurately, that he would be going to Boston and that he would be bringing back good news about his search for the fathers. When he arrived at her house, he did not have any news, he just told her, as he had previously, that he was "getting close." While at her house, Mr. Mangan had sex with Ms. R. Although she did not want to have sex, she did not object. She was acutely disappointed that he did not have new information regarding the fathers.4
After he left, she became very upset and took too much of her prescribed medication and called the police. A Lewiston police officer was dispatched to Ms. R.'s house to deal with a possible drug overdose. Ms. R. handed the officer three pill bottles-Ativan, Trazadone, and Effexor. She was tearful and distraught and was taken to the hospital by ambulance. At the hospital, she alleged that she had been forced to have sex against her will. She indicated that she had not physically resisted, but had not wanted to have sex. She repeatedly refused to identify the man involved. A rape kit was use to collect evidence, including fluids. The detectives investigating the case sought Ms. R. out at a later date, again asking her to identify the man. She said that he was an important member of the community and consistently refused to disclose his name. After making persistent efforts to obtain the name of the man in question, the police determined that Ms. R. would not provide the name and closed their investigation. The rape kit was eventually destroyed.
Months later, Ms. R. called the detective and reported that Mr. Mangan was the man she had referred to on January 24, 1997. Although I do find that Mr. Mangan went to her house that day, had sex with her, and continued to promise progress on the search for the fathers, I cannot find that the Board has met its burden in demonstrating that Mr. Mangan raped Ms. R on the date in question. The account Ms. R. gave on the date of her admission provides the best description of the occurrence. As recorded by Officer McGonagle, Ms. R. told the hospital staff that "this male came over to her residence and had sex with her. She did not want intercourse but did not resist. She feels that not providing the sex will result in her never finding her children."5 I conclude that although Ms. R. did not personally want to have sex with Mr. Mangan, she did so nonetheless, in an attempt to avoid Mr. Mangan's displeasure, and she did not communicate her feelings to him.
As the relationship deteriorated, both parties began to threaten each other. Ms. R. threatened to expose Mr. Mangan, and Mr. Mangan threatened to "take her down with him." He also told her that no one would believe her stories.
In February of 1997, Ms. R. again sought money from Mr. Mangan reminding him that she had been abandoned by both her husband and Mr. Mangan. He gave her another $210. In May, after a trip to visit family in Kansas, she again threatened him if he failed to give her more money. At that point he declined to give her any more money and told her to "do what she had to do." On June 9, 1997, that she called the police and told them that it was Mr. Mangan who had sex with her against her will on January 24, 1997. She then sought out another attorney, Richard Berne, intending to sue Mr. Mangan for his actions. Mr. Mangan did not carry malpractice coverage, and she did not pursue the action.
I am convinced that when Ms. R. came to understand fully that Mr. Mangan had abused his relationship with her, she attempted to obtain a financial advantage through that knowledge. Her repeated phone calls and her demands for money from October of 1996 through June of 1997 belie her assertion that she just wanted to end the relationship completely in the fall of 1996. I am also convinced that the sexual relationship between Mr. Mangan and Ms. R., spanning several years, was, at least initially, consensual. I am not persuaded that she originally had sex with him only, as she said, because "he [sic] my lawyer." Nor do I believe that she asked him about his search for the fathers "every day," over the course of the relationship, thereby keeping the attorney-client relationship foremost in his mind.
I am convinced, however, that Mr. Mangan began the sexual relationship with Ms. R. during a time when he was acting as her attorney. I am also convinced that Mr. Mangan used information gained in his attorney-client relationship to initiate the sexual relationship and in so doing took advantage of her personal situation as well as her desire to find the fathers.6 Further, I am persuaded that he used that information to manipulate Ms. R. in order to maintain a continuing sexual relationship at a time when she would have chosen to cease her contact with him. That Mr. Mangan used his search for the fathers to manipulate Ms. R. became clear through his own testimony to that effect that, although he did find Sue's father, Donald A., he did not tell Ms. R., choosing instead to “hold onto it" until he had news about both fathers. When he became angry with her, probably in late January of 1997, he “chucked it all," thereby destroying any important information he had obtained during the search. It is evident then that he misled Ms. R. regarding the success of his search, and he destroyed or made unavailable to her whatever results he had obtained when their personal relationship became difficult.
In sum, Mr. Mangan allowed his personal relationship with Ms. R. to affect his work for her, he took advantage of knowledge gained in his attorney-client relationship with Ms. R. in order to pursue and continue that sexual relationship, and he used his search for the fathers to coerce a continuing sexual relationship with her.
Based on all of the evidence presented and the above findings, I draw the following conclusions regarding the Board's allegations.
Allegation 1: Mr. Mangan made inappropriate use of his client escrow account in order to pay a retainer on Ms. R.'s behalf to Attorney William Cote. See M. Bar R. 3.1(a) and 3.6(e)(1),(2).
“No funds belonging to the lawyer or law firm shall be deposited" in a client escrow account. See M. Bar R. 3.6(e)(1),(2). I conclude that the Board has met its burden of proving that Mr. Mangan placed his own funds into his client escrow account, and that from those funds he wrote a check to Attorney Cote on behalf of Ms. R. Whether he did so in order to obscure his personal relationship with Ms. R. or in order to avoid the appearance of a violation of M. Bar R. 3.7(d) is not important. This use of his client escrow account for this purpose constituted an unmistakable violation of Rule 3.6(e)(1), and was conduct unworthy of an attorney for purposes of Rule 3.1(a). I further find that this incident was not a simple accounting error or misunderstanding, but represented Mr. Mangan's failure to keep himself conversant with the rules regarding the use of his client escrow account.
Allegation 2: Mr. Mangan neglected legal matters entrusted to him and failed to account for receipts related to his work on behalf of Ms. R. regarding payment of certain medical bills, and his search for the fathers of two of her daughters. See M. Bar R. 3.1(a), 3.6(a)(3), and 3.6(e)(2)(iii).
"A lawyer shall not ... neglect a legal matter entrusted to the lawyer." M. Bar R. 3.6(a)(3). “A lawyer shall. .. maintain complete records of all funds, securities and other properties of a client coming into possession of the lawyer and render prompt and appropriate accounts to the client regarding them." M. Bar R. 3.6 (e)(2)(iii) .
Mr. Mangan failed to keep Ms. R. aware of his efforts and progress both with regard to the payment of her medical bills and the search for the fathers. He did not diligently pursue the search for the fathers. Although his willingness to undertake certain work pro bono is laudable, Mr. Mangan never made clear to Ms. R. his intent to work on a pro bono basis. Moreover, regardless of his own decision not to charge a client, Mr. Mangan must comply with the Code of Professional Responsibility. He is not relieved of his duties under the Code merely because he expects that he may never receive compensation. While the client's resources may restrict the amount of services that may be obtained from an attorney, an attorney is not free to accept a client, to promise that work will be done and then fail to attend to the task in a reasonable period of time.
I also conclude that Mr. Mangan failed to account for the expenditures from the $4000 check given to him by Ms. R. He failed to inform her of the creditors' positions as the work progressed, and he failed to inform her when he had completed the work. He further failed to diligently pursue the search for the fathers. He was neither punctual in his commitments nor did he take reasonable measures to keep his client informed on the status of her affairs. He failed to keep her informed of progress, telling her regularly that he was "getting close," and, when she threatened to complain about his work to the authorities, he "chucked it all" apparently destroying any records he had gathered to date.7
I conclude, therefore, that Mr. Mangan violated M. Bar R. 3.6(a)(3) and 3.6(e)(2)(iii), and that these violations were conduct unworthy of an attorney pursuant to M. Bar R. 3.1(a).
Allegation 3: Mr. Mangan physically forced Ms. R. to have sex with him against her will. See M. Bar R. 3.l(a), 3.2(f)(2), or (4).
Although I conclude, as found both in the specific factual findings and the conclusions set out below, that Mr. Mangan made inappropriate use of his attorney-client relationship with Ms. R. to obtain and continue a sexual relationship with her, I find that the Board has not met its burden with regard to the two specific incidents of alleged physically forced sexual activity. Therefore, I conclude that the Board has not proven a violation of M. Bar R. 3.1(a) or 3.2(f)(2) or (4) on that basis.
Allegation 4: Mr. Mangan engaged in a sexual relationship with Ms. R. at a time when Ms. R. was a client of Mr. Mangan, the relationship adversely affected his representation of her, and Mr. Mangan abused the attorney-client relationship in the context of the sexual relationship. See M. Bar R. 3.1(a); 3.2(f)(2), (3)(4); 3.4(b)(1); 3.4(f)(1);8 and 3.6(a)(3).
No rule starkly prohibits a sexual relationship between an attorney and a client. The Code of Professional Responsibility makes clear, however, that the "prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned." M. Bar R. 3.1(a). Moreover, the Code does expressly prohibit conduct that may redound to the detriment of a client's legal interests.9 A lawyer shall not ... continue representation of a client if the representation would involve a conflict of interest . . .. Representation would involve a conflict of interest if there is a substantial risk that the lawyer's representation of [the] client would be materially and adversely affected ... by the lawyer's own interests." M. Bar R. 3.4(b)(1). "A lawyer shall not ... neglect a legal matter entrusted to the lawyer." M. Bar R. 3.6(a)(3). Therefore, although a sexual relationship between an attorney and client will not constitute a per se violation of the Code, any such relationship that puts the client's legal interests at a disadvantage or prevents the attorney from diligently pursuing the client's causes will constitute a violation of the cited sections.
Thus, the questions presented are: (1) did Mr. Mangan have a sexual relationship with Ms. R.; (2) did Mr. Mangan have an attorney-client relationship with Ms. R. during that time, and, more specifically, did the search for the fathers, on the facts of this case, constitute the practice of law; and (3) if so, did his sexual relationship with a client result in the violation of any rule contained in the Code of Professional Responsibility. The Board has met its burden in proving that Mr. Mangan engaged in a sexual relationship Ms. R. Indeed, Mr. Mangan does not dispute that relationship although he has minimized the time during which the relationship existed, and the effects of the relationship on Ms. R. Mr. Mangan does, however, dispute the existence of an attorney-client relationship with Ms. R., claiming that he undertook the search for her daughters' fathers as part of a “hobby." I reject his analysis.
Mr. Mangan has cited multiple cases from other states addressing the definition of the practice of law. Any number of different formulations can be cited.10 As attorneys' roles increase in complexity and overlap with other professions, the answer to that question will continue to evolve. Ultimately, the question will turn on the specific facts of the work undertaken and the understanding of the parties. In determining whether Mr. Mangan was engaged in the practice of law, I have looked to, among other things, the understanding of both Ms. R. and Mr. Mangan, the trust and confidence reposed in Mr. Mangan by Ms. R., the context in which the request for services arose-both physical and conceptual, the skills necessary to the completion of the services, the "need for discretion and confidentiality in rendering the services, and the nature of the services themselves.
Mr. Mangan's agreement to assist Ms. R. in finding the girls' fathers occurred entirely in a setting that would lead a reasonable person to conclude that he accepted the task as her attorney, and Ms. R. did reasonably believe that he was her attorney for that purpose. Ms. R. came to Mr. Mangan as a result of his previous legal work for her. He undertook the work in the same fashion as he had previously undertaken other legal work for her-with little written record, no fee agreement, no contract for services, and financial arrangements that were vague at best.
The requested assistance, although not in the nature of litigation services, falls well within the broad range of issues upon which an attorney may be expected to provide legal assistance. Contrary to Mr. Mangan's argument, the search for the fathers was not a task wholly distinct from the role of an attorney. While it is possible for the same task to be undertaken, albeit in a different manner and with fewer protections for the confidentiality of the "client," by one not schooled in the law, the same can be said for many services provided to clients by their lawyers.11 Ms. R. sought out an attorney to assist her in the search, and could reasonably assume that an attorney would have skills not otherwise available in a nonlawyer, that is, that an attorney who agreed to undertake the search would be conversant with a variety of methods used to locate people and could undertake the search, using his legal skills, in a confidential and discreet manner.
Furthermore, Ms. R. provided Mr. Mangan with intimate, personal information regarding her past which she had every reason to expect that he would keep confidential. He did not tell her that he would not be acting as her attorney in this endeavor. He met with her at his office to discuss the issues. He asked for and she brought to his law office a picture of one of the men for whom Mr. Mangan had agreed to search.
I conclude, therefore, that the facts point compellingly toward the practice of law and an attorney-client relationship. The putative client sought Mr. Mangan out at his office, made contact through his secretary, gave him detailed personal information regarding her past, and was assured that he would undertake the search. In undertaking the search, Mr. Mangan could be expected to bring to bear his knowledge and skills as an attorney, his ability to communicate persuasively, his understanding of the recordkeeping capacities of governmental agencies, and his knowledge of the distinctions between confidential information and information made public by law. Mr. Mangan was acting in the capacity of an attorney when he undertook the task of finding the fathers, and Ms. R. would have been warranted in assuming that he undertook to find the fathers in his capacity as an attorney.12
Because the mere fact of a sexual relationship with a client does not, in itself, constitute a violation of any specific bar rule, it is necessary to address the specifics of the relationship with regard to Mr. Mangan's representation of Ms. R. I am persuaded that the relationship adversely affected Ms. R.'s legal interests and that Mr. Mangan did not pursue the search for the fathers with the same diligence he would have applied had he not gained an advantage in his relationship with Ms. R. by deferring resolution of the quest. I therefore conclude that Mr. Mangan's own interests adversely affected his representation of Ms. R. He did not diligently pursue the search for the fathers, and he ultimately destroyed all progress on the search when he became angry at her in late 1996 or early 1997. These actions constituted a violation of M. Bar R. 3.4(b)(1) and 3.6(a)(3).13
In addition, the facts in this case demonstrate another significant yet subtle detriment of a sexual relationship between an attorney and client. When an attorney enters into a sexual relationship with a client, the client may feel pressured into continuing that relationship for reasons directly related to the attorney's role. Although, again, no rule expressly addresses these results in terms of forbidding a sexual relationship with a client, I conclude that M. Bar R. 3.2(f)(3) and (4) apply to this aspect of Mr. Mangan's conduct. "A lawyer shall not engage in conduct involving . . . misrepresentation [or] ... conduct that is prejudicial to the administration of justice." Id. The abuse of the trust and confidence that a client places in an attorney and the abuse of confidential information gained in the attorney-client relationship would constitute violations of those provisions as would misrepresentation of the progress of legal work undertaken.
Here, Ms. R. had little or no money with which to pay Mr. Mangan for his work in locating the fathers. He was well aware of her limited finances. He used his knowledge of her private life, gained through representing her, to his own advantage and to her disadvantage. He knew her to have had a difficult past with men; he knew that she was seeing a psychiatrist and was heavily medicated; and he knew that she had difficulties with written English.14 He gained most or all of that information through his representation of her. He continued to press her for sex, while continuing to assure her that he was getting close in his efforts to find the two men. Ms. R. felt "trapped." She had limited emotional strength to draw upon, and she believed Mr. Mangan to be an important member of the legal community. He manipulated her by stringing out his search for the fathers, and by assuring her that no one would believe her if she chose to stop seeing him and disclose his misdeeds.
In sum, the facts lead inescapably to the conclusion that Mr. Mangan took advantage of a client. I conclude that Mr. Mangan's use of information gained through the existence of an attorney-client relationship and the abuse of the trust and confidence obtained through that relationship to obtain and coerce a continuing sexual relationship with Ms. R. was conduct unworthy of an attorney, conduct involving misrepresentation, and conduct that is prejudicial to the administration of Justice. See M. Bar R. 3.1(a) and 3.2(f)(3), (4).
The Board having met its burden of proof, it is hereby adjudged that Mr. Mangan has violated M. Bar R. 3.1(a); 3.2(f)(3), (4); 3.4(b)(1); 3.6(a)(3); and 3.6(e)(1), (2)(iii). Based on these conclusions, sanctions are warranted.
A hearing on sanctions will be scheduled at the earliest opportunity.
For the Court
Hon. Leigh I. Saufley, Associate Justice – Maine Supreme Judicial Court
1He was called upon by Ms. R. in 1993 to assist her in understanding her credit report as it related to the payment of the medical bills.
2Ms. R.'s husband found the "Aftercare Instructions," regarding the treatment and medications she received crumpled on the floor of the garage and became angry when Ms. R. would not disclose the man involved. The marriage fell apart after that incident.
3Ms. R.’s supervisor testified that Ms. R. had lost her job at Caswell's Food Liquidation Center as a result of her frequent medication overusage. It is not clear whether she obtained other employment.
4In fact, by that time, Mr. Mangan did have information regarding Donald A., but did not pass it on to Ms. R.
5The hospital apparently misunderstood her search for her daughters' fathers.
6Ms. R. was embarrassed about having had three daughters with three different men, only one of whom she had married.
7Although he testified that he threw away all of his search efforts, some documents remained and appear in the record.
8M. Bar R 3.4(f)(1) speaks only to the commencement of representation where there is a conflict of interest. Mr. Mangan had already undertaken representation of Ms. R. when he began to have a sexual relationship with her.
9It is important to distinguish between bad judgment or bad behavior generally in sexual relationships and bad behavior that finds its source in the attorney's profession.
10Not surprisingly, the Code does not attempt to define the "practice of law" because the definition must be determined in the context of facts unique to each situation. The existence of the relationship will be dependent in great part on the understanding of the putative client and, to a certain extent, the attorney. It may be "implied from the conduct of the parties." Board of Overseers of the Bar v. Dineen, 500 A2d 262, 264-65 (Me. 1985). Accordingly, I have not attempted herein a more precise definition of the practice of law, nor have I included a review of those cases, nationwide, where courts have struggled with the definition in other contexts.
11An example is the work that Mr. Mangan undertook on Ms. R.'s behalf to convince the medical service providers to accept less than full payment on each bill. Although a nonattorney could have assisted her in that task, it cannot be disputed that she became Mr. Mangan's client when he agreed to negotiate on her behalf.
12Even if Mr. Mangan's services to Ms. R in the search for the fathers constituted only "law-related services," Mr. Mangan would still be subject to the Code of Professional Responsibility. See M. Bar R 3.2(h)(1)(i).
13Because the only matters properly before the court for adjudication are the alleged violations of the Code of Professional Conduct, this opinion does not address related concepts of breach of fiduciary duty.
14“The factors leading to the client's trust and reliance on the lawyer also have the potential for placing the lawyer in a position of dominance and the client in a position of vulnerability. . . . Thus, the more vulnerable the client, the heavier the obligation of the lawyer to avoid engaging in any relationship other than that of attorney-client." ABA Comm. On Ethics and Professional Responsibility, Formal Op. 92-364 (1992).