Board of Overseers of the Bar v. Clarence H. Spurling
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Docket No.: BAR-20-8
Issued by: Maine Supreme Judicial Court
Date: September 4, 2020
Respondent: Clarence H. Spurling, Esq.
Bar Number: 007416
Order: Immediate Interim Suspension
Disposition/Conduct: Conflict of Interest; Disciplinary Matters; Conduct Prejudicial to the Administration of Justice; Sexual Harassment
M. Bar R. 24
By filing dated August 25, 2020, the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order of Interim Suspension of Clarence H. Spurling from the practice of law in the State of Maine. Incorporated with the Boards Petition was a Statement in Support of the Petition with related exhibits.
The court held a telephonic conference with counsel on August 28, and set the matter for testimonial hearing on September 2, 2020. At both the conference and hearing, Plaintiff was represented by Assistant Bar Counsel Justin Andrus, and Defendant was represented by Mark Franco, Esq. The court heard testimony on September 2 from Defendant and from his former client, J.K. and received exhibits from both parties.
Following the hearing on September 2, 2020 and upon consideration of the testimony together with the exhibits and materials submitted, as well as arguments of counsel, the court concludes that the submitted evidence supports a finding that Attorney Spurling has committed multiple violations of the Maine Rules of Professional Conduct, specifically at least Rules 1.7(a)(2), 8.1 and 8.4(a), (d) and (g).1
The court finds that with his client J.K., Defendant engaged in several instances of touching of her leg of a sexual nature, culminating with unwelcome grasping and touching of her body at the last in-person conference. Defendant also suggested to J.K. that he would like a physical relationship to go further, particularly when he said he would like "the whole enchilada" from her. The touching and sexual innuendo were unwelcome to J.K. although she did not tell Defendant to stop by word or deed. Rather, she was distressed2 and discharged him almost immediately thereafter and hired another lawyer.
The court also finds that Defendant made unwelcome sexual advances to another client, K.W. Even if Defendant believed the advances were welcome at the time, it appears that K.W. was substantially incapacitated during the encounter.3
Defendants conduct with both clients violated Rule 8.4(g). Whether the (unwelcome) sexual touching and advances also constitute "sexual relations" with a client within the strict meaning of Rule 1.8(j),4 such conduct violates Rule 1.7(a)(2) with regard to the personal interest of the lawyer. See Bd. of Overseers of the Bar v. Prolman, 2018 ME 128, ¶ 18. It may also be criminal. See supra fn. 2; 17-A M.R.S. § 260. See also Rule 8.4(b).
While Defendant immediately admitted he should not have touched J.K., and "owned" his responsibility at the hearing, the court is not re-assured. In the same testimony in which he put the responsibility squarely on his shoulders, he also testified that he should not have let himself be "handled" or "manipulated" by J.K. The court does not agree that she "handled" or "manipulated" him, and the testimony gives the court pause as to whether Defendant actually understands the problem, including the power imbalance and vulnerability of the client. Similarly, Defendant said he immediately recognized his actions were inappropriate and disappointing, and consulted with MAP as a result. The fact that Defendant talked with MAP on several occasions before he decided to go drinking with another client and try to start a sexual relationship makes it clear to this court that he does not recognize the problem. His insight and honesty are further called into question by the fact that he denied to Bar Counsel that K.W. was a client, despite the fact that she had come to him in his professional capacity and paid the retainer.5 The response to Bar Counsel violates Rule 8.1.
Under the facts presented by the Board, this court concludes that Attorney Spurlings misconduct serves as an imminent threat to clients, the public and to the administration of justice. M. Bar R. 24.
Effective 5 p.m. on September 9, 2020, this Court ORDERS that Attorney Clarence H. Spurling shall now be suspended from the practice of law in Maine, until further Order of this Court. The Court further ORDERS that all exhibits and the Statement in Support of the Petition for Immediate Suspension, including the Amended Statement, be impounded.
The Court further ORDERS that Attorney Spurling shall vacate his law office(s) (including any home office), cease practicing law, and cease operations of any and all of his websites, Facebook/social media account(s) and any other form of advertising of his legal services during the period of his suspension.
Attorney Spurling is prohibited from removing any funds, files, data, check books, financial records/bank information, client property, computer hardware/software or any client related or law office related items, including in the period from the time of this order until the suspension is effective as well as thereafter.
Counsel shall propose Receiver(s) or such other plan as is necessary to wind down the law office and protect the interests of Attorney Spurlings clients, which shall be incorporated in a separate order.
Dated: September 4, 2020
Justice, Superior Court
Sitting as Single Justice by Designation
1There are other rules arguably violated, including Rule 1.15(b). Any such other potential violations were not fully developed and do not contribute to the courts decision to immediately suspend Defendant.
2ln their telephone call the next day, Defendant recognized that she was more stressed when she left the conference than when it began.
3Defendant admits kissing K.W. but denies engaging in a sexual act. If Defendant engaged in or attempted to engage in a sexual act with K.W. as she alleges in her written statement, such actions may well constitute gross sexual assault pursuant to 17-A M.R.S. § 253(2)(A), (D). Without receiving testimony from K.W. it would be premature for the court to make any specific finding as to exactly what occurred at this stage, particularly as it is unnecessary for this decision.
4Rule 1.8(j) was added in 2018 and states "(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced." The term "sexual relations" is not defined.
5She had paid the entire requested retainer when they went out together, but it is irrelevant whether he thought she had only paid half of the retainer because either way she had hired him.