Board of Overseers of the Bar v. Thomas S. Carey, Esq.
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Docket No.: GCF #19-100
Issued by: Grievance Commission
Date: November 19, 2020
Respondent: Thomas S. Carey, Esq.
Bar Number: 000095
Disposition/Conduct: Confidentiality of Information; Safekeeping Property, Client Trust Accounts, Interest on Trust Accounts; Misconduct
M. Bar R. 13(e)
On November 17, 2020 with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Thomas S. Carey, Esq. The Board of Overseers of the Bar (the Board) commenced this proceeding by the filing of a Formal Charges Disciplinary Petition.
At the November 17, 2020 hearing, Attorney Carey was self-represented, and the Board was represented by Special Bar Counsel, Justin W. Andrus. The Clerk provided complainant, Tina M. St. Laurent, with notice of this action. She did appear.
Prior to the scheduled hearing date, the parties notified the Grievance Commission that they had negotiated a proposed settlement of the disciplinary matter. The proposed sanction report was submitted to the Clerk for the Commissions advanced review and consideration. Special Bar Counsel also provided Ms. St. Laurent with a copy of the parties proposed Stipulated Report in advance of the stipulated hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Grievance Commission makes the following disposition:
- Respondent Attorney Thomas S. Carey is an attorney licensed to practice law in Maine since October 1976. He is not licensed to practice in any other jurisdiction.
- Attorney Carey has at all times material to this petition been a practicing attorney.
- Attorney Carey represented a client, T.B.
- Attorney Carey maintained a client file for T.B.
- Attorney Carey was subject to duties pursuant to Rule 1.6(a) and 1.15(a) and (f) to safeguard that file for T.B.
- Notwithstanding those duties, Attorney Carey delivered T.B.s file over to his son, Seth Carey.
- At the time Attorney Carey delivered T.Bs file over to his son Attorney Carey was not authorized to do so.
- Based on the facts set forth above, the parties agree that Attorney Thomas S. Carey, Esq. has engaged in violations of the Maine Rules of Professional Conduct as detailed below:
1.6 Confidentiality of Information
(a) A lawyer shall not reveal a confidence or secret of a client unless, (i) the client gives informed consent.
1.15 Safekeeping Property, Client Trust Accounts, Interest on Trust Accounts
(1)(a) A lawyer shall hold property of clients or third persons that is in a lawyers possession. (2) A lawyer shall:
(f) Upon termination of representation, a lawyer shall return to the client or retain and safeguard in a retrievable format all information and data in the lawyers possession to which the client is entitled. Unless information and data are returned to the client or as otherwise ordered by a court, the lawyer shall retain and safeguard such information and data for a minimum of eight (8) years, except for client records in the lawyers possession that have intrinsic value in the particular version, such as original signed documents, which must be retained and safeguarded until such time as they are out of date and no longer of consequence. A lawyer may enter into a voluntary written agreement with the client for a different period. In retaining and disposing of files, a lawyer shall employ means consistent with all other duties under these rules, including the duty to preserve confidential client information.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another;
Even though Carey intended to afford his T.B. a courtesy by giving her file to Seth Carey for delivery to her, the Commission finds that his actions constituted violations of the foregoing rules. The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Attorney Carey agrees that he violated his duties to comply with those Rules.
The Commission notes that 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 properly discharge their professional duties. Since the evidence supports a finding and Carey agrees that he did in fact violate the Maine Rules of Professional Conduct, the Grievance Commission must now issue an appropriate sanction. Pursuant to M. Bar R. 13(e)(6)(8), prior to imposing a sanction, the Commission has considered the existence or absence of any prior sanction record.
The Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction. Maine Bar Rule 21 states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyers misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, Carey agrees that his misconduct violated duties that he owed to his client and to the profession. After considering Attorney Careys statements arising from the hearing, the Commission does not find that he acted with the intent to harm T.B. T.B. was provided the opportunity to comment on this process; to identify any harm she may have suffered; and, to support or object to the proposed sanction. She has expressed her preference that Attorney Carey receive the maximum possible sanction for his misconduct. Notwithstanding her perspective, particularly in light of the reality that T.B. was not aware of the circumstances giving rise to this matter until informed by Special Bar Counsel, the Commission finds that T.B suffered nominal harm that did not arise to the level of serious misconduct. The Commission does find that Attorney Carey committed misconduct by failing to safeguard her file. The Commission expects that Attorney Carey will learn from this lapse and refrain from engaging in similar misconduct with his future representation of clients.
Regarding potential aggravating factors, Attorney Carey has received no prior discipline/sanctions more serious than a Reprimand, and no more recently than 1993, but he has substantial experience in the practice of law. In mitigation, Carey has admitted his misconduct, has expressed remorse for that misconduct, and has been cooperative throughout the investigation and prosecution of this matter.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Commission finds that a Reprimand is the appropriate sanctions to address the misconduct by Attorney Carey.
Pursuant to M. Bar R. 13., the Commission hereby imposes a Reprimand upon Thomas S. Carey, Esq.
Date: November 19, 2020
David S. Abramson, Esq., Panel Chair
Margaret D. McGaughey, Esq., Panel Member
Malcolm T. Dow, Public Member