Board of Overseers of the Bar v. Seth T. Carey
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Docket No.: BAR-18-4
Issued by: Maine Supreme Judicial Court
Date: May 4, 2018
Respondent: Seth T. Carey
Bar Number: 009970
On May 2, 2018 the court learned that Attorney Carey had advised Bar Counsel and the Clerk's office by email that he would be filing a motion "asap" for dissolution of the order of immediate interim suspension, a motion to stay the suspension, and a motion to recuse.
The issue of recusal is a threshold issue that needs to be resolved before matters can proceed. In addition, Bar Rule 24(d) provides that on two days' notice to Bar Counsel, a suspended lawyer may move to dissolve an interim suspension. Because the court is not going to be available between May 7 and May 18, the court issued an order scheduling a hearing for May 4 at 11 am.
In a subsequent email on May 2 Attorney Carey responded that this was "not acceptable to respondent" because he was requesting action by a different judge, not the judge who issued the prior ruling.
After a telephone call on May 3 in which Attorney Carey was told that the hearing was still scheduled, he sent an email stating, "There will not be a hearing tomorrow in front of the same judge who abused his discretion." Later on May 3 Attorney Carey emailed a copy of a motion to dissolve and for stay of temporary suspension, including motions for recusal, for a change of venue, to reschedule the dissolution hearing, and an objection to receivership.1
On May 4 at 9:41am Attorney Carey sent an email to the clerk's office stating, "I assume the hearing is postponed." The Clerk's office emailed back 12 minutes later stating that the hearing was still scheduled for 11 am. At 10:35 am Attorney Carey emailed back that he could participate by phone. At 10:47 am Attorney Carey emailed a motion to continue the hearing. He emailed again at 10:57 am stating that he had tried to call but could not get through because of Administrative Week.
Attorney Carey did not attend the 11 am hearing. Bar Counsel was present. Although Attorney Carey had not been given advance permission to participate by phone, the court tried to call him from the courtroom but only reached his answering machine. The court then stated that it would review Attorney Carey's motion to recuse and his other motions and would issue a written order.
In his motion to continue, emailed less than 15 minutes before the hearing, Attorney Carey states that he did not get proper notice or due process and further states that a hearing is not necessary on his motion to recuse. Nowhere in his emails or in his motion to continue is there any suggestion that Attorney Carey could not have attended the hearing. The appropriate method to present his objections to the hearing would have been to appear at the hearing.
A litigant cannot decide on his own motion that the scheduling of a hearing "is not acceptable to respondent" or that "there will not be a hearing tomorrow in front of the same judge," as stated in Attorney Carey's emails.2 Waiting until 13 minutes before the hearing to email a request for a continuance - in the absence of an unexpected emergency and when the opposing party has appeared - is not appropriate. Attorney Carey's motion for a continuance is denied.
As noted above, Attorney Carey did not seek advance permission to appear by telephone. Today's hearing was not suitable for telephone participation. The difficulty Attorney Carey apparently experienced in reaching the court and the difficulty the court experienced in attempting to reach him demonstrates other problems with telephonic attendance.3
The court has reviewed Attorney Carey's motion to recuse. On that motion, as noted above, Attorney Carey's motion to continue states that no hearing is necessary. The motion to recuse is denied. The undersigned does not have a personal bias or prejudice regarding Attorney Carey and knows of no reason why the undersigned's impartiality can reasonably be questioned. As far as the court can tell, Attorney Carey's recusal motion is based almost entirely on his disagreement with the court's interim suspension order and his claim that no unbiased judge could have issued that order.4 A litigant's unhappiness with a judge's ruling is not a basis for recusal.
Attorney Carey's motion to dissolve the interim suspension on two days' notice is denied. A full hearing will be scheduled, and depending on the outcome of further proceedings, there may be grounds to dissolve the interim suspension or to deny the relief sought by the Board in its entirety, but at this time the court adheres to its April 30 order imposing an immediate interim suspension. The interim suspension will not be stayed because the rationale for an immediate interim suspension is that the Board has presented a sufficiently strong case that an immediate suspension is necessary.
The court has considered Attorney Carey's objections to a receiver and his suggestion of an alternate receiver, However, it will enter a receivership order appointing Margot Joly, Esq. as sought by the Board.
The court will schedule a prehearing conference on the record on May 21. At or before that time Attorney Carey shall submit a list of his proposed witnesses and proposed exhibits and shall be prepared to submit an oral offer of proof as to the testimony of those witnesses and why that testimony would be admissible.5 Bar Counsel shall also submit a list of proposed witnesses and exhibits and be prepared to submit an oral offer of proof if relevancy or admissibility is challenged.
The pretrial conference, at which personal attendance is required, shall be held at the Cumberland Courthouse. At that time, the court will consider Attorney Carey's request for a change of venue and will set a schedule for future events. The court does not rule out proceeding to a final hearing later in the week of May 21 if that is feasible.
If the Board is seeking any discipline beyond the imposition of the two year suspension in BAR 16-15 or if the Board contends that it has any other grounds for seeking discipline beyond those stated in the Petition for Immediate Interim Suspension, the Board shall file an Information setting forth the discipline requested and the grounds on which discipline is sought.
Attorney Carey's motion to continue suggests that he believes that he needs to retain counsel. He has every right to counsel and would be well-advised to obtain counsel. If counsel is to be retained, that should happen as soon as possible to prevent delays.
Dated: May 4, 2018
Thomas D. Warren
Justice, Superior Court
1That motion was received by mail and filed May 4.
2This would be the equivalent of allowing a litigant to decide his own motion to recuse.
3To avoid any misunderstandings in the future, all future court-scheduled events in this case shall be attended in person.
4In addition, Attorney Carey contends that the undersigned might have been influenced by the fact that Attorney Carey is suing Justice Walker. However, the undersigned did not know that such a suit was pending until it was mentioned in Attorney Carey's motion to recuse.
5The court understands that in one of his emails, Attorney Carey suggested that he intended to call more than 100 witnesses.