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: March 10, 2000
Respondent: Thomas M. Mangan, Esq.
Bar Number: 001743
Findings and conclusions were entered in this matter on February 28, 2000, and are incorporated herein. A hearing on sanctions was scheduled for Wednesday, March 1, 2000. At the request of Mr. Mangan and Attorney Sharon, the matter was continued to March 8, 2000, to allow Mr. Mangan further time to prepare to address the Court. Having heard from counsel, Mr. Mangan, and Ms. R., sanctions are entered, pursuant to M. Bar R. 7.2(b)(5), based on the following analysis.
The primary focus of the Court in determining the appropriate sanction must be Mr. Mangan's conduct in abusing his relationship with a client to gain and continue a sexual relationship with her. This does not mean, however, that his conduct in misusing his client trust account, failing to account for his client's moneys and failing to diligently pursue his client's request that he locate the fathers of her daughters can be lightly dismissed. Nonetheless, my analysis will focus primarily on the most egregious behavior, the misconduct involved in the sexual relationship with a client.
Any analysis of the appropriate sanction to be imposed must necessarily begin with the purpose of the rules. See M. Bar R. 2(a). A proceeding of this nature constitutes "an inquiry to determine the fitness of an officer of the court to continue in that capacity." Id. It is important for all parties to keep in mind the admonition in the rules that the goal of the Court today "is not punishment but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties." Id. Thus, in determining whether the sanction, if any, for the conduct at issue should consist of a reprimand, a suspension for a definite period, or disbarment, see M. Bar R. 7.2(b)(5). I look to the efficacy of each sanction in helping to assure that Mr. Mangan would not conduct himself in a similar fashion in the future.
In determining the appropriate sanction in this matter, I have looked to the following sources for guidance: M. Bar R. 7.1(e)(2)(D);1 Standards for Imposing Lawyer Sanction promulgated by the American Bar Association;2 and sanctions imposed on other attorneys as a result of prior decisions of the Board, single justices, and the Law Court in Maine. I have also considered decisions from other jurisdictions provided to me by counsel, particularly those addressing sanctions imposed on attorneys who have taken advantage of clients through sexual relationships. To organize the facts considered, I have used the framework suggested by the ABA Model Standards and M. Bar R. 7. 1(e)(2)(D).
A. What duties were breached?
As noted in the findings entered earlier in this case, the mere fact that an attorney has a sexual relationship with a client does not, in itself, violate the provisions of the code. Whether an attorney may ever enter into a sexual relationship with a current client without being found to have violated a duty to that client is not before this Court. Despite Mr. Mangan's protestations to the contrary, the facts at bar do not demonstrate a sexual relationship that just happened to coexist with an attorney-client relationship. Instead, it is evident that Mr. Mangan used his role as an attorney to obtain and continue a sexual relationship with a vulnerable client. His use of confidential information gained through his legal work for Ms. R. and his manipulation of the search for the fathers to coerce her continuing compliance were actions that violated his primary duty to his client; that is, to conduct himself in a manner that is not "adverse" to his client. See M. Bar R. 3.4(b)(1). The abuse of the confidence and trust of the client in such a fashion is entirely counter to the duties owed to a client.
Separately, Mr. Mangan violated his duty to account to his client for the expenditure of her funds, and violated his duty of diligence in pursuing the assistance she sought. He also violated his duty to the public and his clients in general by misusing his client trust fund. These errors would be of less concern to the Court had Mr. Mangan not been subject to disciplinary proceedings for similar conduct in the past.
B. What was Mr. Mangan's mental state at the time of his breach of duty?
The question presented by this inquiry is whether Mr. Mangan acted intentionally, knowingly, recklessly, or negligently. This question highlights the difficulty presented by the particular facts of this case. I conclude that Mr. Mangan did intentionally seek out a sexual relationship with a woman he knew, through his law practice, to be vulnerable-emotionally, financially, and culturally. I further conclude that he gained this knowledge through his representation of her. More seriously, this is not the first time Mr. Mangan made sexual advances to a similarly vulnerable client. Thus, it appears that Mr. Mangan takes advantage of women in need of assistance. To the extent that two women can constitute a pattern, this would be a dangerous pattern.
The fact that Mr. Mangan wrongly used the knowledge, power, and control he obtained through his profession in order to obtain an intimate personal relationship is clear. What is much more complex is his state of mind in doing so. I believe that Mr. Mangan's assertions that he was, for a time, in love with Ms. R. are genuine. He did attempt to assist her financially, and thought of himself as taking care of her. Unfortunately, the result is the same whether he developed a real affection for her or not. His behavior constituted a breach of trust and manipulation for his own personal advantage. I must conclude that his conduct was knowing and reckless at the same time.
With regard to his misuse of the client trust fund, I have no doubt that Mr. Mangan was aware that he should not place his own funds in that account and that he did so nonetheless, assuming that it was "not a big deal." Given his past reprimand for this same conduct, even though that reprimand occurred many years ago, it was a big deal.
I also conclude that he knowingly and intentionally delayed work on finding the fathers to gain an advantage over Ms. R., that he did so to her detriment, and that he negligently failed to attend to an accounting of the medical bill payments.
C. What was the extent of the injury caused by Mr. Mangan's misconduct?
The injuries are somewhat unusual in the context of an attorney discipline case. Ms. R. has not likely suffered any significant financial injury due to Mr. Mangan's conduct. Indeed, he gave her money when she was in difficult financial circumstances. Nor did he neglect a litigation matter such that she has lost a right to an adjudication. It is likely that the search for the fathers can be completed through others. Although the, passage of time is, in itself, a loss for her daughters, it is unlikely that irreparable harm has occurred.
The harm is in the nature of emotional harm to Ms. R.3 and harm to the "administration of justice." More precisely, Mr. Mangan's conduct emotionally injured a client and has injured the profession. Ms. R. is still struggling with the aftermath of a multi-year relationship in which she was not always a willing participant. Whether the troubled relationship might have occurred even in the absence of the attorney-client relationship cannot be known. The fact is that Mr. Mangan used his profession and abused the unique trust and confidence placed in him by his client to meet his own needs.
D. What are the aggravating and mitigating circumstances?4
I find these facts in mitigation:
- Mr. Mangan has regularly provided many hours of pro bono service to people in need of legal assistance. He has consistently been willing to represent those who may have found no other assistance in the legal community because of their financial, and occasionally language and educational, limitations.
I find the following aggravating factors:
- Mr. Mangan has been the subject of five previous disciplinary proceedings resulting in the imposition of sanctions.
(i) He received a private reprimand in 1983 for violation of the bar rules related to the misuse of his client trust account.
(ii) He received another private reprimand in 1985 for failing to account to a client as to the specific manner in which he claimed to have earned his fees.
(iii) He was reprimanded by the Grievance Commission in 1987 for failing to punctually and diligently attend to a client's litigation responsibilities.
(iv) He received a public reprimand in 1997 for violating the requirement that he attend to written contingency fee agreements, and that he account to a client's medical providers in a timely fashion. At least in part, that reprimand addressed issues similar to those presented by the Board in this proceeding. Mr. Mangan's office practice and lack of timeliness in accounting appear not to have improved significantly.
(v) He was suspended from practice for thirty days in 1997 as a result of, a single justice's determination that he had subjected a vulnerable female client, who was also his employee, to unwanted sexual advances.
- Mr. Mangan placed his own funds into his client trust fund in order to pay Ms. R.'s retainer with another attorney, notwithstanding a prior reprimand for placing his own funds into that account. In that prior reprimand, the Commission noted concerns similar to those of this Court that Mr. Mangan's decision to place his personal funds into the client trust account was for purposes of deception of a third party (in that case creditors and the IRS; here, Attorney Cote or Barry R.).
- Mr. Mangan's conduct with Ms. R. involved the abuse of the trust and confidence of a client and occurred over many months and years. He did not, at any time, explain that he could no longer provide legal services to her. He did not cease the relationship upon evidence that Ms. R. wished to do so. He threatened to "take her down with him" if she exposed him. He reminded her of his esteemed position in the legal community. At no time did he recognize the coercive nature of his conduct and cease that conduct.
- Mr. Mangan's 1997 suspension for making improper sexual advances to a client/employee related to incidents in 1995 that occurred during the time that his relationship with Ms. R. was ongoing. In that matter, in findings strikingly similar to those at bar, the single justice (Clifford, J.) found that the client was vulnerable to Mr. Mangan's advances, and that she "had little money and was dependent on Respondent to represent her as an attorney and to provide some part-time employment to her." The justice found that the client may have had a financial motive for filing her complaint against Mr. Mangan, but was credible nonetheless, and that Mr. Mangan "has not acknowledged that his conduct was improper in any way." The justice also found that "although Mr. Mangan used no force, the woman was "very vulnerable and should not have been subjected to sexual advances."
- Finally, Mr. Mangan does not acknowledge, or even appear to recognize, that his conduct with Ms. R. was unacceptable. While he is very sorry that the complaint has led to protracted litigation with the Board and that it has caused many problems with his own personal life, he is not in the least contrite for the harm done to Ms. R. or to the profession. He remains angry and feels misunderstood. He has not even begun to grapple with the difficulties caused by entering into a relationship with a client. If he believed he would not get caught, it is highly likely that he would engage in the same or similar behavior again.
I conclude that the Board has demonstrated more than an unintended violation of the rules and has proved that Mr. Mangan's misconduct was neither isolated nor inadvertent. He has taken advantage of two vulnerable women who came to him for legal assistance, he has been lax in accounting for the use of clients' funds, and he has knowingly misused his client trust fund.
I also reject his argument that, until my ruling in this case, he could not have known that his conduct with Ms. R. would constitute a violation of the rules. To the contrary, any reasonable attorney would understand that taking sexual advantage of a vulnerable client in these circumstances is conduct that cannot be condoned. Nor is the determination that Mr. Mangan actually took advantage of Ms. R. identifiable only in hindsight.
In instigating the relationship, he was well aware that she had had a troubled history with men, that she suffered from depression and was emotionally fragile, that she was financially limited, that she had suffered an injury and received little compensation, and that English was not her first language. To be sure, Ms. R. is an adult who had previously been represented by other attorneys. Had she understood the situation better and had she been able to assert herself, she could have said no to Mr. Mangan in no uncertain terms and could have attempted to obtain legal assistance elsewhere. That she did not, however, does not excuse his behavior.
Public confidence in the profession is crucial to the administration of justice. People seeking the assistance of an attorney are, by definition, often in circumstances that render them more vulnerable to exploitation. They must trust that placing their confidence in the hands of a member of the bar will not subject them to further exploitation, and certainly they must trust that confidential information conveyed will not be used to the personal advantage of the attorney. An attorney must be vigilant not to allow his or her own interests to work to the disadvantage of a client. Mr. Mangan failed to do so with Ms. R.
Any sanction imposed must assure that Mr. Mangan does not have access to vulnerable female clients unless and until he comes to understand that his conduct was unacceptable and, more importantly, why it was unacceptable. His previous thirty-day suspension for similar behavior has had no effect on his understanding of the wrongfulness of his conduct.5 Thus, any sanction must remove Mr. Mangan from the practice of law for a significant period of time and must preclude reinstatement until he has demonstrated the necessary insight into his misconduct. It must also address his misuse of the trust fund and his lax accounting practices.
Mr. Mangan asks that the Court impose no more than a public reprimand. I conclude that a reprimand would completely fail to address the need to protect the public. The Board seeks a full disbarment. Mr. Mangan's attorney suggests that a suspension for a specific period could serve the purposes of the rules.
As a result of Mr. Mangan's failure to address his misconduct in any way, I have reluctantly concluded that disbarment is the appropriate sanction for the multiple violations demonstrated by the Board. Although I have considered whether a suspension with conditions might accomplish the same result in a less draconian manner, any such suspension would have as its goal the opportunity for Mr. Mangan to meet certain identified conditions before returning to practice. On the facts before me, I would have to construct those conditions out of whole cloth.
Mr. Mangan does not acknowledge that he committed any mistake. He was reluctant even to admit that his misuse of his client trust fund was wrong and did so only by indicating that his attorney told him he must admit that he should not have done it. He has never apologized to Ms. R. or, to my knowledge, to the woman addressed by Justice Clifford in the 1997 suspension. He does not suggest any conditions under which he could more expeditiously be returned to the practice of law.6
Given his lack of remorse, his lack of concern regarding his accounting responsibilities, the absence of a plan to avoid future misconduct,7 the history of previous sanctions, and the significant risk to the public should he continue to practice law, I find that I have no choice but to disbar Mr. Mangan. Reinstatement will not be considered unless and until he has taken significant action to address the violations set out in the findings and conclusion of February 28, 2000, and can demonstrate a real understanding of his misconduct as well as an ability to avoid the misconduct in the future.
Pursuant to M. Bar R. 7.3(I)(1)(A), the disbarment shall take effect thirty days after entry of this judgment. Mr. Mangan shall immediately take steps to wind up his legal responsibilities with any remaining clients and shall comply with M. Bar R. 7.3(I)(1).
The entry is:
It is hereby ordered that Thomas Mangan is disbarred from the practice of law. His name shall be removed from the roll of attorneys authorized to practice law in the State of Maine. Notice of disbarment shall be given pursuant to the Maine Bar Rules.
Consistent with the terms of this judgment and the findings and conclusions previously entered, Mr. Mangan is authorized, pursuant to M. Bar. R. 7.3(j)(1), to petition for reinstatement after the expiration of two years from the date of this judgment.
For the Court
Hon. Leigh I. Saufley
Maine Supreme Judicial Court
1This provision of the rules directs a panel to consider, inter alia, four specific factors when determining the sanction for an attorney's misconduct. They include consideration of the duty owed, the attorney's mens rea, the injury caused by the misconduct, and the existence of aggravating and mitigating factors. Although no similar provision is found in the section addressing sanctions imposed by the Court, I conclude that these are appropriate factors for consideration by the Court.
2The model standards require inquiry on the same four issues addressed in M. Bar R 7.1(e)(2)(D). See ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS, Model Standard 3.0 (1992).
3Emotional harm in the context of attorney discipline matters ordinarily accompanies the clients distress at learning that his or her rights have been compromised by the attorney's misconduct.
4See ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS, Standards 9.1,9.22,9.32.
5That suspension was imposed at or after the end of his relationship with Ms. R. It cannot be expected, therefore, that it could have changed his behavior with Ms. R. It can be expected, however, that the Court's action in 1997 would have led Mr. Mangan to consider his behavior with Ms. R. in a different light and begin to understand why it constituted a violation of the code. That does not appear to have occurred.
6A separate sanctions hearing was scheduled in order to allow the parties, and particularly Mr. Mangan, the opportunity to argue for a more specifically tailored sanction. That hearing was then continued to allow Mr. Mangan additional time to present his argument more constructively. Despite his attorney's best efforts, however, Mr. Mangan declined the tacit invitation of the Court.
7Although I would have considered requiring individual counseling to assist Mr. Mangan in understanding the existence of, and harm caused by, his abuse of his role as an attorney, there is no evidence before me to indicate that such counseling could be effective.