Opinion
21-301
09-30-2022
Board of Overseers of the Bar Petitioner v. J. Mitchell Flick, Esq. of Mount Vernon, ME Me. Bar No. 003167 Respondent
STIPULATED REPORT OF FINDINGS AND ORDER OF A PANEL OF THE GRIEVANCE COMMISSION M. BAR R. 13(E)
Peter B. Bickerman, Esq. Panel Chair
On September 28, 2022, with due notice, a Panel of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, J. Mitchell Flick, Esq. The Board of Overseers of the Bar (the Board) commenced this proceeding by the filing of a Formal Disciplinary Charges Petition.
At the September 28th hearing, Attorney Flick was self-represented and the Board was represented by Bar Counsel, Julia A. Sheridan. The Clerk provided complainant, B.R. with notice of the action and he 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 Commission's advance review and consideration. Bar Counsel also provided B.R. with a copy of the parties' proposed Stipulated Report of Findings in advance of the hearing.
Having reviewed the agreed proposed findings as presented by counsel, the Grievance Commission makes the following disposition:
FINDINGS
Respondent J. Mitchell Flick, Esq. (Flick) has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, Flick is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Flick was admitted to the Maine Bar in 1985 and is currently a solo practitioner in Mount Vernon and Winthrop, Maine.
According to the parties' stipulations, the Commission finds the following relevant facts:
On December 1, 2021, the Board of Overseers of the Bar received a complaint filed by the complainant, B.R. (complainant), against Attorney J. Mitchell Flick. Flick represented the complainant in three matters. Flick had previously represented the complainant in other matters. Flick told the complainant that he would charge his usual rate of $250 per hour. The complainant did not have funds available to pay Flick. After some discussion, Flick and the complainant agreed that the complainant would pay for representation by transferring title to a 2009 Audi to Flick, by delivering a note and mortgage on some real estate to Flick and by the complainant providing some excavation services to Flick. Neither the exact value of these items nor the exact cost of representation was determined in advance. Flick spent many hours responding to communications from the complainant about the legal matters and spent several hours litigating one of the matters, and he obtained a good result for the complainant.
The complainant became upset over Flick's bill and the attorney-client relationship deteriorated. Flick ultimately withdrew from the two remaining cases. Flick and the complainant also disputed the value of the excavation services performed by the complainant. The complainant filed the complaint that resulted in this proceeding.
Documentation for the transaction involving the note and mortgage consisted of a Mortgage Deed and a $20,000.00 Promissory Note, both dated October 12, 2021. There was no documentation concerning payment of Flick's fees through excavation work the complainant performed for him. The only documentation concerning the transfer of the 2009 Audi was the Title, signed over to the Flick on August 9, 2021, and a handwritten note of the same date stating, "received of J. Mitchell Flick $ for 2009 Audi A4 Quatro. As is."
When engaging in business transactions with clients, M.R. Prof. Conduct 1.8(a) requires that
(1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) The client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
Here, there is no question that the transfer of the Audi, the note and mortgage and the payment through excavation services constituted "business with a client." There is also no question that Flick failed to comply with the requirements of Rule 1.8(a). His conduct not only violated Rule 1.8(a) but also Rule 8.4(a), violating or attempting to violate the M.R. Prof. Conduct.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Flick agrees that he violated his duties to comply with those Rules.
CONCLUSION AND SANCTION
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. Because the evidence supports a finding, and Flick 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. In this case Flick has a prior matter, GCF 93-G-228, in which he received a dismissal with a warning, on May 3, 1994. This history, however, is minor and occurred far in the past.
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 lawyer's misconduct; and
(4) the existence of any aggravating or mitigating factors.See also ABA Standards for Imposing Lawyer Sanctions (1992).
In this matter, Flick agrees that his misconduct violated duties that he owed to his client and to the profession. In engaging in business with the complainant, without providing his client the protections of Rule 1.8(a), Attorney Flick violated MRPC Rules 1.8(a) and 8.4(a). Attorney Flick apparently failed to recognize his duties under the Rule, however, the misconduct in this case caused little to no harm, and the unethical conduct is unlikely to be repeated. In mitigation, Flick has admitted his misconduct.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Panel Commission imposes the following sanction:
1. Attorney Flick is hereby REPRIMANDED by the Grievance Commission pursuant to Maine Bar Rule 21(b)(5.).
2. Attorney Flick is placed on PROBATION pursuant to M. Bar R. 21(b)(4) for a period of four months from the date of this Report.
3. Probation conditions include:
a. Attorney Flick will complete three CLE credit hours, above and beyond those required by M. Bar R. 5, focused on business dealings with clients. These additional CLE courses must be approved by Bar Counsel in advance.
b. Attorney Flick will comply with all professional requirements imposed upon him by the Maine Rules of Professional Conduct and the Maine Bar Rules.
c. Attorney Flick will bear any costs of complying with these probation conditions.
4. Any violation of these probation conditions shall constitute grounds for the imposition of further discipline pursuant to M. Bar R. 21(a)(3), including any possible sanctions and discipline under the rules.
5. In the event that the Board determines that Attorney Flick has violated these conditions of probation, the Board may through its office of Bar Counsel file an Affidavit stating its basis for that determination. Attorney Flick may then have up to 21 days to file a counter-affidavit showing cause why he should not be disciplined for that violation. If Attorney Flick does not then file a counter-affidavit, then the Grievance Commission will proceed to a sanctions hearing as contemplated by M. Bar R. 20. If Attorney Flick does file a counter-affidavit, then he may be heard for the purpose of showing good cause as to why he should not be disciplined.
6. During the period of any litigation related to an alleged violation of probation the period of probation shall be tolled such that time elapsed during such pendency is not counted toward the period of probation.
Therefore, the Panel accepts the agreement of the parties, including Attorney Flick's separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to J. Mitchell Flick, Esq., along with a period of probation as described above which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e)(10)(C)(D) and 21(b)(4) (5).
Marianne Lynch, Esq. Panel Member, Richard P. Dana Public Member