Opinion
22-079
01-27-2023
BOARD OF OVERSEERS OF THE BAR, Petitioner v. J. MICHELL FLICK, Respondent
John J. Aromando, Esq. Chair, Grievance Commission Panel E. Megan A. Sanders, Esq. Member, Grievance Commission Panel E. Daniel P. Belyea Member, Grievance Commission Panel E.
John J. Aromando, Esq. Chair, Grievance Commission Panel E.
Megan A. Sanders, Esq. Member, Grievance Commission Panel E.
Daniel P. Belyea Member, Grievance Commission Panel E.
REPORT OF FINDINGS AND DECISION BY GRIEVANCE COMMISSION PANELE
This matter came before Grievance Commission Panel E on December 27, 2022, for a public hearing on the Board's Formal Disciplinary Charges Petition dated September 7, 2022, pursuant to Rules 13(e)(7) and 14(a) of the Maine Bar Rules. Bar Counsel Julia Sheridan represented Petitioner. Respondent J. Mitchell Flick appeared on his own behalf. The Panel received into evidence Petitioner's Exhibits 1-4 and 6-17 (Petitioner's Exhibit 5 was withdrawn) and Respondent's Exhibits 1-7, and heard testimony from three witnesses: the Respondent; the Complainant Georgia A. Tuttle, M.D.; and C. Nicholas Burke. Pursuant to M. Bar Rule 13(e)(9), based on the evidence and argument presented by the parties at the public hearing, the Panel issues this written report setting forth its findings of fact, conclusions of law, and application of any relevant factors with respect to appropriate sanctions for misconduct.
Findings of Fact
1. Complainant Georgia A. Tuttle, M.D. filed a Grievance Complaint against the Respondent J. Mitchell Flick, dated February 20, 2022. (Petitioner's Exhibit 1.)
2. Respondent filed a written response to the Complaint, dated April 16, 2022. (Petitioner's Exhibit 2.)
3. Complainant filed a response to Respondent's response to her Complaint, dated May 7, 2022. (Petitioner's Exhibit 3.)
4. Petitioner the Board of Overseers of the Bar, as part of its investigation of the Complaint pursuant to M. Bar Rule 13(b), requested additional information from both Complainant and Respondent. (Petitioner's Exhibits 6 and 7.)
5. Both Complainant (see Petitioner's Exhibits 4, 10, 11, 12, 14, 15, 16, and 17) and
Respondent (see Petitioner's Exhibits 8, 9, and 13) provided additional information in response to Petitioner's requests.
6. After review and instruction to proceed accordingly by a different Grievance Commission panel acting pursuant to M. Bar Rule 13(d), Petitioner filed its Formal Disciplinary Charges Petition dated September 7, 2022.
7. Respondent filed his Answer to Disciplinary Charges Petition dated September 27, 2022.
8. At the December 27, 2022 public hearing, Respondent provided additional information in support of his response to the Petition (Respondent's Exhibits 1-7), some but not all of which had been supplied previously to Petitioner during its investigation.
9. In making the following factual findings, it was necessary in certain instances for the Panel to make credibility determinations when Respondent's sworn testimony and the sworn testimony of other witnesses contradicted each other. As discussed further below, in those instances material to its decision, the Panel found the testimony of the other witnesses, Dr. Tuttle and Attorney Burke, credible, and found Respondent's conflicting testimony was not credible, except where otherwise indicated.
10. On July 29, 2016, Respondent purchased an automobile from Complainant at her family's home in Southwest Harbor, Maine. He paid the agreed upon sale price in cash. Complainant provided to Respondent at that time all documentation legally required to effect the sale, including a bill of sale, an odometer disclosure form, and the original title to the automobile signed by her.
11. Respondent declined to provide his name to Complainant at the time of this transaction. He told her that he would complete his information on the title being transferred to him at a later time, and that his name was not required for the other documentation including the bill of sale. Despite reservations about this, Complainant completed the transaction without knowing Respondent's name.
12. Respondent now maintains that he disclosed his name to Complainant on the date of the sale, based on his claimed specific recollection of filling in his information on the title in Complainant's presence. At other times closer to the date of the transaction, however, including in a court pleading filed under the requirements of M.R. Civ. P. 11, Respondent suggested that Complainant did not provide him with the vehicle title. The Panel finds Respondent's testimony on this issue is not credible, including because it is inconsistent with his own prior statements.
13. Respondent drove away in the automobile purchased from Complainant that same day, after attaching dealer plates he brought with him.
14. Respondent claims that, shortly after taking possession of the car, he found certain CDs belonging to Complainant in the trunk, which he mailed back to her. Complainant denies this occurred. Rather, she testified that they found the CDs together when going through the car before Respondent drove away, and that she took possession of them before he left. The Panel finds Complainant's testimony on this incident believable, and does not credit Respondent's testimony about this event. The Panel finds Respondent's description of his actions regarding the CDs to be unlikely, and an effort to cast himself as the more reasonable of the two parties to this matter and to enhance - though unsuccessfully-his own character and credibility.
15. By letter dated September 11, 2018, over two years after purchasing the vehicle, Respondent wrote to Complainant requesting her assistance to obtain a replacement title for the automobile he purchased from her. He said in this letter that either she never provided the original title to him, or he lost it.
16. During the more than two years since he had purchased the automobile, at the time he sent Complainant this letter, despite owning the car and using it for his own personal purposes, Respondent had never registered it.
17. In fact, at the hearing Respondent acknowledged that during the approximately four years he owned and used this automobile, he never registered it, never insured it, and never paid sales tax or excise tax on it. Instead, he continued to use the automobile for personal purposes with the dealer plates attached until he sold it during the spring or summer of 2020.
18. The dealer plates used by Respondent belonged to Winthrop Auto. Respondent claims he was entitled to use these plates based on his "association" with Winthrop Auto. When asked about the nature of this association, however, Respondent admitted that he did not have any "real relationship" or "formal understanding" with this auto dealership. He has never been an owner, officer, or employee of Winthrop Auto. Rather, Respondent testified that he is a friend of the owner of the dealership, Mark Duplessis, he does legal work for Winthrop Auto, he occasionally pays expenses for the dealership such as rent and premises repairs, and that Winthrop Auto works on his cars. When asked at the December 27 hearing to identify the dealership where he got the dealer plates and its owner, Respondent initially demurred, but he eventually disclosed that information when pressed by the Panel.
19. There is no evidence that Winthrop Auto, or anyone other than Respondent, owned or used the automobile in question after Respondent purchased it from Complainant during 2016, until he sold it during 2020.
20. Complainant replied to Respondent's September 11, 2018 letter by letter dated September 13, 2018, stating that she was unwilling to sign further documents related to the automobile she sold to Respondent over two years earlier, having provided a full set of documents at that time. She expressed concerns about why Respondent had never completed the transfer of title and registered the vehicle in his own name for such a long period of time, and how that could affect her. In her letter to Respondent, Complainant, who is a medical doctor without any legal training or background, provided information she obtained from the New Hampshire DMV about how he could obtain a replacement title for the vehicle without needing to involve her.
21. Respondent continued to write to Complainant insisting that she assist him in obtaining a new title to the automobile, including by letters dated October 25, 2018 and February 8, 2019. The specific actions Respondent directed Complainant to take changed over time. In his letter dated February 8, 2019, Respondent told Complainant, "please do not make this any more difficult than it has already been," and that if she did not comply with his latest demand she would "leave [him] no choice" but to "initiat[e] legal action against [her]."
22. In response to Respondent's continuing and changing demands, Complainant consulted with a long-time friend of hers who is an attorney licensed to practice in New Hampshire (where Dr. Tuttle resides) and Vermont, C. Nicholas Burke. By letter to Respondent dated February 19, 2019, after consulting with Attorney Burke, Complainant offered to travel to the New Hampshire DMV to request the information demanded by Respondent (which Complainant represented would require a two hour drive), if he would compensate her for her expenses and time lost from work in the amount of $1,545. Also in this letter, Complainant directed that any further communication by Respondent should be directed to her attorney, C. Nicholas Burke. In the final sentence of her letter, Complainant indicated that if this did not resolve the matter, she would report Respondent to the Board of Overseers.
23. Respondent had at least one discussion with Attorney Burke in early March 2019, which did not resolve the matter. As part of his April 16, 2022 written response to the Complaint against him, and again in his testimony at hearing on December 27, 2022, Respondent claimed that during this discussion Attorney Burke said he "was just as puzzled" about why Complainant was being "so difficult" and that "this was the type of personality she possessed." It is a reasonable inference that Respondent included this information in an effort to corroborate his characterization of Dr. Tuttle (repeated in his written submissions) as "assertive" and uncooperative. Even setting aside the inappropriate gender-based nature of this attack on the Complainant (presented as two senior male lawyers allegedly commiserating about an irrational female client), see M.R. Prof. Conduct 8.4(g), it is difficult to ignore the irony of Respondent characterizing Complainant as "assertive," "difficult," "hostile," and as having a "personality disorder" in light of his own behavior, the aggressiveness of which he seems completely oblivious, as evidenced by not only the litigation he initiated against Dr. Tuttle as described in paragraph 24 below, but by his testimony during the December 27, 2022 hearing as well. In any event, Attorney Burke, although he does not have any notes or a specific memory of what he did discuss with Respondent, convincingly denied making any such statement about Dr. Tuttle. The Panel finds Respondent's description of what Attorney Burke supposedly said about Dr. Tuttle, of which Respondent claims to have a firm recollection (but also no notes or other corroboration), is not believable, but rather an inappropriate effort to diminish Dr. Tuttle's character and credibility.
24. On June 21, 2019, Respondent sued Complainant in Maine District Court in Waterville, in an effort to force her to obtain for him documentation that would make it easier and less expensive for him to get a new title for the automobile he purchased from her in July 2016. In his Complaint, subject to the requirements of M.R. Civ. P. 11, Respondent again suggested that Complainant did not provide him with the original title at the time she sold him the car, even though he had previously acknowledged that was in fact doubtful, and he had probably lost the title she did give him (which he finally admitted without qualification - "I have to own that" -during his closing argument at the December 27, 2022 public hearing).
25. During the fall of 2019, pursuant to a court order entered in the action filed against her by Respondent, Complainant at her own expense, including the need to take time away from her medical practice, went to the New Hampshire DMV (which Complainant represented would require a two hour drive) and obtained a copy of the 2016 registration of the vehicle in her name, which she provided to Respondent. With this copy of the former registration in Dr. Tuttle's name, Respondent was able to obtain a new title for the automobile, which he acknowledged receiving by late December 2019.
26. The Board alleges that at a trial management conference on December 23, 2019, Respondent falsely represented to the court that Complainant had refused to communicate with him. Respondent testified that, in fact, he said only that Complainant was difficult to communicate with, and the Panel accepts that explanation by Respondent as more likely than not.
27. Respondent conceded at hearing that the merit of his lawsuit against Complainant (who appeared pro se -- Attorney Burke is not admitted to practice in Maine and was not helping her with the lawsuit), alleging theories of implied and quasi contract notwithstanding that Dr. Tuttle had already given him all required documents at the time of the sale, "was not the strongest" and that he may well not have prevailed at trial. Moreover, once he got the new vehicle title with the copy of the old registration Complainant provided to him, he had obtained the relief he had requested. Yet Respondent refused to dismiss his lawsuit, and instead insisted on proceeding to trial unless Complainant also paid him $341.40 to cover his costs of filing suit against her.
28. Respondent's case against Complainant was scheduled for trial on March 6, 2020. Complainant, who resides in West Lebanon, New Hampshire and had to travel several hours for court appearances in Waterville, Maine, appeared in court that date ready to proceed. Respondent did not appear, and he also did not answer attempts by the court to reach him by telephone on the day of trial. Respondent testified that his failure to appear was due to a vaguely described and uncorroborated error with his office calendar. The Panel finds his explanation is not credible, and instead finds it is more likely than not that he deliberately failed to appear for trial, having already obtained the relief he requested other than his costs which he was unlikely to recover, as a final act of vindictiveness against Complainant, who again had to close her medical practice and travel several hours to Maine to attend a hearing on a claim that Respondent no longer had any intention of pursuing, but refused to dismiss voluntarily.
Conclusions of Law
1. In a disciplinary matter before a Grievance Commission panel such as this, Bar Counsel has the burden of establishing the Board's case by a preponderance of the evidence, meaning that the essential elements to be proved must be found more likely than not. M. Bar Rule 14(a)(4). All of this Panel's factual findings as stated herein have been adjudicated pursuant to that standard.
2. Except to the extent otherwise provided by the Maine Rules of Professional Conduct, it is not a defense to a disciplinary charge that the conduct of the respondent was on his own behalf concerning his personal life, and not in the course of representing a separate client. In re Jonas, No. BAR-13-16, slip op. at 41-42 (Me. Supreme Judicial Court, Gorman J., June 22, 2015) (citing cases).
3. Based on the evidence presented to it, the Panel concludes as follows on the specific Counts in the Board's Formal Disciplinary Charges Petition, dated September 7, 2022, alleging violations of the Maine Rules of Professional Conduct ("Rules").
4. On Count I, the Panel concludes that Respondent's statement to the court suggesting that Complainant did not provide him with the original title to the automobile she sold to him violated Rule 3.3(a)(1), because Respondent knew that statement to be false when he made it, and he failed to correct it at any time during the many months his lawsuit against Complainant remained pending. Rule 3.3(a)(1) provides without qualification that "a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer." This simply affirms the oath all attorneys admitted to practice in Maine take, to "solemnly swear that you will do no falsehood nor consent to the doing of any in court." Although comment 1 to Rule 3.3 states that it "governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal," by no means does that absolve a lawyer who makes a false statement to the court on his own behalf. The plain language of the Rule governs both situations. But even if Rule 3.3 was limited to situations involving a lawyer's representation of a separate client, as the Panel concludes below with respect to Rules 4.1 and 4.4(a), Respondent's conduct described in Count I violated Rules 8.4(c) and (d).
5. Also on Count I, the Panel finds no violation of Rule 3.3 with respect to Respondent's alleged statement to the court that Complainant refused to communicate with him, as it finds it is unlikely he made or failed to correct a false statement in that regard.
6. On Count II, the Panel concludes that Respondent's statement to the court suggesting that Complainant did not provide him with the original title to the automobile she sold to him did not also violate M.R. Professional Conduct 4.1, because that Rule expressly applies only to conduct "in the course of representing a client." It is undisputed that Respondent did not represent Complainant, and he was not representing any client other than himself. Although he was acting as a lawyer on his own behalf, the language of Rule 4.1 does not appear to apply in that situation.
7. On Count III, the Panel does not find a violation of Rule 4.4(a), which also by its terms applies only to conduct "in representing a client." The Panel concludes, however, that Respondent's failure to dismiss his lawsuit against Complainant after receiving the vehicle registration she obtained and provided to him, and using that registration to obtain the new title to the automobile, and then failing himself to appear at trial, violated Rules 8.4(c) and (d).
8. On Count IV, the Panel concludes that Respondent violated Rule 8.1(a) by knowingly making false statements of material fact in connection with a disciplinary matter, namely that he told Complainant his name at the time he purchased her car, and that he mailed her CDs back to her upon finding them in the trunk immediately after taking possession of the automobile.
9. On Count V, the Panel concludes that Respondent also violated Rule 8.1(a) by knowingly making false statements of material fact in connection with a disciplinary matter, namely that Attorney Burke told him that he was "just as puzzled" as to why Dr. Tuttle was "being so difficult," and that "this was the type of personality she possessed."
10. On Count VI, the Panel concludes that Respondent also violated Rules 8.4 (a), (c), and (d) with respect to all of the conduct violating other Rules as described above.
Decision on Sanctions for Misconduct
1. Pursuant to M. Bar Rule 21(a), it is grounds for discipline for a lawyer to violate the Maine Rules of Professional Conduct, or to willfully violate a valid order of a Grievance Commission panel imposing discipline.
2. Pursuant to M. Bar Rule 21(c), in imposing a sanction after a finding of lawyer misconduct, the Grievance Commission panel shall consider the following factors: (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.
3. Pursuant to M. Bar Rule 13(e)(8), if and only after a Grievance Commission panel has made a finding of misconduct, that panel shall also consider a statement as to the existence or absence of any sanction record for the respondent provided by Bar Counsel.
4. As described above, this Panel has concluded that Respondent violated the Maine Rules of Professional Conduct, including specifically Rule 3.3(a)(1), Rule 8.1(a), and Rules 8.4(a), (c), and (d).
5. In so doing, this Panel further finds: that Respondent has violated duties owed by him to the public, to the legal system, and to the profession; that Respondent acted intentionally and knowingly; that Respondent caused actual financial and other harm to the Complainant by his conduct, including subjecting her to a legal action not pleaded or prosecuted in good faith; and that there is potential injury to the public given Respondent's dishonest and unethical behavior and his lack of recognition of or remorse for that conduct.
6. Pursuant to the statement provided by Bar Counsel after this Panel's findings of misconduct, Respondent has the following disciplinary and sanction record on file with the Board of Overseers of the Bar:
GCF 93-G-228 Dismissal with Warning 05/03/1994
GCF 21-301 Reprimand 09/30/2022
The first matter happened many years ago, and involved what the Grievance Commission panel characterized as minor violations of the Code of Professional Responsibility, however it is worth noting the comment in the letter issuing the dismissal with warning that "Mr. Flick has needlessly undermined the grievance process by not fully responding accurately to Assistant Bar Counsel in the first instance." The second matter is more recent, and more serious, also involving transfer of an automobile, and violations of Rules 1.8(a) and 8.4(a). Moreover, pursuant to the Stipulated Report of Findings and Order of the panel in that matter, GCF # 21-301, dated September 30, 2022, Respondent was placed on probation pursuant to Rule 21(b)(4) for four months, which probation is still in effect. Some of the misconduct found in this case under Rules 8.1 and 8.4 occurred during that period of probation, and therefore also constitutes a willful violation of a valid order of a Grievance Commission panel imposing discipline. As provided in that previous Stipulated Report of Findings and Order, "any violation of these probation conditions shall constitute grounds for the imposition of further discipline pursuant to M. Bar Rule 21(a)(3), including any possible sanctions and discipline under the rules."
7. This Panel finds Respondent's history of discipline and sanctions, and in particular his violation of his current Probation, to be aggravating factors. In the circumstances, this Panel finds a risk that the unethical conduct by Respondent is likely to be repeated. The Panel finds no mitigating circumstances, given the deliberate and dishonest nature of Respondent's misconduct.
8. Accordingly, pursuant to M. Bar Rule 13(e)(10)(E), this Panel finds probable cause for suspension of Respondent, and directs Bar counsel to file an Information pursuant to M. Bar Rule 13(g).
9. Pursuant to M. Bar Rules 13(a) and (b), this Panel further directs Bar Counsel to undertake an investigation of Respondent's use of the dealer plates from Winthrop Auto, with respect to the automobile purchased from Dr. Tuttle and otherwise, to determine whether such conduct constitutes further violations of the Maine Rules of Professional Conduct and other applicable law.