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Board of Overseers v. Mangan
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 7
Docket:	And-00-153	
Argued:	December 12, 2000
Decided:	January 16, 2001

Panel:WATHEN, C.J., and RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.

BOARD OF OVERSEERS OF THE BAR v. THOMAS M. MANGAN


RUDMAN, J.

	[¶1]  Thomas Mangan appeals from the judgment of a single justice
of the Supreme Judicial Court (Saufley, J.) finding that he violated several
provisions of the Maine Bar Rules{1} and disbarring him from the practice of
law.  Mangan contends, inter alia, that (1) the single justice erred in finding
both an attorney-client relationship, and the search for the complainant's
daughters' fathers constituted the practice of law, (2) the single justice
erred in finding that Mangan made improper use of his client escrow
account, and (3) he was denied a fair and impartial trial.  We disagree and
affirm.
	[¶2]  The single justice found Mangan was a lawyer who had
practiced in the Lewiston area since approximately 1975.  The complainant,
who is Vietnamese, has lived in this country for approximately twenty-eight
years.  She has three adult daughters, all of whom have different fathers. 
Sometime in the early 1980's, the complainant approached Mangan to seek
his legal assistance in obtaining child support from the father of one of her
daughters.  Mangan agreed to assist her but shortly thereafter was
discharged.  Mangan had no further contact with the complainant until she
sought out his assistance again in 1990.  She had received $4,000 in
settlement of a personal injury claim.  Because her medical bills exceeded
that amount, she asked Mangan to negotiate with the medical providers in
order to settle her existing obligations.  Mangan agreed to assist her.  He did
not enter into a fee agreement with the complainant and asserts he
expected to do the work without compensation.  He took the $4,000
check, deposited it in his client escrow account, and then
paid a number of her medical bills with the money.  Despite the payments
made by Mangan, the complainant continued to receive phone calls from
creditors and was never clear on which bills had been paid and which had
not.  Mangan never told the complainant that he had concluded the work
and never gave her a final accounting for the payments he had made on her
behalf.
	[¶3]  The complainant next approached Mangan about locating the
fathers of her two older daughters.  Mangan told the complainant that he
was good at searches, that he would undertake the search for her, and that
he expected the search would take approximately six months.  She asserts
that he told her she could pay him when the search was completed.  Again,
Mangan did not specify his expected compensation and did not enter into
any fee agreement with the complainant.
	[¶4]  Sometime after agreeing to undertake the search for the
fathers, Mangan began a consensual sexual relationship with the
complainant.  Mangan initiated that relationship and the complainant was,
for a while, a willing participant.  The single justice specifically found that at
the time the sexual relationship began, Mangan had given the complainant
no final accounting on the medical bills and was still searching for her
daughters' fathers.  The complainant was living with her husband and their
daughter when the relationship with Mangan began.  One evening when the
complainant was visiting at Mangan's office, her husband appeared at the
office.  After a brief discussion, resulting in moments of uncomfortable
silence, the complainant emerged from the back room and left the office
with her husband.  Subsequently, the complainant and her husband
separated, and after that separation, the complainant sought assistance to
obtain a court order requiring her husband to pay child support for their
child.  Mangan understood that he might become a witness to the
proceeding because of the incident at his office.  He therefore referred the
complainant to another lawyer.  In order to pay that lawyer's retainer,
Mangan put his own money into his client escrow account and then wrote a
check to the lawyer from that account.
	[¶5]  Eventually the relationship between Mangan and the
complainant became strained.  During this time, the complainant was
struggling with depression and also began demanding money from Mangan.
	[¶6]  The single justice made the following relevant conclusions:
	I am convinced that when [the complainant] came to
understand fully that Mr. Mangan had abused his relationship
with her, she attempted to obtain a financial advantage
through that knowledge.  Her repeated phone calls and her
demands for money from October of 1996 through June of
1997 belie her assertion that she just wanted to end the
relationship completely in the fall of 1996.  I am also
convinced that the sexual relationship between Mr. Mangan
and [the complainant], spanning several years, was, at least
initially, consensual.  I am not persuaded that she originally
had sex with him only, as she said, because "he [sic] my
lawyer."  Nor do I believe that she asked him about his
search for the fathers "every day," over the course of the
relationship, thereby keeping the attorney-client relationship
foremost in his mind.  
	I am convinced, however, that Mr. Mangan began the
sexual relationship with [the complainant] during a time
when he was acting as her attorney.   I am also convinced
that Mr. Mangan used information gained in his attorney-
client relationship to initiate the sexual relationship and in
so doing took advantage of her personal situation as well as
her desire to find the fathers.{2}  Further, I am persuaded that
he used that information to manipulate [the complainant] in
order to maintain a continuing sexual relationship at a time
when she would have chosen to cease her contact with him.
	That Mr. Mangan used his search for the fathers to
manipulate [the complainant] became clear through his own
testimony to that effect that, although he did find one
daughter's father, . . ., he did not tell [the complainant],
choosing instead to "hold onto it" until he had news about
both fathers.  When he became angry with her, probably in
late January of 1997, he "chucked it all," thereby destroying
any important information he had obtained during the
search.  It is evident then that he misled [the complainant]
regarding the success of his search, and he destroyed or
made unavailable to her whatever results he had obtained
when their personal relationship became difficult.  
	In sum, Mr. Mangan allowed his personal relationship
with [the complainant] to affect his work for her, he took
advantage of knowledge gained in his attorney-client
relationship with [the complainant] in order to pursue and
continue that sexual relationship, and he used his search for
the fathers to coerce a continuing sexual relationship with
her.
A.
	[¶7]  We must first determine whether an attorney-client
relationship existed and then whether Mangan's actions constituted "the
practice of law."  	The single justice's finding that there was an attorney-
client relationship is a factual finding that will be upheld unless clearly
erroneous.  Board of Overseers of the Bar v. Dineen, 500 A.2d 262, 264
(Me. 1985), cert. denied, 106 S.Ct. 2248, 476 U.S. 1141, 90 L.Ed.2d 696
(1986).
	[¶8]  We have held that "[t]he term 'client' includes one who is
either 'rendered professional legal services by a lawyer, or who consults a
lawyer with a view to obtaining professional legal services from him.'"  Board
of Overseers of the Bar v. Dineen, 500 A.2d 262, 264 (Me. 1985) (citing M.R.
Evid. 502(a)(1)).  In Dineen, we further explained that "'[a]n attorney-client
relationship does not require the payment of a fee or formal retainer but
may be implied from the conduct of the parties.'" Dineen, 500 A.2d at
264-265 (quoting Matter of McGlothlen, 663 P.2d 1330, 1334 (Wash.
1983)) (emphasis added).  
	[¶9]  We adopt the New Hampshire formulation that an attorney-
client relationship is created when "'(1) a person seeks advice or assistance
from an attorney, (2) the advice or assistance sought pertains to matters
within the attorney's professional competence, and (3) the attorney
expressly or impliedly agrees to give or actually gives the desired advice or
assistance.'"  State v. Gordon, 692 A.2d 505, 506 (N.H. 1997) (quoting
McCabe v. Arcidy, 138 N.H. 20, 25, 635 A.2d 446, 449 (1993)).
	[¶10]  The record is replete with evidence to support the single
justice's conclusion that there existed an attorney-client relationship
between Mangan and the complainant.  The complainant sought advice and
assistance from Mangan.  The advice or assistance sought pertained to
matters within Mangan's competence and Mangan undertook the task
requested of him. 
	[¶11]  Given that definition of "attorney-client relationship," the
single justice did not commit clear error in finding that Mangan and the
complainant had entered into an attorney-client relationship.
	[¶12]  We next consider whether Mangan's actions constituted "the
practice of law."  The Maine Bar Rules do not explicitly state what
constitutes the "practice of law," nor have we ever defined what constitutes
the "practice of law." 
	[¶13]  The term "practice of law" is a "'term of art connoting much
more than merely working with legally-related matters.'"  Attorney
Grievance Commission of Maryland v. Shaw, 732 A.2d 876, 882 (Md. App.
1999) (quoting In Re Application of Mark W., 491 A.2d 576, 585 (1985)). 
"The focus of the inquiry is, in fact, 'whether the activity in question
required legal knowledge and skill in order to apply legal principles and
precedent.'"  Id. (quoting In re Discipio, 645 N.E.2d 906, 910 (1994)). 
Even where "'trial work is not involved but the preparation of legal
documents, their interpretation, the giving of legal advice, or the application
of legal principles to problems of any complexity, is involved, these activities
are still the practice of law.'" Shaw, 732 A.2d at 883 (quoting Lukas v. Bar
Ass'n of Montgomery County, 35 Md. App. 442, 448, 371 A.2d 669, 673,
cert. denied,  280 Md. 733 (1977)).  
	[¶14]  In Shaw, 732 A.2d 876, 882 (Md. App. 1999), the court noted
that the practice of law includes "'[u]tilizing legal education, training, and
experience [to apply] the special analysis of the profession to a client's
problem.'" (quoting Kennedy v. Bar Ass'n of Montgomery County, Inc., 316
Md. 646, 662, 561 A.2d 200, 208 (1989)).  The Shaw court further noted
that "[t]he Hallmark of the practicing lawyer is responsibility to clients
regarding their affairs, whether as advisor, advocate, negotiator, as
intermediary between clients, or as evaluator by examining a client's legal
affairs."  Shaw, 732 A.2d at 883 (quoting In Re Application of R.G.S., 312
Md. 626, 632, 541 A.2d 977, 980 (1988)).
	[¶15]  The single justice made the following finding in determining
that Mangan's search for the girls' fathers constituted the practice of law:
As attorneys' roles increase in complexity and overlap with
other professions, the answer to [the question of what
constitutes the practice of law] will continue to evolve. 
Ultimately, the question will turn on the specific facts of the
work undertaken and the understanding of the parties.  In
determining whether Mr. Mangan was engaged in the
practice of law, I have looked to, among other things, the
understandings of both [the complainant] and Mr. Mangan,
the trust and confidence reposed in Mr. Mangan by [the
complainant], the context in which the request for services
arose-both physical and conceptual, the skills necessary to
the completion of services, the need for discretion and
confidentiality in rendering the services, and the nature of
the services themselves.
	[¶16]  The determination of what constitutes the practice of law is
very fact specific.  In this instance, the record shows that the complainant
approached Mangan in his law office, she sought Mangan's advice on the
matter while she was there on other attorney-client business, Mangan did
not tell the complainant that he was not undertaking the search as her
lawyer, the complainant had a reasonable belief that he was undertaking the
search as her attorney, and she told him very personal and confidential
information about her relationship with the girls' fathers.  Because there is
competent evidence in the record to support the single justice's findings,
she did not commit clear error in holding that Mangan was engaged in the
practice of law while searching for the girls' fathers.{3} 
B.
	[¶17]  As the single justice noted, "no funds belonging to the lawyer
or his law firm shall be deposited" in a client escrow account.  See M. Bar R.
3.6(e)(1), (2).  The single justice found as a matter of fact that Mangan
placed his own funds in his client escrow account and, on the complainant's
behalf, wrote a check to another attorney from that account.  The single
justice also found, and we agree, that the use of the client escrow account
for this purpose constituted an unmistakable violation of M. Bar R. 3.6(e)(1){4}
and was conduct unworthy of an attorney for the purposes of M. Bar R.
3.1(a).{5}  An attorney may not, under any circumstances, mingle his funds
with the funds belonging to his clients in the escrow account.
C.
	[¶18]  Both in his brief and at oral argument to us, Mangan argued
extensively that he was denied a fair and impartial trial.  We first note
Mangan failed to make the arguments he makes on appeal before the single
justice.  An issue not raised before the single justice is deemed waived.  See
McAfee v. Cole, 637 A.2d 463, 467 (Me. 1994) (Dana, J. dissenting) ("a party
who raises an issue for the first time on appeal will be deemed to have
waived the issue").  In the instant situation, Mangan's intemperate attacks
on the single justice and Bar Counsel are further evidence of his unfitness
for the practice of law.  The record is devoid of any evidence to sustain
Mangan's unfounded accusations.  Although Mangan disputes many of the
factual findings of the single justice, those findings are supported by the
record and would only be set aside if they were clearly erroneous, giving due
regard to the opportunity of the single justice to evaluate the credibility of
witnesses.  It is clear that the single justice found much of Mangan's
testimony not to be credible, a conclusion fully supported in the record.
	[¶19]  Mangan received a fair and impartial trial.  He was
represented by counsel;{6} he challenged the evidence offered by Bar Counsel;
and obtained a favorable result on those counts on which Bar Counsel failed
to sustain his burden of proof. The findings of the single justice are
supported by the record and the sanction imposed was justified.
	[¶20]  Mangan's other contentions are meritless.
	The entry is:
Judgment affirmed.

Attorneys for plaintiff: J. Scott Davis, Bar Counsel Karen G. Kingsley, Asst. Bar Counsel (orally) P O Box 527 Augusta, ME 04332-0527 For defendant: Thomas M. Mangan P O Box 3112 Lewiston, ME 04243-3112
FOOTNOTES******************************** {1} . The single justice found that: 1.Mangan made inappropriate use of his client escrow account in violation of M. Bar R. 3.1(a) and 3.6(e)(1), (2); 2.Mangan neglected legal matters entrusted to him and failed to account for receipts related to his work in violation of M. Bar R. 3.1(a); 3.6(a)(3); and 3.6(e)(2)(iii); and 3.Mangan engaged in a sexual relationship with a client which relationship adversely affected his representation of the client and abused the attorney-client relationship in the context of the sexual relationship in violation of M. Bar R. 3.1(a); 3.2(f)(2), (3), (4); 3.4(b)(1); 3.4(f)(1); and 3.6(a)(3). {2} . The complainant was embarrassed about having had three daughters with three different men, only one of whom she had married. {3} . Mangan, interestingly enough, denies the existence of an attorney-client relationship; however, he also testified as follows: Q.Why is it that you didn't deposit [the $2,000] in your checking account or your savings account? A.The escrow account was clients' money. Q.But it wasn't her money? A.Sure it was, once I gave it to her, it was her money. {4} . M. Bar R. 3.6 provides in pertinent part: (e) Preserving Identity of Funds and Property. (1) All funds of clients paid to a lawyer or law firm, other than retainers and advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the state in which the law office is situated at a financial institution authorized to do business in such state. No funds belonging to the lawyer or law firm shall be deposited therein except as follows: (i) Funds reasonably sufficient to pay institutional service charges may be deposited therein; and (ii) Funds belonging in part to a client and in part presently or potentially to a lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client; in that event the disputed portion shall not be withdrawn until the dispute is finally resolved. M. Bar R. 3.6(e)(1). {5} . M. Bar R. 3.1 provides in relevant part: (a) This Code shall be binding upon attorneys as provided in Rule 1(a). Violation of these rules shall be deemed to constitute conduct "unworthy of an attorney" for purposes of 4 M.R.S.A. § 851 and Rule 7(e)(6)(A). Nothing in this Code is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation; and the prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned. M. Bar R. 3.1(a). {6} . On appeal, Mangan appeared on his own behalf.