Treadmill Of Ethics Violations

Justice Mead of the Maine Supreme Judicial Court has concluded that an attorney violated multiple rules of professional conduct in his representation of the husband in a domestic matter.

The attorney had advised the client to enter his ex-wife’s residence without authority

[Client] Steven went to the house on the [authorized] designated dates and times to recover his personal property, but did not remove everything he wanted due to time constraints. He entered the locked house by using his driver’s license to “card” the lock on the door. He was in possession of a list that Jessica had prepared itemizing property that she attributed to him and property (including the treadmill) that she claimed as hers.

During the time shortly prior to March 30, Jessica had undertaken to sell certain items of property, including a Nordic Track treadmill that she had purchased with her Nordic Track credit card. Steven became aware of the sales and was concerned and wanted to stop them. He contacted McLaughlin, whom he had retained to represent him in the divorce, and asked him what could be done to prevent further sales. McLaughlin told him that an injunction could be obtained, and Steven asked him start that process.

Steven awaited McLaughlin’s arrival at his law office on the morning of March 30. He was very agitated and asked McLaughlin about obtaining an injunction and how he could retrieve personal property from the house. McLaughlin told Steven that he could return to the house even though the dates and times for the recovery of his personal property had passed. Steven expressed concern about reentering the property, but McLaughlin assured him it would be alright.

During the course of the conversation, the treadmill was discussed and McLaughlin indicated an interest in acquiring it for his paralegal. Steven expressed a willingness to participate in such a transaction.

Steven returned to the residence at 12 Third Street on March 30 and again entered the locked premises by carding the lock. He retrieved items of personal property including his daughter’s books and other things. Later in the day, Steven returned to McLaughlin’s office where he and McLaughlin agreed that they would retrieve the treadmill, Steven would sell it to McLaughlin for $200, and McLaughlin would then give the treadmill to his paralegal. Steven drove back to the residence, followed by McLaughlin, who was accompanied by his paralegal.

Once again Steven gained entry to the residence by carding the lock, and he and McLaughlin entered the residence and checked the treadmill to make sure that it worked properly. Upon satisfying themselves that it was operational, they removed it from the residence and loaded it into McLaughlin’s vehicle. They then returned to McLaughlin’s office where McLaughlin gave Steven a written receipt indicating a credit of $200 toward his legal bill in return for the treadmill.

When Jessica returned to the house on March 30, she discovered the treadmill was missing and found Steven’s license nearby. She contacted the police, who in turn spoke with Steven. He related the events noted above, including the fact that McLaughlin had told him it was alright to enter the house and take the treadmill.

Corporal Lucas Hafford of the Presque Isle Police Department investigated the taking of the treadmill. McLaughlin contacted him to discuss the matter and directed him not to speak further with Steven. McLaughlin confirmed that he and Steven had entered the house and taken the treadmill, but said that the protective order didn’t matter. Corporal Hafford contacted Assistant District Attorney James Mitchell to discuss the matter.

ADA Mitchell had already spoken with McLaughlin, who confirmed that he did advise Steven that he could enter the premises after the dates specified in the protective order to retrieve property, and that he had actually accompanied him on the second entry into the house. McLaughlin told Mitchell that his objective was to acquire the treadmill. Mitchell advised McLaughlin that he had no authority to violate the terms of the court order, and that he had no grounds to advise Steven that he could violate the court order.

Assistant District Attorney Kari Wells-Puckett spoke with Corporal Hafford regarding the unauthorized entry into the residence and the removal of the treadmill. Because of the professional interactions between the District Attorney’s Office and McLaughlin, ADA Wells-Puckett referred the matter to the Penobscot County District Attorney’s Office for review and possible prosecution. Following the referral, she had informal conversations with McLaughlin wherein he acknowledged that he had given Steven bad advice (i.e., he told Steven he could enter the house) and for that reason, in his opinion, Steven should not be prosecuted.

A criminal complaint was issued charging Steven with burglary (Class B); theft by unauthorized taking (Class E); violation of an order for protection from abuse (Class D); and criminal trespass (Class E). He ultimately entered a plea of guilty to the criminal trespass charge and was sentenced to pay a fine and to pay Jessica $200 in restitution.

McLaughlin represented Steven in the divorce proceedings from mid-March until the criminal charges were filed on May 13, 2016.

Among the violations

McLaughlin’s active participation in taking the treadmill constituted a brief, but express, joint venture to acquire the item of property. Steven had no immediate means of transporting the treadmill or converting it to cash on March 30. McLaughlin’s offer and acceptance of the terms of sale concerning the treadmill, and his actions in providing assistance and his vehicle to transport it, constituted a business transaction which was clearly adverse to Steven’s interest-it placed him in jeopardy of criminal and civil sanctions. McLaughlin failed to satisfy any of the requirements established in Rule 1.8(a)(l)-(3) to excuse such a business transaction with a client. Accordingly, his behavior violated Rule 1.8(a) of the Maine Rules of Professional Conduct.

Additionally, because ownership of the treadmill was a disputed issue in the divorce, it was part of the “subject matter” of that litigation and McLaughlin was prohibited from acquiring an interest in it. His actions in doing so violated Rule 1.8(i).

And

McLaughlin’s entry into the 12 Third Street premises on March 30 cannot be considered authorized under any circumstances. He had no permission or authority to enter the house. He knew that Steven’s limited license to enter had expired days earlier and that Steven was specifically excluded from further entry by an order of the court; therefore, Steven could not authorize anyone else to enter as his proxy. McLaughlin’s entry into the house constituted, at a minimum, a trespass. In addition, McLaughlin’s active assistance in Steven’s violations of the law are separately sufficient to implicate him as an accomplice. As such, McLaughlin’s behavior violates the prohibitions of Rule 8.4(b). Further, as noted above, his actions constituted numerous violations of the Maine Rules of Professional Conduct, thereby also violating Rule 8.4(a).

Beyond these serious violations, McLaughlin’s machinations in acquiring property that was clearly the subject matter of disputed claims in the litigation between Steven and Jessica constituted dishonesty, and thus violates Rule 8.4(c). Finally, McLaughlin’s misappropriation of property that was the subject of disputed claims during the litigation of those claims is, by any definition, conduct prejudicial to the administration of justice, and violative of Rule 8.4(d).

In sum

Eugene McLaughlin Jr., Esq., has violated Maine Rules of Professional Conduct 1.1, 1.8(a), 1.8(i), 3.3, 8.1, 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

Unless the parties advise the Court by January 31, 2019, that they have agreed on a proposal for a sanction for these violations, the matter will be scheduled for Phase 2-a dispositional hearing at the Penobscot Judicial Center at a mutually-agreeable date and time.

(Mike Frisch)