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Board of Overseers of the Bar v. Jeffrey C. Toothaker, Esq
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Docket No.: GCF19-105
Issued by: Grievance Commission
Date: November 4, 2020
Respondent: Jeffrey C. Toothaker, Esq.
Bar Number: 007523
Order: Admonition
Disposition/Conduct: Safekeeping Property
M. Bar R. 13(e)(7)(D)
On October 22, 2020, with due notice, the undersigned Panel of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, Jeffery C. Toothaker, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 24, 2020. The disciplinary hearing was adjourned, resuming and concluding on November 4, 2020.
At the stipulated hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley and Attorney Toothaker appeared pro se. Prior to the start of the hearing, the parties had submitted a proposed Stipulated Sanction Report for the Grievance Commission Panel’s review and consideration. The Complainant, Ricky O. Millay, was also provided with a copy of the parties’ proposed Stipulated Report in advance of the hearing. Prior to the resumption of the hearing, the parties submitted a revised version of the proposed Stipulated Sanction Report. Having reviewed and agreed to the proposed findings as presented by the parties, the Panel makes the following findings and disposition:
- Attorney Toothaker was at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law and in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
- Attorney Toothaker was admitted to the Maine bar in 1992 and he is currently in private practice in Ellsworth, Maine.
- On May 2, 2016, Attorney Toothaker was court-appointed to represent Ricky O. Millay in the Washington County Superior Court on a felony level Operating Under the Influence charge, as well as other related criminal charges.
- On August 30, 2017, after trial by jury, Mr. Millay was convicted of the felony level Operating Under the Influence charge, and was subsequently sentenced to serve a sentence at the Maine Department of Corrections.
- On August 20, 2018, Mr. Millay filed a Post-Conviction Review Petition, alleging inter alia, that Attorney Toothaker provided him with ineffective assistance of counsel.
- Attorney David Paris was court-appointed to represent Mr. Millay on his Post-Conviction Review Petition, and on October 10, 2018, he requested Mr. Millay’s file from Attorney Toothaker.
- Having not received the file, Attorney Paris obtained a court order on January 4, 2019 that required Attorney Toothaker to turn over Mr. Millay’s file to Attorney Paris within 20 days.
- Attorney Toothaker had not received or otherwise been notified of the court order by Attorney Paris.
- On or about March 22, 2019, Attorney Toothaker hand-delivered the original file to the District Attorney’s Office in Ellsworth, Maine, where it was picked up by Attorney Paris.
- Attorney Toothaker admits that he failed to promptly deliver his former client’s file to Attorney Paris as he was required to do by MRPC Rule 1.15(b)(2)(iv).
Attorney Toothaker has explained that at the time of Attorney Paris’s initial request for his former client’s file, that based upon his prior experience, he was reluctant to mail the file, and that he wanted to personally deliver the file to Attorney Paris. Attorney Toothaker had been involved in previous Post-Conviction Review cases with Attorney Paris, and they had always been able to work out arrangements for transferring client files. Despite making some attempts to connect with Attorney Paris to transfer the file, Attorney Toothaker failed to provide the file to Attorney Paris in a timely manner. Attorney Toothaker has explained that during the time period in question, his sole-practice was particularly demanding, and that between January of 2019 and March of 2019, he had two separate homicide cases that went to jury trial. Due to the importance and complicated nature of the homicides, he has explained that he dedicated large amounts of his time to those cases.1
Attorney Paris informed the Assistant Bar Counsel that he did not send a copy of the court order regarding Mr. Millay’s file to Attorney Toothaker. There is no record indicating that Attorney Toothaker was notified of that order. Attorney Toothaker does not recall being made aware of the existence of the court order prior to the filing of Mr. Millay’s complaint.
Nonetheless, Attorney Toothaker has fully acknowledged that he failed to understand that his obligation under MRPC Rule 1.15(b)(2)(iv) was to ‘promptly’ deliver the client file to Attorney Paris upon Mr. Millay’s request. Although there was no evidence of adverse impact to Mr. Millay’s Post-Conviction Review matter resulting from the delay, Attorney Toothaker has fully acknowledged that his failure to promptly turn over his client’s file resulted in his violation of MRPC Rule 1.15(b)(2)(iv).
Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer’s mental state, the actual or potential injury caused by the lawyer’s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 21(c).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. In this instance, Attorney Toothaker’s duty was to his former client, Mr. Millay, and he failed to fulfill that duty. With regard to his mental state, Attorney Toothaker’s misconduct was clearly negligent, but it was not done with malicious intent. Despite Attorney Toothaker’s lengthy delay in delivering his client’s file to new counsel, there is no evidence of any adverse effect upon the outcome of his former client’s case as a result of his failure. Therefore, there was little or no actual injury to any client, the public, the legal system, or the profession resulting from Attorney Toothaker’s misconduct.
In mitigation, Attorney Toothaker now recognizes the importance of making prompt transfers of client files when clients obtain new counsel, and he has agreed to ensure that such future transfers are accomplished in a timely manner.
Attorney Toothaker is a sole-practitioner who has practiced in Maine since 1992, and although he has an active practice, including a significant number of court-appointed cases, he has no prior history of receiving a public sanction for ethical misconduct.
In sum, the evidence of misconduct supports the reviewing Panel’s findings, and Attorney Toothaker agrees that he did in fact violate the Maine Rules of Professional Conduct. However, the Panel agrees that Attorney Toothaker’s misconduct was minor; that there was little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Attorney Toothaker. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Attorney Toothaker.
Therefore, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is the issuance of an admonition, which is now hereby issued and imposed upon Attorney Toothaker pursuant to M. Bar R. 13(e)(10)(B).
Date: November 4, 2020
Peter B. Bickerman, Esq., Chair
Megan A. Sanders, Esq.
Daniel P. Belyea, Public Member
1 State v. Murray went to trial in late January, and State v. St. Croix went to trial in late March. Both homicide trials lasted approximately one week.
