Board of Overseers of the Bar v. Thomas M. Mangan

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Docket No.: BAR 99-5

Issued by: Single Justice, Maine Supreme Judicial Court

Date: April 19, 2001

Respondent: Thomas M. Mangan

Bar Number: 001743

Order: Motion for Relief from Judgment

Disposition/Conduct:

Order on Motion for Relief from Judgment

Thomas Mangan has filed a Motion for Relief from Judgment seeking to have the judgment of disbarment entered on March 10, 2000, set aside, pursuant to M.R. Civ. P. 60(b). For the reasons set out below, that motion must be denied.

1. Motion to Recuse the Law Court

Preliminarily, because there has been some confusion regarding the procedural posture of this matter, clarification is necessary. The original judgment was entered on March 10, 2000. On January 16, 2001, that judgment was affirmed by the Law Court. On February 27, 2001, an Order of Contempt was entered requiring Mr. Mangan to comply with certain responsibilities set forth in the Code of Professional Responsibility.

After the affirmance of the judgment by the Law Court, Mr. Mangan filed the now pending Motion for Relief from Judgment on February 7, 2001. The Board responded to the motion on February 28, 2001. Shortly thereafter, Mr. Mangan filed a Motion to Recuse the Law Court from hearing the pending matter. The Board responded briefly on March 9, 2001. On March 20, this Court received Mr. Mangan's bound version of his Motion for Relief from Judgment with attachments and appendices. The confusion regarding Mr. Mangan's Motion to Recuse the Law Court has now been cleared up. The parties understand that the Motion for Relief from Judgment was presented to this judge as the trial court in the matter, and that the Law Court does not have jurisdiction to entertain a motion for relief from this Court's judgment pursuant to Rule 60(b). Therefore, it is ORDERED that the Motion to Recuse the Law Court is dismissed.

2. Motion for Relief from Judgment

Mr. Mangan has sought relief from judgment based on claims of fraud, newly discovered evidence, mistake, and excusable neglect. As the party seeking relief from judgment, Mr. Mangan "bears the 'burden of proving that the judgment should be set aside.'" Keybank Nat'l Assoc. v. Sargent, 2000 ME 153, ? 13, 758 A.2d 528, 533 (Citation omitted).

Mr. Mangan has presented multiple theories upon which he argues that the judgment should be set aside. I have not endeavored to address every argument, and in several instances I have summarized or paraphrased his arguments.

a. Newly Discovered Evidence

I address the matter of newly discovered evidence first. Mr. Mangan asserts that, if he were given the opportunity for the presentation of testimony, he would present witnesses who would testify, among other things, that Ms. R. was having affairs with other men at the time of his relationship with her. He would also present testimony regarding her credit worthiness following his services to her in paying the medical bills. Mr. Mangan?s request for a hearing on those matters was deferred pending the parties' argument on each of the issues.

Having now heard Mr. Mangan's offer of proof on the issues of newly discovered evidence, I conclude that presentation of the facts offered would have no effect on the conclusions drawn in the original judgment. Whether Ms. R. was having relationships with men other than Mr. Mangan is not relevant to his own breach of his responsibilities as an attorney. Similarly, the findings regarding his work for her in paying medical bills would not be changed upon a presentation of evidence that she was credit worthy and sought or obtained other loans following his work. In the original judgment I concluded that Mr. Mangan in fact paid each of the bills and may have paid more to her medical services providers than she gave to him for distribution. Nonetheless, he failed to provide her with a final and complete accounting. The fact that she was able to obtain credit and therefore should have understood that he had completed his work for her does not substitute for his own responsibility to account for the funds she gave him. 1

b. Fraud

Mr. Mangan alleges several areas of fraud upon which he bases his argument that the judgment should be set aside. I have not herein attempted to repeat all such allegations. I address them generally in groups.

Inherent in all of Mr. Mangan's claims of fraud is his insistence that Ms. R. lied during the trial of this matter and lied in many other contexts outside of the trial. In essence, Mr. Mangan alleges that the Board committed a fraud upon the Court when it (1) presented the rape allegations notwithstanding inconsistencies in Ms. R.'s statements regarding those allegations, and (2) attempted to obtain an advantage in the litigation by including the egregious rape claims, thereby attempting to taint the proceedings and sway the Court. Mr. Mangan also alleges that Ms. R. committed a fraud upon the court because her testimony was so incredible.

It should be noted that with regard to the rape allegations, I found that the Board did not prove the claims. Any belief on Mr. Mangan's part that the mere existence of the allegations by the Board somehow tainted the proceedings or pressured me into finding for the Board on other matters is simply wrong.

Ms. R.'s credibility was an issue throughout the trial. The Board itself pointed out to the court inconsistencies in some of her prior statements. Mr. Mangan, through very competent counsel, had an opportunity to challenge all of her testimony, and did so effectively in many instances. Ultimately, I found her testimony not to be credible on a number of points. I conclude that Bar Counsel's decision to present Ms. R. as a witness did not constitute a fraud on the court. I further conclude that Ms. R.'s inaccurate or inconsistent testimony, whether intentional or unintentional, did not deprive Mr. Mangan of a fair trial given his opportunity to challenge her testimony at trial and my conclusion that Ms. R. was not a fully credible witness. I further reject Mr. Mangan's argument that Ms. R.'s lack of credibility in some areas required me to reject her testimony in its entirety.

c. Excusable Neglect

Mr. Mangan next argues that the failure on the part of Attorneys Davis and Sharon to object to Ms. R.'s inaccurate or inconsistent testimony was "excusable neglect." This is just another method of arguing that Ms. R. lied at trial and that her lies prejudiced Mr. Mangan. Once again, I reject that argument as a basis for setting aside the judgment. Moreover, Attorney Davis, as noted above, took pains to point out to the Court one particular area of inconsistency in her testimony, and Attorney Sharon representing Mr. Mangan, cross-examined Ms. R. extensively on issues related to credibility.

d. Mistake, Errors in Factual Determination

In this argument, Mr. Mangan primarily asserts that the judgment contained errors in its factual findings regarding Ms. R.'s psychological condition. These matters were cognizable on direct appeal and have been resolved by affirmance in that appeal. Moreover, Mr. Mangan's disagreements with the factual findings do not justify setting aside the original judgment.

e. Summary of Argument

Mr. Mangan continues to search for reasons why he should not have been sanctioned for his relationship with Ms. R. and his violations of the Code in related matters.2 Mr. Mangan himself admits to having had a sexual relationship with Ms. R. over a period of years. Although he continues to disagree with the legal conclusion, he did so at a time when he was acting as her attorney. He took advantage of information learned in the course of his representation of her in initiating the relationship, and when that relationship went sour, he destroyed any of the work that he had completed regarding the search for her children's fathers.

Mr. Mangan does not dispute the fact of the relationship, the inappropriate use of his client account related to Ms. R., or the ultimate destruction of the materials related to the search. New or more compelling evidence that Ms. R. lied about a number of aspects of their personal relationship, or that she was the "scorned woman" who used the Code of Professional Responsibility to attempt to manipulate Mr. Mangan, or to punish him, cannot change these facts.3 Nor does Mr. Mangan's challenge to Ms. R.'s character alter my conclusion that he violated the Code of Professional Responsibility and refused to accept responsibility for his own conduct.4

Conclusion

Having considered all of the arguments presented in Mr. Mangan's Motion for Relief from Judgment, including his offers of proof regarding newly discovered evidence, I conclude that Mr. Mangan has not presented a basis to set aside the original judgment and that no evidentiary hearing is necessary.

Wherefore, the entry will be:

Motion for Relief from Judgment DENIED.

For the Court

Hon. Leigh Saufley, Associate Justice - Maine Supreme Judicial Court

Footnotes

1. Mr. Mangan's violation of the bar rule regarding an accounting as to the medical bills did not play a significant part in the sanction ultimately imposed in this case.

2. In support of his argument that he should not have been sanctioned, Mr. Mangan refers to Ms. R as the "Base Hooker"; he has offered evidence that she has been charged but not convicted of shoplifting; he suggests that her daughters are not employed in the professions she testified to but are engaged as strippers or prostitutes; and he finally asks "Doesn't anyone see through this woman?" None of these allegations, if true, would excuse his serious errors in professional judgment.

3. The original judgment contained findings that she threatened him and that she attempted to obtain a financial advantage when she understood that he would be in trouble with his professional oversight Board because of his relationship with her.

4. Before the imposition of sanctions, Mr. Mangan was given the opportunity to present options short of disbarment that would assure protection of the public while allowing him to work toward regaining a professional standing. No such presentation was made at the hearing on sanctions.