A lawyer for the board that oversees Maine’s licensed attorneys responded to the appeal of a former Auburn lawyer and recent candidate for district attorney who claimed the judge ordering his three-year suspension violated his constitutional rights and committed other errors.

Seth Carey’s right to practice law was suspended for three years in December 2018. He is appealing that suspension. Sun Journal file photo

Aria Eee, lawyer for the Maine Board of Overseers of the Bar, filed a 34-page brief with the Maine Supreme Judicial Court earlier this month, countering arguments made by Seth Carey, 44, who filed a 53-page brief in April after his license was suspended for violating Maine bar rules.

The seven-member court is expected to hear Carey’s appeal, but no date has been set.

Carey owns a house in Rumford and opened a law office in Auburn before his law license was suspended in the spring of 2018. He made an unsuccessful bid in November for district attorney of Androscoggin, Franklin and Oxford counties, and had campaigned while his license had been under interim suspension.

Superior Court Justice Thomas Warren’s three-year suspension, ordered in December, cited several bar violations, including sexual assault, witness tampering and failure to comply with a previous suspension.

In his appeal, Carey wrote, among many points of contention, that Warren would not allow him to present relevant evidence in his defense and that the judge imposed a more-severe sanction than comparable cases of attorney misconduct.

Eee took issue with Carey’s arguments, point by point, starting with Carey’s assertion that Warren violated Carey’s due process rights by presiding over his entire disciplinary case, starting with issuing an order of interim suspension.

“The single justice engaged in no violation of due process when he presided over the entire bar proceeding,” Eee wrote. “The court provided Carey with ample due process.”

Carey had failed to show up for a hearing on a motion for the judge to recuse himself and offered no evidence that called into question the trial’s court’s impartiality, Eee wrote.

In his appeal to the state’s high court, Carey had written that Warren had placed him on temporary suspension after a District Court judge had ruled in an “erroneous order” against him by issuing a protection-from-abuse order to his accuser. At the end of a four-hour District Court hearing in April 2018, his accuser was granted a protection from abuse order after a judge found by a preponderance of evidence that Carey had engaged in unlawful sexual touching and domestic violence assault.

In August, Warren had presided over Carey’s three-day testimonial hearing that was aimed at determining whether he had violated bar rules.

In a Dec. 20, 2018, order, Warren wrote “groping a female tenant on one occasion and pulling her head against his crotch on another occasion reflected adversely on Carey’s trustworthiness and fitness as a lawyer,” but, he argued, Carey’s conduct, while serious, did not fall into the “most serious” range because it did not involve dishonesty or fraud, and did not arise from a lawyer-client relationship.

Carey faulted Warren and the District Court judge for failing to allow testimony “from multiple witnesses, view the five other PFAs that the ‘victim’ had filed or had filed against her, look at her criminal record (and) over 50 calls to police.”

Warren “did not commit reversible error in excluding proposed evidence regarding” the woman who secured the protection order against Carey in April 2018, Eee wrote in her brief.

Carey’s appeal failed to prove that Warren’s ruling on evidence allowed at Carey’s August hearing exceeded the judge’s discretion, she wrote.

Moreover, Eee wrote that Warren had allowed the limited testimony of four men whom Carey had proposed calling as witnesses, but never did “despite (Warren) reminding Carey’s trial counsel that they could be called so long as they did not give ‘opinions on (the woman’s) credibility’ or ‘impermissible character evidence.'”

In his appeal, Carey referred to cases of attorney misconduct where Maine lawyers had been convicted of crimes, but were not sanctioned as severely as he was. And he referred to two U.S. Supreme Court justices who were accused of sexual harassment or sexual assault but later confirmed by the U.S. Senate to the high court.

Eee, who had argued last summer for Carey’s disbarment, wrote in her response that Carey “misses the forest for one particular tree.” She said he focused his argument solely on other cases of lawyers who were accused of engaging in sexual harassment.

“However, as (Warren) made clear in his thorough and thoughtful sanctions order, a three-year suspension is appropriate because of the extent of the egregiousness of Carey’s misconduct in this case,” she wrote. “Carey’s brief does not address the sanction’s appropriateness for most of these violations.”

She went on to list those violations along with the history of disciplinary actions taken against other lawyers for similar infractions.

Carey wrote in his appeal he was never convicted criminally of sexual assault.

In her response, Eee wrote, “Contrary to Carey’s contention, a lawyer need not be criminally charged or convicted in order for a court to find that the lawyer has committed criminal acts in violation of the professional conduct rules.”

The standard of proof for such violations is not “beyond a reasonable doubt,” as required in criminal convictions, but instead by a “preponderance of the evidence,” which is a lower standard.

Using that standard, Warren had found that Carey had engaged in criminal conduct ‘that would qualify as unlawful sexual touching and domestic assault,'” Eee wrote. Warren also found that Carey had engaged in witness tampering.

Warren found in September that Carey had not complied with the terms of his 2016 suspension, including not completing mental health treatment. But Carey argued in his appellate brief that “there was complete, or almost complete compliance” with that earlier order.

Eee countered in her brief, noting Warren’s findings that Carey had not followed the evaluating psychologist’s treatment recommendations.