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STATE OF MAINE
SUPREME JUDICIAL COURT DOCKET NO. Bar-05-08
BOARD OF OVERSEERS OF THE BAR )
) ORDER OF DISBARMENT
THOMAS R. ACKER )
of Hollis, ME )
Me. Bar #3381 )
This matter is before the Court pursuant to M. Bar R. 7.2(b)(1) by disciplinary pleadings filed by the Board of Overseers of the Bar, seeking the disbarment of Thomas R. Acker. The parties previously notified the Court that they were in agreement to a stipulated order, as reflected below:
Based upon the pleadings, the record of letters and exhibits and the parties' representations, the Court makes the following findings:
1. Thomas R. Acker (Acker), of Hollis, County of York, State of Maine was duly admitted as an attorney in the State of Maine in 1986 and subject to the Maine Bar Rules.
2. Pursuant to M. Bar R. 7.3(j) Acker was reinstated to the Maine bar in 1995, following his voluntary resignation in 1990.
3. On December 23, 2005 this Court granted the Board's Motion for Temporary Suspension of Acker. At that time, Mr. Acker did not oppose the requested suspension, as he had attempted to resign due to his debilitating mental health conditions. The suspension prohibited him from continuing his legal practice.
4. A telephonic conference was scheduled in this matter for March 16, 2006. Assistant Bar Counsel Aria eee appeared for the Board of Overseers of the Bar. On that same day, Mr. Acker filed a letter with the Clerk of the Maine Supreme Judicial Court which stated that he had been a patient in the psychiatric ward and as a result, was not able to manage his affairs.
5. Beginning on or about February 27, 2006, Mr. Acker was hospitalized for a period of approximately seventeen days. His then current physical and mental condition was unknown to the Court.
6. Following the telephonic conference, the Court issued an order which generally continued the evidentiary hearing on the merits of the Board's disciplinary pleadings. However, the Court did set two issues for limited hearing on March 29, 2006. Those issues were the Board's Petition for Appointment of Receiver and proposals for the Court's consideration of Maine Bar Rule 7.3(e) (Proceedings Where An Attorney Is Declared to be Incompetent or is Alleged to Be Incapacitated).
7. Mr. Acker failed to appear for the March 29, 2006 hearing.
8. Mr. Acker's suspension from the practice of law, his failure to return documents to his former clients, and his failure to appear at scheduled hearings in this disciplinary proceeding made it necessary for a Receiver to be appointed to protect the interests Mr. Acker's former clients. On April 7, 2006, the Court appointed Wayne E. Tumlin, Esq. of Portland, Maine as the Receiver in this matter. In that order, the Court also directed that Acker immediately contact and enter into a contractual relationship with the Maine Assistance Program (MAP), to the satisfaction of the Director of MAP.
9. A substantial portion of the Board's disciplinary complaints detail Mr. Acker's alleged fraudulent dealings with his clients. That issue formed the basis for a multi-count indictment against Mr. Acker. He was arraigned on that indictment on March 21, 2006. The criminal case remains pending in the Cumberland County Superior Court and Mr. Acker has pled not guilty to those charges.
10. While not admitting guilt for the criminal charges, Mr. Acker, for the purposes of this proceeding, does agree that he accepted various client's funds, that he mixed those funds improperly with his operating account and his investment accounts, that he has failed to return the bulk of those funds despite requests to do so, and that he generally failed in his ability to meet his fiduciary and professional obligations.
11. Furthermore, Mr. Acker continues to be incapacitated by his chronic, major depression which renders him incapable of providing professional services. See Maine Bar Rule 7.3(e)(3).
Based on these findings, the Court concludes that Thomas R. Acker has violated the following Maine Bar Rules: 3.1(a); 3.2(f)(1)(3), 3.2(h); 3.4(f)(2)(i); 3.6(a)(3); and 3.6(e)(1).
a. By his failure to comply with Bar Rules and court orders and his recent failure to respond to inquiries by the Board and Bar Counsel, he has also violated M. Bar R. 2(c), engaged in conduct unworthy of an attorney pursuant to Maine Bar Rule 3.1(a), and violated Maine Bar Rule 3.2(f)(1).
b. By his failure to take reasonable measures to assure that clients knew and understood that some of the services they were obtaining were non-lawyer related services, he violated Maine Bar Rule 3.2(h).
c. By failing to obtain the informed written consent of his clients advising of his inherent conflict and of the financial risks of investing in the partnership, he violated Maine Bar Rule 3.4(f)(2)(i).
d. By abandoning his clients, neglecting matters entrusted to him, and refusing or delaying requests to return files he has violated Maine Bar Rule 3.6(a) and 3.6(a)(3).
e. By failing to preserve the identity of various clients' funds designated by those clients as "investment funds" he violated Maine Bar Rule 3.6(e)(1).
f. By repeatedly assuring clients that their money would be refunded on dates certain and then failing to produce those refunds, he violated Maine Bar Rule 3.2 (f)(3).
Additionally, by agreement of the parties, this order refers to and includes all of the following complaints docketed and processed as Grievance Commission Files (GCF) under Maine Bar Rule 7.1(d),(e) and/or 7.2(b)(7) now before the Court:
GCF 04-263 involving complainant John J. McDermott;
GCF 05-011 involving complainants Louise and Richard Bernhardt
GCF 05-019 involving complainant Candis and Charles Bridges
GCF 05-418 involving complainants Robert and Laura Foster
GCF 06-60 involving complainants William and Patricia Chasse
GCF 06-127 involving complainants Matthew and Karen Randall
GCF 06-140 involving complainants Peter and Harriet Robinson
GCF 06-158 involving complainants Keith and Sharon Ingraham
GCF 06-285 involving complainant Bette Soule
The violation of these provisions of the Bar Rules are numerous and serious, affecting many clients and the integrity of the disciplinary process. While Mr. Acker denies any criminal wrongdoing, he agrees that his actions were harmful to his clients, himself and the legal system. He has voluntarily agreed to cease the practice of law and acknowledges the severity of his actions. Protection of the public is the primary purpose of the attorney discipline system. Bearing in mind that purpose, the parties agreement and the absence of mitigating factors, these numerous and serious violations of the Maine Bar Rules require that the sanction of disbarment be imposed as the only appropriate sanction in the circumstances.
It is hereby ORDERED that Thomas R. Acker be, and he hereby is disbarred from the practice of law in the State of Maine effective the date of this order. It is further ORDERED that should Acker seek reinstatement in accordance with M. Bar R. 7.3(j)(1), he must do so under the following conditions:
Richard & Louise Bernhardt Charles & Candis Bridges
Bette Soule Robert & Laura Foster
Alfred R. Meyer III William & Patricia Chasse
Matthew & Karen Randall Keith & Sharon Ingraham
Peter & Harriett Robinson Robert & Linda Green
Under Rule 3 of the Maine Rules for Lawyers' Fund for Client Protection this Court must also consider the following provision:
"Unless the Court determines otherwise, a lawyer
who has been suspended or disbarred by reason of
conduct resulting in payment to a claimant shall
not be reinstated to practice law in Maine until
full restitution to the Fund has been made."
In this case, there are several claims pending before the Lawyers' Fund for Client Protection (LFCP). To the extent that the LFCP partially reimburses claimants for their losses related to the conduct of Thomas R. Acker, Mr. Acker's refund to the LFCP shall be credited toward the total amount of any subsequent restitution he is obligated to pay to any of the individual claimants.
Dated: September 22, 2006 /s/
Jon D. Levy
Date: September 22, 2006 Seen and agreed to:
Aria eee, Esquire
Me. Bar No. 7986
Board of Overseers of the Bar
P O Box 527
Augusta, ME 04332-0527
Tel: (207) 623-1121
Date: September 22, 2006 Seen and agreed to:
Thomas R. Acker
Me. Bar No 3381
P O Box 176
Hollis, ME 04042
Tel: (207) 929-5069