MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2024 ME	6

Docket: Pen-22-225

Argued: October	4,	2023

Decided: January	25,	2024

Panel: STANFILL,	C.J.,	and MEAD,	JABAR,	HORTON,	CONNORS,	LAWRENCE,	and	DOUGLAS, JJ.

STATE	OF	MAINE

v.

DALE	F.	THISTLE

JABAR,	J.

[¶1]	 Dale	 Thistle	 appeals from	 a	 judgment	 of	 conviction	 of	 theft	 by	

misapplication	of	property	 (Class	B),	17-A	M.R.S.	§	358(1)(A),	 (B)(1)	 (2023),	

entered	 by	 the	 trial	 court	 (Penobscot	 County,	Anderson,	J.)	 after	 a	 jury	 trial.		

Thistle	argues	 that	we	must	vacate	his	conviction	because	(1)	 the	 trial	court	

erred	by	not	granting	his	motion	for	acquittal	when	the	evidence	established	a	

statute	of	limitations	defense;	(2)	the	trial	court	erred	in	its	instructions	to	the	

jury on	 the	 Maine	 Rules	 of	 Professional	 Conduct;	 (3)	 the	 State	 committed

prosecutorial	error;	and	(4)	the	evidence	was	insufficient	to	convict	him.		We	

affirm	Thistle’s conviction.
2

I.		BACKGROUND

[¶2]		“When	[the	evidence	is]	viewed	in	the	light	most	 favorable	to	the	

State,	 the	jury	 could	 have	 rationally	 found	 the	 following	 facts.”	 	 State	 v.	 Fay,	

2015	ME	160,	¶	2,	130	A.3d	364.		Dale	Thistle	was	an	attorney	in	Newport.		As	

part	 of	 his	 practice,	 he	 drafted	 a	 will	 for	 Gilman	 Friend	 in	 2008.	 	 The	 will	

nominated	 Donna	 Friend,	 Gilman’s	 ex-wife,	 as	 the	 estate’s	 personal	

representative and devised	a	substantial	portion	of	Gilman’s	estate	to	her.		The	

will devised	the	remainder	of	the	estate	to	Gilman’s	four	adult	children.		

[¶3]		In	December	2010,	Gilman	fell	at	his	home.		Emergency	responders

treated	Gilman	for	cuts	and	abrasions	and	then left	Gilman at	home	with	Donna.		

Donna	 found	 Gilman	 dead	 the	 next	 morning.	 	 As	 personal	 representative	 of	

Gilman’s	 estate,	Donna	 hired	 Thistle	 to	 explore	 the	 possibility	 of	 a	wrongful	

death	 suit	 against	 the	 emergency	 responders’	 employer.	 	 Thistle	 ultimately	

negotiated	a	settlement	on	Donna’s	behalf, and	on	July	2,	2012,	he	received	a	

check	 for	$390,000	payable	 to	“Donna	Friend	Personal	Representative	of	 the	

[Estate	of] Gilman	Friend	and	Dale	F.	Thistle	Esq.”		Thistle	deposited	the	check	

into	his	IOLTA1 (client	trust) account on	July	13,	2012.		

1		“IOLTA”	stands	for	“interest	on	lawyer’s	trust	account.”		M.R.	Prof.	Conduct	1.15(b)(4).		A	lawyer	

must	deposit	and	keep	in	an	IOLTA	account	“[a]ll	funds	of	any	client	.	.	.	that	are	small	in	amount	or	

held	for	a	short	period	of	time.”		Id.		Larger	amounts	of	a	client’s	funds	that	will	be	held	for	a	longer	

time	must	be	kept	in	a	separate	account	or	in	a	pooled	account	in	which	the	interest	earned	on	the	
3

[¶4]		On	August	2,	2012,	Thistle	consulted	an	attorney	about	whether the	

proceeds	of	the	wrongful	death	settlement	should	go	to	Donna	or	to	Gilman’s	

children.

2	 	 The	 attorney	 advised	 that,	 under	 both the	 will	 and	 18-A	 M.R.S.	

§ 2-804	(2009),	the	funds	were	statutorily	required	to	go	to	Gilman’s	children,	

but	Donna	was	entitled	to	recover	her	expenses	in	pursuing	the	action	on	behalf	

of	 the	 estate.	 	 From	 the	 IOLTA	 account,	Thistle	 then	 reimbursed	 Donna	 her	

expenses and paid	the	consulting	attorney. Accounting	for	these	expenses,	and	

the	approximately	$96,300	Thistle	was	entitled	to	receive	as	an	attorney	fee	for	

the	wrongful	death	claim,	approximately	$290,000	remained	of the	settlement	

funds	for	Gilman’s	children.		

[¶5]	 	 At	 the	 end	 of	 July	 2012,	 Thistle’s IOLTA account balance	 was	

$379,703.20.		By	the	end	of	November	2012,	the	balance	was	$280,703.28.	And	

by	the	end	of	January	2013,	the	account	balance	was	$249,236.59.		The	balance	

client’s	funds	can	be	accounted	for	and	credited	to	the	client.		M.R.	Prof.	Conduct	1.15(b)(3).		Interest	

earned	on	IOLTA	accounts	is	paid	to	the	Maine	Justice	Foundation	“to	provide	services	that	maintain	

and	enhance	resources	available	for	access	to	justice	in	Maine,”	including	“legal	services,	education,	

and	assistance	to	low-income,	elderly,	or	needy	clients.”		M.	Bar	R.	6(e)(3).

2	 	Thistle sought	 the	 attorney’s	 opinion	 on	whether	 Donna,	 because	 she	 had	 been	 living	 with	

Gilman	as	a	married	partner	at	the	time	of	his	death	despite	their	prior	divorce,	should	receive	part	

or	all of	the	settlement	as	Gilman’s	heir	or	whether the	full	settlement	amount	should	pass	to	Gilman’s	

children.
4

never	increased	after January	2013.		As	of March	2014,	the	account	balance	was	

only	$21,958.62.		

[¶6]	 	 Thistle	 made	 frequent	 withdrawals	 from	 the	 IOLTA	 account	 for	

personal	expenses,	such	as	tax	delinquency payments,	payments	to	his	son	and	

ex-wife,	 utility	 payments,	 home	 repair	 payments,	 and	 payments	 to	 himself.		

Between	July	2013	and	March	2014,	Thistle	withdrew over	$300,000 from	the	

IOLTA	account,	far more	 than	the	 sum	 of	Donna’s	expenses,	expenses	 of	 the	

consulting	attorney,	and	Thistle’s	attorney	fees	in	the	settlement	action.		

[¶7]	 	 In	 May	 2014,	 a	 receiver	 appointed	 to	 close	 Thistle’s	 practice	

liquidated	and	closed	 the	 IOLTA account.		When	 the	receiver	was	appointed,	

the	account	contained	$15,445.92—not	enough	to	pay	Gilman’s	children their	

roughly	$290,000	share of	the	settlement	funds.		Between Thistle’s	receipt	of	

the	settlement	funds	in	July	2012	and	the	closure	of	his	IOLTA	account,	Thistle	

never	 paid	 Donna	 or	 Gilman’s	 children or	 notified	 the	 children that	 the	

settlement	award	existed.		Gilman’s children learned	of	the	settlement	award	

only	after	Donna’s	death	in	2014.		When	they	finally	learned	of	the	award,	they

contacted	the	Board	of	Overseers of	the	Bar.		
5

[¶8]		On	September	25,	2019,	the	State	indicted	Thistle	for one	count	of	

theft	by	misapplication of	property (Class	B),	17-A	M.R.S.	§	358(1)(A),	(B)(1).

3		

When	Thistle	failed	to	appear	in	court	on	November	7,	2019,	the	court	issued	a	

warrant	 for	 his	arrest.	 	 Thistle,	who	was	then	living	in	Quebec,	 Canada,	was	

taken	into	custody	by	Canadian	authorities	and	extradited.		At	his	arraignment

on	November	22,	2019, the	court	asked	Thistle’s	attorney	how	long	Thistle	had	

been	in	Canada,	to	which	Thistle	himself	responded,	“Two	and	a	half	years.”		

[¶9]		The	court	held	a	three-day	jury	trial	on	June	15-17,	2022.		The	State	

presented	evidence	that	Thistle	was	aware	that Gilman’s	children were	entitled	

to	the	settlement	funds; that Donna	did	not	wish	to	distribute	the	settlement	to	

them despite	 that	entitlement; that	Thistle	understood	 that	professional	and	

ethical	 rules	 prohibited	 him	 from	 using client	 funds	 to	 pay his	 personal	

expenses;	and	that	Thistle	made	extensive	withdrawals	for	personal	expenses	

from	 his	 IOLTA	 account	 after	 depositing	 the	 settlement	 funds.	 	 Thistle’s	

attorney	advanced	two	arguments	in	defense: first,that	a	head	injury	prevented	

3	 	Title	 17-A	 M.R.S.	 4	 358(1)(A)	 provides that	 a	 person	 is	 guilty	 of	 theft	 by	 misapplication	 of	

property	if	“[t]he	person	obtains	property	from	anyone	.	.	. upon	agreement,	or	subject	to	a	known	

legal	 obligation,	 to	 make	 a	 specified	 payment	 or	 other	 disposition	 to	 a	 3rd	 person	 or	 to	 a	 fund	

administered	by	that	person,	whether	from	that	property	or	its	proceeds	or	from	that	person’s	own	

property	to	be	reserved in	an	equivalent	or	agreed	amount,	if	that	person	intentionally	or	recklessly	

fails	to	make	the	required	payment	or	disposition	and	deals	with	the	property	obtained	or	withheld	

as	that	person’s	own.”		Violation	of	section	358(1)(A)	is	a	Class	B	crime	if	“[t]he	value	of	the	property	

is	more	than	$10,000.”		Id. § 358(1)(B)(1).
6

him	 from	 forming	 the	 requisite	 state	 of	 mind	 for	 theft	 by	 misapplication	 of	

property,	 and	 second, that	 the	 State	 failed	 to	produce sufficient	 evidence	 to	

satisfy the	elements	of	the	crime	charged	because	Thistle	did	not	owe a	known	

legal	obligation	to	Gilman’s	children	to	distribute the	settlement	funds.		On	the	

second	day	of	trial,	Thistle	moved	for	a	judgment	of	acquittal,	and	the	trial	court	

denied	the	motion.		

[¶10]		In	its	closing	argument,	the	State	argued	that	Thistle’s	attorney	had	

made	“evidence-free assertions” regarding	Donna’s	role	in	the	crime, as there	

was	 no	 evidence	 that	 Donna	 had	 prevented	 Thistle	 from	 distributing	 the	

settlement	 funds	to	Gilman’s	children, and	incorrectly	characterized	Thistle’s	

closing	argument	as	suggesting	that	Donna	had	been	Thistle’s	accomplice	to	the	

theft.		

[¶11]		Following	closing	arguments,	the	trial	court	instructed	the	jury	on	

Maine	 Rules	 of	 Professional	 Conduct 1.15(a),	 (d),	 and	 (e),	 which	 govern	 a	

lawyer’s	handling	of	client	funds.

4		The	court	further instructed	the	jury	on	the	

State’s	burden of	proof,	Thistle’s	lack	of	burden,	that	closing	arguments	are	not	

evidence,	and	that	it	was for	the	jury	to	determine	what	the	evidence	in	the	case	

4		Thistle	objected	to	the	court’s	instructions	on	Rules	1.15(a)	and	(e)	but	did	not	object	to	the	

instruction	on	Rule	1.15(d).		
7

was	and	what	it	demonstrated.		On	June	17,	2022,	the	jury	returned	a	verdict	

finding	 Thistle	guilty	 of	 theft	 by	misapplication of	 property.	 	 See	17-A M.R.S.	

§ 358(1)(A),	 (B)(1).	 	 The	 court	 later sentenced	 Thistle to	 a	 term	 of	

imprisonment	of	six	years,	with	all	but	two	years	suspended,	followed	by	three	

years	of	probation.		Thistle	timely	appealed.		M.R.	App. P. 2B(b).		

II.		DISCUSSION

[¶12]		Thistle	argues	that	the	trial	court	erred	by	denying	his	motion	for	

a	judgment	of	acquittal	because	the	evidence	established	a	statute	of	limitations	

defense,	the	State	committed	prosecutorial	error warranting	vacatur,	and	the	

evidence	was	insufficient	to	convict	him.5		

A. Statute	of	Limitations

[¶13]		Thistle	argues	that	the	trial	court	erred	when	it	denied	his	motion	

for	a	judgment	of	acquittal	at	the	end	of	the	State’s	case-in-chief	because	there	

was	sufficient	evidence	in	the	record	to	generate	a	statute	of	limitations	defense	

that the	State	did	not	disprove	beyond	a	reasonable	doubt.		The	State	responds	

5	 	 Thistle	 additionally	 argues	 that	 the	 court	 erred	 by	 instructing	 the	 jury	 on	 Maine	 Rules	 of	

Professional	Conduct	1.15(a),	(d),	and	(e)	because	the	instructions	omitted	relevant	rule	language,	

were	 not	 generated	 by	 the	 evidence,	 and	 welcomed	 a	 verdict	 based	 on	 impermissible	 criteria.		

Contrary	 to	 Thistle’s	 contentions,	 the	 court	 committed	 neither	 prejudicial	 nor	 obvious error	 in	

instructing	the	jury	on	these	rules.		See	State	v.	Hanscom,	2016	ME	184,	¶	10,	152	A.3d	632;	State	v.	

Lajoie,	2017	ME	8,	¶	13,	154	A.3d	132;	supra	n.2.		We	 find	Thistle’s arguments	unpersuasive	and	

affirm the	court’s	rulings on	that	issue	without	further	discussion.
8

that	Thistle	waived	that defense	by	raising it	for	the	first	time	on	appeal,	having	

never	explicitly	asserted	it	at	trial.		

[¶14]		Title	17-A	M.R.S.	§	8(1)	(2023) provides	that	“[i]t	is	a	defense	that	

prosecution	was	 commenced	after	 the	expiration	 of	 the	applicable	 period	 of	

limitations.”		The	limitations	period to	prosecute	a	Class	B	crime	is	six	years.		Id.	

§	8(2).		The	statutory	period	is	tolled,	however,	if	“the	accused	is	absent	from	

the	State,”	and	the	tolled	period	does	not	extend	the	limitations	period	by	more	

than	five	years.		Id. §	8(3)(A).		

[¶15]		Although	the	State	generally	has	the	burden	to disprove	a	statutory	

defense	that	is	generated	by	the	evidence,	17-A	M.R.S.	§	101(1)	(2023);	State	v.	

Lacourse,	2017	ME	75,	¶	11,	159	A.3d	847, we	conclude that	in	the	unique	facts	

presented	 by	 this	 case,	 Thistle waived	 the	 statute	 of	 limitations	 defense	 he	

raises	 on	 appeal. The	 State	 filed	 the	indictment	 on	 September 5,	 2019,	 and	

alleged	that	Thistle	committed	the	offense	on	July	13,	2012,	seven	years	prior.6		

As	 discussed	 above,	 Thistle	 admitted—on	 the	 record—during pretrial	

proceedings that,	 prior	 to	 being	 extradited	in	 2019	 when	 the	 State	 filed	the

indictment, he	had	been	in	Canada	for	two and a half	years—a	period	sufficient	

6		July	13,	2012,	is	the	earliest	possible	date	that	the	offense	was	committed.		The	evidence	would	

also	support	a	finding	that	the	offense	did	not	in	fact	occur	until	some	months	later,	when	the	account	

balance	fell	below	the	amount	owed	to	Gilman’s	children.
9

to	toll	the	limitations	period	such	that	it	expired	after the	date	of	the	indictment.		

17-A	M.R.S.	§ 8(3)(A).		

[¶16]		Having	admitted	in	 front	of	the	State	and	the	trial	judge	to	 facts	

that	tolled	the	limitations period,	Thistle	cannot	now	be	heard	to	complain	that	

the	 State	 failed	 to	 present	 sufficient	 evidence	to	 prove	 beyond	 a	 reasonable	

doubt	 on	 this	 issue	 to	 the	 jury.	 	 The	 conduct	 of	 the	 parties	 following	 his

admission,	including	the	State’s	decision	not	to	present evidence	of tolling and	

Thistle’s	decision	not	to	renew	his	motion	for	a	judgment	of	acquittal	or	request	

a	jury	instruction	on	the	statute	of	limitations	defense,	demonstrates	that	the	

parties	 effectively	 treated	 this	 defense	 as	 waived.	 	 Under	 these	 narrow	

circumstances,	we deem	the	defense	waived and	affirm	the	trial	court’s	denial	

of	Thistle’s	motion	for	judgment	of	acquittal.		

B. Improper	Prosecutorial	Argument

[¶17]	 	Thistle	 contends	 that	 the	State	erred during	its	 rebuttal	 closing	

argument.		Thistle	failed	to	object	to	the	State’s	rebuttal	argument, so we	review	

only	for	obvious	error.		State	v.	Penley,	2023	ME	7,	¶	22,	288	A.3d	1183.		We	

must	first	determine	whether	 the	conduct	was	error,	and,	if	it	was,	we	must

determine	whether	to vacate	the	conviction,	considering	the	State’s	comments	

both	as	a	whole	and	individually.		Id. ¶	23.		We	will	affirm	the	judgment	if	“it	is	
10

highly	 probable	 that	 the	 jury’s	 determination	 of	 guilt	 was	 unaffected	 by	 the	

prosecutor’s	 comments.”	 	 Id. (quotation	 marks	 omitted). When	 reviewing	

claims	of	prosecutorial	error	in	argument,	if	“a	prosecutor’s	statement	is	not	

sufficient	to	draw	an	objection,	particularly	when	viewed	in	the	overall	context	

of	 the	 trial,	 the	 statement	will	 rarely	 be	 found	 to	 have	 created	 a	 reasonable	

probability	that	it	affected	the	outcome	of	the	proceeding.”		Id. ¶	22	(quotation	

marks	omitted).		

[¶18]		“A	closing	argument	is	improper	if	it	conveys	a	shift	in	the	burden	

of	proof	to	the	defendant	or	suggests	that	the	defendant	must	present	evidence	

in	a	criminal	trial.”		Id. ¶	24	(quotation	marks	omitted).		A	prosecutor must	focus	

on	what	the	evidence	shows,	rather	than	what	the	defendant	has	failed	to	show,	

and	 “[t]hus,	 .	 .	 .	 may	 say	 that	the	 record	 contains no	 evidence	 to	 support	 a	

proposed	finding	but	may	not	say	that	the	defendant	failed	to	provide	evidence	

to	support	a	proposed	finding.”		Id.		A prosecutor’s “isolated	misstep” does	not	

require	 us	 to	 vacate	 a	 conviction	 if	 the	 comment	 was mild,	 the	 trial	 court	

properly	 instructed the	 jury	 on	 burdens	 of	 proof	 soon	 after	 the	 improper	

statement,	 and	 the	 record	 contains	 sufficient	 evidence	 to	 suggest	 that	 the	

comment	“would	not	have	tipped	the	balance.”		See	id. ¶	26.

[¶19]		Thistle	challenges	three	statements	made	by	the	State:
11

(1) That	defense	counsel	made	“evidence-free	assertions”;	

(2) That	“[Thistle] apparently	thinks	that	Donna	Friend	is	

an	 accomplice	 to	 Dale	 Thistle’s	 theft?	 	 That	 Donna

Friend	enabled	that	theft”;	and

(3) That	“there’s	 no	 evidence	 that	 .	 .	 .	[Donna] told	 Dale	

Thistle	 not	 to	 pay	 the	 heirs	 the	 money.	 	 There	 is no	

evidence	of	that.		None.		Seriously.”		

[¶20]	 	 None	 of	 these	 statements	 constitutes improper	 argument.		

Although	the	first	statement	was close	to	suggesting	that	Thistle	did	not	present	

evidence	 in	 support	 of	 his	 defense,	 see	 id. ¶	 27	 (holding	 that	 prosecutor’s

statement that	defense	counsel	had	attempted	“to	make	an	accusation	and	not	

.	 .	 . back	 it	 up	 with	 evidence” constituted	 improper	 closing	 argument),	 the	

statement	is	not	an	obvious	error	that	requires	vacatur	of	Thistle’s	conviction,

for	multiple	reasons,	see	id. ¶	29.		First,	the	court	properly	instructed	the	jury	

on	the	State’s	burden of	proof and	Thistle’s	lack	of	burden shortly	after	the	State	

made	its	statement	in	the	rebuttal	closing	argument.	 Second,	the	State	made	its

comment	in	response	to	Thistle’s	closing	argument	that	Donna,	not	Thistle,	had	

the	 obligation	 to	 pay	 the	 settlement	 funds	 to	 the	 heirs	 and	 the	 State	 had	

therefore	failed	to	meet	its	burden	of	proving	Thistle’s	legal	obligation	to	make	

payment	of	the	funds	to	Gilman’s	children.	 17-A	M.R.S.	§	358(1)(A).	 Nothing

disallows	 the	 State	 from	 observing	 that	 the	 record	 contains	 no	 evidence	 to	
12

support	a	proposition	asserted	by	the	defense.		Penley,	2023	ME	7,	¶	24,	288	

A.3d	1183.		Finally,	as	discussed	infra,	there	is	sufficient	evidence	supporting	

the	 conviction	 to	 suggest	 that	 this	isolated	 comment	 did	 not	 tip	 the	 balance

against	Thistle.		See	id. ¶	26.

[¶21]	 	 Regarding the	 second	 statement,	 Thistle	 argues	 only	 that	 the	

statement	mischaracterized	Thistle’s	closing	argument.		Indeed, the	State	did	

not	 accurately	 characterize	 Thistle’s	 closing	 argument.	 	 But	 even	 if	 this	

mischaracterization	was improper,	any error	was	cured	by	the	trial	court’s	jury	

instructions	 that	 closing	 arguments	 are	 not	 evidence	 and	 that	 the	jury	must	

determine	what	the	evidence	was	and	what	it	demonstrated.		

[¶22]		Finally,	the	third statement	was	not	error.		It	did	not	improperly	

shift	the	evidentiary	burden	to	Thistle;	it focused on	the	evidence	in	the	record,	

not	Thistle’s	failure	to	present	evidence	of	his	innocence.		See	State	v.	Wai	Chan,	

2020	ME	91,	¶¶	26-27,	236	A.3d	471 (holding	 that	statement	identifying	the	

absence	of	evidence	was	not error because	it	 focused	on	 the	evidence	in	 the	

record).		We	therefore	hold	that	the	three	statements	do	not	rise	to	the	level	of	

prosecutorial	error.
13

C. Sufficiency	of	the	Evidence

[¶23]		Thistle	lastly	argues	that	the	evidence	was	insufficient	to	support	

the	jury’s	verdict	because	the	record	does	not	support	the	finding	that	Thistle	

owed	a	legal	obligation	to	make	any payment	to	Gilman’s	children.		

[¶24]	 	When	 a	 defendant	 challenges	 the	 sufficiency	 of	 the	 evidence	 to	

support	 his	 criminal	 conviction,	 “we	 view	 the	 evidence	 in	 the	 light	 most	

favorable	to	the	State	to	determine	whether	the	factfinder	could	rationally	find	

every	element	of	the	offense	beyond	a	reasonable	doubt.”		State	v.	Lowe,	2015	

ME	124,	¶	27,	124	A.3d	156.		To	convict	Thistle	of	 theft	by	misapplication of	

property,	the	jury	had	to	find	that	the	State	proved	beyond	a	reasonable	doubt	

that	Thistle	(1)	obtained	property	from	someone,	(2)	had	to	make	a	specified	

payment	or	other	disposition	to	a	third	person	upon	agreement	or	subject	to	a	

known	 legal	 obligation,	 (3)	 intentionally	 or	 recklessly	 failed	 to	 make	 that	

payment	or	disposition,	and	(4)	dealt	with	the	property	as	his	own.		17-A	M.R.S.	

§	358(1).

[¶25]		The	record	contains	sufficient	evidence	for	the	jury	to	rationally	

find	each	element	of	theft	by	misapplication	of	property	beyond	a	reasonable	

doubt.		With	respect	to	Thistle’s	legal	obligation,

7 the	State	presented	evidence	

7		Thistle	contends	that	the	obligation	created	by	the	Maine	Rules	of	Professional	Conduct	is	not	a	

sufficient	basis	for	conviction	because	the	rules	do	not	create	legal obligations.		The	rules	indicate	
14

that	Thistle	knew	that	the	money	belonged	to	Gilman’s	children,	regardless	of	

whether	it	was	to	be	paid	to	Donna	or	the	children directly,	as	evidenced	by	his	

communications	 with	 another	 attorney	 regarding	 who	 was	 entitled	 to	 the	

settlement	funds.		Additionally,	Thistle	deposited	the	settlement	funds	into	his	

IOLTA account and knew	that he	could	not	take	money	from	the	IOLTA account

to	pay his	personal	expenses.		An attorney	that	Thistle	called	stated	that,	where	

an	attorney	had	funds	that	the	attorney	knew were	payable	to	a	third	person,	

the	attorney	should	consult	with	the	Board	of	Overseers	of	the	Bar	and	follow	

Maine	Rule	of	Professional	Conduct	1.15(d).		

[¶26]	 	 Contrary	 to	 Thistle’s	 position,	 Donna’s obligation as	 personal	

representative	of	the	estate to	distribute Gilman’s	assets	to	his	children does

not	 alter Thistle’s	 legal	 obligations	 under the	 Maine	 Rules	 of	 Professional	

Conduct as	 the	estate’s	attorney.		See M.R.	Prof.	Conduct	1.15.	 The	evidence	

establishes	that	Thistle	owed	a	fiduciary obligation	to	safeguard	and	distribute	

the	 settlement	 funds,	 obtained	on	 behalf	 of the	 estate,	whether	to Donna as	

that	Thistle	had	a	fiduciary	duty	to	safeguard	the	settlement	funds,	M.R.	Prof.	Conduct	1.15	cmt.	1,	

and	the	language	of	all	three	subsections	demonstrates	that	they	prescribe	the	proper	conduct	of	an	

attorney	for	the	purposes	of	professional	discipline,	see	M.R.	Prof.	Conduct	Preamble,	¶	14B	(“Some	

of	the	Rules	are	imperatives,	cast	in	the	terms	of	‘shall’	or	‘shall	not.’		These	define	proper	conduct	for	

purposes	of	professional	discipline.”).		The	rules	describe	Thistle’s	fiduciary	duty	to	his	client	and	any

interested	 third	 parties,	 and	 it	 is	 axiomatic	 that	 a	 lawyer	 who	 misappropriates	 client	 funds	 in	

violation	of	these	rules exposes	himself	to	legal	as	well	as	professional	consequences.
15

personal	representative or	to	Gilman’s	children directly.		See In	re	Ingeneri,	321	

B.R.	601,	604-05	(Bankr.	D.	Me. 2005);	cf.	State	v.	Schmidt,	2008	ME	151,	¶	27,	

957	 A.2d	 80 (holding	 that	 a	 “reasonable	 view	 of	 the	 evidence”	 supported	

finding	 that	 defendant	who	 had	 “sole	 .	 .	 .	 control	 over”	 funds	 obtained	as	an	

agent	of	another	owed	a	fiduciary obligation	under	section	358(1)(A)	to	make	

the	 payments	 for	 which	 the	 funds	 were	 intended).	 	 Under	 no	 view	 of	 his	

obligations	could	he	distribute	the	funds	to	himself	or	his	family.

[¶27]		Regarding the	other	elements,	the	State	offered	proof	that	Thistle	

owed	Gilman’s	estate	a	specified	payment	of	approximately	$290,000.		Thistle	

intentionally	or	 recklessly	 failed	 to	make	payment	because,	despite	 knowing	

that	 the	 settlement	 funds	 belonged	 to	Gilman’s	 children and	 knowing	 of	 his	

obligation	 as	 an	 attorney	 to	 safeguard	 and	 distribute	 the	 property,	 Thistle	

never	 notified	 Gilman’s	 children or	 transferred	 the	 funds	 to	 them.	 	 Lastly,	

Thistle	 dealt	 with	 Gilman’s	 children’s settlement	 funds	 as his	 own,	 drawing	

down	the	IOLTA	funds	by	making	payments	to	his	son,	his	ex-wife,	himself,	and	

“cash.”	 	 Viewing	 the	 evidence	 in	 the	 light	 most	 favorable	 to	 the	 State,	 we	

therefore	conclude	that	the	jury	rationally	could	have	found	by	proof	beyond	a	

reasonable	 doubt	 each	 element	 of	 theft	 by	 misapplication	 of	 property.	 	 See

17-A M.R.S.	§	358(1).
16

The	entry	is:

Judgment	affirmed.

Rory	A.	McNamara,	 Esq.	 (orally),	Drake	 Law	 LLC,	 York,	 for	 appellant	Dale	 F.	

Thistle

Aaron	M.	Frey,	Attorney	General, and	Charles	M.	Boyle,	Asst.	Atty.	Gen.	(orally),	

Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Penobscot	Unified	Criminal	Docket	docket	number	CR-2019-3451

FOR	CLERK	REFERENCE	ONLY