SJC-07590
429 Mass.121 (1999)
IN THE MATTER OF ALAN J. KARAHALIS
Suffolk. December 10, 1998. - March 4, 1999.
Present: Wilkins, C.J., Abrams, Lynch, Greaney, Fried, & Marshall, JJ.
Attorney at Law, Disciplinary proceeding, Suspension.
Information filed in the Supreme Judicial Court for the county of
Suffolk on August 25, 1997.
The case was heard by Ireland, J.
Terry Philip Segal for the respondent.
Arnold R. Rosenfeld, Bar Counsel.
LYNCH, J. This is an appeal from an order of a
single justice of this court, acting on an information filed by the Board of
Bar Overseers (board), suspending Alan J. Karahalis (respondent), from the practice
of law for two years. Both the respondent and the bar counsel appealed from
the judgment of suspension.
In November, 1995, bar counsel filed a petition
for discipline against the respondent, alleging violations of S.J.C. Rule 3:07,
Canon 1, DR 1-102 (A) (5), as appearing in 382 Mass. 769 (1981) (engaging in
conduct that is prejudicial to the administration of justice), and S.J.C. Rule
3:07, Canon 1, DR 1-102 (A) (6), as appearing in 382 Mass. 769 (1981) (engaging
in any other conduct that adversely reflects on his fitness to practice law).1
The petition alleged that the respondent made payments of $12,000 to Nicholas
Mavroules, a United States Congressman, for the purpose of inducing him to act
in violation of Federal law. The respondent's motion to dismiss on the basis
of staleness was denied by the board.2 On May
30, 1996, and August 14, 1996, a hearing committee (committee) of the board
conducted an evidentiary hearing and subsequently recommended that the respondent
be suspended from the practice of law for a period of four years. The respondent
appealed and the board adopted the committee's findings but recommended that
the respondent be suspended for a period of two years. A single justice of this
court agreed and imposed a two-year suspension.
1 The former Canons
of Ethics and Disciplinary Rules have been replaced by the Massachusetts Rules
of Professional Conduct which became effective January 1, 1998. S.J.C. Rule
3:07, as appearing in 426 Mass. 1303 (1998) (Massachusetts Rules of Professional
Conduct).
2 The respondent argues
that the complaint was stale and should have been dismissed. Section 2.5 of
the Rules of the Board of Bar Overseers (1997) provides:
"Except
where the Bar Counsel or the Board determines otherwise for good cause, the
Bar Counsel or the Board shall not entertain any grievance . . . arising out
of acts or omissions occurring more than six years prior to the date of the
grievance . . . ."
In the present case,
the misconduct was not discovered until 1992, and the Federal prosecution of
Congressman Mavroules was not completed until 1993. The petition for discipline
was filed with the board on November 30, 1995. The matter was subsequently approved
for formal prosecution by a board member on January 17, 1996. The respondent's
contention that the complaint was stale because bar counsel failed to demonstrate
good cause for delay is without merit. See Matter of Abagis, 386 Mass. 1001,
1001 (1982) (delay due to civil litigation pending was implicitly "good
cause" and therefore timely); Matter of Kipp, 383 Mass. 869, 870 (1981)
(relevant inquiry is whether complaints were timely prosecuted after discovery).
1. Facts as found by hearing committee. In 1985,
Andrew and Deborah Gerakaris approached the respondent and suggested that the
respondent's uncle, who was in the Federal prison system, could be moved to
a more convenient location if several thousand dollars were paid to Congressman
Mavroules.3 The respondent raised the money
from his family and personally delivered $7,000 to Mavroules in August of 1985.
As a result of a conversation with Mavroules, the respondent delivered an additional
$5,000 to Andrew Gerakaris in September of 1985.
3 Deborah Gerakaris
is Mavroules's daughter. Prior to 1985, the respondent's uncle, who resided
in Florida, had been convicted of felony drug charges and was assigned to a
Federal prison in Danbury, Connecticut. This assignment was inconvenient because
it was difficult for the family, who lived in Florida, to visit him.
The respondent knew that the purpose of these payments
was to induce a public official to utilize his official position in facilitating
the transfer of the respondent's uncle to a prison in Florida, which the respondent
knew was illegal. The respondent's uncle was subsequently transferred to a minimum
security facility in Florida, but not because of the bribe.
In referring the matter to the board, the office
of the United States Attorney noted the respondent's complete cooperation and
assistance in the prosecution of Mavroules. The respondent was neither convicted
nor even charged with any criminal violations as a result of his conduct. Mavroules
pleaded guilty to a multi-count indictment, including one count relating to
the extortion of $12,000 from the respondent's family to influence the transfer
of the respondent's uncle.
2. Appropriate discipline. In reviewing the judgment
of the single justice, we inquire "whether the sanction imposed is markedly
disparate from sanctions imposed in similar cases." Matter of Chambers,
421 Mass. 256, 259 (1995), quoting Matter of Garabedian, 416 Mass. 20, 24 (1993).
"In selecting a sanction, we should consider its effect on, and the perception
by, the public and its deterrent effect on other lawyers contemplating similar
conduct." Matter of Kennedy, 428 Mass. 156, 158 (1998). "In applying
this standard, it is appropriate for us to consider the cumulative effect of
the several violations committed by the respondent." Matter of Palmer,
413 Mass. 33, 38 (1992), citing Matter of Saab, 406 Mass. 315, 326-327 (1989).
We are mindful that the recommendation of the board is entitled to substantial
deference. See Matter of Palmer, supra at 40; Matter of Alter, 389 Mass. 153,
157-158 (1983).
In cases where an attorney has engaged in conduct
similar to the respondent's, the sanction imposed has often resulted in indefinite
suspension. In Matter of O'Donnell, 5 Mass. Att'y Discipline Rep. 279 (1987),
an indefinite suspension was imposed on an attorney who was convicted of violating
the Travel Act, 18 U.S.C. §§ 371, 1952, where the attempt to bribe
the public official occurred out of State, in violation of G. L. c. 268A, §
2.4 Similarly, in Matter of Latour, 4 Mass.
Att'y Discipline Rep. 63, 66 (1984), a single justice imposed an indefinite
suspension, where the attorney was convicted of bribery and noted that "[p]ublic
confidence in the integrity of the legal profession and its practitioners could
not be more severely undermined than by the specter of attorneys attempting
to attain their objectives by bribing public officials." Id. In Matter
of Tatel, 4 Mass. Att'y Discipline Rep. 138 (1984), an indefinite suspension
was found to be the appropriate sanction where the respondent was convicted
of three misdemeanor violations of G. L. c. 268A, § 3 (a), which prohibits
giving anything of value to a government employee for an official act. Most
recently in Matter of Pressman, 421 Mass. 514 (1995), an attorney was disbarred
even though he was not convicted, where he admitted to a Federal grand jury
that he took bribes while serving as mayor. See Matter of Schoening, 2 Mass.
Att'y Discipline Rep. 182 (1981) (three-year suspension where attorney convicted
of bribery and substantial mitigation found); Matter of Della Grotte, 2 Mass.
Att'y Discipline Rep. 61 (1980) (four-year suspension where attorney convicted
of bribery and substantial mitigation found).
4 The respondent in
that case was also indicted for wrongfully conspiring to travel in interstate
commerce and to use wire and telephone facilities to promote, carry on, and
facilitate bribery, in violation of G. L. c. 268A, § 2. The indictment
charged that there was a direct or indirect corrupt giving, offering or promising
of $50,000 to a selectman to influence his vote for the purposes of securing
a cable television license for the respondent's client. Matter of O'Donnell,
5 Mass. Att'y Discipline Rep. 279 (1987).
Both parties contest the board's reliance on Matter
of DeMarco, 5 Mass. Att'y Discipline Rep. 94 (1987), as guidance for determining
the appropriate sanction in the present case. In Matter of DeMarco, supra, a
single justice imposed a two-year suspension on an attorney who was a principal
in a cable company and was aware his agent bribed a public official but took
no action to reveal or to correct the fraud. Although this case is similar to
Matter of DeMarco, supra, the respondent's conduct was more egregious in that
he actively participated in the bribery. In addition, the respondent has a history
of misconduct.5 In 1985, the respondent received
a private reprimand for commingling and misuse of a client's funds during 1983.
Private Reprimand No. PR-85-13, 4 Mass. Att'y Discipline Rep. 243 (1985). In
1991, the respondent also received a public censure for commingling client and
personal funds, advancing settlement funds to clients before receipt of their
checks, and failing to pay medical providers promptly, all occurring in 1989.
Matter of Karahalis, 7 Mass. Att'y Discipline Rep. 130 (1991).
5 The hearing committee
disregarded the respondent's disciplinary history, stating that these prior
decisions were procedural and administrative in nature. The board properly concluded
that the committee erred, and noted that prior discipline should be a factor
in determining the appropriate sanction. The primary factor for consideration
in matters of bar discipline is the effect on and the perception of the public
and the bar. Matter of Alter, 389 Mass. 153, 156 (1983). Accordingly, it is
appropriate to consider the respondent's disciplinary record in determining
the appropriate sanction to be imposed without regard to when the infractions
occurred. See Matter of Palmer, 413 Mass. 33, 40 (1992), citing Matter of Saab,
406 Mass. 315, 327 (1989).
However, we are cognizant of mitigating factors
in this case. The respondent fully cooperated with the office of the United
States Attorney in the prosecution of Mavroules. The respondent's illegal actions
were motivated by his desire to help a family member, rather than for his own
pecuniary interests. Moreover, the respondent was not convicted of any crime
relating to this matter. See Matter of Alter, supra at 155 (these circumstances
do not implicate court's "special concern for the public interest when
an attorney has been convicted of a serious crime").
Nevertheless, we conclude that the committee's
recommendation that the respondent be suspended from the practice of law for
a period of four years is consistent with sanctions imposed in similar cases.
Accordingly, we vacate the judgment ordering a two-year suspension and direct
that a judgment suspending the respondent from the practice of law for a period
of four years be entered.
So ordered.
LYNCH, J. (concurring). Although I join the court
in imposing a four-year suspension in this case, I believe the two-year suspension
recommended by the board and imposed by the single justice is more appropriate.
The two-year suspension takes into consideration the deference due the board,
the recommendation of the United States Attorney, the fact that no criminal
sanctions were imposed on the respondent, that this was more a case of extortion
than bribery, that the respondent was motivated by family loyalty rather than
pecuniary gain, that ten years elapsed from the events to the time of prosecution,
and that the impetus behind the fraudulent scheme came from Congressman Mavroules
and his family.
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