SJC-07626
428 Mass. 656 (1999)
IN THE MATTER OF LOUIS KERLINSKY
Suffolk. November 5, 1998. - January 14, 1999.
Present: Wilkins, C.J., Abrams, Greaney, Fried, Marshall, & Ireland,
JJ.
Attorney at Law, Disciplinary proceeding, Suspension. Board of Bar Overseers.
Information
filed in the Supreme Judicial Court for the county of Suffolk on
September 2, 1997.
The case was heard by Lynch, J.
Louis Kerlinsky, pro se.
Nancy E. Kaufman, Assistant Bar Counsel.
MARSHALL, J. This bar discipline case concerns
the conduct of Louis Kerlinsky (respondent) in representing Diane Kourouvacilis
in a damage suit against General Motors Corporation (GM) and Avis Rent-A-Car
(Avis) following an automobile fire. The respondent makes numerous challenges
to the two-year suspension recommended by the Board of Bar Overseers (board)
and imposed by the single justice. We limit our discussion to his claims regarding
the sufficiency of the evidence on which the board concluded he had violated
several provisions of the Canons of Ethics, the authority of the appeal panel
of the board to amend the decision of the hearing committee, and the appropriate
discipline to impose.
Bar counsel filed a petition for discipline against
the respondent on May 23, 1994, alleging violations of S.J.C. Rule 3:07, Canon
1, DR 1-102 (A) (4), (5), and (6), as appearing in 382 Mass. 769 (1981); Canon
6, DR 6-101 (A) (3), as appearing in 382 Mass. 783 (1981); Canon 7, DR 7-101
(A) (1), (2), and (3), as appearing in 382 Mass. 784 (1981); and DR 7-102 (A)
(2), (5), and (7), and (B) (1), as appearing in 382 Mass. 785 (1981).1
Between October, 1994, and March, 1995, a hearing committee
of the board conducted six days of hearings at which two witnesses testified
and 167 exhibits were introduced in evidence. Bar counsel recommended a three-year
suspension. On December 11, 1995, the hearing committee issued its report recommending
a one-year suspension with readmission "only upon application and the satisfactory
completion of an ethics examination." The hearing committee concluded that
the respondent had violated DR 6-101 (A) (3), and DR 7-101 (A) (1), (2), and
(3), DR 7-102 (A) (2) and (7), and DR 7-102 (B) (1), and that the respondent
had not violated any of the provisions of Canon 1. Both parties took an appeal
from the hearing committee's report.
1 New
Massachusetts Rules of Professional Conduct became effective on January 1, 1998,
replacing the former Canons of Ethics and Disciplinary Rules. S.J.C. Rule 3:07,
as appearing in 426 Mass. 1303 (1998) (Massachusetts Rules of Professional Conduct).
The relevant parts of the former Canons and Disciplinary Rules in effect at
the time of the respondent's challenged conduct state:
"DR 1-102. Misconduct.
"(A) A lawyer shall
not: . . .
"(4) Engage in
conduct involving dishonesty, fraud, deceit, or misrepresentation.
"(5) Engage in
conduct that is prejudicial to the administration of justice.
"(6) Engage
in any other conduct that adversely reflects on his fitness to practice law."
"DR 6-101. Failing
to Act Competently.
"(A) A lawyer shall
not: . . .
"(3) Neglect
a legal matter entrusted to him."
"DR 7-101. Representing
a Client Zealously.
"(A) A lawyer shall
not intentionally:
"(1) Fail to seek
the lawful objectives of his client through reasonably available means permitted
by law and the Disciplinary Rules, except as provided by DR 7-101 (B). A lawyer
does not violate this Disciplinary Rules, however, by acceding to reasonable
requests of opposing counsel which do not prejudice the rights of his client,
by being punctual in fulfilling all professional commitments, by avoiding offensive
tactics, or by treating with courtesy and consideration all persons involved
in the legal process.
"(2) Fail to carry
out a contract of employment entered into with a client for professional services,
but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.
"(3) Prejudice
or damage his client during the course of the professional relationship, except
as required under DR 7-102 (B)."
"DR 7-102. Representing
a Client Within the Bounds of the Law.
"(A) In his representation
of a client, a lawyer shall not: . . .
"(2) Knowingly
advance a claim or defense that is unwarranted under existing law, except that
he may advance such claim or defense if it can be supported by good faith argument
for an extension, modification, or reversal of existing law. . . .
"(5) Knowingly
make a false statement of law or fact. . . .
"(7) Counsel
or assist his client in conduct that the lawyer knows to be illegal or fraudulent."
"(B) A lawyer who
receives information clearly establishing that:
"(1) His
client has, in the course of representation, perpetrated a fraud upon a person
or tribunal shall promptly call upon his client to rectify the same, and if
his client refuses or is unable to do so, he shall reveal the fraud to the affected
person or tribunal, except when the information is protected as a privileged
communication."
On July 30, 1996, an appeal panel of the board
remanded the case to the hearing committee for clarification of its findings
and rulings. The appeal panel sought information regarding whether the respondent's
violation of DR 7-101 (A) (1), (2), and (3) was intentional, whether his violation
of DR 7-102 (A) (2) and (7) was done knowingly, and whether the respondent had
knowingly violated DR 7-102 (A) (5).2 The hearing
committee issued supplemental findings and a report on August 19, 1996, finding
that the respondent's conduct, and therefore his violation of DR 7-101 (A) (1),
(2), and (3), was intentional, that he knowingly violated DR 7-102 (A) (2),
and that he had not violated DR 7-102 (A) (5). The committee also noted that
the respondent had knowingly violated DR 7-102 (A) (7). On May 29, 1997, the
appeal panel issued its report, adopting the initial and supplemental findings
of the hearing committee and upholding the hearing committee's rulings that
the respondent had violated Canons 6 and 7. The appeal panel disagreed with
the hearing committee's dismissal of the alleged violations of Canon 1, and
ruled that the respondent had violated DR 1-102 (A) (4), (5), and (6). The appeal
panel recommended a two-year suspension, and suggested that "the respondent
complete continuing legal education courses in ethics, and pass the MPRE between
the date of suspension and any petition for reinstatement."
2 The
hearing committee had made no ruling on the alleged violation of DR 7-102 (A)
(5).
On July 14, 1997, the board voted unanimously to
adopt the appeal panel report and recommended discipline. The board filed an
information in the county court on September 2, 1997, and a single justice of
this court suspended the respondent for two years on December 3, 1997, from
which the respondent appeals. We vacate the decision of the single justice and
order that the respondent be suspended for a period of three years.
1. We summarize the extensive facts found by the
hearing committee and upheld by the appeal panel. Some details of other cases
related to the one giving rise to the discipline sought here illuminate the
challenged conduct of the respondent.
The respondent was admitted to the bar of the Commonwealth
in 1952, and has represented Kourouvacilis in a number of matters, including
a 1981 divorce; a personal injury and property damage suit arising from an automobile
accident in 1983; a wrongful discharge case filed in December, 1987; and the
automobile fire suit against GM and Avis at issue here, filed in October, 1988.
In July, 1983, Kourouvacilis was involved in an automobile accident while driving
a Chevrolet automobile that she had purchased from Avis in 1979.3
The respondent agreed to represent Kourouvacilis on a contingent
fee basis in a suit against the other driver, and, in June, 1984, filed suit
on behalf of his client. The complaint alleged that the automobile had been
seriously damaged in the 1983 accident, that it was unsafe to drive, and that
as a result of the accident Kourouvacilis was being treated for migraine headaches
by Dr. Lawrence Metz. The respondent later settled that case by negotiating
payments of the policy limits from the insurers of both Kourouvacilis and the
other driver.
3 The
Chevrolet automobile had over 17,000 miles on the odometer when Kourouvacilis
purchased it.
In August, 1984, Kourouvacilis was discharged from
employment at Monson State Hospital (Monson) for excessive absenteeism. In November,
1987, the respondent agreed to represent Kourouvacilis, again on a contingent
fee basis, in a wrongful termination suit against the Commonwealth and Monson
(Monson suit).4 In December, 1987, he filed a suit
on her behalf that was still pending at the time of respondent's hearing in
this disciplinary matter.
4 This
suit also alleged a claim against the American Federation of State, County,
and Municipal Employees (AFSCME), Kourouvacilis's union, alleging a violation
of its duty to her of fair representation.
In or about November, 1985, the Chevrolet automobile
that Kourouvacilis purchased from Avis caught fire while she was operating it;
the car was destroyed. The respondent agreed to represent Kourouvacilis on a
contingent fee basis in the suit against GM and Avis. The respondent failed
to adequately investigate the cause of the automobile fire,5
and failed to have the automobile inspected by an expert before Kourouvacilis's
insurer sold it for salvage. Nonetheless, the suit against GM and Avis raised
warranty, negligence, deceit, fraud, and G. L. c. 93A claims, specifically alleging
that the fire was caused by "defective wiring."6
5 Between
November, 1985, and April, 1988, the respondent's investigation consisted of
two letters to GM seeking a settlement and demand letters to GM and Avis pursuant
to G. L. c. 93A. Two and one-half years after agreeing to represent Kourouvacilis
in this matter, the respondent wrote to the fire department official responsible
for investigating the fire, and received his report in May, 1988. In June, 1988,
the fire official left a message for the respondent, stating that he did not
remember anything about the fire. The respondent never returned the telephone
call, and never spoke directly to the fire official.
6 The
respondent also failed to investigate whether, as Kourouvacilis had told him,
the Chevrolet was new at the time she purchased it from Avis. Kourouvacilis
also stated that the automobile required only maintenance, in direct contradiction
to the allegations of the automobile's unfitness after the 1983 accident.
Neither did the respondent investigate his client's
claims of personal injury. When he first agreed to represent her, Kourouvacilis
made no claims of physical injury, or that she had sought medical treatment
as a result of the fire. The fire department official's report similarly stated
that Kourouvacilis had suffered no injuries.7 The
respondent attempted to document Kourouvacilis's alleged injuries through Dr.
Metz, alleging that Dr. Metz treated her for migraine headaches resulting from
"smoke inhalation." Dr. Metz' records, however, indicated that Kourouvacilis
last visited his office in February, 1985, nine months before the fire. Kourouvacilis
testified during depositions that Dr. Metz had treated her for migraines after
the fire; the respondent did not counsel her to correct her misstatements, even
after she was unable to produce documentation of any postfire treatment.
7 The
respondent requested a report from Kourouvacilis's counselor at Springfield
Technical Community College, Carol Mathison, on the effects of the fire on Kourouvacilis's
physical condition. Mathison stated that she only had an "impression"
of the effect of the fire on Kourouvacilis, and that Kourouvacilis had a short
attention span and poor memory. In her August, 1989, deposition, Mathison stated
that Kourouvacilis had reported no physical injury from the fire, and that Mathison
"could not provide the nexus between the 1985 fire and Kourouvacilis's
emotional and academic problems because she was not qualified to identify the
cause of the post-traumatic stress disorder she observed in Kourouvacilis."
She was not retained as an expert.
The respondent also drafted a statement for Walter
Grzebian, a front-end mechanic, stating that, based on his experience and training,
the fire was caused by defective wiring installed by GM.8
In a telephone conversation, Grzebian told the respondent that it was "ridiculous"
that he had been subpoenaed to give deposition testimony because he did not
"know anything [about] the [Chevrolet] or what could cause the fire."
8 The
respondent had requested that Kourouvacilis obtain statements from "auto
mechanics regarding the cause of [her] fire." She left a message for the
respondent, stating that her mechanic, "Grez," was a front-end and
suspension specialist who did not do wiring or electrical repairs but would
be willing to help. Kourouvacilis drafted a statement for Grzebian, stating
that he did not perform wiring or electrical repairs, but that he had been advised
by Kourouvacilis that the fire marshal believed the fire had been caused by
defective wiring. The respondent redrafted this statement without speaking to
Grzebian, removed the qualification about his experience, and substituted the
language discussed above. Grzebian signed the statement and returned it to the
respondent on April 13, 1989.
In interrogatories and an affidavit prepared by
the respondent, he falsely represented that expert witnesses were available
to testify in support of Kourouvacilis's claims. He prepared interrogatory answers
identifying "Matheson," "Grez," "Lt. Colburn, Fire
Marshall [sic]," and Dr. Metz as expert witnesses, despite the fact that
he had neither consulted nor retained any of them as expert witnesses, and knew
that none would testify in support of any of his client's claims. In support
of his opposition to the defendants' motion for summary judgment, the respondent
prepared an affidavit on October 6, 1989, signed by Kourouvacilis, which stated
that she had been treated by Dr. Metz after the fire in "October, 1985,"
and that she had bills that she had received from Dr. Metz for treatment in
1986. He also attempted to file an unsworn statement of "----Gerz,"
that he prepared, offering Grzebian's "expert opinion." A judge in
the Superior Court allowed the defendants' motion for summary judgment. On appeal
we affirmed the entry of summary judgment. Kourouvacilis v. General Motors Corp.,
410 Mass. 706 (1991).
The respondent also advanced misstatements about
Kourouvacilis's employment and alleged wages lost as a result of the fire. In
answers to GM interrogatories, he advanced his client's claim that she lost
two weeks of wages and her position at "Adral Co." In answers to Avis's
interrogatories, he advanced her claim that she had not been employed for two
years after the fire because of resulting emotional problems, and that her lost
earning capacity totaled $36,000. These statements were not only inconsistent
as between GM and Avis, but they contradicted and jeopardized the theory of
Kourouvacilis's Monson suit. In that case, Kourouvacilis claimed that she was
ready and able to work after her 1984 termination, but had been unable to find
work until June, 1986. The respondent advanced these misstatements of his client,
and did not counsel her to correct either the misstatements or the inconsistencies.
2. Sufficiency of the evidence. The respondent
makes numerous challenges regarding the sufficiency of the evidence on which
the board concluded that he had violated the several provisions of Canons 1,
6, and 7. Among other challenges, he claims that he did not neglect any legal
matter entrusted to him, that he did not fail to represent his client zealously,
that he did not advance a claim that was unwarranted under existing law, that
his client did not clearly perpetrate a fraud that he was thereby required to
reveal, and that he did not counsel or assist his client in conduct that he
knew to be illegal or fraudulent. We have reviewed the entire record and are
satisfied that there was more than adequate evidence to support each of the
violations. We see no reason to provide a point-by-point rebuttal to the respondent's
arguments.
3. Authority of the panel. The respondent challenges
the authority of the appeal panel to reverse the hearing committee's finding
that he did not violate DR 1-102 (A) (4), (5), and (6). The appeal panel erred,
he claims, because these violations require a determination of intent, a matter
within the province of the hearing committee as the "sole judge of the
credibility of the testimony presented at the hearing." Matter of Saab,
406 Mass. 315, 328 (1989). Supreme Judicial Court Rule 4:01, § 8 (3), as
appearing in 381 Mass. 784 (1980), states:
"The Board may adopt the findings of fact
submitted by the hearing committee or the panel or revise such findings which
it determines to be erroneous, paying due respect to the role of the hearing
committee or the panel as the sole judge of the credibility of the testimony
presented at the hearing."9
9 We
amended this rule, effective July 1, 1997. The substance of the rule is now
contained in S.J.C. Rule 4:01, § 8 (4), as appearing in 425 Mass. 1309
(1997), and states in part:
"The Board
shall review, and may revise, the findings of fact, conclusions of law and recommendation
of the hearing committee . . . paying due respect to the role of the hearing
committee . . . as the sole judge of the credibility of the testimony presented
at the hearing."
The appeal panel noted specifically that it was
authorized to make the revision "since it does not involve the determination
of the credibility of any witness's testimony." We are satisfied that the
appeal panel's amendment of the hearing committee's report was proper, and involved
no credibility determination. Rather, in our assessment, the appeal panel rightfully
corrected errors it concluded the hearing committee had made in applying its
findings to the disciplinary rules at hand. The appeal panel concluded that
the respondent:
"(1) prepared and served opposing counsel with discovery material
and pleadings based on false statements of fact the respondent knew to be false;
(2) fraudulently procured affidavits; (3) permitted deposition testimony to
stand uncorrected when he knew it contained false statements; and (4) engaged
in conduct that delayed litigation, complicated discovery, and wasted the time
and resources of the courts."
The hearing committee's initial and supplemental
findings contained more than adequate support for the conclusion that this behavior
constituted "fraudulent, dishonest conduct which was prejudicial to the
administration of justice, and reflected adversely upon the respondent's fitness
to practice in violation of DR 1-102(A)(4), (5), and (6)."10
10 The
respondent also argues that S.J.C. Rule 4:01, § 8 (3), as appearing in
381 Mass. 784 (1980), is unconstitutional because it allows an attorney to be
punished on proof by a preponderance of the evidence as opposed to "clear
and convincing evidence." "[B]ar discipline charges need only be proven
by a preponderance of the evidence," Matter of Budnitz, 425 Mass. 1018,
1018 n.1 (1997), citing Matter of Mayberry, 295 Mass. 155, 167 (1936), and the
respondent's constitutional claim is without merit.
4. Appropriate discipline. The respondent argues
that a two-year suspension of his license is a "miscarriage of justice
and grossly disparate." We disagree. In bar discipline cases, we "inquire
whether the judgment is markedly disparate from those ordinarily entered by
the various single justices in similar cases." Matter of Clooney, 403 Mass.
654, 658 (1988), quoting Matter of Alter, 389 Mass. 153, 156 (1983). The "primary
factor" in bar discipline is "the effect upon, and perception of,
the public and the bar." Matter of Finnerty, 418 Mass. 821, 829 (1994),
quoting Matter of Alter, supra.
The facts of this case establish that the respondent
engaged in a "'persistent and extended pattern of improper and unethical
behavior' of the sort that would justify a suspension." Matter of Saab,
supra at 325, quoting Matter of McInerney, 389 Mass. 528, 531 (1983). The respondent
neglected his client's case. He prosecuted a frivolous claim, needlessly consuming
the resources of the judicial system for several years. He filed false and misleading
affidavits and interrogatory answers.
The appeal panel concluded that a two-year period
of suspension from the practice of law was appropriate. It did so reasoning
"[t]he existence of prior discipline, unlike the absence of prior discipline,
is a 'substantial factor in selecting the level of discipline.'" Matter
of Dawkins, 412 Mass. 90, 96 (1992), quoting Matter of Bryan, 411 Mass. 288,
291 (1991). "We consistently have considered a record of past misconduct,
even if unrelated to the current charges, in determining the appropriate sanction."
Matter of Dawkins, supra, and cases cited. The existence, as well as the timing,
of the respondent's prior disciplinary record persuades us that a suspension
longer than that imposed by the single justice is appropriate.
The respondent was publicly censured in 1989 for
charging a fee in excess of the fee set out in the contingent fee agreement.
He refused to turn over the portion of the recovery to which the client was
entitled, and withheld funds from the client to pay another attorney without
his client's consent. Matter of Kerlinsky, 406 Mass. 67 (1989). That the respondent
continued to engage in the unethical behavior at issue in this case during the
pendency of and subsequent to his earlier disciplinary proceedings warrants
more severe discipline.11 His earlier public censure
obviously was not sufficient to dissuade him from engaging in further unethical
behavior.
11 Bar
counsel commenced the initial disciplinary proceedings against the respondent
on September 26, 1986, which resulted in the public censure affirmed by Matter
of Kerlinsky, 406 Mass. 67 (1989).
In Matter of Tobin, 417 Mass. 81 (1994), we last
surveyed cases in which three-year suspensions were imposed. In that case, we
reduced a three-year suspension imposed by a single justice to eighteen months.12
Id. at 91. We noted that "[t]hose attorneys who had not
been convicted of crime yet received three-year suspensions demonstrated a pattern
of neglect and deceit or misused substantial sums of clients' funds." Id.
at 89 n.8. We are satisfied that the respondent's conduct in this case rises
to the level of a "pattern of neglect" warranting a three-year suspension.
Id. Since Tobin, a single justice has imposed a three-year suspension in Matter
of Dittami, 12 Mass. Att'y Discipline Rep. 98 (1996), which we view as analogous
to the present case. In that case, the attorney engaged in conflicts of interest
while mediating a business dispute and made written misrepresentations while
defending himself in a civil action. Id. at 101. The respondent in that case,
as in this case, previously had received a public censure. Id. at 113. Although
the board in that case, as it did here, recommended a two-year suspension, the
single justice increased the suspension to three years. Id. at 98, 101. While
we note that many of the cases in which three-year suspensions have been imposed
involve criminal convictions, we reiterate our observation in Tobin that such
a suspension may be appropriate where, as here, the respondent has engaged in
behavior that demonstrates a "pattern of neglect or deceit." Matter
of Tobin, supra.
12 The
respondent in Tobin had, among other violations, "intentionally and fraudulently
induced the complainant to retain him for unnecessary probate services."
Matter of Tobin, 417 Mass. 81, 91 (1994).
We are persuaded that an increase in the period
of suspension is appropriate based on the number of violations the respondent
committed both here and in his earlier disciplinary case. "The simultaneous
consideration of separate violations . . . is an established part of the disciplinary
system of this Commonwealth." Matter of Saab, supra at 326. The board found
that the respondent violated ten separate disciplinary rules in this case and
six in the earlier case. Matter of Kerlinsky, supra at 71-72. The cumulative
effect of these violations further supports our conclusion that an additional
period of suspension is appropriate. The board concluded, accurately in our
view, that the "respondent lacks any appreciation that his behavior was
improper and violated the Canons of Ethics." "[I]mposing any sanction
less severe . . . would 'undermine[] the clear standards of [Matter of the Discipline
of an Attorney, 392 Mass. 827 (1984)], and, in the process . . . diminish[]
the court's credibility in an area where the public interest requires steadfast
protection of clients' rights.'" Matter of Dawkins, supra at 97, quoting
Matter of Driscoll, 695, 705 (1991) (Greaney, J., dissenting).
The decision of the single justice is vacated and
a judgment is to be entered in the Supreme Judicial Court for the county of
Suffolk ordering that the respondent be suspended from the practice of law for
a three-year period.
So ordered.
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