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Commonwealth of Massachusetts

BBO File No. C2-95-0055

IN RE: HERBERT E. ZIMMERMAN

S.J.C. Order of Term Suspension (2 years) entered by Justice Greaney on November 28, 2001, with an effective date of December 28, 2001.

BOARD MEMORANDUM

This matter came before the Board on cross-appeals filed by the parties after a hearing committee recommended that the respondent, Herbert E. Zimmerman, be suspended for a year and a day based on findings that he, in substance, filed a notice of lis pendens without prior judicial approval and falsely witnessed and notarized a signature when the signer was not before him. Seeking a public reprimand, the respondent assails certain findings the committee made in aggravation of his admitted misconduct. Bar Counsel asks us to make certain modifications of the committee's findings of fact and conclusions of law and to recommend a three-year suspension. Oral argument having been waived by the parties, see Rules of the Board of Bar Overseers, Section 3.50(b), the appeals were considered on the papers by the full Board. For the reasons set out below, we modify the committee's findings and conclusions. We recommend that the respondent be suspended from the practice of law for two years.

Factual Background

We adopt and incorporate by reference the hearing committee's subsidiary findings of fact, which relate to two separate counts in the petition for discipline. We summarize them below, reserving certain details for later discussion.

Count I. The salient facts of the first count may be stated summarily, as the committee rejected Bar Counsel's more serious allegations and he has not pursued them on appeal. The respondent represented a client in an action against the estate of a man she used to live with. She claimed the deceased had assured her that his house, in which the two of them had lived for more than three years, would go to her when he died. The man's daughters disputed this and demanded that she move out. In 1993 the respondent filed a notice of lis pendens on the property with the registry of deeds. He was unaware that the lis pendens statute, G.L. c. 184, § 15, had been amended in 1986 to require prior judicial approval before the filing of such a notice. He did not obtain judicial approval. The hearing committee found that the respondent's failure to take adequate steps to familiarize himself with the statutory requirements for filing the notice was in violation of Canon Six, DR 6-101(A)(2) (handling a legal matter without preparation adequate in the circumstances).

Count II. In March of 1996, Alex Baklanov agreed to sell a piece of real estate in Quincy. While conducting a title examination, the buyer's counsel learned that a 1989 divorce decree dissolving Alex's marriage to Galina Bronsky had ordered Alex to convey the property to Galina. Alex had never complied with the order. By statute, however, the divorce decree operated to vest title if the conveyance was not made within the time specified in the decree. See G.L. 183, § 43. The buyer's counsel demanded a confirmatory deed from Galina as a condition to closing on the purchase.

The respondent had not been aware that Alex and Galina had divorced. He was aware, however, that the couple often did not get along, and he knew that it might be difficult to get her to sign the deed. He broached these concerns with the buyer's counsel, who still insisted on a deed from Galina. The respondent then faxed to buyer's counsel an unsigned document, dated in 1992, that purported to transfer Galina's interest in the property to Alex. Buyer's counsel stood by his insistence on a confirmatory deed.

At this point the respondent prepared a deed to be signed by Galina. He arranged for Alex and Galina to execute the deed in his office on April 19, 1996, but only Alex showed up. When the respondent asked where she was, Alex said he would "go talk to her." The respondent told him that if Galina signed the deed, her signature should be notarized. Alex departed with the deed and brought it back later the same day, this time with Galina's purported signature on it. The deed was neither witnessed nor notarized. Alex claimed that "he couldn't get her over to a notary." Without making any effort to contact Galina or otherwise verify that the signature was genuine, the respondent witnessed and notarized her signature on the deed.

The signature was a forgery. The hearing committee credited the respondent's testimony that he did not have actual knowledge that it was a forgery when he witnessed and notarized the deed. The committee was also unpersuaded by Bar Counsel's claim that the respondent's conduct amounted to "willful blindness" of a forgery.

At the closing on the sale of the property, buyer's counsel noted that the respondent's name was not printed under the notary signature line and that the space in the jurat identifying the person who had executed the deed was blank. He asked the respondent if he had notarized the deed. The respondent affirmed that he had. The closing was consummated.

A month later Galina surfaced to complain that she had not signed the deed. She filed an action in Land Court against everyone involved in the closing, including the respondent. In support of a motion for summary judgment in that matter, the respondent signed an affidavit in which he admitted notarizing her signature outside her presence. He notarized the signature, he claimed, because he was familiar with her signature, the one on the deed appeared to be authentic, he had believed it was genuine, and he believed the deed made no difference because a Land Court judgment in a 1991 quiet title action had declared Alex owner of the property. The case settled in 1998, with Galina receiving $3,500 in exchange for executing a confirmatory deed.

The hearing committee concluded that the respondent had violated Canon One, DR 1-102(A)(6) (conduct that adversely reflects on fitness to practice), by falsely witnessing and notarizing Galina's signature on the deed. Because the committee found that the respondent did not know the signature was a forgery, it rejected Bar Counsel's contention that the respondent also violated Canon One, DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation), or Canon Seven, DR 7-102(A)(7) (counseling or assisting client in conduct that lawyer knows to be illegal or fraudulent). Finally, the committee rejected Bar Counsel's claim that the respondent had knowingly stated a falsehood in the affidavit he filed in the Land Court. As a consequence, the committee concluded there was no violation of Canon One, DR 1-102(A)(5) (conduct prejudicial to the administration of justice), or Canon Seven, DR 7-102(A)(6) (participating in the creation or preservation of evidence when lawyer knows or it is obvious that the evidence is false).

Findings in mitigation and aggravation. The committee made no findings in mitigation of the respondent's misconduct. In aggravation, the committee took notice of his disciplinary history, which includes a private reprimand in 1985 and an admonition in 1987. The committee also found that the respondent had engaged in a pattern of misconduct, that he was an older and experienced lawyer, that his misconduct under both counts had caused harm to third parties, and that he had not been candid in his testimony at the hearing. The committee recommended a suspension for a year and a day.

The Respondent's Appeal

Aside from arguments about the nature of his disciplinary history and other issues relating to the appropriate sanction, the respondent raises only one objection to the hearing committee's subsidiary findings. He claims error in the committee's finding, made in aggravation of his misconduct, that he was not candid in his testimony at the hearing. The committee cited three issues on which he evinced a lack of candor. We consider each below.

1. The Land Court judgment. The committee credited the respondent's testimony that he believed Galina had no interest in the real estate because a Land Court judgment had given Alex sole title. He also testified that he had known of the Land Court judgment a "long period of time" before he began representing Alex in 1992. The committee did not believe him on this, however, and concluded that he was not candid in so testifying. The respondent does not squarely claim that the committee erred in making the finding, which we could not disturb in any event. See S.J.C. Rule 4:01, § 8(4) (hearing committee is "sole judge" of credibility); Matter of Provanzano, 5 Mass. Att’y Disc. R. 300, 304 (1987) (credibility determinations not to be disturbed “absent some clear error”). Instead, he characterizes the issue as irrelevant because the buyer's counsel had apprised him of the judgment when he demanded a confirmatory deed—before he notarized it, in other words. Under such circumstances, he argues, "[i]t is unfair to hold such collateral material against [him]."

We disagree. The principal issue in the entire proceeding was whether the respondent believed Galina's signature on the deed was genuine when he notarized it. One of the ways he defended against that charge was to argue that he could have had no reason to believe that Galina had a claim to the property. By claiming to have known "for years"—and for a "long period of time" before representing Alex—that Alex had sole title by virtue of the Land Court judgment, the respondent sought to make his claimed ignorance of a rival interest more believable. Viewed in context, therefore, the fact that he exaggerated how long he had reason to believe Alex held sole title is not irrelevant. The lie tended to make his claim of ignorance more credible.

2. The purported transfer. In order to convince the buyer's counsel not to insist upon a confirmatory deed, the respondent faxed him a document dated January 31, 1992, which purported to transfer Galina's interest in the property to Alex. The document was not signed by Galina, but the respondent had printed "/s/ Galina Bakalnov" on the signature line. The buyer's counsel insisted on a confirmatory deed. When asked at hearing about the document (Exhibit 29), the respondent said it was the only copy of such a document he had had in his file, denied having drafted it, claimed to be unsure who had, and intimated that it might have been prepared by Galina's divorce attorney. He was then presented with another version of the document (the third page of Exhibit 19), which also had been found in his file. This version had Galina's purported signature affixed to it. The respondent testified that he was not sure if the signature was genuine, but later declared he was "satisfied" that it was. He also claimed that the various signatures by Galina in his file varied "an awful lot." The hearing committee found that his inability to explain the discrepancies between the two documents "reflect[ed] a lack of candor on his part." The committee characterized his attribution of the drafting to Galina's divorce counsel as "disingenuous" (the document was dated 1992, while her divorce was final in 1989) and found, upon examination, that exemplars of Galina's signature did not vary considerably.

The respondent argues that the evidence does not support these findings. Again, we disagree. When questioned about Exhibit 19, the respondent conceded that "something was taped over [Galina's signature before he printed] those words /s/ Galina Baklanov" on the copy faxed to the buyer's counsel. While he stated that he "wouldn't have done that" and that he had not been the one to "alter[] the document," he acknowledged that he was the person who had faxed Exhibit 29 to the buyer's counsel and that there was no one else in his office who would have had access to the document other than himself. He was also unable to explain how he happened to have two versions, how he had obtained the original in the first place, or why he had sent the unsigned copy instead of the one bearing what he claimed was Galina's genuine signature. Under these circumstances, the committee had an ample basis for finding his testimony "disingenuous" and "reflect[ing] a lack of candor on his part." Nor are we persuaded by the contention that these details were of "little or no relevance"; to the contrary, as Bar Counsel points out, his failure to address them candidly lends weight to the committee's finding that his notarization of the deed was "clearly negligent and irresponsible."

3. Handwriting and expert testimony. The committee determined that the respondent was less than candid in claiming that exemplars of Galina's signature in his file varied "an awful lot." Upon inspection, the committee found that they did not vary considerably. The respondent now claims that, since no handwriting expert was called, it was "singularly unfair" to impugn his candor based on differences of lay opinion "over a matter as imprecise as handwriting." The issue, however, was not whether the signature was genuine—an issue on which an expert's testimony might be necessary—but whether to a layman, like the respondent, they varied so much that he could reasonably have concluded that the one on the confirmatory deed was hers. On that issue, the committee was competent to make a finding without expert opinion. See Commonwealth v. Sturtivant, 117 Mass. 122, 133 (1875) ("every person is competent to express an opinion on questions of identity, as applied to persons, things, animals or handwriting"); P.J. Liacos, M.S. Brodin & M. Avery, HANDBOOK OF MASSACHUSETTS EVIDENCE § 7.8.2(e), at 420 (1999).

Bar Counsel's Appeal

Aside from the question of what sanction should be imposed, Bar Counsel raises only one issue that merits full discussion on appeal: whether the committee should have found, based on its subsidiary findings, that the respondent was "willfully blind" to the forgery of the confirmatory deed such that he engaged in dishonest conduct in violation of DR 1-102(A)(4).

DR 1-102(A)(4) forbids lawyers from engaging in dishonesty, fraud, deceit, or misrepresentation. The state of mind necessary to establish a violation of the rule must involve either an intent to deceive, see, e.g., Matter of Provanzano, 5 Mass. Att’y Disc. R. 300, 301-302 (1987), or at least knowledge of the falsity and an understanding that someone will likely rely on it. Matter of McCabe, 13 Mass. Att’y Disc. R. 501, 511-512 (1997). Here there can be no question that the respondent was aware that the buyer would rely on the confirmatory deed. Proving that the respondent "knew" the signature was forged requires an inference drawn from all the circumstances. See Mass. R. Prof. C. 9(f) ("'Knowingly,' 'known,' or 'knows' denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances."); accord 1 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 5, at 50, Comment d (2000).

At the same time, a lawyer cannot avoid "knowing" a fact by purposefully refusing to look. While a lawyer "is not under an obligation to seek out information," his or her "studied ignorance of a readily accessible fact by consciously avoiding it is the functional equivalent of knowledge of the fact." C.W. Wolfram, MODERN LEGAL ETHICS § 13.3.3, at 696 (1986); see Hazard, How Far May a Lawyer Go in Assisting a Client in Legally Wrongful Conduct?, 35 U. MIAMI L. REV. 669, 672, 678, 682 (1981). Not surprisingly, therefore, the doctrine of willful blindness has been applied to lawyers in both criminal and civil proceedings. See United States v. Benjamin, 328 F.2d 854, 863 (2nd Cir.), cert. denied, 377 U.S. 953 (1964) (lawyers cannot "escape criminal liability on a plea of ignorance when they have shut their eyes to what was plainly to be seen"); Wyle v. R.J. Reynolds Indus., 709 F.2d 585, 590 (9th Cir. 1983) (law firm's deliberate ignorance of client's practices constituted equivalent of knowledge of the truth). While we are aware of no Massachusetts case in which the doctrine has been applied in a bar discipline proceeding, other states have done so. See, e.g., In re McGrath, 468 N.Y.S.2d 349 (App. Div. 1983) (defense counsel disciplined for reckless disregard of truth or falsity of material understatement as to amount of available insurance). And in the Commonwealth, the Supreme Judicial Court has indicated it may be a basis for imposing judicial sanctions. See Van Christo Adverstising, Inc. v. M/A-COM/LCS, 426 Mass. 410, 416-418 (1998) (violation of Mass. R. Civ. P. 11 requires proof of lawyer's subjective belief that pleading is unsupported in fact and law, but rule does not "excuse an attorney's 'willful ignorance' of law and fact which should have been known had the attorney simply not consciously disregarded them"). We conclude, therefore, that an inference of willful blindness will support a finding that one has the requisite "knowledge" where that state of mind is needed to establish violation of an ethical rule.

In reviewing the hearing committee's report to determine whether such an inference is supported, we are not invading the committee's province as the sole judge of the credibility of the witnesses before it. We have accepted the committee's subsidiary findings on the point, including its finding that the respondent did not subjectively "know" the signature was forged. We are free, however, to reject the inferences the committee drew from its subsidiary findings as well as its ultimate finding that the circumstances under which he notarized the deed did not indicate a "willful ignorance" of forgery. See Matter of Orfanello, 411 Mass. 551, 556, 7 Mass. Att’y Disc. R. 220, 226 (1992) (per curiam); Matter of Labovitz, 425 Mass. 1008, 1009, 13 Mass. Att’y Disc. R. 393, 395 (1997) (rescript); Matter of McCabe, supra at 513. Cf. Simon v. Weymouth Agric. & Indus. Soc'y, 389 Mass. 146, 148 (1983) (inferences from basic facts are for the appellate court). An inference of willful blindness may be made from the objective circumstances given what the respondent himself admittedly knew at the time.

When the buyer's counsel first raised the issue of Galina's possible interest in the property, the respondent knew the divorced couple did not get along and that there would be a problem getting a deed from Galina to Alex. The respondent also told the buyer's counsel that insisting on a deed "might be something that could essentially do in the transaction." The buyer's counsel held firm in his insistence on a deed. The respondent's antennae were obviously raised to the possibility that the deal might well founder on the split rock of the couple's relationship.

He responded accordingly. Instead of immediately seeking to obtain a deed, he faxed over the mysterious document that purported to transfer Galina's interest to Alex. We do not need to determine whether she actually had signed a version of the transfer or whether the signature appeared there through shenanigans on someone's part. The crucial point for our present analysis is that the respondent resorted to the transfer document in an effort to mollify the buyer's counsel—and did so because he feared Galina would not sign a confirmatory deed.

The buyer's counsel still insisted on a deed. Only then did the respondent prepare one and make arrangements for Alex and Galina to come to his office to execute it. When Alex showed up alone at the appointed time, the respondent inquired as to her whereabouts. Alex "said he's got to go talk to her." Tr. 87 (testimony of respondent) The respondent then said, "If you go talk to her and you get her signature, get it notarized." Id. Again, her failure to show up for the meeting—whether because Alex had not told her or for reasons of her own—put the respondent squarely on notice that his fears about getting her to sign the deed were justified.

And yet, when Alex returned later the same day with her unnotarized signature affixed to the deed, the respondent "took his word for it" that he "couldn't get her over to a notary . . . ." Id. Instead of insisting on having her sign in person or even contacting her to verify that she had, the respondent witnessed and notarized the deed without her.

Before the committee, he claimed to have compared her signature with other examples in his files and found that they "varied an awful lot." Id. The committee did not credit this testimony. We have already dismissed his objections to this credibility finding, which at the very least suggests that this claim amounts to post hoc explanation for why the signature did not look obviously genuine. Further, the dispute over whether the respondent was right that the samples "varied an awful lot" occludes a more telling point with respect to the issue presently before us: if they varied as much as the respondent claimed, how could he reasonably have concluded the one on the deed was genuine?

The only reasonable answer is that the respondent steadfastly kept his eyes closed to facts suggesting that Galina's signature had been forged. The circumstances of the couple's relationship, the respondent's own concerns for the vitality of the deal, Alex's behavior, and the respondent's unwillingness to establish whether the signature was genuine—all lead us to infer that he maintained a "studied ignorance" of the facts. Indeed, if these facts do not suffice to support an inference of willful ignorance, it is nearly impossible to image a set of facts that would. The circumstances fairly bristle with indications that the signature was forged. A simple telephone call to Galina would have removed all doubt. We find, therefore, that the respondent's willful ignorance of the genuineness of Galina's signature on the confirmatory deed constituted "knowledge" of its falsity.

Accordingly, we find that, by notarizing a signature he "knew" to be forged and by presenting the deed to the buyer's counsel to consummate the transaction, the respondent violated Canon One, DR 1-102(A)(4) (engaging in conduct involving fraud, misrepresentation, deceit, and dishonesty), and Canon Seven, DR 7-102(A)(7) (counseling or assisting client in conduct that lawyer knows to be illegal or fraudulent). It further follows that the respondent knowingly stated a falsehood in the affidavit he later filed in the Land Court, in violation of Canon One, DR 1-102(A)(4) and (5) (conduct prejudicial to the administration of justice), and Canon Seven, DR 7-102(A)(6) (participating in the creation or preservation of evidence when lawyer knows or it is obvious that the evidence is false).

The Appropriate Sanction

Based on the findings and conclusions under Count II, as amended, the respondent engaged in dishonest conduct in connection with the real estate closing and subsequently filed a false affidavit in a related court proceeding. Standing alone, this misconduct would warrant the one-year suspension recommended by the hearing committee. See, e.g., Matter of McCarthy, 416 Mass. 423, 9 Mass. Att’y Disc. R. 225 (1993) (one-year suspension is "standard" sanction for material misrepresentations to tribunal); Matter of Neitlich, 413 Mass. 416, 8 Mass. Att’y Disc. R. 167 (1992) (same). See also Matter of Thurston, 13 Mass. Att’y Disc. R. 776 (1997) (six-month suspension for conflict of interest and misrepresentations to one corporate partner to conceal fraud by the other partner and attorney). Count II does not stand alone, however. There is also the first count, for failure to prepare adequately before filing a lis pendens, conduct that would itself merit an admonition.

There are also substantial factors in aggravation of the misconduct. This is not the respondent's first encounter with bar discipline. In 1985 he received a private reprimand in two separate matters, one involving advancing funds to a client and later ransoming the file to compel a fee payment after discharge, the other for negligently misusing one client's funds to pay another's expenses. PR 85-1, 4 Mass. Att’y Disc. R. 224 (1985). In 1987 he was disciplined again, this time receiving an informal admonition on two other matters, one for representing a client without adequate preparation and the requisite competence, the other for neglecting a matter with resulting prejudice to the client. (See Exhibit 23) The respondent's disciplinary history must be weighed in aggravation even if much of the conduct was dissimilar to that at issue in this proceeding, see Matter of Dawkins, 412 Mass. 90, 96, 8 Mass. Att’y Disc. R. 64, 71 (1992) (prior discipline, even if unrelated, is always a substantial factor in choosing sanction), and despite the time that has elapsed since the prior discipline. See Matter of Mirkin, 13 Mass. Att’y Disc. R. 555, 562-563 (1997) (weighing discipline imposed almost 20 years previously); Matter of O'Neill, 9 Mass. Att’y Disc. R. 253 (1993) (disbarment for offenses that would not have warranted that sanction but for prior discipline 19 years earlier).

The respondent also lacked candor in his testimony before the hearing committee. This is a factor we "must consider." Matter of Eisenhauer, 426 Mass. 448, 455, 14 Mass. Att’y Disc. R. 251, 260 (1998), citing Matter of Friedman, 7 Mass. Att’y Disc. R. 100, 103 (1991). Further, we cannot overlook that the respondent was an experienced practitioner who ought to have known better. See Matter of Luongo, 416 Mass. 308, 9 Mass. Att’y Disc. R. 199 (1993). Finally, substantial harm befell a third party—the buyer, who had to defend Galina's lawsuit based on the forgery—as a direct result of the respondent's misconduct. In Matter of Aufiero, 13 Mass. Att’y Disc. R. 6 (1997), the collateral injury inflicted on the lawyer's partners through his misrepresentations raised the "standard" suspension to one of two years' duration. While the harm (and perhaps the extent of the misconduct) here may not have been as great as that in Aufiero, that case does suggest that an enhancement in the sanction is in order.

We have, in the end, conduct involving fraud and misrepresentation warranting the one-year "standard" sanction under McCarthy, compounded by other misconduct, a disciplinary history, lack of candor before the hearing committee, and actual harm to a third party. Under these circumstances, the hearing committee's recommendation is inadequate. Relying on Matter of Shaw, 427 Mass. 764, 14 Mass. Att’y Disc. R. 699 (1998), Bar Counsel suggests that a three-year suspension is called for. We disagree. Shaw assisted a client in raising funds for numerous business ventures. To that end, Shaw signed opinion letters as to his personal knowledge of the client's finances when he had no such knowledge. He also forged the name of another lawyer to the letters as notary to Shaw's own signature. When the client was charged with wire fraud in federal court, Shaw gave false testimony on the client's behalf. Shaw later repeated that false testimony in an affidavit filed in a civil matter brought by an investor. Shaw was suspended for two years. While there are surface similarities between the conduct at issue in Shaw and in the first count here, and while Shaw had no disciplinary history, Shaw's misconduct was more egregious. It evinced a much more calculated scheme to deceive, spanning a longer period of time and embracing two separate court proceedings, as distinguished from the respondent's willfully blind acquiescence followed by a self-serving affidavit in response to Galina's lawsuit. We believe the appropriate balance is struck by the imposition of a two-year suspension.

Conclusion

For all of the foregoing reasons, we adopt and incorporate by reference the hearing committee's subsidiary findings of fact, modify its conclusions of law as indicated above, and reject its suggested disposition. An Information shall be filed in the county court recommending the respondent, Herbert E. Zimmerman, be suspended from the practice of law for two years.

Respectfully submitted,

THE BOARD OF BAR OVERSEERS

By: ___________________________
M. Ellen Carpenter
Secretary

Approved: October 15, 2001



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