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Commonwealth of Massachusetts

NO: SJC-BD-2000-003


S.J.C. Order (One-Year Suspension) entered by Justice Cowin on July 25, 2000, with an effective date of August 24, 2000. 1


The Board of Bar Overseers (Board) has filed an Information with the Supreme Judicial Court recommending that attorney David H. Davidson (respondent) be suspended from the practice of law for one year for violations of the Code of Professional Conduct because of neglect of a client matter and attempt to conceal that neglect through misrepresentation and the fabrication of court documents. The only issue before me is whether the sanction recommended by the Board is appropriate in the circumstances of this case. I conclude that a one-year suspension is appropriate.

I briefly summarize the undisputed facts from the stipulations of the parties. The respondent was admitted to practice law in Massachusetts on December 11, 1974. In March, 1995, Thomas and Beverly Galvin (Galvins) purchased ten tax collector's deeds for property in the city of Worcester. By the end of January, 1996, five of the tax deeds had been redeemed by the owners. At that time the Galvins retained the respondent to foreclose the right of redemption on the remaining tax deeds. Soon after, two of the remaining tax deeds were foreclosed. The respondent drafted complaints to file in the Land Court which were necessary for the Galvins to redeem the three remaining deeds. To file these complaints, the respondent needed to obtain the Galvins' signatures. The respondent never obtained the signatures and never filed the complaints. In April, 1996, the Galvins inquired regarding the status of the complaints. The respondent, in order to conceal his neglect, falsely told the Galvins that he had filed the complaints.

In August, 1996, the Galvins met with the respondent seeking his help in an unrelated matter involving the creation of a cotenancy. At that time, the Galvins inquired about their cases in the Land Court. The respondent falsely answered that no property owners had responded to redeem and that the cases were "completed." Sometime after the August, 1996 meeting, the respondent mailed to the Galvins copies of default motions he had allegedly filed. These motions purportedly had been allowed by a judge of the Land Court and signed by the recorder of that court. Between August, 1996 and April, 1997, the Galvins repeatedly sought information from the respondent and he consistently represented that the cases were proceeding and the delay was because the Land Court was "very busy."

On April 16, 1997, Thomas Galvin called the Land Court, and was informed by the recorder that no complaints had been filed. The Galvins called the respondent after talking to the clerk, and the respondent continued to represent falsely that the cases had been filed. On April 30, 1997, the Galvins received a letter from the respondent promising to make their cases his "highest priority." Two weeks later Thomas Galvin again called the Land Court and was told that his case still had not been filed. The Galvins dismissed the respondent and retained new counsel.

The Board, in determining the appropriate sanction, considered the respondent's psychological condition as a mitigating factor. The respondent has been treated since 1987 for dysthymic disorder, a form of chronically depressed mood. In August, 1996, the respondent became severely depressed due to complications resulting in the termination of his wife's pregnancy. His wife previously had several miscarriages and the respondent desperately wanted a second child. Because of his depression, the respondent had difficulty concentrating and making decisions. As an aggravating factor, the Board considered that the respondent was an experienced practitioner with over twenty-five years of real estate practice.

A hearing on this matter was held before me at which counsel for the respondent and bar counsel appeared. Following the hearing, the respondent filed an affidavit "to clarify certain statements made at the hearing." Bar counsel moved to strike the affidavit. The motion to strike is allowed as the record in this matter is closed and the Hearing Committee has issued its findings of fact. However, even were I to consider the affidavit, its contents would not alter my decision herein.

To determine whether the sanction imposed in this case is appropriate, I must decide whether the Board's recommendation "is 'markedly disparate' from the sanction imposed in other similar cases." Matter of Brown, Mass. Att'y Discipline R. 23, 27 (1996), quoting Matter of Alter, 389 Mass. 153, 156 (1983). I also recognize that we must decide each case "on its own merits and every offending attorney must receive the disposition most appropriate in the circumstances." Matter of the Discipline of an Attorney, 392 Mass. 827, 837 (1984). I therefore examine the nature of the respondent's conduct, the sanction recommended by the board compared to the sanction imposed in analogous cases and potentially mitigating factors with respect to the respondent's conduct.

The respondent committed two distinct acts of misconduct. Over an approximately eighteen-month period, he neglected his obligations to his client to file complaints in the Land Court. The respondent committed a separate act of misconduct by engaging in an elaborate scheme to hide his neglect. His clients inquired on several occasions about the status of their cases and the respondent misrepresented that he had filed the complaints and that the cases were proceeding on schedule. Further, the respondent falsified court documents to convince his clients that their cases had been acted on by the Land Court. The respondent's neglect of his clients' affairs, deception of his clients, and falsification of court documents to cover up his neglect are serious acts of misconduct. In this circumstance, suspension from the practice of law is appropriate.

A one-year suspension, as recommended by the board, is consistent with other cases involving similar conduct. Discipline for neglecting client matters and attempting to conceal the neglect through the fabrication of official documents has resulted in suspensions ranging from one to three years. Matter of Brown, 12 Mass. Att'y. Disc. R. supra, at 27 and cases cited. The facts of this case are most closely analogous to Matter of Hilton in which a one-year suspension was imposed 6 Mass. Att'y. Disc. R. 148 (1989). There, the attorney was hired to probate a will and obtain the appointment of executors. He failed to do so, and instead fabricated a decree on which he forged a judge's name. In the present case, the respondent failed to file various complaints and, to reassure his clients that he was working on their behalf, he falsified court documents.

The respondent contends that he should receive a lesser sanction than that in Matter of Hilton because he suffers from depression. The respondent does suffer from a psychological disorder that was aggravated by the complications of his wife's pregnancy. Undoubtedly, this disorder affected the respondent's ability to work effectively and is properly considered as a mitigating factor: However, while depression may explain the respondent's negligence in not filing the complaints, it does not explain the respondent's attempts at orchestrating a cover up by fabricating court documents. The fabrication of court documents is an intentional act of manipulation that cannot be fairly attributed to depression.

Accordingly, after considering the severity of the respondent's misconduct and the impact of the respondent's psychological disorder, I conclude that a one-year suspension from the practice of law is warranted.

Judith A. Cowin
Associate Justice

Entered: July 25, 2000

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

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