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Commonwealth of Massachusetts

NO. BD-2000-036

IN RE: DAVID P. ULIN

S.J.C. Order of Disbarment entered by Justice Cowin on December 11, 2002

MEMORANDUM OF DECISION

In July, 2001, the Board of Overseers (board) filed an information and record of proceedings recommending that attorney David P. Ulin be disbarred for a variety of disciplinary offenses.1

The allegations in the petition for discipline were deemed admitted by the board due to the defendant's failure to file an answer.2

In November, 2001, the respondent moved to remand the matter to the board citing reasons for mitigation. I allowed the defendant's motion, remanding the case to the board for consideration of matters in mitigation only. After further consideration the board confirmed its prior recommendation. The respondent opposes the information of the board and suggests that a six-month suspension, with certain conditions imposed, would be an appropriate punishment. I conclude that disbarment is warranted.

I briefly summarize the facts deemed admitted by the board. The respondent was admitted to the Massachusetts bar in 1978. He received an informal admonition in 1990 and a private reprimand in 1993 for matters beyond the scope of this action. In October of 1995 the respondent was retained to file a petition for immigrant employment status with the INS, for which the respondent received a partial payment of $2,500. The respondent failed to file the petition, falsely informed the client that he had done so, and (after the client fired the respondent and demanded the return of the retainer) failed to return the partial payment. In 1996 and 1997, the respondent commingled his personal funds in an IOLTA account and failed to maintain adequate records concerning the receipt and disbursement of client funds. In 1999, the respondent was retained by an employment placement firm to obtain H-1B visas from the INS for 19 foreign employees. The respondent invoiced the client for all 19 visa petitions in August and September 1999, but did not file the majority of them until January of 2000. Prior to filing the petitions, the respondent intentionally misrepresented that all 19 petitions had been filed and provided the client with fabricated INS receipt numbers for the unfiled petitions. Although the respondent agreed to return the fees he had received before the client terminated his services, he has repaid only one-half the required amount. Later in 2000, the respondent accepted a $4,000 fee in exchange for representing a French national in obtaining an investor visa. The respondent never filed the visa application and never responded to the client's requests for either a copy of the application or the return of her fee. Finally, the respondent failed utterly to-cooperate with Bar Counsel's investigations of the above matters, ignoring sixteen letters and three subpoenas. The respondent was administratively suspended in July, 2000, for this failure to cooperate. Despite this, the respondent continued to practice law.

The respondent contends that the board's sanction is excessive and that he should be suspended from the practice of law for a period of six months with reinstatement conditions imposed.

Each disciplinary case must be decided “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). In deciding the appropriateness of a particular sanction I “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.” Matter of Davidson, 16 Mass. Att’y Discipline R. 81, 85 (2000).

The respondent's professional behavior in the matters before me extends far beyond a mere lack of diligence. He has engaged in a pattern of negligent conduct spanning several years. has caused pecuniary damage to clients, made repeated misrepresentations with the intention of concealing his neglect, and violated more than twenty separate ethical and disciplinary rules. The respondent made no attempt to cooperate with the investigation of the above matters until after the board commenced disbarment proceedings against him, and, in fact, he continued to practice despite the imposition of an administrative suspension. There are, in short, a host of aggravating factors present. See Matter of Kane, 13 Mass Att'y Disc. R. 321, 328 (1997).

Although no single act committed by the defendant would, by itself, normally warrant this severe a penalty, I must consider the cumulative effect of the respondent’s many infractions. See Matter of Tobin, 417 Mass 81, 88 (1994). Given the respondent's demonstrated unwillingness (or inability) to conform to the basic standards of his profession, I conclude that disbarment is necessary both to protect the public and maintain its confidence in the integrity of the bar. See Matter of Concemi, 422 Mass. 326, 329 (1996). Although the board has not referred me to any disciplinary case within the Commonwealth with parallel facts, similar histories of repeated misconduct have caused other states to order disbarment. See Disciplinary Bd. of the Supreme Court of N.D. v. Keller 652 N.W.2d 308 (2002); In re Dickerson, 322 Or. 316, 326-327 (1995).

The respondent argues that the board's normal policy of “step discipline,” pursuant to which an attorney receives punishment for repeated offenses in a series of escalating steps, dictates a lesser punishment in this case. Step punishment is a policy, not a rule, and the board may impose severe sanctions when the circumstances warrant. See Matter of Kane, supra, at 327-329. This is particularly appropriate where, as here, an attorney frustrates the normal disciplinary process (and hence the normal escalation of disciplinary sanctions) by repeatedly refusing to cooperate with board investigations.

The respondent also maintains that he should receive a lesser penalty because he suffers from both depression and Attention Deficit Hyperactivity Disorder (ADHD). While there is evidence that the respondent suffers from both these conditions and that they may account for a portion of the respondent's negligent behavior, the respondent has also engaged in several affirmative acts of deception, including making false representations to clients and fabricating INS receipt numbers to conceal his inaction. These are intentional acts of deception which cannot be explained by, and therefore cannot be excused by, either depression or ADHD. See Matter of Davidson, supra at 86.

Accordingly, after considering the severity of the respondent's misconduct as well as the arguments advanced in mitigation, I find that disbarment is an appropriate sanction. A judgment shall enter consistent with this Memorandum of Decision.

Judith A. Cowin
Associate Justice

Entered: December 11, 2002


1 The board found violations of DR 1-102(A)(4) (dishonesty, fraud, deceit and misrepresentations), (5) (conduct prejudicial to the administration of justice) and (6) (conduct adversely reflecting on fitness to practice law); DR 2-110(A)(3) (failure to return unearned fee); DR 6-101(A)(3) (neglect of a legal matter); DR 7-101(A)(1) (failure to seek lawful objectives of client), (2)(failure to carry out contract of employment) and (3) (prejudice to client); DR 9-102(A) (funds held in trust shall be segregated and not commingled), and 9-102(B)(3) (maintain adequate records of receipt and disbursement of clients' funds). Mass. R. Prof. C. 1.1 (failure to provide competent representation), 1.2(a) (failure to seek lawful objectives of client through reasonably available means), 1.3 (failure to act with reasonable diligence and promptness), 1.4(a) (failure to promptly respond to reasonable requests, failure to keep client reasonably informed), 1.4(b) (failure to explain enough to permit client to make informed decisions), 1.16(d) (failure to return unearned fee), 1.16(e) (failure to make file available on request), 3.3(a)(1) (false statement of material fact or law to tribunal), 5.5(a) (unauthorized practice of law), 8.1(b) (failure to respond to lawful demand for information from a disciplinary authority), 8.4(c) (dishonesty, fraud, deceit or misrepresentation), 8.4(d) (conduct prejudicial to the administration of justice), 8.4(g) (failure to cooperate with Bar Counsel) and 8.4(h) (conduct adversely reflecting on fitness to practice law); and S.J.C. Rule 4:01, §§ 3 (failure to respond to requests for information by Bar Counsel) and 17 (compliance with orders of suspension).

2 The board served the respondent with notice of both the allegations against him and the consequences of failing to answer by both certified and first class mail.



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