Mass.gov
   
Mass.Gov home Mass.gov  home get things done agencies Search Mass.Gov


Commonwealth of Massachusetts

NO. BD-2000-039

IN RE: JOHN B. SHORTON

S.J.C. Judgment of Disbarment entered by Justice Ireland on September 21, 2000, with an effective date of October 23, 2000.1

BOARD MEMORANDUM 2

A hearing committee sustained three counts of misconduct against the respondent, John B. Shorton, and recommended that he be indefinitely suspended from the practice of law. Bar Counsel has appealed, asking us to modify one of the committee's conclusions of law and to recommend that he be disbarred. Oral argument was waived by the parties. See Rules of the Board of Bar Overseers, Section 3.50(b). The Board considered the matter on the papers on April 10 and June 12, 2000. For the reasons set out below, we allow Bar Counsel's appeal as to the sanction and recommend disbarment.

Factual Background

The parties do not contest the hearing committee's findings of fact. We adopt and incorporate them by reference1. With the one exception mentioned above (and discussed in a note 2 below), there is also no disagreement over the committee's conclusions of law, which we additionally adopt and incorporate by reference. What follows, therefore, is short summary of the misconduct sufficient for purposes of choosing the appropriate sanction.

1. The first count relates to the respondent's dealings with one Harvey Cronican, the former employee and advisor of Marion Mavrogenis and, after her death, the executor and principal beneficiary under her will. Cronican was also later convicted of arranging her murder. The respondent represented Cronican in his attempts to probate the will and later as co-counsel in the murder case. The probate court entered a preliminary injunction forbidding the drawing of funds from bank accounts held jointly in the names of Cronican and Mavrogenis. The respondent accepted as payments toward his fee checks totaling about $64,000 which he knew or should have known were drawn on those accounts in violation of the injunction. He also lied about these payments under oath during a deposition in an action brought by Mavrogenis' heirs.

When the respondent needed additional funds to pay his fee, he effected a transaction by which Cronican's and his mother's interest in her home was conveyed to the respondent's wife, who used the home as collateral for a loan. In the course and aftermath of that transaction, the respondent engaged in conflicts of interest2; made numerous intentional misrepresentations to the mother, the lender, and on closing documents; lied about his actions in another deposition in the heirs' civil action; and appropriated for his own benefit rents received from the property while allowing the house to be taken and sold in foreclosure when loan payments were not made. (The mother died before the house was sold.)

2. The second count concerned the commingling of client funds. The committee found that the respondent maintained an interest-bearing savings account in his own name and with interest payable to himself. Into that account he deposited funds belonging to his clients and himself. He made disbursements from it to discharge client and fiduciary obligations as well as to pay business and personal expenses. The Internal Revenue Service levied on the account in 1994. As a direct consequence, the account was involuntarily closed. The respondent borrowed funds from his family to repay the clients whose funds were seized.

3. The third count involved the respondent's mishandling of a personal injury claim that was the sole asset of a man who had died intestate. Although the man had left a son who was serving in the Army, the respondent assumed the representation at the behest of the decedent's sister, who had no authority to act on his behalf. The respondent successfully filed a petition to have the sister appointed administrator of the estate. In the process, he made intentional misrepresentations to the court about notice given to the son, whom he identified in his filings as the decedent's "brother."

The respondent eventually settled the personal injury claim without consulting the son. Before the respondent received the settlement proceeds, the sister filed a grievance with the Office of Bar Counsel, complaining that she had not received the funds. Bar Counsel advised the respondent that the son was the sole beneficiary of the estate and directed him to hold the proceeds in escrow until he could make proper distribution. The respondent deposited the funds in a separate account (though it paid interest to him, not the client) and withdrew amounts to pay fees. Thereafter, however, he made intentional misrepresentations to the son, filed false accountings with the court, deliberately withdrew some of the funds and used them for his own purposes, and put up the remainder as collateral for a personal loan, thus freezing the account. Eventually, he paid the son $2,500, but still owes him $4,850 plus interest. The committee concluded that the respondent had intentionally applied the settlement proceeds to his own use, with intent to deprive the son of the use of the funds at least temporarily, and with actual deprivation resulting.

In aggravation, the committee noted that the respondent had been privately reprimanded on two prior occasions, in 1986 for conflict of interest and failure to make adequate disclosure of a client's property in a bankruptcy proceeding, and in 1990 for failing to execute written contingent fee agreement, to retain adequate records of his handling of settlement proceeds, and to account adequately for the disposition of the funds. PR 86-15, 5 Mass. Att'y Disc: R 443 (1986); PR 90-32, 6 Mass. Att'y Disc. R. 437 (1990). The committee also found that the instant misconduct was undertaken for personal gain, that he failed to cooperate with Bar Counsel's investigation, and that he engaged in disciplinary violations after the commencement of the investigation.

The committee made no findings in mitigation because it found no causal connection between his misconduct and certain unspecified "family problems, circumstances and events" about which he testified.

The Appropriate Sanction

We believe disbarment is the only appropriate sanction here. If an attorney intentionally uses client funds and "intended to deprive the client of funds, temporarily or permanently, or if the client was deprived of funds (no matter what the attorney intended), the standard sanction is disbarment or indefinite suspension." Matter of Schoepfer, 426 Mass. 183, 187, 13 Mass. Att'y Disc. R 679, 685 (1997). The misappropriations described in the third count trigger application of the standard in Schoepfer. The absence of restitution is a factor in choosing between disbarment and indefinite suspension in such cases. Matter of Bryan, 411 Mass. 288, 292, 7 Mass. Att'y Disc. R. 24, 29 (1992). As the committee found, restitution in the amount of $4,850 plus interest is still owed the son. In the absence of a convincing showing, absent here, that some disability caused the defalcation, disbarment would appear mandated for the misconduct described in the third count alone.

In recommending indefinite suspension, the hearing committee found that the respondent's record keeping "prevented him from determining the amount owed." Passing the troubling suggestion that gross violations of one rule (requiring adequate records) may palliate the failure to make restitution for violating another (by converting client funds), the contention is belied by the record. As Bar Counsel points out, the respondent's failure to make restitution did not derive from any inability to calculate the amount due, but from his refusal to acknowledge that he owed the son any money. This was a position he maintained even during hearing. (Tr. 133). Moreover, any confusion the respondent might have had as the amount due was resolved months before the hearing (in October 1998), when Bar Counsel drew his attention to the inconsistencies in his probate account, gave him additional records and a bank account spreadsheet, provided him with a breakdown of his own disbursements, and identified the amount still due and owing. (Ex. 99). We conclude that the respondent's faulty record keeping does not excuse his failure to make restitution.

The committee also expressed concern about imposing the ultimate sanction where the taking was a "relatively small amount of money." The Court recently admonished us, however, not to view the misuse of $19,800 as "`small' or insignificant," Matter of Schoepfer, 14 Mass. Att'y Disc. R. 690, 694-95, affd, 426 Mass. 183, 13 Mass. Att'y Disc. R 679 (1997), and it did not hesitate to disbar a lawyer who had deliberately converted $2,500. See Matter of Worthen, 6 Mass. Att'y Disc. R. 333 (1990). It would not be fitting to recommend a lesser sanction because of the amount involved here was "only" $4,580.

All this discussion, however, has been confined the third count. Weight must be given to the serious misconduct at issue in the other two counts. This is a conversion case, yes, but it is also a case involving deliberate violations of a preliminary injunction; conflicts of interest; misrepresentations to parties, clients, courts, and third parties; lies under oath at two depositions; the filing of false accountings in the probate court; the failure to maintain the most rudimentary records of client funds; and a wholesale refusal to cooperate with Bar Counsel's inquiries. When one adds to the mix that the respondent's motive was personal gain, that he has a disciplinary history, and that the conversion took place after the commencement of Bar Counsel investigation, it is manifest that disbarment is warranted. Cf. Matter of Luongo, 416 Mass. 308, 9 Mass. Att'y Disc. R. 199, 203 (1993).

The committee's recommendation was also based on its awareness that the Court had recently amended Rule 4:01 by increasing from five years to eight years the period before disbarred lawyers may apply for reinstatement, while those who are indefinitely suspended may still apply after five years. (See Hearing Committee Report at 37-38). The committee appears to be shouldering too much responsibility for the fact that the Court's order would not be imposed before January 3, 2000, the effective date of the order amending the rule. See Transitional Order of the Board of Bar Overseers, 28 Mass. Lawyers Weekly 970 (January 3, 2000). No matter how quickly the committee had' rendered its decision, however, it is unlikely the Court could have entered an order before that date. In any case, the respondent himself bears much more of the blame for any delays, given the shambles he had made of his record keeping and that he converted his client's funds long after Bar Counsel directed him to make appropriate distribution. Finally, we note that whatever the effective date of disbarment, almost no attorneys have been reinstated sooner than eight years afterwards; it was partly for that reason that the Board proposed the amendment in the first place. See 28 Mass. Lawyers Weekly 356 (October 18, 1999).

T he appropriate sanction for the misconduct in these three counts, given the failure to make restitution, the aggravating circumstances, and the absence of mitigation, is disbarment.

Conclusion

For all of the foregoing reasons, we adopt the hearing committee's findings of fact and conclusions of law but modify its suggested disposition. An Information shall be filed with the Clerk of the Supreme Judicial Court for Suffolk County recommending that the respondent, John B. Shorton, be disbarred.

Respectfully submitted,
THE BOARD OF BAR OVERSEERS

By:
Richard M. Zielinski
Secretary pro tern

Approved: June 12, 2000

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

2Compiled by the Board of Bar Overseers based on the record submitted to the Supreme Judicial Court.


1 There is a typographical error in 44 of the Hearing Committee Report. On page 18, at line 7, the word "not" was inadvertently omitted. We adopt the report as corrected by the addition of "not" at that point in paragraph 44.

2 Bar Counsel asks us to reject the hearing committee's conclusion that the respondent did not also represent the mother in the transaction. It is true that the respondent testified under questioning by Bar Counsel that he had represented her, but he testified otherwise when his counsel questioned him. (Tr. 72-77, 211-12). Bar Counsel bore the burden of proving the representation, and it was for the committee, as sole judge of credibility, to decide which testimony to believe, see, e.g., Matter of Saab, 406 Mass. 315, 328-29, 6 Mass. Att'y Disc. R. 278, 292 (1989). Bar Counsel also claims that the committee's conclusion is inconsistent with its finding that the respondent violated DR 5-105(A) by accepting employment where his judgment would be affected by another client's interests; if he did not represent the mother, so the argument goes, there would be no other client's interests to impinge on his judgment. The argument overlooks that there was another client-the respondent's wife-to whom, the committee found, the respondent failed to make the requisite disclosures to avoid violating the rules governing conflicts of interest. It bears noting that, even if sustained, Bar Counsel's objection would not affect the disposition we recommend in any way.



BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2001. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.