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Commonwealth of Massachusetts

NO. BD-2000-060


S.J.C. Order (Three-month Suspension) entered by Justice Greaney on December 15, 2000.1


Count One - In September, 1996, at the conclusion of a superior court hearing in which the respondent had obtained the removal of a default entered against his client, he approached opposing counsel and stated, "If you want discovery, you're going to get discovery up the ass." The judge found him in contempt, but the Appeals Court reversed the contempt judgment on the ground that there had been no immediate threat to the administration of justice sufficient to warrant summary contempt proceedings. Commonwealth v. Diamond, 46 Mass. App. Ct. 103 (1999).

The Board found that the respondent's use of inappropriate and offensive language in open court and within the bar enclosure constituted conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5); conduct that adversely reflects on his fitness to practice law in violation of DR 1-102(A)(6); failure to comply with known local customs of courtesy in violation of DR 7-106(C)(5); and undignified and discourteous conduct which is degrading to a tribunal in violation of DR 7-106(C)(6). The Board also found that the respondent's statement implied a threat of retaliatory and excessive use of the discovery process in violation of DR 7-102(A)(1) and DR 1-102(A)(5).

Count Two - In July, 1996, the respondent appeared in district court on behalf of a landlord in an eviction proceeding. The court granted possession for the landlord and ordered the tenants to pay one month's rent. At the respondent's request, he made the tenants' obligation to pay rent a part of the court order, thus subjecting the tenants to contempt for failure to pay. Both parties accepted the decision.

After the court announced its ruling but before the parties left the enclosure, the respondent stated that he was in possession of a police report concerning one of the tenants and that he had a question about what the tenant's real name was, because the tenant "used a number of different aliases." At the time the respondent addressed the court, he knew that the document in his possession was marked "Confidential - Police Use Only," that it contained Criminal Offender Record Information (CORI), and that dissemination of such information was restricted by G.L. c. 6, § 172. The judge immediately instructed the respondent not to discuss the report in open court. Despite the judge's instructions, the respondent asserted in open court that the tenant had been indicted for distribution of controlled substances. The respondent further stated that he did not know whether the tenant had a "green card" or if the INS was looking for him.

The judge directed the respondent to give him a copy of the document. When the judge observed the "Confidential - Police Use Only" inscription, he asked the respondent where he had obtained it. The respondent first replied "some things come out of the blue" and then asserted that "they" had found it. He then asked the tenant if he had a green card. The judge informed the respondent that it was none of his business and reprimanded him for trying to intimidate people in his courtroom.

The Board found that the respondent's conduct in referring in open court to the confidential CORI report and in persisting in asking about the tenant's immigration status, particularly after being warned, constituted a violation of G. L. c. 6, § 172; conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5); taking action merely to harass in violation of DR 7-102(A)(1); disregard of a ruling of a tribunal in violation of DR 7-106(A); stating and alluding to a matter that he had no reasonable basis to believe was relevant to the case and that would not be supported by admissible evidence in violation of DR 7-106(C)(1); asking a question that he had no reasonable basis to believe was relevant to the case and that was intended to degrade a witness or other person in violation of DR 7-106(C)(2); and engaging in conduct manifesting bias or prejudice based on race, sex, religion, national origin, disability, age, or sexual orientation against a party, witness, counsel or other person in violation of DR 7-106(C)(8).

In aggravation, the Board noted that the respondent received a public reprimand in 1996. Matter of Diamond, 12 Mass. Att'y Disc. R 85 (1996) Applying the principle of "escalating discipline" established by the Supreme Judicial Court, the Board recommended that the sanction be increased from the public reprimand which would otherwise be appropriate for the respondent's misconduct. The Board recommended a one-month suspension.

The court accepted Bar Counsel's recommendation of a three-month suspension after the respondent agreed to accept that sanction.

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

2 Compiled by the Board of Bar Overseers based on the record before the Court.

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