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COMMONWEALTH OF MASSACHUSETTS
BOARD OF BAR OVERSEERS
OF THE SUPREME JUDICIAL COURT

____________________________________
					)
BAR COUNSEL,				)
		      Petitioner,	)
					)
vs.					)	BBO File Nos. C1-95-0058 &
					)	C1-96-0618
STUART E. ROBBINS, ESQ.,		)
		      Respondent.	)
____________________________________

S.J.C. Order of Term Suspension (18-months) entered by Justice Ireland on February 5, 2001, with an effective date of March 5, 2001. 1

BOARD MEMORANDUM

A hearing committee recommended that the respondent, Stuart E. Robbins, be suspended for one year for knowingly assisting his clients in a plan to defraud a financial institution (Count I) and for commingling and negligently misappropriating client funds (Count II). On appeal Bar Counsel seeks a two-year suspension. The respondent urges us to accept the committee's recommendation, though he suggests that a suspension of six to nine months "would be more appropriate." Oral argument having been 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 November 13 and December 11, 2000. We recommend an eighteen-month suspension.

Findings of Fact and Conclusions of Law

What follows is a summary of the hearing committee's findings of facts and conclusions of law, which the parties do not dispute and which we adopt and incorporate by reference.

Count I. A mortgage lender was about to commence foreclosure proceedings against the Beverly home of Barbara and Anthony Garry. Barbara submitted to Comfed Savings Bank an application on behalf of her adult daughter, Susan, for a mortgage loan to purchase the home. Barbara falsely represented that Susan, who was unemployed, had a monthly income of $9,400. Relying on Barbara's representations, Comfed approved a loan in the amount of $236,000.

The Garrys then engaged the respondent to convey the home to a realty trust of which he was trustee and the Garrys were beneficiaries. At their direction, the respondent then prepared and executed a purchase and sale agreement under which the trust purported to sell the home to Susan for the stated price $295,000 with a down payment of $25,000.

On August 24, 1988, the respondent represented Comfed at a closing on the mortgage loan to Susan and conveyed the home to her from the trust. In the process, the respondent executed a HUD-1 settlement statement in which he knowingly made false attestations as to the sale price, down payment, cash paid at closing, and disbursements to the trust. He also executed a Fannie Mae affidavit in which he falsely certified the sale price and the amount of equity Susan had in the home. Relying on these misrepresentations, Comfed disbursed the proceeds of the loan to the Garrys and their lienholders.

The Garrys continued to live in the home after the closing, but mortgage payments were not made to Comfed. Comfed subsequently failed, and the Resolution Trust Corporation (RTC) became conservator of the bank's assets. RTC acquired the Garry property through foreclosure, but it suffered substantial losses from the default.

Following an investigation by the United States Attorney, the respondent entered into a settlement agreement in which he admitted he had knowingly executed a scheme to defraud Comfed and that he had knowingly made false statements of material fact to a federally insured financial institution, in violation of 18 U.S.C. § 1014. He was assessed a civil penalty of $20,000, to be paid by performing 666 hours of community service.

The hearing committee concluded that the respondent's conduct was in violation of Canon One, DR 1-102(A)(4) (dishonesty, fraud, deceit, and misrepresentation) and (6) (conduct adversely reflecting on fitness to practice law); Canon Five, DR 5-105(A) and (B) (conflicts of interest); Canon Seven DR 7-102(A)(3) (concealing facts which he was bound to reveal) and (5) (knowingly making a false statement of fact); and DR 7-102(B)(1) (failure to reveal fraud).

Count II. Between 1989 and 1994, the respondent regularly deposited personal funds into his client funds account, thus commingling client funds with his own. He used the client funds account to pay his own personal and office expenses. Because he also failed to maintain adequate records of his receipt, maintenance, and disbursement of client funds, he spent down the account below the amount due his clients, thus negligently using client funds to pay his own expenses. No clients were deprived of the use of their funds during the period he misused them.

The hearing committee concluded that the respondent's failure to identify, segregate, and safeguard client funds and to maintain adequate records of their receipt and disbursement, violated Canon Nine, DR 9-102(A) and (B).

Mitigating and Aggravating Evidence.

The hearing committee found that the respondent was diagnosed with multiple sclerosis in 1986. Although the committee found that the illness played a part in the mishandling of his client funds account by causing him to be inattentive to details, the committee stressed that this did not exonerate him from responsibility in this regard. The committee further found that the illness played no part in the respondent's participation in the Garrys' fraud, as to which he was "motivated by a desire to see the transaction consummated and thereby to profit by payment for his services."

The committee dismissed as irrelevant his claim that he did not know it was improper to draw checks on his client funds account for personal expenses. The respondent has not previously been disciplined.

The Appropriate Sanction

The respondent's misconduct under the first count is virtually indistinguishable from that in Matter of Eastwood, 10 Mass. Att'y Disc. R. 70 (1994). Like Eastwood, the respondent represented all three parties to the real estate closing-the lender, the buyer, and the sellers-and knowingly participated in the fraudulent scheme, created the false documents by which it was effected, and made deliberately false certifications under oath. Both Eastwood and the respondent entered into stipulations with the federal government and both paid civil penalties. Both were independent practitioners who were not acceding to the directions of more senior lawyers. Contrast Matter of Nickerson, 322 Mass. 333, 12 Mass. Att'y Disc. R. 367 (1996); Matter of Pascucci, 12 Mass. Att'y Disc. R. 452 (1996); Matter of Franchitto, 12 Mass. Att'y Disc. R.180 (1996). Justice Wilkins entered an order suspending Eastwood for one year, but indicated he would have preferred a two-year term. 10 Mass. Att'y Disc. R. at 75.

While it is true that Eastwood conducted not one but two such closings, at least they were genuine transactions of a commercial nature and he did not actively participate in the scheme. By contrast, the respondent drafted documents for and presided over a fraudulent transaction based on an underlying purchase and sale that was a sham or at best inherently deceptive. Given the fit between the facts of this case and Eastwood's, we conclude that a one-year suspension is warranted for the misconduct under the first count.

If there were no second count involving other serious misconduct, the hearing committee's recommendation of a one-year suspension would be appropriate. The committee also found, however, that the respondent had intentionally commingled and negligently misappropriated client funds. Where, as here, the clients were not deprived of the use of their funds, the Court has established that the presumptive sanction for such conduct is a public reprimand. Matter of the Discipline of an Attorney (and two companion cases) (Three Attorneys), 392 Mass. 827, 836, 4 Mass. Att'y Disc. R. 155, 166 (1984), reaffirmed in Matter of Schoepfer, 426 Mass. 183, 187-188, 13 Mass. Att'y Disc. R. 679, 686 (1997). To be appropriate, a sanction must be based on cumulative effect of all of the lawyer's misconduct, Matter of Saab, 406 Mass. 315, 326-327, 6 Mass. Att'y Disc. R. 278, 289-290 (1989), yet the one-year sanction recommended by the committee would mean that the commingling and misappropriation "would count for nothing." Matter of Garabedian, 416 Mass. 20, 24-25, 9 Mass. Att'y Disc. R. 132, 137 (1993). A one-year suspension, therefore, is inadequate.

The respondent rejoins that the hearing committee's recommendation takes into account the "highly individualized factors in this case," namely his multiple sclerosis.

We agree and weigh this mitigating circumstance as well. The committee was careful to note, however, that the respondent's illness did not bear at all on the bank fraud described in the first count, the one for which we have determined a one-year suspension would be appropriate. The multiple sclerosis only has force in determining how much additional weight we should give to the misuse of client funds. See Matter of Schoepfer, supra, 426 Mass. at 188, 13 Mass. Att'y Disc. R. at 685 ("Our rule is not mandatory. If a disability cause a lawyer's conduct, the discipline should be moderated . . . ."). When we take the mitigating circumstances into account, it is apparent that doubling the term of suspension warranted by the misconduct under the first count, as Bar Counsel urges, would be overly harsh. We seek instead a term of suspension that gives weight to the mishandling of client funds while acknowledging that the respondent's illness contributed to it. There is no mathematical calculus for deciding how much weight to give to misconduct otherwise warranting public reprimand, but the discipline must be increased. We believe an eighteen-month suspension strikes the appropriate balance.

Conclusion

For all of the foregoing reasons, we adopt the hearing committee's findings of fact and conclusions of law but modify its proposed disposition. An Information shall be filed with the clerk of the county court recommending that the respondent, Stuart E. Robbins, be suspended from the practice of law for eighteen months.

Respectfully submitted,

THE BOARD OF BAR OVERSEERS

By: ___________________________
Mitchell H. Kaplan
Secretary

Approved: December 11, 2000



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