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Commonwealth of Massachusetts

NO. BD-2001-064

IN RE: JOSEPH E. MARINO, JR.

S.J.C. Judgment of Disbarment entered by Justice Cordy on April 14, 2004, retroactive to October 1, 2001.1

HEARING PANEL'S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION FOR DISCIPLINE

I. Procedural History and Factual Background

1. Respondent Joseph E. Marino, Jr., was admitted to the Bar of the Commonwealth on December 16, 1986. After working for seven years with family members, Marino opened his own law; practice in 1994. Between September 1995 and September 1997, Marino represented John Starita and Gele Kostovski in purchasing three condominium units. Starita and Kostovski were substantial marijuana dealers. Marino created trusts and paid expenses on the properties from cash provided by Starita and Kostovski. Marino was also paid in cash for his services. Marino used his IOLTA accounts at four banks to facilitate the real estate transactions. In one of the transactions in question, Marino received $135,000 in cash from his client, Starita, in 1997. In an effort to avoid the filing of currency transaction reports that are required in the case of cash deposits (or withdrawals) in a bank of $10,000 or more, Marino made a series of sixteen cash deposits in his IOLTA and other accounts in amounts under $10,000 each. The purpose of the currency transaction reporting requirements is to assist law enforcement in determining whether large amounts of cash are derived from unlawful activities, such as drug dealing.

2. Testimony before the Hearing Panel established that if Marino did not have actual knowledge that the cash was the proceeds of an unlawful activity, he clearly should have known this fact. In testimony before the Hearing Panel, Mr. Marino's attorney at the time of sentencing, a well-known and highly regarded criminal defense lawyer, testified that the defense made a calculated decision to withdraw its previously asserted objection to an upward "adjustment" of the offense level which the Government had sought based on the theory that Marino knew the money in question constituted proceeds from an unlawful activity. Mr. Marino's attorney testified,

"[W]e withdrew our objection...based largely on a comment that Mr. Marino made to his secretary when Mr. Starita delivered the cash that was the subject of this transaction." He observed a funny smell and said, "Do you smell something funny?" and because of that we agreed that, if he didn't know, he should have known that the money was the proceeds of an unlawful activity.

3. On September 5, 2001, Marino pleaded guilty in federal district court (Judge Wolf) to one count of structuring currency transactions and aiding and abetting the structuring of more than $100,000 in cash in a twelve month period, in violation of 31 U.S.C. §5324. On November 27, 2001, Judge Wolf sentenced Marino to fifteen months in prison, three years supervised release, and a $5,000 fine.

4. Starita and Kostovksi had been arrested in November 1997. Shortly thereafter, a grand jury subpoena was served on Marino for documents pertaining to the real estate transactions. In February 1999, federal agents, executing a search warrant, seized documents from Marino's law office. While the record is somewhat unclear on the details, it appears that the agents seized other items from Marino's law offices.

5. On the day of his guilty plea, his criminal defense counsel notified Bar Counsel that Marino was going to plead guilty to this offense and would agree to a temporary suspension of his law license. On October 1, 2001, the Supreme Judicial Court temporarily suspended Marino from the practice of law. Matter of Marino, SJC No. BD-2001-064 (Cordy, J.). Marino filed his affidavit of compliance with the Office of Bar Counsel on October 25, 2001.

II. Conclusions of Law, Factors in Mitigation and Recommendation for Discipline

In cases where an attorney has been convicted of a felony, the discipline customarily imposed is disbarment. Matter of Kennedy, 428 Mass. 156 (1998); Matter of Concemi, 422 Mass. 326 (1996). In the context of this proceeding, the Panel finds that Marino's felonious conduct is especially serious, since it occurred while in the practice of law, his offenses directly involved his IOLTA accounts, he knew, or should have known, that the cash which he received was derived from the proceeds of drug dealing, and because the transactions occurred over a lengthy period of time. Marino's conduct was a sustained and deliberate attempt to evade the law and assist his clients in their goal of avoiding detection of their unlawful drug activities. Apart from his conviction of a serious felony, Marino's conduct involved dishonesty, fraud, deceit, and misrepresentation in violation of Canon One, Disciplinary Rule 1-102(A)(4). Furthermore, he assisted his clients in conduct he knew was illegal, in violation of Canon Seven, Disciplinary Rule 7-102(A)(7). See Matter of Komack, 14 Mass. Att'y Disc. R. 406 (1998); Matter of Epstein, 12 Mass. Att'y Disc. R. 138 (1996); Matter of Charmoy, 9 Mass. Att'y Disc. R. 62 (1993).

In an effort to avoid disbarment, Marino contends that he should be indefinitely suspended. He asserts as grounds that he voluntarily abandoned his practice of law. Although Marino contends that he voluntarily suspended his practice of law, he did not testify before the Hearing Panel. Thus, there is no direct evidence upon which the Panel may conclude that Marino's suspension of his law practice was truly voluntary, or resulted involuntarily from circumstances surrounding the execution of the search warrant at his offices. In addition, although he claims that he gave up the right to continue to earn substantial amounts of money, there is no evidence before the Panel as to what Marino was in fact giving up. Because he did not testify, there is no direct evidence as to Mr. Marino's motivation in giving up his law practice. Whether, as he says, he voluntarily abandoned his law practice because he believed it to be the best thing he could do for his friends, himself, his family, and the Bar generally (an assertion which, the Panel notes, is not supported by the transcript reference to which Marino's current counsel has directed the Panel), or whether, by contrast, Marino abandoned his practice as a necessary consequence of the federal agents' seizing of various documents and items from his law office, the Hearing Panel cannot tell. But Marino bore the burden of proof in establishing the factual predicate for this contention. He has not met his burden.

Marino cites one case, Matter of Quinlan, 1 Mass. Att'y. Disc. R. 244 (1978), for the proposition that closing a law office in the absence of an order of suspension constitutes a special mitigating circumstance. In Quinlan, however, there was evidence that the lawyer had voluntarily suspended his practice for three years, following his sentence of probation in the Superior Court. The Quinlan case has not been cited since 1983. Indeed, in Matter of Sacco, 15 Mass. Att'y. Disc. R. 531, 534 (1999), the Single Justice of the Supreme Judicial Court refused to consider a period of voluntary suspension in setting the effective date of the order of suspension.

Apart from the dubious legal grounds for seeking indefinite suspension in this case, the factual underpinnings of the argument are undeveloped on this record. Indeed, it seems particularly unfair to Bar Counsel to permit Marino even to advance the argument, since Marino's decision not to testify has deprived Bar Counsel of the chance to cross-examine Marino on his contention.

Marino's counsel contends that Marino decided not to testify because he did not realize until the hearing that Bar Counsel would seek to delve into private and family matters. The Panel does not credit this assertion. To the extent that Marino, if he had testified, were asked questions on irrelevant matters, the Panel would have excluded such questions, as it did, in fact, on several occasions during the hearing. If, by contrast, the questions were relevant to matters put in issue by Marino himself, Marino can hardly be heard to complain if he were directed by the Panel to answer them.

Finally, Marino offered other evidence that falls into the category of "typical mitigation." While recognizing the rule that such mitigation ordinarily does not assist an attorney who has been convicted of a serious crime in avoiding disbarment, Marino contends that the extensive nature of his "typical" mitigation renders his mitigation atypical. The Panel disagrees. The key witness whom Marino presented at the hearing in fact offered little more than general character testimony. Although Rev. Boyer has known Marino for a lengthy period of time, Boyer was in Canada for thirteen of these years, during which period Marino visited him once. Neither Rev. Boyer nor Marino has ever been in each other's home, with the one exception in Canada. Moreover, notwithstanding their purported long association and friendship, Rev. Boyer did not learn the nature of the criminal charge against Marino until the day of the hearing before the Panel. The other evidence presented to the Panel, in the form of Marino's volunteering as a hockey coach, spending time with his children, and engaging in various fundraising activities, while laudatory, does riot rise to the level of mitigation so extraordinary in extent, duration, or type, that it should be treated as special mitigation. See Matter of Alter, 389 Mass. 153 (1983).

III. Conclusion

Marino was convicted of a serious federal offense, one involving the deliberate structuring of currency transactions, over a lengthy period of time, to avoid detection by law enforcement authorities of the illegal source of his clients' cash hoard. The offense was facilitated by Marino's practice of law and handling of the cash transactions at issue, as well as by his use of his IOLTA accounts. The presumptive discipline imposed where an attorney has been convicted of a serious felony is disbarment. Kennedy, supra; Concemi, supra. While that presumption may be overcome where the attorney presents evidence of special mitigation, the burden is on the attorney to present such evidence. Marino has failed to meet his burden of proof. Therefore, the Hearing Panel recommends that Marino be disbarred.1

Respectfully submitted, By the Hearing Panel,
Elizabeth N. Mulvey, Chair, Hearing Panel
Alan D. Rose
Robert J. Guttentag


FOOTNOTE

1 Pursuant to designation by the BBO Chair, the Chair of the Hearing Panel, on September 16, 2003, impounded Marino's Presentence Report prepared during the course of the presentence proceedings in Marino's criminal case in federal court. The Panel has not relied on anything set forth in the Presentence Report, which has been and therefore will remain impounded.



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