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Commonwealth of Massachusetts

NO. BD-2001-075

IN RE: NEIL F. COLLERAN

S.J.C. Order of Term Suspension (1 year) entered by Justice Greaney on November 15, 2001.

BOARD MEMORANDUM

This matter came before the Board on the report of a hearing committee, which recommended that the respondent, Neil F. Colleran, be suspended from the practice of law for one year. By letter dated June 25, 2001, Bar Counsel notified the Board that he had no objections to the committee's findings on the charges or to its recommendation for discipline, but requested that the Board strike three findings made in mitigation of the misconduct. The respondent filed no appeal and no response to Bar Counsel's letter. We treat the letter as an objection to the committee's findings under Rule of the Board of Bar Overseers, Section 3.50. We allow the objection.

The gist of the committee's findings, which we adopt and incorporate by reference except the extent otherwise stated in this memorandum, may be stated simply. The respondent represented the wife in a divorce. He prepared a written separation agreement that included a division of property and a requirement that the husband pay support payments. The respondent knew that the wife considered both these provisions to be inadequate, that the husband had substantial unreported income, and that the couple had entered into an oral side agreement under which she would receive increased support payments in return for giving him half the proceeds from the sale of the marital home. The respondent made no effort to dissuade the wife from relying on the side agreement, did not advise her that it was unenforceable, and did not tell her that she would be committing a fraud by representing to the court that the filed separation agreement constituted the entire agreement of the parties and that she was satisfied that it was fair.

The husband received half of the house proceeds but reneged on the side agreement after he remarried. The wife then engaged a new lawyer, who initiated proceedings to enforce the side agreement. In connection with those proceedings, the respondent filed three affidavits: the first and third affirming the existence of the oral side agreement, the second falsely denying that such an agreement had been made.

1. In mitigation, the committee found that the respondent had caused no harm because successor counsel had advised the wife, shortly after the divorce decree entered, not to pay half the house proceeds to the husband because the side agreement was not enforceable. Even putting to one side the dubious implication that no harm was visited upon administration of justice, this finding was erroneous. There is much force to Bar Counsel's argument that the wife faced inadequate support payments if the side agreement were not honored and she were left looking only to the written separation agreement; under these circumstances, it was not wholly imprudent to fulfill her end of unenforceable bargain and hope the husband followed suit. Further, the mitigation analysis is not like proximate causation in tort law. A client's decision made under such circumstances—themselves largely the product of the misconduct—should not be viewed as some "intervening cause" that renders the misconduct harmless. We strike the committee's finding that the respondent misconduct caused no harm.

2. Bar Counsel also objects to the hearing committee's conclusion that the respondent's misrepresentations were confined to a single episode. Without getting into what constitutes an "episode," we note that the misconduct here spanned the course of a year, and consisted of subsequent misrepresentations, under oath, in a later proceeding. This is more than a single episode. Again, we strike the finding.

3. The committee also erred in concluding that the respondent's misrepresentations were not motivated by "personal gain." No doubt the committee meant only that he was pursuing no pecuniary interest of his own. He did act in his own self-interest, however. He was clearly looking to protect his own interests, not his client's, when he signed an affidavit falsely denying the existence of an agreement she was seeking to enforce. Further, he did so after the husband's counsel threatened to report him to the Board of Bar Overseers for engaging in unethical conduct. Accordingly, we strike the finding.

4. We write also to clarify a statement in the last full paragraph on page 12 of the committee's report. There the committee concluded that the respondent's "conversations with the husband's attorney and signing of the second [i.e., false] affidavit did not violate his client's confidences or secrets . . . because the subject matter was already set forth in pleadings filed with the court and the affidavit he previously signed at the wife's behest." We read this as a conclusion that the respondent was, as the committee put earlier in the same paragraph, "specifically authorized to intervene as a witness on his former client's behalf," not that the subject matter had lost its confidential character by virtue of having been set forth in prior documents filed with the court. The latter proposition would be an erroneous statement of the law. See, e.g., PR 92-34, 8 Mass. Att’y Disc. R. 328, 330 (1992).

5. Even after excising these three findings from the hearing committee's report, we are confident that a one-year suspension, as recommended by the committee and accepted by the parties, is appropriate under the circumstances. That disposition is the presumptive sanction for making misrepresentations before a court. See Matter of McCarthy, 416 Mass. 423, 9 Mass. Att’y Disc. R. 225 (1993); Matter of Neitlich, 413 Mass. 416, 8 Mass. Att’y Disc. R. 167 (1992). While the timeframe here exceeds that in Neitlich and McCarthy, those lawyers' schemes sought to hoodwink the tribunal at the expense of an adversary. Here the respondent's efforts, however misguided, were initially undertaken to give effect to the parties' joint intentions, and very soon after filing his false affidavit in the enforcement action, he took prompt remedial action by the filing of another, corrective affidavit. We have found that he was motivated by personal gain, but so was Neitlich, who had hoped to get his fee paid out of the proceeds of a transaction he sought to hide from the court and his adversary. Given the totality of the circumstances of this case, like the hearing committee and the parties, we do not believe there exists a pattern of misconduct that would warrant a suspension longer than one year. Cf. Matter of Shaw, 427 Mass. 764, 14 Mass. Att’y Disc. R. 699 (1998) (two-year suspension for, among other serious misconduct, lying under oath to avert liability); Matter of Aufiero, 13 Mass. Att’y Disc. R. 6 (1997) (two-year suspension for misrepresentations in letter to lender and falsely denying under oath having signed the letter; lawyer's firm suffered substantial harm); Matter of Nunes, 13 Mass. Att’y Disc. R. 584 (1997) (two-years suspension for repeatedly misrepresenting to court and adversary that all rents due were being paid into escrow, with substantial harm to landlord).

Conclusion

For all of the foregoing reasons, we modify the hearing committee's report as described above, and adopt and incorporate the report as modified. An Information shall be filed with the county court recommending that the respondent, Neil F. Colleran, be suspended from the practice of law for one year.

Respectfully submitted,

THE BOARD OF BAR OVERSEERS

By: ___________________________
M. Ellen Carpenter
Secretary

September 10, 2001



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