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Commonwealth of Massachusetts

NO. BD-2001-080

IN RE: BARRY P. WILSON

S.J.C. Order of Public Censure (public reprimand) entered by Justice Ireland on December 6, 2001. (Board of Bar Overseers filed an Information with the Court, recommending a 3-month suspension, per the Board memorandum printed below. After hearing, the Court, without further written opinion, entered an order of public censure.)

BOARD MEMORANDUM

A hearing committee recommended that the respondent, Barry P. Wilson, be suspended for six months for making misrepresentations to a court and for subsequently engaging in an ex parte communication with the judge. The respondent has appealed. He seeks to set aside the first finding as made in violation of his rights to due process, takes issue with many of the committee's findings of fact and conclusions of law, and characterizes the proposed disposition as "grossly disproportionate to the alleged misconduct." Bar Counsel asks that we adopt the committee's report and recommendation. For the reasons set out below, we adopt the committee's findings and conclusions but modify its proposed sanction. We recommend a three-month suspension.

Factual Background

We adopt and incorporate by reference the hearing committee's subsidiary findings of fact. A summary of the findings, adequate for purposes of this appeal, is set out below; we reserve certain details for later discussion. All three counts of the petition for discipline arise from the respondent's conduct in representing a defendant in a single criminal case.

Count I. In December 1994 the client was charged with, among other offenses, the cultivation and distribution of marijuana. Incriminating evidence had been obtained during a search pursuant to a warrant issued on an application by Detective Joseph Deignan of the Watertown Police Department. In his application for the search warrant, Deignan related certain information he claimed to have received from a confidential informant who he said had proven reliable in other cases. As a specific example of such reliability, the detective said the informant's information had led to the arrest and conviction in the Waltham District Court of one Paul Pitts for possession of marijuana with intent to distribute.

By all accounts, the respondent harbored a longtime antipathy toward Deignan, feelings the detective apparently reciprocated. The respondent also recognized Pitts' name as that of a former client, though he could not recall the particular case. Busy with a lengthy federal trial, the respondent dispatched his niece to the Waltham District Court to examine warrant affidavits submitted by Deignan in other recent cases. The respondent learned that Deignan had arrested Pitts for possession with intent in 1992, but no informant had been used, a motion to suppress had been allowed, and Pitts was not convicted.

Armed with this information, the respondent prepared a motion to suppress and for a Franks hearing. In the supporting papers, he pointed out the discrepancies between the allegations in Deignan's affidavit and the court records in the 1992 Pitts case. He charged Deignan, as the arresting officer in both cases, with making an intentionally false statement under oath in the warrant application that led to evidence against his client in the pending case.

The respondent's motion papers were unfortunate for two reasons. First, Deignan had referred not to the Pitts case of 1992 but to an earlier one in 1990. There was an informant in the 1990 case, and Pitts was in fact convicted. Deignan's allegations about the Pitts case, therefore, were not false. Second, the respondent himself had represented Pitts in the 1990 case. The assistant district attorney discovered these salient facts but did not share them with the respondent; she chose instead to lie in wait for him at the suppression hearing.

Convinced the facts from the 1992 case were the "home run" he needed to obtain a Franks hearing, the respondent repeated his allegations against Deignan in open court. In response, the ADA disclosed records of the 1990 case. The district court judge gave the respondent time (six minutes, as it turned out) to review the records. The respondent had forgotten the 1990 case and that he had represented Pitts in it. Instead of acknowledging as much and correcting the record, however, he claimed, in effect, that he had remembered the 1990 case and discounted it. He then proceeded to generate an argument why the 1990 case could not have been the case to which Deignan had referred. Even he himself now apparently concedes that this was a deliberate misrepresentation.

The court proceeded to hold a Franks hearing limited to the issue of which Pitts case Deignan had referred to in his affidavit. The respondent was permitted to cross-examine the detective on this and on other issues related to his credibility. Taking the matter under advisement, the court invited additional memoranda, which the respondent subsequently filed. Eventually, the motion to suppress was denied.

The hearing committee did not find that the respondent had made deliberate misrepresentations to the court, orally and in writing, in support of his motion to suppress. Instead, the committee found he had been "grossly negligent" in failing to verify the truth of the allegations he made, and that those misrepresentations violated Canon One, DR 1-102(A)(5) and (6) (conduct prejudicial to the administration of justice and reflecting adversely on fitness to practice).

Count II. Right after the hearing on the motion to suppress was concluded, Deignan approached the respondent in the hallway outside the courtroom. A number of others were present, including the respondent's client, counsel for a co-defendant, the ADA, and another policeman. The detective informed the respondent that he planned to obtain a tape of the hearing and report him to the Board of Bar Overseers. Voices were raised on both sides, and profanities were exchanged. Although the petition for discipline charged the respondent with misconduct for his role in this confrontation, the hearing committee found no misconduct. Bar Counsel has not appealed from that determination.

Count III. Convinced that Deignan had tried to intimidate him in the hallway incident, the respondent wrote a letter to the chief of the Watertown Police Department complaining about the detective's actions. The respondent sent a copy of the letter to the judge who had presided over the hearing. He did not send a copy of the letter to the District Attorney's office, though the ADA did see a copy about a week later. The letter went beyond complaining about the hallway altercation and addressed the merits of the motion to suppress and the credibility of Deignan's testimony at the hearing. The hearing committee concluded that the letter constituted an ex parte communication to the judge on the merits of the pending motion, in violation of Canon One, DR 1-102(A)(5) (prohibiting conduct prejudicial to the administration of justice), and Canon Seven, DR 7-110(B) (barring ex parte communications).

Issues on Appeal

1. Due Process. The respondent objects that the facts found by the hearing committee under the first count differed from those alleged in the petition for discipline. The petition charged that the respondent knew about the 1990 Pitts case when he filed his motion and made intentional misrepresentations to the court in his motion to suppress. The committee found that he was not aware of the 1990 case (because of his negligence) and that he later failed to explain or correct his representations when the error was brought to his attention during the hearing. Relying on In re Ruffalo, 390 U.S. 544 (1968), the respondent claims he was thus denied his constitutional rights to notice and due process.

In Ruffalo a disciplinary authority rejected the charges brought against a lawyer but disbarred him for altogether different conduct that came to light during the hearing on the rejected charges. The Supreme Court overturned the decision because Ruffalo had not been apprised that the later conduct might be a basis for discipline. Id. at 551. Ruffalo, in other words, was prevented from mounting a defense because he did not know in advance what conduct was at issue in the proceeding. Here, by contrast, the respondent was not surprised by wholly different charges. The committee found that the respondent's representations violated the very disciplinary rules cited in the petition for discipline, see Matter of Brower, 1 Mass. Att’y Disc. R. 45, 47 (1979) (respondent may not be found to violate a rule not charged in petition), and the subsidiary facts found were directly related to the charges in the petition. He was plainly on notice that the circumstances underlying his investigation of Deignan's affidavit would be before the committee, as would his response to the revelation that his representations based on that investigation were false. The committee's findings were not "an unforeseeable byproduct of a trial on other issues." Bar Counsel v. Doe, 15 Mass. 799, 811 (1999). Nor has the respondent identified how his defense might have differed if the petition's allegations had fit the findings more neatly. Cp. Bar Counsel v. Doe (Fordham), 11 Mass. Att’y Disc. R. 501, 506-507 (1995), rev'd on other grounds, Matter of Fordham, 423 Mass. 481, 12 Mass. Att’y Disc. R. 161 (1996). There was no prejudice and therefore no violation of due process.

2. The negligent investigation. The respondent contends that his investigation in preparing the motion to suppress was reasonable and adequate under the circumstances. When he first read Deignan's affidavit, however, he recognized Pitts' name as that of a former client. He also learned that the 1992 case was handled by another attorney. He was thus squarely on notice that there had to be at least two Pitts cases. He did not heed that notice. If he had, a simple search of court records would have disclosed the existence of the 1990 case. The committee rightly found that his investigation was inadequate and led directly to his making negligently false representations to the court in supporting papers for his motion to suppress. That finding supports the conclusion that he violated Canon One, DR 1-102(A)(5) and (6) (conduct prejudicial to the administration of justice and reflecting adversely on fitness to practice).

3. The deliberate misrepresentation. As best we understand it, the respondent's remaining objection to the findings under Count I goes to the materiality of his subsequent misrepresentation in open court that he had not forgotten the 1990 Pitts case. Arguing that he had an obligation "to put the best face possible on the situation," he claims that his obligation was not to disclose his "actual thought process" to the court but instead to salvage the situation with an argument that might win the motion to suppress. With this proposition we do not take issue. It remains the case, however, that he did purport to disclose his thought process, and he lied when he did so. Instead of candidly admitting he had forgotten about the case, he deliberately misrepresented that he had consciously considered the 1990 case and had concluded that it could not have been the case to which Deignan had referred. This, he now admits (as he did before the committee), was not true. As a consequence, whatever conclusion one draws as to the quality of his investigation before filing his motion to suppress, the respondent violated DR 1-102(A)(5) and (6) when he lied to the court. It may be true, as he now contends, that his lie went to an issue that was not material to matters before the court, but the disciplinary rules do not proscribe only material misrepresentations. See Matter of Cross, 15 Mass. Att’y Disc. R. 157, 158 (1999). Materiality may be relevant in determining the sanction, an issue revisited below, but it is not a defense.

4. Ex parte communication. The respondent directed an ex parte communication about the hallway altercation to the motion judge. Before the hearing committee, he testified that he copied the judge on his letter to the police chief so that the court would know his side of the incident. The hearing committee did not credit this testimony. On appeal, the respondent assails the credibility finding as "simply silly and not supported by the evidence." Bar Counsel rejoins that we may not disturb the finding because the hearing committee is the "sole judge" of the credibility of witnesses testifying before it. See S.J.C. Rule 4:01, § 8(4).

Given the exceedingly narrow scope of our review of credibility determinations, we decline to disturb the committee's finding on the point. See, e.g., Matter of Hachey, 11 Mass. Att’y Disc. R. 102, 103 (1995) (credibility findings may not be disturbed unless “wholly inconsistent” with other findings). We also view the issue as largely irrelevant. Bar Counsel need not prove the existence of an improper motive to make out a violation of the rule. This point the respondent apparently concedes, for he characterizes his transgression as a "technical violation." He communicated ex parte with the motion judge.

The letter also "touch[es] on the pending motion," to use the respondent's euphemistic locution. Touch it does, for the letter squarely addresses the merits of the matter yet to be decided by the motion judge:

Without getting into all the specifics, I will only state that I stand by any accusations that I made against Det. Deignan during the course of the hearing involving my client and do not feel that his actions were justified. In fact, his actions only reinforced that what I stated during the hearing is in fact true. Further a review of other cases that he's been involved in, will certainly lead one to draw the same conclusions that I have concerning his credibility.

The hearing committee properly found that the respondent violated Canon One, DR 1-102(A)(5) (prohibiting conduct prejudicial to the administration of justice), and Canon Seven, DR 7-110(B) (barring ex parte communications).

5. The sanction. We deem it a close question whether the respondent should be suspended for his misconduct. Bar Counsel argues that the conduct described in the first count alone falls somewhere between that which merited a one-year suspension in Matter of Neitlich, 413 Mass. 416, 8 Mass. Att’y Disc. R. 167 (1992), and a public censure in Matter of Mahlowitz, 1 Mass. Att’y Disc. R. 189 (1979). We disagree. Both of those lawyers intentionally misled the court (Neitlich through active misrepresentations, Mahlowitz through calculated silence) as to critical information directly relevant to an issue before it. The respondent, by contrast, made only negligently false misrepresentations to the court on issues of substance and later made a deliberately false, but immaterial, statement to cover up his mistakes.

The respondent's actions may be more aptly analogized to the conduct for which public reprimands were imposed in Matter of Cross, 15 Mass. Att’y Disc. R. 157 (1999), and Matter of Tiberii, 12 Mass. Att’y Disc. R. 546 (1996). Cross intentionally misrepresented on a return of service, and later swore in an affidavit opposing a motion to dismiss, that a friend of hers had made service when she herself had done so. She was publicly reprimanded for these misrepresentations, which though deliberate were not material. See 15 Mass. Att’y Disc. R. at 158. While here the respondent's misconduct is more serious in that he also made negligently false representations on material issues, that difference is largely offset by the fact that his deliberate, immaterial misrepresentation was not, like Cross', made under oath.

Tiberii negligently named the wrong person as one of the plaintiffs in a lawsuit (he named the son when he meant to name the father). When advised of his error, he failed to correct the mistake and later intentionally acceded, without any authority, to the son's dismissal from the case with prejudice. As a direct consequence, the son was barred from intervening in the action later on. Tiberii's actions thus caused substantial harm to the son. By contrast, the respondent's conduct here had no deleterious impact on any party or on the ultimate course of the proceedings.

On balance, therefore, we conclude that a sanction greater or less than public reprimand for the misconduct described in the first count alone would be "markedly disparate" from the discipline imposed in Cross and Tiberii. See Matter of Alter, 389 Mass. 153, 156, 3 Mass. Att’y Disc. R. 3, 6-7 (1983).

Similarly, the ex parte communication at issue in the second count would merit public reprimand if it were the only misconduct found. As the hearing committee observed, the communication here was not as egregious as that in Matter of Orfanello, 411 Mass. 551, 7 Mass. Att’y Disc. R. 220 ( 1992) (per curiam). Orfanello was suspended for three months for privately talking to a judge in hopes of influencing his decision in a criminal matter defended by a friend. In the instant case there was nothing secret about the respondent's communication with the judge. His letter was addressed to the police department (a police prosecutor had been present during the altercation) and he could have been fairly certain that the letter would find its way, as it did within a week, into the hands of the district attorney. This is not to suggest that the communication was harmless or the violation merely "technical," as the respondent would have it. The respondent's letter bluntly addressed the merits of the pending motion. His whole motion to suppress turned on Deignan's credibility, which the respondent attacked directly in his letter. To compound matters, he did so by placing before the judge factual allegations that were not part of the record. While the communication may not rise to the level of Orfanello's secret special pleading, it merits public reprimand.

This leaves us with two species of misconduct, each alone deserving of public reprimand. We must consider the cumulative nature of the respondent's misconduct. See Matter of Saab, 406 Mass. 315, 327, 6 Mass. Att’y Disc. R. 278, 291 (1989). A suspension of some length is in order. While the hearing committee recommended a term of six months, we believe a suspension of half that length is appropriate. The respondent's actions were driven to a large extent by the history of his dealings with Deignan, and his unfortunate reaction to being confronted with the mistake underlying his motion could have been averted if the district attorney had not opted to surprise him in open court. Under these circumstances, a three-month interruption of his practice should be sufficient to bring home the importance of preparing more carefully, showing full candor before a tribunal, and avoiding ex parte communications with the court. We fail to see how an additional three months' suspension would make the message more pointed or contribute in any incremental measure to the protection of the public and the integrity of the bar.

Conclusion

For all of the foregoing reasons, we adopt and incorporate by reference the hearing committee's findings of fact and conclusions of law, but modify its suggested disposition. An Information shall be filed with the Supreme Judicial Court for Suffolk County recommending that the respondent, Barry P. Wilson, be suspended from the practice of law for three months.

Respectfully submitted,

THE BOARD OF BAR OVERSEERS

By: ___________________________
M. Ellen Carpenter
Secretary

Approved: September 10, 2001



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