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Commonwealth of Massachusetts

NO. BD-2001-085

IN RE: JEFFREY P. MORRIS

S.J.C. Order of Term Suspension entered by Justice Sosman on July 31, 2003, with an effective date of August 30, 2003.1

MEMORANDUM OF DECISION

Attorney Jeffrey P. Morris was convicted of making false statements alleging theft or conversion of a motor vehicle, in violation of G.L. c. 268, § 39. Thereafter, Bar Counsel filed with the Board of Bar Overseers (board) a petition for discipline against Morris. In answering the petition, Morris admitted the conviction and violation of the charged disciplinary rules, but sought a hearing for the purposes of determining whether there were any factors in mitigation. After hearing, the hearing committee (committee) concluded that Morris violated Mass. R. Prof. C. 8.4 (b), 426 Mass. 1429 (1998) (professional misconduct for lawyer to commit criminal act that reflects adversely on a lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects), (c) (dishonesty, fraud, deceit, or misrepresentation), and (h) other conduct adversely reflecting on fitness to practice law), and recommended a two-year suspension. Morris appealed. The Appeal Panel ("panel") adopted the committee's subsidiary findings of fact and conclusions of law, but recommended that Morris be suspended for only one year and one day. Both Bar Counsel and Morris appealed to the board. After considering both appeals, the board adopted the panel's report, but recommended a two-year suspension. Initially, Morris opposed the board's recommendation, but he has since withdrawn that opposition.

1. Facts. On June 23, 2000, Morris struck another vehicle as he was driving on I-91. Rather than stopping to render assistance, Morris continued on I-91 at high speeds and eventually exited the highway. Thereafter, he abandoned his car and filed a report with the Northampton police, in which he misrepresented that his car had been stolen. The report form contained a warning that there was a statutory prohibition against the filing of a false report and that a violation could result in criminal penalties. He was ultimately charged and convicted for violation of G. L. c. 268, § 39.

2. Discussion. Despite Morris's withdrawal of any objection, I must make my own determination of appropriate discipline in this matter. See Matter of Leary, 15 Mass. Att'y Discipline Rep. 352, 355-56 (1999) (reviewing appropriateness of suspension despite fact that parties agreed on appropriate discipline). In reviewing a sanction recommended by the board, "[t]he primary factor for consideration is 'the effect upon, and perception of, the public and the bar.'" Matter of Concemi, 422 Mass. 326, 329 (1996), quoting Matter of McInerney, 389 Mass. 528, 535 (1983). Thus, I consider what disciplinary measures are necessary to deter future misconduct and preserve public confidence in the bar, bearing in mind that the discipline imposed should not be markedly disparate from that imposed in comparable cases. See Matter of Clooney, 403 Mass. 654, 658 (1988), and cases cited. Moreover, I am mindful that the board's recommendation is entitled to substantial deference. See Matter of Tobin, 417 Mass. 81, 88 (1994), and cases cited.

Here, Morris was convicted of false statements alleging theft or conversion of a motor vehicle. This was a "serious crime." S.J.C. Rule 4:01, § 12(3) (defining "serious crime" to include any crime that has, as necessary element, misrepresentation, fraud, or deceit). The usual and presumptive sanction for conviction of a "serious crime" is disbarment. See Matter of Otis, 438 Mass. 1016, 1017 (2003), citing Matter of Concemi, 433 Mass. 326, 330 (1996). Accordingly, only special mitigating circumstances would justify deviating from the sanction of disbarment in this case. See Concemi, supra at 330.

Here, the committee found both aggravating and mitigating circumstances. In aggravation, the committee found that Morris was on probation at the time of the offense; that he demonstrated a lack of insight into the nature and underlying causes of his misconduct and initially failed to acknowledge responsibility for his misconduct; that his acts were designed to evade responsibility at the expense of another ; and that he displayed a "serious lack of candor." In mitigation, the committee found that Morris's conduct did not occur in connection with the practice of law.

The fact that a respondent was on probation at the time of the offense is properly considered as a factor in aggravation. See, e.g., Matter of Wilkerson, 15 Mass. Att'y Discipline Rep. 636, 637 (1999). The evidence also supports the conclusion that Morris demonstrated a lack of insight into the nature and underlying causes of his misconduct and initially failed to acknowledge responsibility for his misconduct. I also agree that, in some respects, Morris's testimony displayed a lack of candor.

As to mitigation, the fact that a respondent was acting in his or her capacity as a private citizen, not as an attorney, when committing the offense is a special mitigating factor which justifies departure from the presumptive sanction of disbarment. See Matter of O'Neil, 15 Mass. Att'y Discipline Rep. 462, 474 (1999) (departure from presumption of disbarment applies when conduct is "purely private," describing this principle as "'private-citizen' exception"); Matter of Romm, 15 Mass. Att'y Discipline Rep. 505, 510 (1999); Matter of Labovitz, 425 Mass. 1008, 1008-1009 (1997); Matter of Concemi, supra at 331, n.5. As Morris's offense did not occur in connection with his practice of law, this special mitigating factor is applicable, and a deviation from the presumptive sanction of disbarment is therefore appropriate.

Lastly, I consider whether the board's recommendation for discipline is markedly disparate from the discipline imposed in comparable cases. Clooney, supra at 658. It is not. Comparable cases involving crimes of deceit committed outside the offending attorney's law practice have resulted in the precise same period of suspension as that recommended here. See Matter of Coughlin, 10 Mass. Att'y Discipline Rep. 45, 46 (1993) (two-year suspension for attorney who was convicted of education fraud for misrepresenting his income on school financial aid form and providing falsified tax returns to school); Matter of Rendle, Jr., 5 Mass. Att'y Discipline Rep. 310, 310-11 (1987) (two-year suspension for attorney convicted of aiding and abetting his father's scheme to defraud HUD); Matter of Alter, 389 Mass. 153, 156-58 (1983) (two-year suspension for attorney convicted of making false statement for purposes of obtaining social security payments). While the presence of aggravating factors in this case would arguably justify a longer period of suspension, I give weight to the board's determination that a two-year suspension adequately serves the purposes of attorney discipline.

Accordingly, it is ordered and adjudged that the respondent Jeffrey P. Morris be suspended from the practice of law for two years.

_______________________________
Martha B. Sosman
Associate Justice

Entered: July 31, 2003

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



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