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Commonwealth of Massachusetts

NO. BD-2001-097

IN RE: MARK S. CLARK

S.J.C. Judgment of Disbarment entered by Justice Cordy on August 17, 2005.1

MEMORANDUM OF DECISION

Mark S. Clark, the respondent attorney, is before the court on a Vote and Recommendation of the Board of Bar Overseers (board), which seeks the acceptance of Clark's resignation from the bar and also his disbarment. The board recommends this sanction because Clark improperly engaged in the commingling and misappropriation of client funds with actual deprivation resulting, charged an excessive and improper fee for future services, and entered into a business transaction with a client without obtaining the client's informed consent after full disclosure of the inherent risks and conflicts of interest. Clark seeks the acceptance of his resignation but challenges the board's recommendation of disbarment on constitutional grounds. The matter came before me for a hearing on August 10, 2005. I have carefully reviewed Clark's and the board's memoranda, Clark's affidavit of resignation, and the statement of disciplinary charges. I conclude that the board's recommendation to accept Clark's resignation and to enter an order of disbarment is appropriate and poses no constitutional problem.

The statement of disciplinary charges, which Clark does not contest, sets out the following misconduct, which occurred in Massachusetts prior to Clark's 1997 move to Arizona.2 In the course of representing a client who was the prevailing party in the settlement of an earlier wrongful death lawsuit, Clark served as co-trustee to a trust holding some proceeds of the settlement. With his client's consent, Clark withdrew $100,000 from the trust as payment for his past and future representation. On the advice of Clark and his wife, the client then agreed to use the trust corpus to purchase an annuity with New York Life Insurance Company, for which Clark's wife was an agent. In November 1996, Clark obtained an unsecured personal loan from the same client for $20,000 plus 8% interest, repayable in one lump sum within six months, without advising the client of the potential for a conflict of interest or the need for him to consult independent counsel. In May and June 1997, Clark (without the consent of his client) deposited $45,000 from the client's trust corpus into his IOLTA account, expending $7,700 for the benefit of the trust and using the rest for his own personal and business expenses and the needs of other clients. The client terminated Clark's representation after discovering the withdrawals, and sued both Clark and his wife. The suit against Clark's wife settled. Clark has made no restitution for his misappropriation of $37,300 from the trust, his debt to the client on the $20,000 note, or the unearned advance billing balance of $79,345.3

On March 29, 2005, Clark submitted to this court an affidavit of resignation from the practice of law, which stated that he did not wish to contest the foregoing charges or the associated facts, pursuant to S.J.C. Rule 4:01, § 15, as appearing in 425 Mass. 1319 (1997) (resignation by lawyers under disciplinary investigation).4 In the affidavit, Clark stated that the basis for his decision not to contest the charges was that, as a result of cardiac and psychiatric conditions, he was currently unable to work. He also stated that he opposed the bar counsel's recommendation of disbarment. The board of bar overseers then accepted bar counsel's recommendation and voted for the acceptance of Clark's resignation and an order of disbarment.

Clark challenges his disbarment on only one ground, the constitutionality of ordering disbarment following his voluntary submission of an affidavit of resignation from the bar. Citing Bates v. State Bar of Arizona, 433 U.S. 350 (1977), Clark compares the prohibition of advertising by attorneys struck down in that case to S.J.C. Rule 4:01, § 15, which provides that an attorney under disciplinary investigation may not resign without leave of the court. Clark argues that this regulation of his right to resign at a time of his choosing works a "blanket suppression" of his First Amendment right of free association. Bates v. State Bar of Arizona, supra at 383.

To the contrary, the rule is a reasonable regulation of resignations by attorneys under disciplinary investigation, not a "blanket suppression" of the respondent's association rights. See Matter of Mulhern, 2 Mass. Att'y Disc. R. 152, 153 (1981) (no constitutional right to resign). In fact, the rule provides a process for the court to accept resignations but also to retain its authority to impose disciplinary sanctions on attorneys who have committed misconduct.5 By accepting admission to the bar, Clark agreed to this regulation, as he did to abide by the other ethical rules applicable to attorneys. On numerous occasions, this court has accepted the resignation of attorneys under disciplinary investigation while simultaneously, over objection, ordering disbarment where the alleged misconduct warranted the sanction. See, e.g., Matter of Hurley, 8 Mass. Att'y Disc. R. 102 (1992); Matter of Crafts, 10 Mass. Att'y Disc. R. 47 (1994).

In this case, Clark has admitted in his affidavit that "the material facts on which the statement of disciplinary charges is predicated would be established by a preponderance of the evidence adduced at a hearing and that a hearing committee, the Board, and the Court will conclude that I have committed the material acts set forth in the statement of disciplinary charges." Those charges detail a pattern of gross misconduct, including the intentional misuse of client funds with actual deprivation resulting and without any evidence of restitution. In these circumstances, disbarment is the appropriate sanction, and should be imposed notwithstanding Clark's resignation. See Matter of Schoepfer, 426 Mass. 183, 188 (1997), quoting Matter of the Discipline of an Attorney, 392 Mass. 827, 836 (1984) ("If . . . an attorney intended to deprive the client of funds, permanently or temporarily, or if the client was deprived of funds (no matter what the attorney intended), the standard discipline is disbarment or indefinite suspension"); Matter of Bryan, 411 Mass. 288, 292 (1992) (disbarment appropriate sanction where respondent has made no restitution for misconduct). In these circumstances, the "public has a right to expect that egregious misconduct results in nothing less than straight disbarment." Matter of Hurley, 8 Mass. Att'y Disc. R. 102, 105 (1992). See also Matter of Dawkins, 412 Mass. 90, 97 (1992), quoting Matter of Driscoll, 695, 705 (1991) (Greaney, J., dissenting) ("[I]mposing any sanction less severe . . . would 'undermine[] the clear standards of [Matter of the Discipline of an Attorney, supra], and, in the process . . . diminish[] the court's credibility in an area where the public interest requires steadfast protection of clients' rights'" ).

For the foregoing reasons, Clark's affidavit of resignation is accepted, and an order of disbarment shall be entered.

___________________________
Robert J. Cordy
Associate Justice

Entered: August 17, 2005

FOOTNOTES

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

2 Clark has previously been subject to discipline in both Massachusetts and Arizona.
In 1998, Clark obtained a personal loan from Arizona clients in the amount of $58,000. In the course of obtaining the loan, Clark misrepresented his difficult financial circumstances and failed to disclose to the lending clients the inherent conflicts of interest associated with the business transaction. On January 18, 2002, this court ordered Clark suspended from the practice of law for three years as reciprocal discipline for his conduct in Arizona, which had led to his suspension from the practice of law in Arizona for three years by the Arizona Supreme Court. Clark did not object to the imposition of reciprocal discipline in Massachusetts.
In 1999, the respondent was administratively suspended from the practice of law for failure to cooperate with bar counsel in Massachusetts on another matter under investigation.
In April 2005, the Arizona Supreme Court ordered the respondent suspended for an additional six months for his unauthorized practice of law in representing an acquaintance during a driver's license suspension hearing during his ongoing Arizona suspension. The respondent has never sought reinstatement to the bar, either in Massachusetts or in Arizona.

3 Clark filed for bankruptcy in Arizona in 1999, and the client filed an adversary action. The parties settled in 2001, but Clark has apparently made no payments in satisfaction of the settlement.

4 S.J.C. Rule 4:01, § 15, as appearing in 425 Mass. 1319 (1997) provides:

"(1) A lawyer who is the subject of an investigation under this Chapter Four may submit a resignation by delivering to the Board an affidavit stating that he or she desires to resign, and that:

(a) the resignation is freely and voluntarily rendered; the lawyer is not being subjected to coercion or duress and is fully aware of the implications of submitting the resignation;

(b) the lawyer is aware that there is currently pending an investigation into allegations that he or she has been guilty of misconduct, the nature of which shall be specifically set forth; and

(c) the lawyer acknowledges that the material facts, or specified material portions of them, upon which the complaint is predicated are true or can be proved by a preponderance of the evidence.

(d) the lawyer waives the right to hearing as provided by this rule.

(2) Upon receipt of the required affidavit, the Board shall file it, together with its recommendation thereon, with this court which may enter an order.

(3) All proceedings under this section shall be public as provided in section 20 of this rule.

(4) Any lawyer whose resignation under this section has been accepted must comply with the provisions of section 17 of this rule regarding notice."

5 The resignation of attorneys in good standing from the Massachusetts bar is nearly automatic. Under a standing order of this court, attorneys in good standing may apply to the Board of Bar Overseers (board) to be allowed to resign from the bar. Upon the filing of the board's approval of such a request with the clerk of this court, this court will accept the resignation "forthwith as an administrative action and judgment shall be entered by the Clerk . . . immediately removing said attorney from the office of attorney at law in the courts of this Commonwealth." Supreme Judicial Court, Standing Order Considering Non-Disciplinary Voluntary Resignations from the Bar of Massachusetts Attorneys (1978). As a suspended attorney under disciplinary investigation, Clark has submitted an affidavit of resignation pursuant to S.J.C. Rule 4:01, § 15, as the affidavit itself indicates.



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