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Commonwealth of Massachusetts

No. BD-2002-020


S.J.C. Order of Term Suspension (3 years) entered by Justice Cowin on December 17, 2002


This matter is before me on the information and record of proceedings and the vote of the Board of Bar Overseers (board). The matter was initiated before the board by bar counsel's petition for discipline. The petition alleged, among other things, that Erick Jean (respondent) violated: (1) Mass. R. Prof. C. 8.4 (b) & (h), 426 Mass. 1429 (1998) ,1 evidenced by his conviction of “serious crime[s],” as defined by S.J.C. Rule 4:01, §12(3),2 as appearing in 425 Mass. 1313 (1997); (2) Mass. R. Prof. C. 8.1 (b), 426 Mass. 1427 (1998),3 by failing without good cause to respond to bar counsel's requests for information; and (3) Mass. R. Prof. C. 8.4 (d)&(h), 426 Mass. 1427 (1998)4 by failing to comply with the terms of this court's order temporarily suspending him from the practice of law.5 The respondent failed to file an answer to the petition for discipline and he did not otherwise communicate with bar counsel or the board. He was notified that his failure to answer constituted a waiver and that the allegations of the petition for discipline would be deemed admitted, he failed to file for relief from the default, and the board subsequently voted unanimously “upon default” to recommend that the respondent be disbarred.

The respondent contends that the sanction of disbarment is not warranted, and requests suspension instead. Thus, the only issue before me is whether the sanction recommended by the board is appropriate in the circumstances of this case. I conclude that a three year term suspension, effective as of the date of this order, is warranted.

I. Facts. I summarize the facts from the petitions for temporary suspension and discipline, and their attachments. The respondent was admitted to the Massachusetts bar in December, 1990. During 1999, he was the subject of an unspecified investigation by the board; he failed to respond to requests for information from bar counsel and, on October 22, 1999, he was administratively suspended from the practice of law because of that failure.

Thereafter, the respondent pled guilty in Superior Court to two drug-related felony charges (possession of a class B drug with intent to distribute, and conspiracy to possess a class B drug with intent to distribute), as well as to a misdemeanor (possession of a dangerous weapon without a firearms identification card). On March 11, 2002, he was placed on three years of probation on each of the felony charges, and sentenced to two years in the house of correction, suspended, with probation for three years on the misdemeanor charge, all probation periods to run concurrently. He was also required to participate in substance abuse evaluation and treatment, as deemed appropriate by the probation department.

Bar counsel sought temporary suspension of the respondent and, on May 21, 2002, following a hearing at which the respondent did not appear, this court temporarily suspended the respondent from the practice of law. The order of temporary suspension, among other things, required the respondent to file an affidavit within twenty-one days of the order certifying compliance with its terms. The respondent failed to do so, although such an affidavit, dated October 18, 2002, was entered on the docket of this court on October 21, 2002, after he obtained counsel.

II. The appropriate sanction. The respondent challenges the board's recommendation that he be disbarred. The usual and presumptive sanction imposed following a felony conviction is “disbarment or indefinite suspension,” Matter of Concemi, 422 Mass. 326, 329 (1996), unless “special mitigating circumstance[s] that would justify deviation from” such sanction are present. Id. at 330. The court has recognized, however, that conduct unconnected with the respondent's practice of law (the so-called “private citizen” exception) may justify less substantial bar sanctions, id. at 331, n.5, at least where repeated intention to deceive is not involved. Matter of Labovitz, 425 Mass. 1008, 1008 n.1, 1009 (1997). Indeed, citing three bar discipline cases involving felony drug convictions, bar counsel avers that “[f]elony drug offenses usually result in a substantial term suspension.” See Matter of Prevost, 14 Mass. Att'y Disc. R. 577 (1998) (following conviction on three counts of possession of “Class B” controlled substances with intent to distribute, two counts of conspiracy to violate the controlled substance act, and a school zone violation, parties stipulated to three-year suspension retroactive to date of temporary suspension; Matter of Siniscalchi, 9 Mass. Att’y Disc. R. 304 (1993) (stipulated three-year suspension for possession of more than fifty pounds of marijuana retroactive to date of conviction); Matter of Quirk, 7 Mass. Att’y Disc. R. 241, 242 (1991) (court accepted board recommendation of four-year suspension, retroactive to the date of temporary suspension, following conviction for cocaine possession and distribution [to a client]; attorney addicted to cocaine at time of conviction and the board was impressed by “apparently successful rehabilitation”). Compare Matter of Horan, S.J.C. No. BD-2001-043 (July 18, 2002) (indefinite suspension warranted following attorney's conviction on four drug-related counts, where he distributed drugs from law office once, previously had been privately reprimanded, and previously had been on disability inactive status due to substance abuse); and Matter of Mclntyre, 10 Mass. Att’y Disc. R. 186 (1994) (while appeal of attorney's convictions of manslaughter, motor vehicle homicide, and causing serious bodily injury while operating a motor vehicle recklessly and negligently while under the influence of alcohol was pending, he was convicted of possession of cocaine on two separate occasions and placed on probation; after probation was revoked when he was again found in possession of cocaine, attorney and bar counsel stipulated to indefinite suspension).

There is no suggestion in this case that the respondent's criminal conduct occurred in connection with his practice of law. The board, however, recommends disbarment, rather than suspension, based not on the felony convictions, but on what bar counsel characterizes as matters in aggravation: (1) the respondent's misdemeanor conviction for possession of a dangerous weapon without a firearms identification card; (2) his failure to respond to bar counsel's requests for information; (3) his failure to comply with the notice provisions of S.J.C. Rule 4:01, §17; (4) his failure to comply with this court's temporary suspension order; and (5) his failure to answer or otherwise participate in the bar discipline proceedings. While the board's recommendation as to the sanction to be imposed is entitled to substantial deference, Matter of Palmer, 413 Mass. 33, 40 (1992), in my view, disbarment “is markedly disparate from [the sanction] ordinarily entered by the various single justices in similar cases.” Matter of Alter, 389 Mass. 153, 156 (1983).

An attorney's unexcused failure to cooperate with bar counsel, to participate in bar disciplinary proceedings, or to comply with the terms of suspension orders, violates the disciplinary rules. Such failure demonstrates disregard for professional obligations and for the administration of justice itself.6 Matter of Garabedian, 416 Mass. 20, 25 (1993) . Coupled with a history of other disciplinary violations, such behavior has warranted imposing a term suspension of six months, id. at 26, or six months and one day, Matter of Bartlett, 15 Mass. Att’y Disc. R. 28 (1999) (six month and one day suspension warranted after attorney failed to attend education program ordered following prior disciplinary proceeding, failed to respond to bar counsel's correspondence seeking an explanation, failed to cooperate with bar counsel in two other investigations concerning complaints by former clients, and failed to forward materials to two clients until bar counsel's intervention). Non-cooperation by itself, or accompanied by violation of another disciplinary rule (not involving a felony conviction), has also supported public censure.7 E.g., Matter of McDermott, 6 Mass. Att’y Disc. R. 222 (1989); Matter of Cohen, 3 Mass. Att’y Disc. R. 43, 46 (1983); Matter of Kelly, 2 Mass. Att’y Disc. R. 133, 134 (1981). A term suspension obviously is warranted for the underlying felony drug convictions and, while I consider the cumulative effect of the disciplinary violations, Matter of Saab, 406 Mass. 315, 326-327 (1989), disbarment is not warranted here. Bar counsel has not pointed to any precedent for such.8

The respondent's failure to cooperate, and the other aggravating factors cited by bar counsel must, however, count for something in determining the appropriate sanction. Typically, suspensions following felony drug convictions are for the length of the sentence or the probationary period imposed on the underlying convictions, retroactive to the date of temporary suspension, Matter of Prevost, supra at 577; Matter of Ouirk,9 supra at 242, or conviction, Matter of Siniscalchi, supra at 304. In this case, I decline to impose the suspension retroactively, thereby sanctioning the respondent for his failure to cooperate and for the other aggravating factors cited by bar counsel.

III. Disposition. A three year suspension, without retroactive effect, appears to be the sanction most consistent with our precedent, and is an appropriate sanction here. Extending the duration of the sanction beyond the probationary period for the underlying convictions, and refusing to impose it retroactively, preserves the perception of the public and the bar that attorneys are required to cooperate in the disciplinary process, unless there is a valid explanation for that failure, and also considers the other aggravating factors cited by bar counsel. Matter of Kerlinsky, 428 Mass. 656, 664 (1999) (“[t]he ‘primary factor’ in bar discipline is ‘the effect upon and perception of, the public and the bar’”), and cases cited. Further, this sanction is not markedly disparate, Matter of Alter, supra at 156, from sanctions imposed in similar cases.

A judgment shall enter suspending the respondent from the practice of law for three years, effective as of the date of this order.

By the Court,

Judith A. Cowin
Associate Justice

Entered: December 17, 2002

1 Rule 8.4 provides, in pertinent part: “It is professional misconduct for a lawyer to: . . . (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; . . . (d) engage in conduct that is prejudicial to the administration of justice; . . . (h) engage in any other conduct that adversely reflects on his or her fitness to practice law.”

2 The term “serious crime” shall include (a) any felony, and (b) any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime, includes interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy, or solicitation of another, to commit a “serious crime.”

3 Rule 8.1 provides, in pertinent part: “[A] lawyer . . . in connection with a disciplinary matter, shall not: . . . (b) . . . knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.”

4 See supra, n.l.

5 The respondent was temporarily suspended after the board filed a notice of conviction and petition for discipline with this court on March 26, 2002.

6 The respondent argues that the reason he did not cooperate or participate in the disciplinary proceedings was that he had not yet begun treatment for a drug addiction and that, at the time, he was “unable” to participate. Aside from argument of counsel, however, the respondent offers no evidence to substantiate his contentions. See Matter of Jones, 425 Mass. 1005, 1007 (1997) (rejecting claim related to disability where attorney “provided no credible evidence of disability to the Pennsylvania [bar disciplinary] authorities or to this court”). See also Matter of Ring, 427 Mass. 186, 190-191 (1998) (considering medical evidence in mitigation of attorney's conduct, submitted after the board's vote). Accordingly, there is no evidence suggesting that the respondent was, as his counsel argued, “unable” to participate in the disciplinary process.

7 Public censure has been replaced by public reprimand. S.J.C. Rule 4:01, §4, as appearing in 415 Mass. 1302 (1993); Matter of Rinq, 427 Mass. 186, 190 n.1 (1998).

8 This case is factually dissimilar from Matter of Davidson, 11 Mass. Att’y Disc. R. 64 (1995), in which an attorney was disbarred following her conviction on two counts of larceny and one count of conspiracy to violate the controlled substance act, after she failed to file an answer or participate in disciplinary proceedings before the board or the single justice. The drug count involved the attorney's actions in having a package of heroin shipped to her sister to create (false) evidence for use against the sister in a case before the Probate Court. In the present case, the respondent is not alleged to have engaged in fraudulent conduct, and he did appear, albeit belatedly, before this court.

9 Quirk was sentenced to two years in the house of correction and three years of probation to be served at the conclusion of his period of incarceration. Parole eligibility on a two year house of correction sentence generally was after one year had been served. See 120 Code Mass. Regs. §201.01(1) (1990), as amended, 120 Code Mass. Regs. §200.04(1) (1997).

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