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Commonwealth of Massachusetts

NO. BD-2002-075

IN RE: ERIC LEVINE

S.J.C. Order of Term Suspension entered by Justice Sosman on July 17, 2003, with an effective date of August 16, 2003.1

MEMORANDUM OF DECISION

This matter is before me on the information and record of proceedings of the Board of Bar Overseers (Board). For the following reasons, I order that the respondent be suspended from the practice of law for a period of two years.

1. Procedural background. Bar counsel initiated a two-count petition for discipline against respondent on June 15, 1999. Count One of the petition charged that respondent violated various disciplinary rules by acts related to his acceptance of a fee from a client in a matter in which he had been appointed counsel, in violation of Committee for Public Counsel (CPCS) procedures and Supreme Judicial Court Rule, and by his neglect of his client’s appeal in another matter. Count Two of the petition charged that the respondent intentionally made false statements to bar counsel and provided bar counsel with a fabricated letter. After four days of hearings, the hearing committee issued a report concluding that respondent had violated Canon One, DR 1-102(A)(4),(5) and (6)2 , and Canon Two, DR 2-106(A)3 by: collecting a fee in a matter in which he had been appointed as counsel; failing to advise CPCS that he had taken the payment; accepting payment from the Commonwealth; stating falsely under oath that he had complied with CPCS procedures; intentionally providing false statements to bar counsel; and providing a fabricated letter to bar counsel.4 The hearing committee recommended that the respondent be suspended from the practice of law for a year and a day. No appeal was filed.

On March 11, 2002, the Board made a preliminary determination that the hearing committee's decision should not be affirmed. See Rules of the Board of Bar Overseers § 3.52. Specifically, the Board adopted the hearing committee’s findings of fact and conclusions of law, but rejected its proposed sanction of a one-year and a day suspension, determining that a two-year suspension was the appropriate level of discipline. Respondent filed an Opposition to the Board’s preliminary vote, opposing only the increase in the length of his suspension and expressly declining to appeal the hearing committee's findings. However, at oral argument before the Board, respondent for the first time challenged the hearing committee’s finding that he had provided bar counsel with a fabricated document. On October 21, 2002, the Board voted to confirm its recommendation of a two-year suspension.

2. Facts. The following facts were found by the hearing committee and adopted by the Board. The respondent was admitted to the Massachusetts bar in 1979. In 1995, he was engaged in the general practice of law and registered with CPCS as eligible to provide representation to indigent defendants in criminal cases. In May 1995, he was appointed to represent Edward Sullivan, Jr. on a charge of cocaine possession then pending in the Boston Municipal Court. At a meeting after he was appointed, respondent suggested to Sullivan that he would get better representation if he paid an additional fee to the respondent. In June 1995, Sullivan paid and the respondent accepted a $200 money order for representation in the BMC drug case. At the time, respondent was aware that soliciting and accepting compensation for work on a case in which he had been court-appointed violated both the CPCS Manual of Policies and Procedures and S.J.C. Rule 3:10, §10(c). In July 1995, respondent submitted a bill to CPCS for representing Sullivan in the drug case through June 30, 1995. In the bill, he certified under pains and penalties of perjury that he had provided representation consistent with CPCS Performance Guidelines. In August 1995, the Commonwealth paid the respondent for the hours reflected in the bill. The drug case later was resolved in a manner satisfactory to the client.

In June 1996, Sullivan filed with bar counsel a request for investigation of respondent’s conduct, alleging, inter alia, that respondent had taken a fee for representing him in a criminal matter after respondent had been appointed to represent him. In attempting to defend his conduct, respondent informed bar counsel that he had accepted the $200 money order from Sullivan as a retainer for future services unrelated to the BMC drug case, and that he had deposited the $200 in his IOLTA account. After documents showed that the respondent used the $200 as part of a payment on his MasterCard account, he testified that he did not know how the money came to be used for that purpose. The hearing committee found that the respondent’s personal use of the $200 was intentional and that his statements to bar counsel that the money had been put in his IOLTA account were intentionally false.

In further defense of his accepting the $200, respondent had his lawyer submit to bar counsel a copy of a purported letter from respondent to Sullivan dated July 3, 1995, which stated that it was to confirm Sullivan’s desire to retain the respondent for matters other than the BMC drug case. The respondent testified that he sent the letter to show that the $200 was a retainer for future services. The hearing committee did not credit respondent’s testimony and instead found that respondent fabricated the letter in response to Sullivan’s complaint to bar counsel.

3. Discussion. Before me, respondent seeks a lesser sanction, contending that 1) there is not sufficient evidence to support the findings that he fabricated evidence and intentionally made false statements to bar counsel,5 and 2) the Board’s recommendation is not consistent with prior discipline for similar misconduct.

a. Sufficiency of the evidence. (i) Waiver. Bar counsel contends that respondent waived his right to contest any of the hearing committee's findings. Section 3.50(c) of the Rules of the Board of Bar Overseers provides that a party "will be conclusively deemed to have waived all objections to the findings, conclusions and recommendations of the hearing committee unless the party files an appeal as provided in subsection (a) of this section." Here, neither side filed an appeal of the hearing committee’s report and recommendation. However, if the Board disagrees with the hearing committee, § 3.52 of the Board’s rules effectively revives the right to appeal. That section, governing review by the Board when there has been no appeal, states that "[i]n the event the Board makes a preliminary determination that the decision of the hearing committee, hearing panel, or special hearing officer should not be affirmed, it shall give the parties appropriate notice thereof and an opportunity to file briefs, and the Board may then proceed to take such action as it could have taken had an appeal been filed."

Here, respondent availed himself of the opportunity provided by § 3.52 and filed an opposition to the Board’s preliminary vote, but that opposition expressly challenged only the increased sanction and affirmatively stated that respondent was not appealing any of the underlying findings: "The Respondent does not seek, at this stage, to appeal the findings of the Hearing Committee."

However, at oral argument before the Board, represented by new counsel, respondent challenged the hearing committee’s conclusion that he had fabricated an exculpatory letter and submitted it to bar counsel. The Board determined that, although respondent had waived all objections to the hearing committee's findings and conclusions by failing to appeal from the hearing committee's decision, there was merit to the argument that he was released from that waiver when the Board voted to increase discipline. However, because respondent, represented by experienced counsel, had again failed to raise any challenge to the hearing committee’s findings in his brief opposing the Board's preliminary vote, the Board found that this issue had been waived.

The Board's waiver analysis appears correct. The findings could have been challenged after the hearing committee report was filed, or after the Board's preliminary vote increasing the sanction. When a party does appeal, whether from a hearing committee report or from a preliminary vote of the Board, the Board is entitled to notice that an issue will be raised, and to the benefit of fully considered arguments on both sides of the issue. Section 3.51 of the Rules of the Board of Bar Overseers makes clear that briefs on appeal shall contain "[a] summary of the basic position of the party filing," "[t]he grounds on which the appeal rests," and "argument in support of the appeal with appropriate references to the record and legal authorities." New issues cannot be inserted at the oral argument stage.6 It is eminently reasonable to apply ordinary principles of waiver, founded on a need for finality of proceedings and the avoidance of piecemeal litigation, in a proceeding where experienced counsel representing an experienced attorney has twice been afforded the opportunity to appeal from the findings and conclusions on which the disputed sanction rests and has twice declined to appeal that issue. Respondent has offered no persuasive justification for requiring the Board to provide him with yet another opportunity to challenge the sufficiency of the evidence underlying those findings and conclusions.

(ii). Findings. Although the Board could have rested its decision on respondent’s waiver, it nonetheless considered the merits and found that there was substantial evidence to support the hearing committee's finding that respondent had fabricated the letter dated July 3, 1995, in response to the complaint filed with the Board. Respondent maintains that the Board impermissibly relied solely on the disbelief of his testimony regarding the letter, and that the inferences drawn by the Board do not support a finding that the letter was fabricated. The hearing committee is the sole judge of the credibility of the testimony presented at the hearing. S.J.C. Rule 4:01, § 8(4). See Matter of Saab, 406 Mass. 315, 328 (1989). Here, in addition to disbelieving the respondent’s account regarding the origin of the letter, the hearing committee found, and the Board accepted, that Sullivan had never received the letter, that the letter did not confirm respondent’s receipt of the $200 money order that had been paid by Sullivan more than two weeks before the letter was allegedly sent, and that the letter did not resemble a fee agreement or refer to the specific services respondent claims he had agreed to undertake. Taken together, the disbelief of respondent’s explanation, the crediting of Sullivan's testimony as to non-receipt, and the wording of the letter support the inference that the letter was a later fabrication.

Moreover, respondent’s argument that disbelief of his testimony does not constitute evidence of the contrary does not appear to significantly advance his cause. In this case, the possibilities as to the origin of the July 3, 1995 letter are limited. Given the (unchallenged) finding that the $200 payment was in fact for the pending criminal case and not for some other matter, the July 3, 1995 letter had to be either a later fabrication or, as respondent himself now suggests, a contemporaneous coverup of his improper receipt of funds in connection with the BMC drug case. Whether prepared in advance of or during bar counsel's investigation, the document was created for the purpose of deceiving anyone who looked into his wrongful acquisition of the $200, and was ultimately used in an attempt to deceive bar counsel.

Respondent now also disputes the finding that he made intentionally false statements to bar counsel. This issue, raised for the first time before me, was not addressed by the Board. I find no justification for respondent’s failure to appeal from this finding at an earlier stage, and therefore conclude that the issue has been waived. Even if there were no waiver, given the hearing committee findings regarding the respondent’s lack of credibility on this issue, the disposition of the $200 money order, and the respondent’s usual practice in connection with monies received for deposit, the record supports the findings regarding false statements.

b. Appropriate sanction. Respondent claims that the two-year suspension recommended by the Board is too harsh for the misconduct found, and would be distinctly disparate compared to discipline imposed in similar cases. Bar counsel maintains that a two-year suspension is appropriate. The relevant principles can be simply stated: the discipline imposed should not be markedly disparate from that prescribed in similar cases, Matter of Alter, 389 Mass. 153, 156 (1983), and each case must be decided "on its own merits and every offending attorney must receive the disposition most appropriate in the circumstances." Matter of the Discipline of an Attorney, 392 Mass. 827, 837 (1984). I have considered the cases relied on by respondent, and, as is often the case, none perfectly squares with his situation. Both the Board and respondent look to the same case, Matter of Aronson, 3 Mass. Atty. Disc. R. 12 (1982), as well as various other cases, to support their recommended sanction for the proven misconduct. None of the cited cases involves the precise same misconduct (wrongful solicitation and acceptance of fees in connection with a CPCS matter, plus attempted coverup of the misconduct in bar disciplinary proceedings, aggravated by a prior disciplinary history), and the detailed comparisons provided by the parties are not particularly persuasive.

I consider what discipline would be appropriate in these circumstances. Respondent’s misconduct was serious. In soliciting and taking a fee in an appointed case and misrepresenting to CPCS under the pains and penalties of perjury that he had complied with guidelines that prohibited the acceptance of such compensation, he damaged the integrity of the system by which legal services are afforded to indigent criminal defendants. Such conduct also took advantage of his client in an egregious manner. The entire purpose of providing legal services to indigent criminal defendants at public expense is to ensure that their inability to pay for counsel does not compromise their right to the effective assistance of counsel in their defense. In substance, respondent threatened his indigent client that he would not provide zealous representation unless the client paid him above and beyond what he would be paid by CPCS, and by that threat to violate his obligation to the client (see DR 7-101 [representing client zealously]), extracted the wrongful payment. While respondent stresses that he did provide zealous and effective advocacy on behalf of his client (a factor that allegedly distinguishes his case from other cases involving improper fees), he ignores the fact that a threat not to do so was the very means by which he obtained the additional $200 fee. Respondent’s original misconduct was then seriously exacerbated by the intentional false statements and fabricated exculpatory letter he submitted to bar counsel. These actions impaired the integrity of the process established to uphold the integrity of the bar. By his dishonest communications with both CPCS and the Board, the respondent violated an essential qualification of his profession. The cumulative effect of all violations must be taken into account when determining the appropriate level of discipline. See Matter of Saab, 406 Mass. 315, 326-327 (1989).

In aggravation, respondent has a history of prior discipline.7 I see no factors in mitigation. Because of the substantial deference due to the Board’s recommendation (see Matter of Alter, 389 Mass.153, 157-158 [1983]), the cumulative violations committed by respondent, the prior history of discipline, and the lack of mitigating circumstances, I conclude that the Board's recommendation of a two-year suspension should be adopted.

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

____________________________
Martha B. Sosman
Associate Justice
Entered: July 17, 2003

FOOTNOTES

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

2 DR 1-102(A)(4) (dishonesty, fraud, deceit or misrepresentation); DR 1-102(5) (conduct prejudicial to the administration of justice); DR 1-102(6) (conduct adversely reflecting on fitness to practice).

3 DR 2-106(A) (charging or collecting an illegal or clearly excessive fee).

4 The hearing committee concluded that the allegations of neglect were not proven.

5 Respondent does not challenge the findings and conclusions regarding his wrongful acceptance of a fee from his client in the BMC case.

6 See also Mass.R.App.P. 16(a)(4), which provides, in part, "The appellate court need not pass upon questions or issues not argued in the brief. Nothing argued in the brief shall be deemed to be waived by a failure to argue orally."

7 He was privately reprimanded in 1984 for endorsing his own name on a check made out to a client, depositing the check into his client funds account, and then altering a copy of the check to mislead the client. In 1995, respondent received a public reprimand for failing to advise an unrepresented investor to seek other counsel before entering an agreement with respondent’s client that provided for a usurious loan. While respondent protests that a portion of this disciplinary history dates from long ago, the fact of prior discipline remains an important factor in assessing appropriate discipline for any further violation. See Matter of Bailey, 439 Mass. 134, 152 (2003); Matter of Dawkins, 412 Mass. 90, 96-97 (1992), and cases cited. Although the 1984 violation occurred many years ago, the Board noted that that earlier misconduct "bears a troubling resemblance to what occurred here: the dishonest fabrication of documentary evidence to cover up misconduct that itself bespoke dishonesty."



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