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Commonwealth of Massachusetts

NO. BD-2003-021

IN RE: STEVEN E. FELD

S.J.C. Order of Term Suspension entered by Justice Spina on November 17, 2003, with an effective date of December 16, 2003.1

MEMORANDUM OF DECISION

The Supreme Court of New Hampshire suspended the respondent, Steven E. Feld, from the practice of law in New Hampshire for one year. Feld's Case, 815 A. 2d. 383 (2002)(Feld II), cert. denied, New Hampshire Professional Conduct Committee v. Feld, 021666 (denied October 6, 2003). Bar counsel filed a petition for reciprocal discipline pursuant to Supreme Judicial Court Rule 4:01, § 16, in which he seeks a one year suspension from the practice of law. The respondent has opposed the petition, contending that imposition of the same discipline would result in a grave injustice, there was infirmity of proof establishing the misconduct, and that the established misconduct does not justify the same discipline in the Commonwealth of Massachusetts.

Background.

Emile Bussiere sold a 76-unit apartment building in Manchester, New Hampshire to Stephen Bronstein in 1984. Bronstein financed the purchase with a bank loan secured by a mortgage. The recorded mortgage and other unrecorded documents indicated that the mortgage was subject to Bussiere's leasehold in one of the apartments. Bronstein defaulted on that loan in 1993. Carolyn Roberge became interested in purchasing the mortgage and retained the respondent to search the title and investigate the property interest held by Bussiere. When Bussiere discovered that Ms. Roberge signed an option agreement to purchase the mortgage he faxed her a letter describing his interest in the property with the unrecorded documents regarding the lease. Ms. Roberge showed the letter to the respondent and neither of them replied to Bussiere. After failing to reply to a second letter by Bussiere, Ms. Roberge purchased the mortgage on September 7, 1994.

The respondent commenced an eviction action against Bussierre in 1995, to which Bussiere responded with an equity action in the New Hampshire Superior Court. The respondent's involvement in the responses to Bussiere's discovery requests and the respondent's conduct during depositions are the subject of Bussiere's complaint of professional misconduct. The Supreme Court of New Hampshire Supreme held that the respondent's conduct violated New Hampshire Rules of Professional Conduct 3.4 and 8.4 and imposed a public censure. See In Re Feld's Case, 737 A.2d 656 (1999)(Feld I).

The respondent petitioned the court to vacate both the opinion and the referee's report, alleging that a recused justice of the Supreme Court of New Hampshire had improperly tried to influence the outcome of Feld's case. The justice in question subsequently resigned from his position on that court. The court vacated its opinion but denied the motion to vacate the referee's report. Three judges of the New Hampshire Superior Court were specially assigned under statutory authority to decide the case. The parties submitted new briefs and the respondent alleged that the judicial impropriety of the recused justice tainted the entire case, requiring its dismissal. The respondent also argued that his conduct during discovery did not violate the New Hampshire Rules of Professional Conduct. The court declined to address whether the judicial impropriety in the first case required dismissal of the second case because only the referee's report, and not the first opinion, was being considered in the second case. The court also declined to dismiss the respondent's case for "irreparable harm" because none of the same justices involved in the first case were to sit on the second case. See Feld II.

The reconstituted panel of the court identified three separate incidents in which the respondent violated the New Hampshire Rules of Professional Conduct and the New Hampshire Superior Court Rules. The first incident concerned Ms. Roberge's response to Bussiere's request for admissions and her subsequent deposition. Bussiere requested that Ms. Roberge admit that his letter describing his property interest and accompanying documents regarding his lease were complete and genuine. The judicial referee found that the respondent knowingly served a false response on behalf of Ms. Roberge. The response stated that the letter "was never received by Carolyn M. Roberge." However, Ms. Roberge had given the letter and documents to the respondent when she received them. The response was followed by several evasive answers by Ms. Roberge during her deposition, at which the respondent was present, regarding Bussiere's letter. The court held that by knowingly signing a false response to a request for admissions and later allowing Ms. Roberge to evade important deposition questions, the respondent violated rule 3.4(b) ("assist a witness to testify falsely"), 3.4(c) ("knowingly disobey an obligation under the rules of a tribunal"), 3.4(d) ("fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party"), and Superior Court Rule 35(b)(1) ("parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action"). See Feld II, at 337.

The second series of incidents for which the Supreme Court of New Hampshire sanctioned the respondent arose from Bussiere's discovery regarding Ms. Roberge's father, Roland Roberge. The respondent prepared and served Ms. Robarge's answers to twenty-three interrogatories, including a response about the financing for the purchase of the apartment building. That response consisted of a one-paragraph answer that ended "I have no further personal knowledge not learned through my legal counsel." The respondent did, however, have knowledge that Mr. Roberge transferred a significant amount of money to his wife for a portion of the purchase price of the apartment building. By reviewing and sending this response with knowledge of Mr. Roberge's involvement, the respondent intentionally engaged in conduct that was evasive and unresponsive, violating rule (b)-(d)("assist a witness to testify falsely . . . knowingly disobey an obligation under the rules of the tribunal . . . fail to make a reasonably diligent effort to comply with legally proper discovery request"). See Feld II, at 338.

The third incident occurred during Mr. Roberge's deposition. In the morning hours of the deposition the respondent allowed Mr. Roberge to provide evasive responses to Bussiere's questions regarding his involvement in financing the purchase of the apartment building. During the lunch break Mr. Roberge told the respondent that he had in fact transferred a significant amount of money to his wife to make the purchase on behalf of the corporation that she and Ms. Roberge had formed to buy the building. After lunch, Bussiere directly asked Mr. Roberge whether he had transferred any money to his wife for the real estate purchase. The respondent immediately asserted the attorney-client privilege, leaving the question unanswered. The Supreme Court of New Hampshire concluded that the assertion of attorney-client privilege to evade disclosure of Mr. Roberge's involvement in the transaction was not legitimate and made in bad faith in violation of rules 3.4 (c), (d) ("knowingly disobey an obligation under the rules of the tribunal . . . fail to make a reasonably diligent effort to comply with a legally proper discovery request") and Superior Court rule 35(b)(1). The court also concluded that these violations of rule 3.4(b)-(d) lead to a violation of rule 8.4(a) ("violate or attempt to violate the Rules of Professional Conduct"). See Feld II, at 390.

The Supreme Court of New Hampshire addressed five mitigating factors that had been considered by the referee, namely, "the absence of a prior disciplinary record . . . Feld's cooperation with the Professional Conduct Committee . . . the absence of a dishonest motive . . . Feld's good faith efforts to remedy the effects of his misconduct . . . and Feld's remorse for his actions." The court accepted the referee's findings as to the first factor. As to the second factor the court noted that there is a duty to cooperate with the Professional Conduct Committee and that the respondent never admitted violating the ethical rules. The court rejected the referee's findings as to the final three factors. In light of the pattern of misconduct and the mitigating effects, the court suspended the respondent from practice for one year.

Discussion.

A bar discipline judgment in another jurisdiction is considered conclusive evidence in reciprocal discipline cases. See Matter of F. Lee Bailey, 439 Mass. 134, 136 (2003). A single justice may afford deference to the sanction imposed by another jurisdiction unless: '(a) 'the procedure in the other jurisdiction did not provide notice or opportunity to be heard; (b) there was significant infirmity of proof establishing the misconduct; (c) imposition of the same discipline would result in grave injustice; or (d) the misconduct established does not justify the same discipline in this Commonwealth.' Id.

1. Unfairness of New Hampshire Proceeding. The respondent asserts that his case before the Supreme Court of New Hampshire was irrevocably tainted by judicial misconduct and that the charges against the respondent should be dismissed to preserve the integrity of the judicial process. The respondent also argues that he was denied due process of law because the Supreme Court of New Hampshire declined to grant him a new hearing to determine whether judicial impropriety prejudiced his case. The court rejected the respondent's unfairness claim both when the respondent made his motion to vacate the earlier decision and again in the second case which was based upon the referee's findings. As the court stated, the second case was heard by none of the justices involved in the first case and was based on the referee's findings, not those of the panel tainted by misconduct. The United States Supreme Court has denied certiorari in the case. New Hampshire Professional Conduct Committee v. Feld, 021666 (denied October 6, 2003). Dismissal is not required because the respondent has not shown that he has suffered grave injustice.

2. Comparable Discipline. In reciprocal discipline cases a single justice is charged with determining the appropriate level of discipline in this Commonwealth for the violations found by the sister jurisdiction, and is not bound by the severity of the sanction imposed in the other jurisdiction. Matter of Watt, 430 Mass. 232, 234 (1999). The Supreme Court of New Hampshire held that the respondent 'orchestrated, assisted, counseled and tolerated the formulation of inaccurate and incomplete sworn responses that he knew were inaccurate' during discovery and therefore violated Rules 3.4(b-d), 8.4(a) and Superior Court Rule 35(b)(1). Feld's Case, 815 A.2d 383, 385 (2003). The court stated that "Feld's misconduct was not related to a single incident, but involved separate ethical violations involving different clients occurring over a period of several months." Id. at 391. In light of prior sanctions imposed by this court for similar misconduct, a one year suspension from the practice of law is appropriate discipline in this Commonwealth.

The Supreme Judicial Court has considered a one year suspension appropriate where an attorney misrepresented the terms of a pending real estate transaction to the court in an effort to remove a client's attachment. See Matter of Neitlich, 413 Mass. 416 (1992). In Matter of McCarthy, 416 Mass. 423 (1993), the attorney was suspended for one year for eliciting false testimony and presenting false documents to a rent control board. In Matter of Giuliotti, 10 Mass. Atty. Disc. Reports 133, the attorney was suspended for one year for failure to perform discovery, failure to respond to discovery requests, signing client's name to an interrogatory response without permission, and signing a false affidavit. In Matter of Joyce, 13 Mass. Atty. Disc. Reports 302, the lawyer was suspended for one year for repeatedly making false statements of fact and misrepresentations to opposing counsel, to a third party, and to the court-appointed master. There is no meaningful distinction between eliciting false testimony, signing a false affidavit, or passing along information to opposing counsel during discovery that is knowingly false.

Lesser sanctions have been imposed for misrepresentation where the misrepresentation was made in the course of administrative aspects of litigation. See Matter of Shuman, 437 Mass 1006 (2002) (six month suspension for misrepresentation in pre-trial memorandum detailing expected testimony of expert with whom attorney had not communicated and had no intention of calling to testify); In re Long, 16 Mass. Atty. Disc. R. 250 (2000) (three month suspension for lying to court staff in effort to obtain continuance); Matter of Cross, 15 Mass. Atty. Disc. R. 157 (1999) (public reprimand for knowingly filing return of service containing incorrect information).

In Matter of Foley, 439 Mass. 324, 338 (2003), this court stated that it is the severity of the misconduct that determines the level of sanction imposed, regardless of the party to whom it is directed. Sanctions amounting to a one year suspension have been imposed for conduct that involved "serious errors of judgment" and have in certain cases included a measure of deliberateness. Id. at 339. Although the Supreme Court of New Hampshire did not specifically hold that the respondent made an affirmative misrepresentation to a tribunal, it nonetheless held that the respondent intentionally provided false sworn statements during discovery. Providing false statements, whether to opposing counsel in the process of discovery, as in Matter of Joyce, or to a tribunal during a formal proceeding, as in Matter of Neitlich, is serious misconduct that merits a suspension from the practice of law. Although the respondent did not elicit false testimony, as in Matter of McCarthy, or sign a false affidavit, as in Matter of Giuliotti, he knowingly provided opposing counsel with false information and asserted the attorney-client privilege, without basis, for the purpose of preventing legitimate discovery. Such misconduct fits squarely within the category of conduct that warrants a one year suspension from the practice of law in this Commonwealth. Public reprimand, as the respondent requests, would be an inadequate sanction for behavior that exceeded mere negligence and constituted intentional misconduct. See ABA Standards for Imposing Lawyer Sanctions § 6.22, 6.23 (1991).

An order of suspension for one year is to issue.

By the Court,

__________________________
Francis X. Spina
Associate Justice

Entered: November 17, 2003

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

2 Compiled by the Board of Bar Overseers based on the record before the Court.



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