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S.J.C. Judgment of Disbarment entered by Justice Cowin on August 8, 20031
Judgment modified on appeal, 442 Mass. 285 (2004)


This matter came before me on an information and record of the proceedings and a vote and memorandum of the Board of Bar Overseers (board). Bar counsel initiated the matter by a petition for discipline alleging that Michael G. Moore, the respondent, violated S.J.C. Rule Canon 1, DR 1-101 (A) and DR 1-102(A) (4), (5), and (6), by making misrepresentations on his Massachusetts bar application and certifying that the answers were truthful. The respondent denied that he intended to deceive, and asserted that the answers he gave on his application were, literally speaking, correct. The hearing committee found that the respondent violated each of the cited disciplinary rules and recommended that the respondent be disbarred. The respondent appealed to the board.

An appeal panel of the board adopted the hearing committee's findings of fact and conclusions of law, but modified the suggested disposition, recommending instead an eighteen-month suspension. Both bar counsel and the respondent filed objections to the appeal panel's report. A majority of the board adopted the appeal panel's report and its recommendation of an eighteen-month suspension. Two board members preferred greater (unstated) discipline. Now, the respondent requests that I revise the findings of the hearing committee to exonerate him or, alternatively, that I impose a one-month or two-month suspension. Bar counsel seeks a disbarment order.

1. Facts. The hearing committee issued extensive findings of fact after an evidentiary hearing at which the respondent and several others testified and numerous exhibits were received in evidence. I summarize the hearing committee's findings.

The respondent was admitted to the bar of Connecticut in 1975, and was then employed by an attorney in Tolland, Connecticut, who operated a collection agency. Within six months, that attorney filed formal charges of misconduct against the respondent. A grievance committee heard evidence that would have supported a finding that the respondent had (1) forged a clerk's name on an execution of a nonexistent judgment, (2) held himself out as a court clerk by signing two other "executions," and (3) failed to remit funds to clients. Criminal charges (forgery, larceny, and criminal impersonation) were also filed. The respondent ultimately agreed to resign from the bar; the grievance committee terminated its investigation; and the prosecutor dropped the criminal charges. The respondent sought reinstatement in 1981 but failed to sustain his burden of proving good moral character. In particular, the three-judge panel of the Connecticut Superior Court that reviewed the readmission application found that the respondent's testimony in support of readmission "seem[ed] to indicate that he lacks a full appreciation of the fact that the profession of law is a high calling, and of the serious obligations assumed thereby as an officer of the court and as the confidential manager of the affairs and business of others entrusted to his care." Alt

hough he had not been readmitted as an attorney, the respondent nevertheless, in 1982, entered an appearance in a Connecticut court on behalf of a corporation in which he had an interest. In response, the Connecticut Superior Court entered an injunction "prohibiting [the respondent] from engaging in the unauthorized practice of law in the state of Connecticut" and the respondent was fined $750 for unauthorized practice of law. The respondent has never been readmitted to the bar of Connecticut.

In January, 1994, the respondent sought admission to the bar of Massachusetts. He passed the Massachusetts bar examination on his second attempt and was admitted to practice law in Massachusetts in December, 1994. His original application and his supplementary application (filed in June, 1994) required the respondent to answer certain questions. He indicated that he had been admitted to practice in Connecticut and to the United States District Court for the District of Connecticut. Because the answers the respondent provided to certain other questions form the basis of the present disciplinary proceeding, I discuss them in some detail. Both the original and the supplementary applications required the respondent to certify that each of the answers he provided "is true, complete, and candid."

Question 10(a): "Have you ever been disbarred, suspended, reprimanded, censured, or otherwise disciplined or disqualified as an attorney, or as a member of any other profession, or as a holder of any public office?"

A: "No."

The hearing committee found that the respondent's answer to this question was deliberately false, made with the intent to deceive. His resignation during disciplinary proceedings, the denial of readmission, and the injunction were all orders or actions by which the respondent was "otherwise disciplined or disqualified as an attorney."

Question 12: "Have you been a party in any non-criminal legal proceeding not covered by Question 11 other than divorce or separate maintenance?"

A: "No."

(Question 11 had asked if the respondent, within the past seven years, had been convicted of conduct deemed to be a felony in the jurisdiction where judgment was rendered. In fact, in 1993 the respondent had filed a civil action in the United States District Court for the District of Connecticut alleging wrongful termination based on age discrimination against a community college where he was an adjunct professor. The college president responded that the refusal to renew the respondent's contract was due to problems with the respondent's teaching and two complaints of sexual harassment lodged against him. The hearing committee found that the respondent acted with intent to deceive when he answered this question.

The respondent's position before the hearing committee (and before the board) was that his answers to the questions were responsive to the precise language of the questions and, read literally, accurate. For example, the respondent testified that Question 12 led him back to Question 11; because Question 11 provided a "statute of limitations," and because it sought information concerning criminal cases where he was a defendant, the respondent imported these features to Question 12. Accordingly, he thought that Question 12 sought only information concerning cases in which he was a defendant, not a plaintiff. Thus, pursuant to the respondent's reasoning, the discrimination case need not be listed, because he was a plaintiff, not a defendant. He claimed that he did not have the intent to deceive.

The hearing committee rejected such explanations as "lacking in candor and unworthy of belief," basing this finding on its evaluation of the respondent's testimony and demeanor, as well as its belief that the respondent's answers "demonstrate a consistent pattern of omitting any information which might reveal his resignation from the Connecticut bar, which might otherwise prove embarrassing to him, or which might induce the [Board of Bar Examiners] to begin an investigation." It found that he had omitted reference to the discrimination suit to prevent the Board of Bar Examiners from learning that charges of sexual harassment had been filed against him.

In addition, the bar application required the respondent to list all employment and any business or profession in which the respondent had engaged since his eighteenth birthday. The respondent listed three periods of employment that appeared to be a complete and continuous list of employment since 1973. He did not list: (1) his employment as a lawyer at the collection agency in 1975, (2) his service as a lawyer in the Judge Advocate General's Corps of the United States Army in 1976, a position from which he resigned when the Army learned that there was an outstanding warrant for the respondent's arrest in Connecticut (on the charges arising from his employment with the collection agency), (3) his operation of a restaurant in Waterbury, Connecticut, in connection with which he was fined for unauthorized practice of law (and charged with, but acquitted of, arson), or (4) his employment at the community college that gave rise to his discrimination suit (and the allegations against him of sexual harassment). The hearing committee found that the respondent's answers regarding his employment were "incomplete, deceptive, and adapted to prevent the [Board of Bar Examiners] from obtaining information embarrassing to the respondent or which might interfere with his admission to the Massachusetts Bar."

In sum, the hearing committee determined that the respondent was simply not credible in denying that he had an intent to deceive. "The respondent's efforts to reinterpret and recharacterize the questions of the bar application in order to justify his withholding clearly relevant and specifically requested information only demonstrates his penchant for mendacity. The respondent acted deliberately and intentionally in constructing his answers to the questions . . . ." The hearing committee concluded that the respondent's answers to Questions 10(a) and 12, and his false certification that the answers were truthful, complete, and candid, violated DR 1-101 (A) and DR 1-102 (A) (4), (5), and (6). In aggravation, the hearing committee found that the respondent "displayed duplicity and a lack of candor before the Hearing Committee. It is our distinct impression that the respondent has failed to recognize the gravity of his misconduct and take responsibility for it and lied to the Committee." It recommended that the respondent be disbarred.

2. Substantial evidence. The respondent challenges the board's findings that he acted with the intent to deceive. The disputed findings were made on ample evidence and were based in large part on the credibility determinations of the hearing committee. The hearing committee was in the best position to make such a determination. I do not disturb those findings. See Matter of Abbott, 437 Mass. 384, 394 (2002); Matter of Wise, 433 Mass. 80, 87 (2000). To the extent that the respondent argues that he should be absolved because he answered in literal compliance with a viable interpretation of the questions, I do not agree. The respondent certified that his answers were "true, complete, and candid" when, in actuality, they were incomplete and made with intent to deceive. As the appeal panel noted, the disciplinary rules prohibit more than outright perjury. They proscribe conduct involving dishonesty, fraud, deceit, or misrepresentation, conduct prejudicial to the administration of justice, and conduct that adversely reflects on the fitness to practice law. By deliberately concealing incidents in his past, with the intent to deceive the Board of Bar Examiners and prevent them from obtaining information relevant to his moral fitness to practice law, the respondent violated DR 1-101 and DR 1-102 (A) (4), (5), and (6).

3. Appropriate sanction. All of the above is in accordance with the findings and conclusions of the three bodies that have considered this matter: the hearing committee, the appeal panel, and the board. Those bodies have not agreed, however, on the appropriate sanction and, indeed, bar counsel's position has not been consistent. Bar counsel originally sought suspension for "a year and a day," but then sought disbarment as recommended by the hearing committee. A divided board recommended a suspension for eighteen months. Before me, each party seeks different sanctions.

Each bar discipline case must be decided on its own merits, and each offending attorney must receive the disposition that is most appropriate in the circumstances. Matter of Foley, 439 Mass. 324, 333 (2003). In determining the "appropriate" sanction, the discipline recommendation of the board is entitled to "substantial deference." Id. Nevertheless, the sanction imposed must not be "markedly disparate" from the sanction imposed in similar cases. Id. The primary factor in bar discipline cases is the effect on, and the perception of, the public and the bar. Id. The "appropriate" level of discipline is that "necessary to protect the public and deter other attorneys from the same behavior." Id., quoting Matter of Concemi, 422 Mass. 326, 329 (1996). My role therefore is to examine the nature of the respondent's conduct, the sanction recommended by the board compared to the sanction imposed in analogous cases, and any mitigating factors that may be present.

In deciding that disbarment was a sanction "markedly disparate" from that imposed in analogous cases, the appeal panel relied on four cases involving misrepresentations on bar applications, and concluded that the usual sanctions have been suspensions measured in months rather than years. In Matter of Finn, 433 Mass. 418 (2001), the respondent was suspended for three months where, in connection with his Georgia bar application, he (1) intentionally answered falsely in response to a question regarding student loans, (2) acted with reckless disregard for the truth in response to a question regarding defaulting on loans, and (3) violated other disciplinary rules by engaging in the practice of law in Georgia when he was not admitted there, misrepresenting that he was eligible to practice, distributing a business card with deceptive statements, using stationery with a deceptive letterhead, and failing to maintain proper records of a settlement. In Matter of McGarvey, 15 Mass. Att'y Discipline Rep. 390 (1999), a two-month suspension was ordered where the respondent, also a licensed registered nurse, (1) answered "no" to a question similar to Question 10(a) here, when in reality she had voluntarily surrendered her nursing license in lieu of an administrative hearing and (2) intentionally omitted listing the employment that had given rise to an incident of personal drug use, which, in turn, had resulted in the voluntary surrender of the nursing license. In Matter of Ruzzo, 10 Mass. Att'y Discipline Rep. 233 (1994), the respondent was suspended for one month because he did not disclose that he had applied to practice law in Pennsylvania (in response to a question requiring him to list all jurisdictions where he had applied) and answered "no" to a question like Question 12 here, when in fact he had been a party in proceedings before the Supreme Court of Pennsylvania appealing from the denial of his application.

In Matter of Marshall, BD-2000-059 (Nov. 21, 2000), the respondent, admitted to practice in Massachusetts, applied for admission to the Arizona bar. Her application was denied because the law school she had attended was not accredited by the American Bar Association and she had not practiced in Massachusetts for five years. She reapplied, intentionally and fraudulently misrepresenting her identity as that of another Massachusetts attorney with a nearly identical name. In support of this duplicity, she submitted fabricated and fraudulently procured documents. Her misconduct came to light and, in addition, the hearing committee found matters in aggravation: "she had engaged in a pattern of misconduct that reflected planning and premeditation." She was indefinitely suspended.

The majority of the board and the appeal panel evidently found this case more severe than Matter of Finn, Matter of McGarvey, and Matter of Ruzzo, supra, but less severe than Matter of Marshall. The appeal panel stated: "Nothing in the present case suggests the kind of studied and continued dishonesty that would warrant even the indefinite suspension imposed in Marshall, let alone disbarment." I do not agree.

The respondent's history of misconduct and his multiple misrepresentations are facts that distinguish this case from Finn, McGarvey, Ruzzo, supra, and Marshall. He invented wilfully deceptive interpretations of questions that plainly sought precisely the information he wanted to conceal. The respondent's two-hour "tussl[ing]" over the questions shows that his deception was studied and premeditated; he spent that time, not trying to ascertain the meaning of the questions, but trying to avoid answering them forthrightly. Whether an individual is of good moral character and fit to practice law in the Commonwealth is a most serious issue. Questions of this nature are not to be answered by gamesmanship. The respondent's treatment of the questions and his performance before the hearing committee demonstrate that he has retained the traits that marred him in 1981: to paraphrase the three-judge panel of the Connecticut Superior Court, he is deficient in the understanding of the moral duties of his profession. He concealed from the Board of Bar Examiners information that bore directly and obviously on his fitness to practice law. His conduct was a "calculated effort . . . to frustrate any meaningful examination and investigation of [his] fitness to practice law." In re Mitan, 75 Ill. 2d 118, 126, cert. denied, 444 U.S. 916 (1979). He still seeks to rationalize his deceptive answers to the application questions.

Disbarment is the appropriate sanction. The respondent's lack of candor, truthfulness, and completeness would have been cause for the Board of Bar Examiners to recommend denial of his application for admission. See Corliss v. Bar Examiners, 437 Mass. 1023, 1024 (2002); Matter of an Application for Admission to the Bar of the Commonwealth, 431 Mass. 678, 682 (2000). That he obtained admission to the bar by fraud should place him in no better a position. Deception is a characteristic persistent in the respondent. A mere suspension, of any length or even for an indefinite period, is not appropriate. A suspension implies that the respondent's career as an attorney is salvageable. His misrepresentations and outright fabrications, now in two jurisdictions, show that, when given a lesser sanction, he merely repeats the errors of his past. His misconduct was not isolated and regretted, but continuous and unrepented. He does not possess those attributes we expect and demand of members of the bar. Disbarment is appropriate and necessary to deter future misconduct, protect the public, and preserve public confidence in the bar.

Although the respondent offered mitigating evidence, in the form of witnesses attesting to his good character (through testimony and by affidavit), the appeal panel rejected this as "typical" and "having little force," citing Matter of Alter, 389 Mass. 153, 156-157 (1983) ("typical" mitigating circumstances have generally not diverted disbarment or suspension), and the hearing committee did not mention this mitigating evidence. T10:6 Having reviewed that mitigating evidence, I am of opinion that it is not sufficient to reduce the respondent's culpability.

A judgment shall enter disbarring the respondent from the practice of law.

By the Court

Judith A. Cowin
Associate Justice
Entered:August 8, 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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