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Commonwealth of Massachusetts

NO. BD-2004-002

IN RE: JOSEPH PAUL SULLIVAN, JR.

S.J.C. Order Denying Petitioner’s Request that his Suspension be made Retroactive entered by Justice Cordy on February 11, 2008.

MEMORANDUM AND ORDER

The petitioner seeks to have his order of indefinite suspension from the bar made retroactive to the effective date of a prior, unrelated suspension. I decline to grant the relief sought.

The petitioner was initially suspended from the practice of law for one year and one day, effective January 10, 2002, based on his handling of a personal injury case in 1995. On January 13, 2004, I entered an order of indefinite suspension against the petitioner for his conduct as the Executor of a probate estate in July, 2000, specifically, his deposit of a $5,000 check payable to the estate into a personal checking account, and his subsequent use of substantially all of the funds. The presumptive sanction for intentional misappropriation of funds is indefinite suspension. Matter of Schoepfer, 426 Mass. 183, 187-88 (1997).

With respect to the 2004 suspension, the petitioner had entered into a stipulation with bar counsel and admitted the truth of the allegations. The indefinite suspension that I imposed was recommended by the Board of Bar Overseers (board), and was agreed to by the petitioner. It was not imposed retroactively. Supreme Judicial Court Rule 4:01, § 18 (2), as appearing in 430 Mass. 1329 (2000), provides, "[e]xcept as the court by order may direct, a lawyer who has been suspended for an indefinite period may not petition for reinstatement until the expiration of at least five years from the effective date of the order of suspension." Here, because no court order directed otherwise, the petitioner cannot apply for reinstatement until five years from the effective date of his second suspension.

The petitioner argues that his indefinite suspension should be made retroactive to the effective date of his first suspension, and that he is being penalized for not hiring counsel, who would have informed him of the arguments for retroactivity. He also contends that because punishment was not retroactive, it was markedly disparate from penalties in comparable cases, see Matter of Alter, 389 Mass. 153, 156 (1983); that he complied with the terms of his first suspension (although he did not apply for readmission); and that he committed no intervening wrongdoing. He argues that authority favors some form of retroactivity when a lawyer has previously been suspended from the practice of law, citing, For example, Matter of Dawkins, 10 Mass. Att'y Disc. R. 49 (1994); Matter of Friedman, 9 Mass. Att'y Disc. R. 119 (1993).

The decision to make a penalty retroactive is left to the sound discretion of the Single Justice. Matter of Grella, 22 Mass. Att'y Disc. R. 368, 370 (2006). Disparate penalty cases that concern direct challenges to a penalty are distinguished from those concerning challenges to the effective date of a penalty. Matter of Grella, supra at 372. Here, the challenge is only to the effective date of the penalty. The relief is opposed by bar counsel, and was not recommended by the board, to which I give substantial deference.

In deciding whether to make a suspension retroactive, judges look to whether the prior suspension is for a related matter. Matter of Grella, supra at 371. They also look to whether the prior suspension order was complied with, usually in the context of temporary suspensions. Id. See, e.g., Matter of Spearing, 14 Mass. Att'y Disc. R. 731, 735 (1997) (indefinite suspension retroactive to date of compliance with temporary suspension); Matter of LiBassi, 449 Mass. 1014, 1017-18 (2007), and cases cited. Matter of Grella, supra at 370.

In Matter of Catalano, 15 Mass. Att'y Disc. R. 109, 114 (1999), a Single Justice rejected the board's recommendation that a sanction be made retroactive because "[r]espondent has repeated substantial violations of the disciplinary rules, misconduct that ordinarily should not receive a discounted sanction for the sole reason that he presently is under suspension from admittedly unrelated misdeeds." In this case, like in Matter of Catalano, supra, the petitioner, who has committed repeated violations of the disciplinary rules, should not benefit from an unrelated prior sanction.1 Although some authority may favor retroactivity when an attorney has previously been suspended, prior discipline is an aggravating factor in assessing sanctions. Matter of Dawkins, 412 Mass. 90, 96 (1992).

The sanction imposed here, with its effective date, is not markedly disparate from penalties in similar cases. The prior sanction had no relation to the second one. Further, the prior suspension was not a temporary one. The petitioner argues that he complied with his suspension order, which is a factor that is weighed in retroactivity determinations; however, the petitioner knowingly entered a stipulation with bar counsel that did not recommend retroactivity. He is an attorney, there is no evidence that bar counsel took advantage of him, bar counsel recommended indefinite suspension, without retroactivity, and I imposed that sanction.

The petitioner's request that his suspension be made retroactive is denied.


FOOTNOTES:

1 Bar counsel argues that the petitioner, Joseph Paul Sullivan, Jr., has repeatedly violated the disciplinary rules. In addition to his conduct underlying the two suspensions, he did not cooperate with bar counsel's investigation, failing to appear pursuant to a duly noticed subpoena. He also has a history of neglect, having received admonitions for failing to file a property loss claim within the statute of limitations and failing to file a tax abatement application within the allotted time period.



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