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Commonwealth of Massachusetts

NO. BD-2004-034

IN RE: RICHARD N. IVKER

S.J.C. Order of Term Suspension entered by Justice Sosman on August 31, 2004, with an effective date of September 30, 2004. 1

MEMORANDUM OF DECISION

The Board of Bar Overseers (board) has filed an information recommending that respondent Richard Ivker be suspended from the practice of law for two years. The respondent contests the findings with respect to certain of the alleged ethical violations, and contends that the recommended term suspension is not appropriate. For the following reasons, I find no error in the determination that the respondent committed the underlying violations, and I adopt the board's recommended sanction of a two-year suspension.

1. Background. The respondent was admitted to the Massachusetts bar in 1982. His practice has consisted largely of criminal defense work. The petition for discipline alleged violations stemming from his representation of two criminal defendants in separate (and unrelated) matters. The hearing committee's findings, adopted by the board, are summarized as follows.

In 1994, the respondent was retained to represent Luis Espada on charges of trafficking in cocaine (over 200 grams) and conspiracy. Espada had been stopped by the State police on traffic violations, and arrested for operating without a license. A subsequent search of the vehicle uncovered 249 grams of cocaine. Both Espada and his passenger, James Carabali, were then arrested on trafficking and conspiracy charges. Espada's mother retained the respondent within a few days of Espada's arraignment; Carabali was represented by a public defender. A few days later, the respondent succeeded in obtaining a reduction of Espada's bail, whereupon Espada was released on that reduced bail. The hearing committee credited Espada's testimony that the respondent, on multiple occasions, advised him to flee the country rather than stay to face the pending charges. The respondent told Espada that he had many clients from the Dominican Republic, and that they would go back to the Dominican Republic, obtain a new identity, and return within a month. Espada did not follow the respondent's advice. When he came to court on the date of the scheduled trial, the respondent again advised him to flee. Espada ultimately pled guilty to a reduced charge, and was sentenced to from ten to twelve years on the trafficking charge and a concurrent sentence of from nine to ten years on the conspiracy charge. The hearing committee concluded that the respondent's repeatedly advising his client to flee the country to avoid prosecution violated S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (4), (5) and (6), as appearing in 382 Mass. 769 (1981), and S.J.C. Rule 3:07, Canon Seven, DR 7-102 (A) (7), as appearing in 382 Mass. 785 (1981).

The other ground for discipline alleged in the petition stemmed from the respondent's representation of Julio Flores in 1993 and 1994. Flores, represented by other counsel, had pled guilty to two counts of trafficking in cocaine (twenty-eight to one hundred grams), for which he had received two concurrent five-year minimum mandatory sentences, and one count of trafficking in cocaine (fourteen to twenty-eight grams), for which he had received a three-year mandatory sentence. Those sentences had been imposed on December 1, 1992. In March, 1993, Flores retained the respondent to investigate what he believed was an error in the structure of his sentences. Flores was under the impression that his three-year sentence was also to be a concurrent sentence, whereas the Department of Correction took the position that the three-year sentence was to be served on and after the other sentences. The respondent charged Flores a flat fee of $3,000 to investigate and correct this ostensible error, and a family member provided the respondent $2,200 in partial payment of that fee. The respondent contacted the court clerk by telephone, who confirmed that the docket reflected that the three-year sentence was a consecutive, not a concurrent, sentence. Without any further investigation (e.g., contacting prior counsel, contacting the prosecutor, or obtaining a transcript of the change of plea and sentencing), the respondent informed Flores that there was no error, and that he would need additional payment if he were to proceed with a motion to vacate the plea itself. A family member arranged to provide the respondent with another $500. However, the respondent did nothing further on Flores's case.

In February, 2005, Flores sent the respondent a demand letter under G. L. c. 93A, complaining that the respondent had taken no action and asking that $2,000 of the monies advanced be refunded. The respondent did not reply. Flores proceeded to file a complaint with bar counsel, and also to file a civil action against the respondent. Following mediation, the civil action was settled with the respondent refunding $1,500 to Flores, but a condition of that settlement was that Flores withdraw his complaint to the board. When bar counsel advised the respondent that such a settlement term violated the rules, the respondent notified Flores that he (Flores) was not required to withdraw the complaint as part of the settlement, and the respondent refunded the $1,500 as agreed.

With respect to the allegations stemming from the Flores matter, the hearing committee found that the respondent had violated S.J.C. Rule 3:07, Canon 2, DR 2-110 (A) (3), as appearing in 411 Mass. 1318 (1992); S.J.C. Rule 3:07, Canon 7 DR 7-101 (A) (3), as appearing in 382 Mass. 784 (1981); S.J.C. Rule 3:07, Canon 9, DR 9-102 (B) (4), as appearing in 419 Mass. 1303 (1995); S.J.C. Rule 4:01, § 10, as appearing in 425 Mass. 1313 (1997); and Mass. R. Prof. C. 8.4 (d), 426 Mass. 1429 (1998). These violations stemmed from the respondent's failure to refund the unearned portion of his fee and his improperly requiring Flores to withdraw his complaint as a condition of settling the fee dispute. However, the hearing committee rejected bar counsel's additional contention that the respondent's representation of Flores, although "scant and sloppy," amounted to any ethical violation. The board, however, disagreed with the hearing committee's conclusion on that point, and determined that, in addition to the other violations, the respondent had neglected the matter entrusted to him, failed to seek the client's lawful objectives, and failed to carry out the essence of his agreement with the client. The board therefore concluded that the respondent had also violated S.J.C. Rule 3:07, Canon 6, DR 6-101 (A) (2), as appearing in 382 Mass. 783 (1981); and S.J.C. Rule 3:07, Canon 7, DR 7-101 (A) (1) and (2), as appearing in 382 Mass. 784 (1981).

2. Discussion. The respondent challenges the findings of violation stemming from his advising Espada to flee the country to avoid prosecution. At the hearing, the respondent testified that he had never given Espada any such advice, and the witnesses who testified to the contrary were vigorously cross-examined. Before the board, and again before me, the respondent contends that the hearing committee should not have credited the testimony of Espada (and the various witnesses who corroborated Espada's testimony) – e.g., the respondent points to ostensible inconsistencies in their testimony, argues that their testimony was implausible, and suggests that they had a motive to accuse the respondent of misconduct in order to help Espada obtain a reduced sentence. The respondent further contends that he was entitled to a "thorough and reasoned explanation" of the hearing committee's credibility determinations, particularly the committee's decision to credit these witnesses with respect to their allegation that the respondent advised Espada to flee, while simultaneously discrediting them with respect to their allegation that the respondent sought to "control" counsel for the codefendant (see note 2, supra). See Herridge v. Board of Registration in Medicine, 420 Mass. 154, 164-165 (1995) (requiring agency to provide explanation for decision to credit part of patient's testimony while rejecting significant portions of same testimony).

In bar discipline cases, the hearing committee operates as the "sole judge of the credibility of the testimony presented at the hearing," and review of the hearing committee's findings must "pay[] due respect" to the committee's role as the "sole judge" of credibility. S.J.C. Rule 4:01, § 8 (4), as appearing in 425 Mass. 1309 (1997). Absent clear error, the hearing committee's findings are not to be disturbed. See Matter of Provanzano, 5 Mass. Att'y Disc. R. 300, 303-304 (1987). Indeed, the deferential nature of the review of the committee's findings has been likened to that shown to a jury's assessment of the credibility and weight of the evidence. See Matter of Hachey, 11 Mass. Att'y Disc. R. 102, 103 (1995) (committee finding not to be disturbed unless "wholly inconsistent" or "irreconcilable" with other findings).

Here, the committee was confronted with a classic – and straightforward – problem of deciding whether to credit the respondent's version of what he told Espada or to credit instead Espada's version of those same conversations. The committee's decision to credit Espada's version (corroborated in its most critical respect by several other witnesses) is not clearly erroneous. See Matter of Tobin, 417 Mass. 81, 85-86 (1994); Matter of Saab, 406 Mass. 315, 328 (1989).

The respondent's argument that the committee was required to explain the rationale for its credibility determination is unpersuasive, as his reliance on Herridge v. Board of Registration in Medicine, supra, is misplaced. The board contends that the principles of Herridge are not applicable to the review of the committee's findings, given the express reference in the rules to the committee's role as the "sole judge" of credibility. See Matter of McCabe, 13 Mass. Att'y Disc. R. 501, 506-507 (1997).

It is not necessary to parse whether the review of bar discipline findings should be treated in the same manner as review of administrative agency findings under G. L. c. 30A, because, even if the review standard is identical, the respondent reads Herridge far too broadly. Nothing in Herridge suggests that agencies must explain their rationale for each and every credibility determination they make. Rather, in Herridge, the complaining witness had given inconsistent versions of events, and the agency had discredited "significant portions" of her testimony on critical points, but had – in a seemingly irrational manner – adopted certain pieces of her testimony. Herridge v. Board of Registration in Medicine, supra at 163-164. Moreover, the agency's stated reasons for disbelieving the physician's testimony were reasons that "lacked support in the record." Id. at 164. Against that backdrop, the court remanded the matter for an "adequate explanation" of the credibility determinations it had made. Id. at 167. The agency's decision was ultimately set aside when, on remand, it was still unable "to provide an adequate explanation as to why it has treated parts of the patient's testimony as credible when it has rejected as untrue so much of that testimony." Herridge v. Board of Registration in Medicine, 424 Mass. 201, 206 (1997).

The present case presents no such lopsided or puzzling combination of crediting and discrediting witness testimony. Espada's testimony to the effect that the respondent had advised him to flee was corroborated by several other witnesses, who had either heard the respondent give that advice or to whom the respondent had acknowledged giving that advice, and the hearing committee's report expressly references the fact that Espada's testimony was so corroborated. That the hearing committee did not credit some of those same witnesses on an entirely separate point – the reasons the respondent gave for recommending that they provide funds so that codefendant Carabali could obtain private representation – does not undermine the credibility determination that was made with respect to the advice to flee. As bar counsel points out, advice to flee the country, with the observation that by doing so Espada could obtain a new identity and return in a short time, is unambiguous and readily understood. By comparison, explanation of the strategic benefits that would flow if codefendant Carabali had vigorous representation would be more subtle, and could be misunderstood to suggest an ability to "control" Carabali. Here, there is an apparent, and eminently rational, reason for believing the witnesses on one subject of their testimony while not crediting them on a separate, and unrelated, subject. Nothing in the hearing committee's report suggests the kind of arbitrary credibility determinations at issue in Herridge, and no further explanation is required in order to conclude that the committee's findings were not clearly erroneous.

3. Sanction. Of primary concern in bar discipline cases is "the effect upon, and perception of, the public and the bar." Matter of Kerlinsky, 428 Mass. 656, 664 (1999), quoting Matter of Finnerty, 418 Mass. 821, 829 (1994). The sanction imposed should not be "markedly disparate from judgments in comparable cases." Matter of Finn, 433 Mass. 418, 422-423 (2001). Finally, the board's recommendation with respect to the appropriate sanction is to be accorded substantial deference. See Matter of Tobin, supra at 88.

Here, the hearing committee recommended a suspension of two years, and the board adopted that recommendation. The board took the position that the respondent's misconduct in encouraging a criminal defendant to flee the country was worse than the use of an impostor in Matter of Gross, 435 Mass. 445 (2001), but less egregious than helping a client prepare fabricated, perjured testimony, as in Matter of Foley, 439 Mass. 324 (2002). Where Gross resulted in an eighteen-month suspension, and Foley received a three-year suspension, the board essentially interpolated between those two, and concluded that a two-year suspension was appropriate. While the comparisons are not exact, the board's rankings of the relative seriousness of these respective violations is a reasonable one. If anything, it is somewhat lenient in favor of the respondent. While helping a client concoct perjurious testimony is a direct fraud on the court, counseling a client to flee deprives the court of any ability to adjudicate the charges. Failure to appear is itself a punishable offense, and a client who follows such advice is exposed to considerably increased penalties. See G. L. c. 276, § 82A. As such, advising a client to flee seriously undermines the administration of justice, and places the client at considerable risk.

The respondent contends that giving such improper advice would not be as serious where, as here, the client did not follow it. Whether the client does or does not follow the advice to flee does not mitigate the seriousness of the attorney's violation in rendering such advice in the first place. The respondent also suggests that flight is something that any defendant released on bail could think of, on his own, without an attorney suggesting or advising it. That is hardly a distinction from Foley – clients can (and do) decide to testify falsely, without an attorney suggesting that they do so. The whole point is that such crimes – perjury and failure to appear – should not be encouraged by attorneys.

The cumulative effect of multiple violations is to be considered in determining the appropriate sanction. See Matter of Tobin, 417 Mass. 81, 88, 91 (1994). While the respondent's violations in the separate Flores matter would not, by themselves, warrant a term suspension, their presence should not be completely overlooked. The violations committed in connection with advising Espada to flee, standing alone, warrant a two-year suspension. Given that there are additional, separate violations, although far less grave, the appropriateness of that sanction is reinforced.

ORDER

For the foregoing reasons, the respondent is hereby ordered suspended from the practice of law for two years.

Martha B. Sosman, Associate Justice
Supreme Judicial Court

August 31, 2004

ENDNOTES:

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

2 Some time later, represented by new counsel, Luis Espada filed a motion to withdraw his guilty plea and ultimately obtained a reduced sentence.

3 The petition for discipline had also alleged that the respondent had recommended to Espada and his family that they pay for codefendant James Carabali's legal fees so that Carabali could obtain private counsel through whom the respondent could "control" Carabali. The hearing committee found that this allegation had not been proven. The respondent had recommended that Espada's family pay fees for Carabali to retain private counsel (a recommendation that they followed), but the respondent had sound and legitimate reasons for wanting the codefendant to be represented by experienced and zealous counsel. The respondent did not interfere with codefendant's case or influence codefendant's counsel.

4 Indeed, the respondent's own version was that, in his view, Carabali's case was very defensible, that experienced and zealous counsel would likely encourage Carabali to defend the charges rather than to plead and cooperate with the Commonwealth, and that, as a result, the likelihood that Carabali would cooperate with the Commonwealth and provide damaging evidence against Espada would decrease if he were represented by such an attorney. In explaining to Espada and his family how paying for Carabali's counsel would make it less likely that Carabali would provide information or testify against Espada, it is not surprising that lay persons might misunderstand this explanation as meaning that the respondent would then have some leverage over Carabali or his counsel.

5 The hearing committee was of the view that the respondent's misconduct was worse than that at issue in Matter of Foley, 439 Mass. 324 (2002). At the time the hearing committee made its recommendation of a two-year suspension, the Single Justice's decision to impose an eighteen-month suspension in Foley was still being reviewed by the court. As such, the hearing committee recommended a two-year suspension (six months more than had at that time been imposed on Foley), based on its view that the respondent deserved a lengthier suspension than Foley. By the time of the board's review, the court had increased the term suspension in Foley to three years. The board agreed with the hearing committee's recommendation of a two-year suspension, but it did not accept the rationale articulated by the hearing committee.



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