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Commonwealth of Massachusetts

NO. BD-2004-038

IN RE: John J. Guinane

S.J.C. Order of Term Suspension (1 month) entered by Justice Spina on April 29, 2004, with an effective date of May 29, 2004 . 1

BOARD MEMORANDUM2

The respondent, John J. Guinane, is a sole practitioner whose practice is primarily devoted to criminal defense work through the Bar Advocate program. In 1997 he was appointed successor counsel for one Gerald Jones, who was charged with receiving a stolen vehicle. Police had followed the stolen vehicle and arrested Jones and two others when the passengers abandoned the vehicle and ran. Counsel for one of the codefendants advised the respondent that prosecutors had offered six-month jail terms to the other defendants but were insisting on two and a half years for Jones because of his lengthy criminal record. Jones insisted he would accept no sentence greater than straight probation.

The policeman who filed the incident report on the arrests specifically stated that he had seen Jones driving the car and recognized him “from past dealings with him”—to wit, Jones’ prior tenure in the Suffolk House of Correction. In meetings with the respondent, Jones neither admitted nor denied having been in the car, and the respondent never asked him if he had been. The respondent told Jones that he had good basis for a motion to suppress evidence obtained from the arrest on the ground that there was no legitimate reason to follow the car. This motion was probably the defendant’s best option to avoid conviction.

Such a motion created a dilemma. Jones probably had no standing to bring the motion unless he was in the vehicle when it was stopped. He would therefore have to file a supporting affidavit in which he admitted being in the vehicle. While such an admission could not be entered in evidence against him, it could be used to cross-examine him if he were to take the stand and testify. See Commonwealth v. Rivera, 425 Mass. 633 (1997). As a consequence, the filing of an affidavit would make it extremely imprudent to take the stand at trial. The respondent did not believe the dilemma carried much force here because he did not anticipate putting his client on the stand, given his extensive criminal record, and because the arresting officer and the codefendants placed Jones in the car, a fact Jones never denied.

The motion had to be filed within seven days before the hearing. The respondent prepared the motion and an affidavit for Jones’ signature. Finding himself too busy to drive sixty-five miles to get Jones’ signature on the affidavit and believing in good faith that Jones would have signed the affidavit, the respondent signed Jones’ name to it, under the penalties of perjury and without Jones’ knowledge or authority. He then filed the motion and affidavit with the court.

The motion was heard and denied on the day before trial commenced. The next day, the respondent filed a motion in limine to exclude the police officer’s testimony that he knew Jones from the house of correction. The trial judge allowed the motion but warned that the evidence would be allowed if the issue of identification were brought out during cross-examination.

Then, just before trial commenced, Jones fired the respondent and elected to act as his own counsel. At the court’s request, the respondent acted as standby counsel. To his surprise, Jones took the stand and testified that he had not been in the car when it was stopped. At the time this did not seem significant to the respondent because, despite the respondent’s advice to the contrary, Jones had already asked questions of the police officer that permitted him to explain that he knew Jones from his prior incarceration. As it happened, the affidavit was not used to cross-examine Jones.

Jones was convicted and sentenced to two and a half years’ imprisonment. After the conviction was affirmed on appeal (the issue of the affidavit did not arise), Jones brought a malpractice action against the respondent. It was dismissed. Jones then sought issuance of a criminal complaint against the respondent for forgery. His request was denied.

A hearing committee concluded that the respondent’s conduct in filing an affidavit to which he had signed Jones’ name under the penalties of perjury violated Canon One, DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation), (5) (conduct prejudicial to the administration of justice), and (6) (conduct adversely reflecting on fitness to practice); and Canon Seven, DR 7-102(A)(3) (failure to make disclosure required by law) and (5) (knowingly false statement of fact). The committee also concluded that the respondent’s failure to discuss the contents of the affidavit with his client before filing it violated Canon Six, DR 6-101(A)(2) (inadequate preparation) and (3) (neglect of a legal matter).3

In aggravation of the misconduct, the committee took note that the respondent had been admonished for commingling funds and inadequate record keeping. AD 98-53, 14 Mass. Att’y Disc. R. 908 (1998). In mitigation, the committee pointed to his service record during the Vietnam War, his public service efforts, the absence of any self-interest in the transaction, and his remorse for his misconduct. The committee recommended a public reprimand with a one-year term of probation conditioned on peer monitoring and on his attendance at an MCLE course in law office management.

Bar Counsel has appealed only from the committee’s proposed sanction, which he views as “too lenient.” The respondent asks us to adopt the committee’ sanction. Oral argument having been waived by the parties, see Rules of the Board of Bar Overseers, Section 3.50(b), we have considered the appeal on the papers.

We note at the outset that the probationary term suggested by the hearing committee seems plainly inappropriate. There is no fit between the misconduct, which at its core involves an act of some dishonesty, and the terms of probation, which include taking a course in office management and reporting to a peer monitor. What conduct, we are left to ask, would the peer monitor? While the respondent may have been tempted to cut an ethical corner because he was “incredibly busy,” there is no finding that his office was mismanaged or that different management practices could even have left him less busy, let alone more inclined to do the right thing when pressed. In fact, he acknowledged at the hearing that he should have filed the affidavit without a signature if the crush of other duties prevented him from getting it in advance. Given this lack of fit, we come away with the sense that the recommendation for probation bespeaks more an unwillingness to face a necessary suspension than a considered prescription for avoiding a recurrence of the misconduct.

We are left, then, with the stark choice between an unadorned public reprimand and a term suspension. The weight of the factors militates toward suspension. By signing Jones’ name to the affidavit and filing it with the court, the respondent made a deliberate misrepresentation to the court. Even though the substance of the affidavit was not false, the respondent obviously expected the court to accept the signature as genuine. This act alone normally would warrant at least a public reprimand. See, e.g., Matter of Cowin, 2 Mass. Att’y Disc. R. 48 (1981) (public reprimand where client signed blank page); Matter of Cross, 15 Mass. Att’y Disc. R. 157 (1999) (public reprimand for intentional but non-material misrepresentations in certificate of service).

If the matter had stopped there, we might have seen fit to order a reprimand. We must also weigh, however, the fact that the respondent took this action—filing, as he himself acknowledged during hearing, a document that incriminated his client—without consulting him on the point. In their briefs on appeal, the parties dispute the potential for prejudice in filing the affidavit; certainly, it was only fortuitous that the prosecutor for some reason did not make devastating use the admission in the affidavit during cross-examination. The telling point, however, is that the respondent committed his client on the record to a critical trial strategy—one affecting the right and efficacy of testifying on his own behalf—without directly involving him in that important decision. That was prejudice enough. As Bar Counsel observes, the reason the respondent did not foresee or anticipate that Jones would testify was because he never talked to him about the issue that made its way into the affidavit. In our judgment, failure to get his client’s informed consent tips the scales toward suspension.

Finally, we must weigh the respondent’s disciplinary history. The admonition, though involving unrelated misconduct, must be given some force here. See Matter of Dawkins, 412 Mass. 90, 96, 8 Mass. Att’y Disc. R. 64, 71-72 (1992) (even unrelated prior discipline is always an important factor in choosing a sanction). Under all these circumstances, suspension is required. Instead of the six-month term recommended by Bar Counsel, however, we believe a one-month suspension is adequate.

Conclusion

For all of the foregoing reasons, we adopt and incorporate by reference the hearing committee’s findings of fact and conclusions of law but reject its proposed disposition. An Information shall be filed with Supreme Judicial Court recommending that the respondent, John J. Guinane, be suspended from the practice of law for one month.

Respectfully submitted,
THE BOARD OF BAR OVERSEERS

By: ___________________________
Alan D. Rose
Secretary

Approved: March 8, 2004

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.

3 The committee rejected a charge that the respondent’s conduct also violated Canon Seven, DR 7-101(A)(3) (intentional prejudice to client), apparently because the affidavit was not used against his client on cross-examination. Bar Counsel has not objected to this conclusion, and we see no reason to disturb it.



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