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Commonwealth of Massachusetts

NO. BD-2004-055

IN RE: DAVID K. FERGUSON

S.J.C. Order of Term Suspension entered by Justice Greaney on September 26, 2005, with an effective date of October 26, 2005.1

HEARING PANEL'S REPORT AND RECOMMENDATION

In this troublesome matter involving domestic violence, Bar Counsel's Petition for Discipline charges that Respondent David K. Ferguson violated Mass. R. Prof. C. 8.4(b) by engaging in a "criminal act" reflecting "adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer," and violated Mass. R. Prof. C. 8.4(h) by engaging in "conduct that adversely reflects on [a lawyer's] fitness to practice law."

Background and Undisputed Facts

Many of the basic facts are not in dispute, and we therefore find them as follows:

1. Respondent was admitted to the bar in 1995.

2. On February 24, 2003, Respondent was charged in Worcester District Court with one count of assault and battery on his wife, Evelyn Ferguson, in violation of Mass. G.L. c. 265, §13A ("incident"), which occurred on February 21, 2003 in the couple's home.

3. The criminal case proceeded to jury trial on February 25, 2004. At the trial, Respondent testified that he had not assaulted his wife as charged. The jury could not reach a verdict, and the trial ended in a mistrial. (I-25 to 26)2

4. Worcester District Court Judge Sullivan, who presided over the jury trial, recommended that Respondent admit to sufficient facts. Accordingly, on May 5, 2004, Respondent admitted to sufficient facts as to one misdemeanor count of assaulting his wife. (1-28).

5. Under the terms of the Worcester District Court's disposition, Respondent was placed on probation through May 10, 2005, was required to complete successfully a "Respect" program intended for perpetrators of domestic violence, pay victim and administrative fees, comply with an earlier restraining order, and not abuse or contact his former wife. (Ex. 1).

6. As of the time of the hearings in this matter on November 8 and 12, 2004, there appeared to be no dispute that Respondent had complied with these terms of probation, and that if he continued to do so, the case against him would be dismissed on May 5, 2005. While under no obligation to do so, the parties have not reported to the Panel any evidence that would suggest Respondent did not comply with the terms of probation through May 5, 2005.

7. The Petition for Discipline does not charge Respondent with engaging in a pattern of domestic violence or abuse, nor does it charge Respondent with committing perjury at his jury trial when denying what he ultimately admitted both at the hearing on his admission to sufficient facts and before this Panel-- that he assaulted Mrs. Ferguson on February 21, 2003.

8. Bar Counsel's case in chief was brief: Bar Counsel introduced the docket entries in Worcester District Court Criminal Docket No. 0362CR001519 (Ex. 1), the tape of the plea colloquy held on May 5, 2004 (Ex. 2), the eleven-page transcript of the plea colloquy (Ex. 3), which the parties agreed was accurate (1:19-21), and then rested.

9. Pages 6 and 7 of the tape transcript set forth the Commonwealth's version of the assault: On February 21, 2003, the Paxton Police were dispatched to Respondent's and Mrs. Ferguson's home. They determined that there had been an argument between Respondent and his wife, that she was doing the dishes at the sink, and that Respondent:

"walked by and struck her in the back, causing: abrasions to her back, causing some injuries, causing her to go towards the floor with her hands. She was on the floor for a short period of time. The police were called. Paramedics were called. They checked her out. They observed abrasions to her back area. She was taken to the hospital. She was having trouble breathing and there [were] medical records as well to substantiate the abrasion to her back...a small abrasion...a couple of inches in diameter."

When asked by Judge Sullivan:.

"Court: Is that basically what happened?," Respondent replied, "Yes, Your Honor." He further acknowledged that he was "freely, willingly, and voluntarily" admitting to sufficient facts and he said "Yes, your Honor" in response to the Court's question whether he was admitting to sufficient facts "because you committed the offense and for no other reason." (Ex. 3, at 6-7). Mrs. Ferguson chose to be heard at the proceeding. She gave an unsworn statement (Id. at 8), and was not (nor could she have been) cross-examined concerning it.

10. In his Answer to the Petition for Discipline, Respondent admitted the basic underlying facts of the assault, and acknowledged that his admission to sufficient facts, and resulting disposition, constituted a "conviction" under Rule 4:01, §12(1) of the Supreme Judicial Court's Rules.

11. Bar Counsel's case-in-chief thus took up 21 pages of the first day's transcript. The remaining 160 pages from Day 1 and 172 pages of Day 2 concerned evidence in mitigation or aggravation of the charged offense. As stated, Respondent admitted the offense, but, in mitigation, he claimed, inter alia, that the "incident in question constituted an isolated act of very minor force that resulted in no serious or permanent injury to his wife, the victim." Answer to Petition, pp. 2-3.

12. Respondent thus took on himself the burden of proving that the incident charged was isolated. He did so, notwithstanding the limited nature of Bar Counsel's charges against him. He also introduced substantial evidence about the stressors in his life that he claimed had led to his commission of the assault. Bar Counsel countered with evidence that the assault was but one in a long series of violent acts by Respondent against his wife -- acts for which Respondent was not charged. We now turn to consideration of the claimed mitigating and aggravating evidence, our conclusions of law, and recommendation.

Findings As To Evidence Offered In Mitigation Or Aggravation

Professional Ramifications

13. Respondent claimed that he had suffered professionally due to the consequences of his criminal case -- he urged the Panel to consider this as mitigating evidence. The evidence on this issue was scant.

14. Respondent worked in the District Attorney's Office for Bristol County for five years. In his final year he handled child support enforcement cases. (1-40). Respondent handled care and protection cases in Juvenile Court. When he admitted to sufficient facts, the Committee for Public Counsel Services (CPCS) suspended him from taking cases. (1-31). That suspension was due to end in May, 2005, assuming the criminal case were dismissed (a factor within Respondent's control). (1-32). The decision by CPCS was the inevitable consequence of the conviction. CPCS regulations contain the requirement that attorneys who are assigned cases by CPCS must notify CPCS "of any criminal complaints, indictments or convictions." (CPCS Manual, Ch. 2).

15. Respondent vaguely testified that, in addition to the suspension, a "couple" of clients went elsewhere when they heard about his criminal case. (1-32). There was no media coverage of the criminal case. (11-42 and 43) . Respondent's testimony is too vague for the Panel to draw any inference from it, and the Panel declines to deem this evidence as mitigating.

External Circumstances and Family Pressures Leading To the Incident

16. After working in the District Attorney's Office, Respondent joined the family's law practice, comprised of his father and two brothers. (1-40). He handled civil commitment cases under Rogers3 and juvenile cases. While working in Juvenile Court he met, began to date, and then married Evelyn Ferguson (1-41), who worked at the Worcester District Court and then the Worcester Juvenile Court. (II-92). Respondent's parents were "not happy about" the couple's relationship. In fact, his parents and three other family members did not go to the wedding. (1-42). According to Respondent, his family was so upset about the relationship that his father and one brother voted to exclude Respondent from the law firm. (1-42). Respondent then set up practice with a friend. (1-42).

17. Respondent and Mrs. Ferguson were married in November, 2000. (1-41). On their honeymoon, the Fergusons learned they were expecting twins. (1-43). Up to that point, Respondent's parents had not even met his wife. (I-44). The conflict concerned Mrs. Ferguson's national origin and religion (her parents were Evangelicals from Puerto Rico, and spoke little English). (1-44). It is not clear that Respondent's parents ever came to accept or have any relationship with Mrs. Ferguson. Respondent testified, however, that his own relationship with his family improved when the twins were expected. (1-62).

18. Shortly after the couple's twins were born in July 2001, the couple experienced conflict in their marriage. They separated after only 16 months of marriage, but then reconciled, buying a house in Paxton close to Respondent's work. (1-54 to 56).

19. Respondent's father was diagnosed with pancreatic cancer shortly before the Fergusons reconciled. (1-56). The Panel takes judicial notice that onset of pancreatic cancer leads inevitably to a painful death in a few months. Notwithstanding his father's conflicts with Respondent regarding the family law-firm and Mrs. Ferguson, Respondent testified he was "very close to my father." (1-57). He testified this period was "very difficult." (Id.) The Panel notes, however, that Respondent's father died in August 2002 (id.), and the criminal incident occurred on February 21, 2003..

20. Respondent did not offer any evidence of unusual tension in his life contemporaneously with the February 21, 2003 criminal incident.

The Incident -- Isolated, Or One In A Pattern

21. Because of his work, Respondent knew what resources were available to families in crisis. (1-64 to 65) .

22. Respondent testified that the only time he ever struck his wife was on February 21, 2003. (1-77). However, he acknowledged that two restraining orders were issued against him prior to that date (1-77-78) and that police came to his home in response to allegations of domestic violence twice, once on or about October 2001 (I-80), and again in February 2002. He admitted that he filed for divorce two days following the February 2002 occurrence. (1-79). Respondent testified that there was actually "no incident" that required the police to come to his house in February 2002 (1-83). His testimony, however, was evasive, and centered around the use of the term "incident", which he denied occurred. He did admit he was served with a restraining order in March 2002. (1-86). Notwithstanding these incidents and police visits to the couple's home, Respondent was charged but once with criminal conduct.

23. In response to questioning by the Panel, Respondent testified to his version of the February 21, 2003 incident. (1-129 to 132). He testified that he came home from work and discussed with his wife a possible trip to Philadelphia to see a boxing match that included a Worcester court officer. Respondent suggested to his wife that his relatives in Philadelphia could watch the couple's children. This suggestion provoked an argument, which Respondent conceded he "handled badly," over the Respondent's family. (Id. at 129). Respondent decided then and there that the marriage was not going to work, they argued further, it got "heated," and:

"I was leaving the house. I struck her on the back, which was wrong. It was shamefully wrong and I admit that."

Id. at 130. Respondent testified that he had not struck Mrs. Ferguson on any occasion other than February 21, 2003. (1-77) .

24. In response to the Panel's further questioning, Respondent admitted that he had testified falsely in the jury trial about the incident -- i.e., that he had not struck his wife. (1-134). Bar Counsel did not charge Respondent with testifying falsely at his criminal trial. (1-139).

25. Mrs. Ferguson testified about her stormy relationship with Respondent. She claimed that Respondent hit her "close to twenty times." (11-54). The Chair admitted, over objection, testimony on this issue on the ground that although the Petition for Discipline did not allege that Respondent had engaged in a pattern of violence, the Respondent's Answer (at pp. 2-3) had referred to the February 21, 2003, incident as an "isolated incident of very minor force." The Chair continued, however, "I do not believe that we need to get into all the details of each and every incident." (11-57). We note that with the exception of the incident in question, no corroborating evidence, testimonial or documentary, was offered at the hearing to support her allegations that she was the victim of a series of physical attacks at the hand of the Respondent.

26. Mrs. Ferguson described several other violent episodes. One occurred just before the couple's twins were born. Respondent became very angry when Mrs. Ferguson received a card from her former beau of 5 years, a state trooper. Respondent allegedly yelled at her, called her a "f- — ing-c- —," and began to choke her. (11-60). We find Mrs. Ferguson's testimony concerning this attack not credible, given the lack of corroboration and the fact that, according to her own testimony, her parents were in the house at the time.

27. Mrs. Ferguson testified that on July 17, 2001, shortly after the twins were born, Respondent struck her on the side of the face as she was breastfeeding one of the babies. (11-63). Again, we find this testimony not credible.

28. She also testified that on February 9, 2002, following an argument over Respondent's comment about one of the babies, Respondent "grabbed me from behind, pinned me against the countertop, grabbed me around my neck, and just squeezed my neck and wouldn't let me go." She testified that this attack occurred while she was standing at the kitchen sink, her babies were in their high chairs near by, and her 12-year old nephew Michael witnessed this incident. (11-64 to 65). She stated Respondent only let her go when she bit him. At that point, coincidentally, an insurance adjuster came to look at the roof (11-65). When Respondent referred to her as his "wife" in a conversation with the adjuster, she muttered, "not for too long if you keep this up." (11-65, 66). After the adjuster left the home to inspect the roof, Mrs. Ferguson testified that the Respondent, furious, called her names and "punched me so high in the face my glasses broke," and she called the police. The police report (Ex. 11) stated that the police, who interviewed the parties and the adjuster, were unable to determine who the aggressor was. They observed a red spot on her neck, but could not conclude it was consistent with choking, as she reported, nor did they observe any bruises on her arms, where she said she had been struck. The report reflects that the adjuster heard nothing. There is no mention of broken glasses seen or reported. We find Mrs. Ferguson's testimony concerning the assaults that occurred on this day to be not credible. However, the Panel infers, and finds, that it is unlikely that Mrs. Ferguson would have called the police to the scene absent some violence, or at least the substantial threat of violence, by Respondent. It is also unlikely that Respondent would have so readily agreed to move out of the house, which he did at the police officer's suggestion, had there not been at least a serious altercation and threat of violence between them.4

29. On cross-examination Respondent's counsel elicited that in an affidavit filed in court after the February 9, 2002 incident, Mrs. Ferguson had claimed she had "large bruises on her arms and legs," but that the police had found no bruises at all on her arms or legs. (11-126 to 127). Mrs. Ferguson testified, and we credit her testimony, that a few days after the above events, she sought and obtained a restraining order because Respondent would repeatedly call the house, yell at her that she should be "careful" because the house "was out in the woods," and there were cars going up and down the driveway, all of which were construed by Mrs. Ferguson as threats. (11-68).

30. She also described other acts of violence, occurring in September 2002 (he allegedly hit her in her ear), and October 2002 (he allegedly held her ankles, threw her off the bed, causing her to lie on the floor for 45 minutes, and hit her in the chest). (11-72-75). She did not report any of these events to the police, and, in light of the lack of corroboration as to either of these occurrences, we find her testimony on these matters not credible.

31. Sometime in March 2002 she began to attend the Day Break program for battered women. (11-75).

32. Mrs. Ferguson testified, and we credit her testimony, that on one occasion Respondent allegedly referred to her as "Candace," a reference to a woman who had been stabbed to death in July 2002, in her home. Mrs. Ferguson had met Candace at Day Break. Respondent told Mrs. Ferguson that she deserved what Candace got, and Mrs. Ferguson was justifiably frightened by her husband's intemperate comments. (11-74).

33. Mrs. Ferguson gave her version of the February 21, 2003 incident. She testified it was late in the day, and she was preparing dinner in the kitchen. Her nephews Michael (13) and Ricky (11) were at the house. (11-76). Respondent arrived home, complaining about an attorney he "wanted to ram." (11-76, 77). They then argued over the boxing match in Philadelphia. Respondent said they could leave the children with Respondent's cousins in Philadelphia. When she asked him how long it had been since he had seen his cousins, Respondent said it was twelve or fourteen years. Mrs. Ferguson responded that she would not drop off her children with people she knew nothing about. (11-77, 78). Respondent called her a "f—ing c— you make me sick. I hate you." (11-78) . When her back was turned, at the sink, Respondent punched her in the back so hard it "hurt [her] chest;" she "thought he hit me with something," and "I thought he might have stabbed me." She stated she fell to the floor. (11-79). Her nephew Michael helped her get the phone, but Respondent left the house before the police arrived.

34. With respect to the incident on February 21, 2003, Mrs. Ferguson stated to the police (Ex. 17) that Respondent had hit her, she turned to look at him and he then hit her with his fist. The statement she gave police on the day in question (and in her own handwriting) said nothing about her falling to the floor. In her testimony at the hearing describing the same incident, however, Mrs. Ferguson claimed that his blow to her back caused her to fall to the floor, where she was for several minutes. (II-150). She also testified at the hearing that she feared that he might have stabbed her, an account that is contradicted by her contemporaneous account to police that she turned to face him (and presumably would have seen a knife) .

35. She did not get a restraining order right away, as Respondent did not return to the house. (11-80). But, in April 2003, she determined that Respondent had been coming in the house when she was out, so she changed the locks. (11-81). He then came to the house a final time, took his things, and left. She called the police and obtained a restraining order. (11-83). She claimed to have called Respondent's brother Patrick four or five times for help and told him of Respondent's violence (which Patrick denied). (11-85, 86).

36. On cross-examination, Mrs. Ferguson acknowledged that she and Respondent had gone through their divorce trial, she was not happy with the results, and she had instructed her attorney to appeal. (11-111 to 112). Not surprisingly, she acknowledged that she "disliked" Respondent. (11-114).

37. It also appeared that Mrs. Ferguson had developed a propensity to lash out at people in the judicial process of her divorce. Specifically, she threatened to sue her lawyer and Probate Judge Lian (the divorce case judge) and eight other people because her lawyer had refused to file a complaint with a "judicial review board" against Judge Lian. (11-145).

38. Mrs. Ferguson's account of the assaults she claimed Respondent had committed appeared unreliable to the Panel. The Panel observed that during her testimony, Mrs. Ferguson appeared overly dramatic and overeager to establish that her husband had behaved violently toward her. Bar Counsel also did not corroborate Mrs. Ferguson's accounts of other incidents. There were no medical records, photographs, or accounts of other witnesses. Mrs. Ferguson also seemed to let her anger dictate her actions, as in the situation where she admitted that her anger over the handling of her divorce case caused her to seek investigations of everyone associated with her case, including Judge Lian. (II 142-146). The police reports were inconclusive, except as to the February 21, 2003 incident, in corroborating Mrs. Ferguson's allegations.

39. Former Dean Francis Larkin of the Southern New England School of Law also testified, essentially as a character witness for Respondent. Dean Larkin knew the Respondent from the latter's days as a law student. Among other things, he testified that the Ferguson family was "the closest family I had ever known." (1-147). He tried to "mediate" the dispute between Respondent's and Mrs. Ferguson's respective families, but in the Dean's words, "the Montagues and the Capulets were at each other's throats." Id.

40. Dean Larkin testified Respondent was at the time in "an incredible depression—there was a deterioration in his psyche...a real fragility to his psyche...a malaise [that] deepened...the marriage deteriorating and...being basically ordered to leave the law firm...which was like being asked to leave the family." (1-149). Larkin testified Respondent lost thirty pounds and was "crushed" by events, id., which soon included his father's death. Id. at 150.

41. Raymond Loughlin, an assistant chief court officer in Northern Worcester County, and close friend of Respondent's, corroborated Dean Larkin's testimony. Loughlin testified that Respondent was a "happy-go-lucky person" before his engagement, but then became "withdrawn," "alone," "lost a lot of weight and seemed to be a different person," (1-163 to 167), and was "confused" and almost "paranoid" when arrested for the February 21, 2003 incident. (Id. at 167).

42. Respondent's brother Patrick Ferguson also testified as to the change in Respondent after his engagement to Mrs. Ferguson. (11-19). Patrick testified that Respondent "took it the hardest" when Respondent's father died in August 2002 (11-19), believing he had let his father down by marrying Mrs. Ferguson. Id. In the period between August 2002 and February 2003, Patrick spoke often with Respondent. Id. In addition to making the same observations that Dean Larkin and Raymond Loughlin made, Patrick testified Respondent made statements suggesting that he was "suicidal." (11-25). He also testified, however, that Respondent's physical and mental condition had much improved and he "seemed a lot better." (11-27).

43. Patrick testified that the reason Respondent was excluded from the family firm was due to Mrs. Ferguson's reputation and the partners' belief the couple would divorce and the firm did not want to bring itself "into divorce court... [we wanted] to protect our family law practice." (11-44 and 45).

44. Bar Counsel failed to carry her burden of proving that the February 21, 2003 incident was one of a pattern of physically violent incidents.

45. Respondent's claim, however, that the February 21, 2003 incident was "an isolated incident of minor force" is equally suspect. As stated above, it seems to the Panel unlikely that Mrs. Ferguson would have called the police and obtained restraining orders on other occasions absent at least a substantial threat of violence. Respondent's testimony appeared evasive at times, and his credibility is clearly questionable, if for no other reason than the fact that by his own admission he perjured himself at the jury trial held on the criminal complaint. (Tr.I-90, 133-34).

Other Claims of Mitigation

46. The Panel is entitled to take into consideration as an aggravating factor Respondent's admitted perjury at the jury trial that led to a mistrial. Perjury, of course, by itself, would be grounds for disbarment. "It requires no discussion to demonstrate that the commission of perjury by an attorney at law is sufficient ground for disbarment." Matter of Palmer, 423 Mass. 647, 650 (1996), quoting Matter of Sleeper, 251 Mass. 6, 20 (1925). A one-year suspension is the sanction for material misrepresentations to a tribunal. Matter of McCarthy, 416 Mass. 423 (1993); Matter of Neitlich, 413 Mass. 416 (1992). And Respondent's perjury is especially egregious for two reasons. First, since Respondent's position at the criminal jury trial was that he had not assaulted his wife, he was, in essence, branding as perjurers themselves his wife and his nephew, Michael (who witnessed the incident and testified to it at the criminal trial, 1-90). Second, Respondent's perjury was successful, producing an inaccurate result in the criminal trial. Respondent's perjury thus obstructed justice. If he had not perjured himself he would likely have been convicted. Therefore, the Panel accepts Bar Counsel's argument that Respondent's perjury was an aggravating factor.

47. Although Respondent repeatedly claimed that he handled the disagreement with his wife "badly" (1-128), and that he has accepted full responsibility for his conduct (1-24, 59), we find that his demeanor during his testimony did not reflect a sincere belief in the wrongfulness of his acts, but seemed more to be a rote response expected of him. We find his testimony on this score not credible.

48. Respondent suggests that he suffered adverse professional consequences, i.e., CPCS's suspension and the loss of private cases, because of the publicity of his criminal trial. Any mitigation that such consequences carry, and it would be minimal, see Matter of Griffith, 440 Mass. 500 (2003), is far outweighed by the Respondent's failure to use his knowledge from his CPCS care and protection cases to identify the effects his violent behavior could have on his own children and to seek help from resources before his violent behavior resulted in being charged with assault and battery. (1-64 to 65).

49. We do find that he has attended a batterer's program which has an anger management component. (1-36 to 39). Because attendance at this program was ordered as part of the probation resulting from his admission to the domestic assault, however, we decline to find it a special mitigating factor.

50. The Panel further finds that because the Respondent engaged in domestic violence, he harmed the public's perception of the profession and the bar. He further harmed the public's perception of the bar by failing to tell the truth in his criminal trial. The Respondent is from a family of lawyers who established the law firm of Ferguson, Ferguson & Ferguson in Worcester. This is where he worked from 1999 to 2000. Mrs. Ferguson was employed as an assistant probation officer in the Worcester Juvenile Court in 1999. Not only lawyers, but also court personnel are likely to have learned of the Respondent's criminal charge and his conduct during his jury trial.

Conclusions of Law

1. Respondent's admission to sufficient facts, under Mass. G.L. c. 276, §87, for assaulting his wife, in violation of Mass. G.L. c. 265, §13A, constitutes a "conviction" for purposes of Rule 4:01, Section 12(1) of the Supreme Judicial Court's Rules.

2. Respondent sought to establish that the February 21, 2003 incident was an "isolated incident of very minor force." Respondent has failed to carry his burden of proof on this "defense."

3. Bar Counsel sought to establish that the February 21, 2003 incident was one in a series of violent acts that Respondent perpetrated against his wife. Bar Counsel has failed to carry her burden of proof on this issue.

4. Bar Counsel did prove that Respondent engaged in a pattern of threatening conduct, some of which was of such an intimidating nature that she felt the need to call the police and obtain restraining orders on at least 4 separate occasions.

5. The Panel considers that Respondent's admitted perjury is a serious aggravating factor.

6. The Panel considers as an aggravating factor the presence of Respondent's and Mrs. Ferguson's 18-month-old twins and Mrs. Ferguson's two nephews, ages 11 and 13, when the assault occurred. (11-76 to 79).

7. The Panel has taken into account the family issues and personal problems that confronted Respondent in 2000-2003. However, we do not consider them mitigating factors. In so concluding we do not minimize or deprecate the factors which Respondent cited. These included his family's irrational, mean-spirited, and almost unthinkable reaction to news of Respondent's engagement to Mrs. Ferguson, his family's refusal to attend his wedding, his family's ejection of Respondent from the family law firm, his father's pancreatic cancer and death, the birth of twins so soon after marriage, and the foundering and failure of his marriage. All of these events were traumatic. But nothing excuses domestic violence. Our male-dominated society and culture for centuries swept allegations of domestic violence under the rug. It is only in the last two decades or so that society has confronted and tried to deal, in a systematic way, with domestic violence. To permit Respondent to excuse his violent treatment of his wife by pointing to personal stresses in his life would set the clock back. The Panel declines to do so. In short, the personal factors to which Respondent referred were not in any way the precipitating cause of his act of violence on February 21, 2003.

Recommendation for Disposition

Bar Counsel asks us to suspend Respondent for a year and a day. Respondent suggests that he receive a private admonition. We find that both requests occupy unjustifiable extremes at opposite ends of the spectrum, and are clearly inconsistent with the facts and the law. Thus, we reject both proposals.

The discipline recommended here may not be markedly disparate from the discipline imposed in similar cases. See Matter of Clooney, 403 Mass. 654, 658 (1988). In reaching our recommendation, we are mindful of the SJC's exhortation that the "primary factor" to consider is "the effect upon and perception of, the public and the bar." Matter of Concemi, 422 Mass. 326, 329 (1996), quoting Matter of Mclnerny, 389 Mass. 528, 535 (1983). We have surveyed the cases involving discipline of lawyers for domestic violence. Domestic violence is indeed serious misconduct that adversely reflects on a respondent's fitness to practice law. We find especially compelling the New Jersey Supreme Court's observation that a lawyer's violent acts betray "[t]he essence of the conduct of a lawyer...to facilitate the resolution of conflicts without recourse to violence, for law is the alternative to violence." Matter of Magid, 139 N.J. 449, 454-55, 655 A.2d 916 (1995). Respondent's conduct violates Mass. R. Prof. C. 8.4(b) and (h).

The two cases in the Commonwealth that are most analogous are Matter of Oliveria, Public Reprimand No. 2003-17, and Matter of Grella, 438 Mass. 47, 51-52 (2002). The facts here concerning the assault itself are less brutal than those in Grella, where the Supreme Judicial Court imposed a two-month suspension on an attorney who engaged in a "sustained and violent attack on his estranged spouse." Id. at 51. The Court, however, signaled that a two-month suspension for a single assault where the Respondent has no prior history of abuse or of any other misconduct was insufficient. "We are of the view that a recommendation by the board for a longer suspension would have been warranted, but we give the board's determination [a recommendation for a two-month suspension] substantial deference." Matter of Tobin, 417 Mass. 81, 88 (1994), and cases cited. Grella at 55. In this case, we have found that the Respondent struck his wife on the back with an open hand. Were this the only evidence animating our recommendation, we would not hesitate to suggest as severe a disciplinary sanction as Mr. Grella received. However, the conduct underlying the conviction does not stand alone. The aggravating factors here -- the pattern of abusive and threatening behavior committed by Respondent upon his spouse, even if not amounting to a course of violent conduct, the presence of minor children during the assault, and the Respondent's perjury at his criminal trial — warrant a suspension greater than that imposed in Grella.

From his evasive answers, the Respondent demonstrated insufficient awareness of the effect that domestic abuse has on all of his family members, including himself. At the time of the hearing, the Respondent had attended 22 weeks of a 40-week program, and yet demonstrated little or no insight and no sincere remorse for his admitted assault on his wife, embarrassment to his family, and shame on the legal profession. Accordingly, for the above reasons, the Panel recommends that Respondent be suspended for four months.

Alan D. Rose
Constance Rudnick
James P. Carey

FOOTNOTES

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

2 "I" and "II" denote the first or second day's transcript of the hearings in this matter held on November 8 and 12, 2004, respectively

3 Rogers v. Commissioner of the Dept. of Mental Health, 390 Mass. 489, 458 N.E. 2d 308 (1983), establishing procedures in civil commitment cases.

4 The report also reflects that the two visiting children, Mrs. Ferguson's nephews, who ostensibly witnessed the barrage of violence against their aunt at the hands of the Respondent, hugged him as he left. We find that this also makes the story as related by Mrs. Ferguson unlikely.



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