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Commonwealth of Massachusetts

No. BD-2004-094

IN RE: KENNETH M. LEVINE

Order (Suspension) entered by the State of Vermont Professional Responsibility Board on September 10, 2004.
Massachusetts reciprocal suspension entered January 21, 2005. 1

SUMMARY

On September 10, 2004, the State of Vermont Professional Responsibility Board (PRB) ordered that the respondent be suspended from the practice of law for thirty days, commencing forty-five days from the date of the order. The PRB found that the respondent had violated Rules 8.4(c) and 3.3(a)(1) of the Vermont Rules of Professional Conduct by filing an affidavit in support of pro hac vice admission that contained a misrepresentation. The decision of the PRB containing a more complete description of the misconduct and the findings in mitigation is attached to this summary.

On October 25, 2004, bar counsel filed a petition for reciprocal discipline in the Supreme Judicial Court for Suffolk County. On December 1, 2004, the respondent filed an opposition to the petition. On December 28, 2004, bar counsel filed a memorandum of law in support of the petition.

On January 18, 2005, the county court held a hearing on the petition for petition for reciprocal discipline. On January 21, 2005, the court entered an order suspending the respondent for thirty days, effective on the date of entry of the order.


STATE OF VERMONT PROFESSIONAL RESPONSIBIIJTY BOARD

In re: Kenneth Levine, Esq.
PRB File No. 2002.246

Amendment to Decision No. 63

On March 23, 2004, this Hearing Panel issued a decision suspending Respondent from the practice of law in Vermont for a period of three years for filing a false affidavit in connection with his application to appear pro hac vice in a Vermont court, in violation of Rules 8.4 (c) and 3.3(a)(l) of the Vermont Rules of Professional Conduct. //; re Levine, PRB Decision No. 63 (March 2004). The decision was based upon stipulated facts and was accompanied by a recommendation from Disciplinary Counsel and Respondent that the Panel impose a public reprimand. Based upon the facts set forth in the stipulation, we found that Respondent's actions were intentional and declined to follow the recommendation.

Respondent filed a timely Motion to Reconsider and the parties filed an additional stipulation of facts, affidavits of Respondent and his treating psychologist and a joint recommendation on sanctions, again recommending that this panel publicly reprimand Respondent. The matter was heard on the issue of sanctions on August 19, 2004. Respondent was present and represented by his attorney John B. Kassel. Disciplinary Counsel Michael Kennedy was present. Respondent testified at length and his psychologist, Dr. Nicholas Corvmo, testified by telephone.

With this additional evidence the Panel acknowledges that the facts are substantially different than they appeared from the first stipulation, and we now believe that our decision to suspend Respondent from the practice of law in Vermont for a period of three years was not justified. The Panel accepts the additional stipulated facts but again declines to accept the recommendation for public reprimand and orders that Respondent be suspended from the practice of law in Vermont for a period of 30 days.

Facts

The following facts incorporate those set forth in the original stipulation as well as the second stipulation, the affidavits filed in connection with the hearing and the testimony before the Hearing Panel.

Respondent is not admitted to practice law in Vermont. He is, however, admitted to practice law in Massachusetts and frequently takes cases in the area of obstetrical medical malpractice both in Massachusetts and in other jurisdictions in which he is admitted pro hac vice. In April of 2001, a Vermont attorney, who was representing plaintiffs in an obstetrical medical malpractice case, asked Respondent to assist him with the case. The Vermont attorney filed a Motion for Admission Pro Hac Vice, and Respondent filed a sworn declaration in support of the motion. The declaration, dated April 30, 2002, included the following statement: "No disciplinary proceedings or criminal charges have ever been instituted against me." The motion was granted on May 13, 2002.

In fact, in August of 2001, Bar Counsel in Massachusetts had filed a Petition for Discipline against the Respondent. At the time he filed his Declaration in the Vermont matter, the Massachusetts Petition for Discipline was pending. Respondent's statement that "[n]o disciplinary proceedings or criminal charges have ever been instituted against me" was therefore false.

On June 14, 2002, opposing counsel in the Vermont matter moved for the revocation of Respondent's pro hac vice status, citing the Massachusetts Disciplinary Proceeding and Respondent's false statement on his declaration. On June 17, 2002, Respondent moved to withdraw. The court granted the motion but took no further action. Opposing counsel filed a complaint with the Professional Responsibility Program.

This was not the first time that Respondent had been faced with opposition from defense counsel in connection with an affidavit filed in support of a motion to appear pro hac vice. In September of 2001, in a Rhode Island matter, Respondent filed an affidavit almost identical to that filed in Vermont, stating that "[n]o disciplinary proceedings or criminal charges have ever been instituted against me." At the time of the filing of this affidavit the Massachusetts disciplinary matter was pending but not yet heard. Respondent knowingly signed this affidavit. Despite the plain language of his statement, Respondent took the position that since there was no final resolution of the Massachusetts matter, he did not need to reveal this fact in his affidavit. In March of 2002 opposing counsel filed a motion to remove him from the case based on his affidavit. On May 2, 2002, Respondent filed a lengthy objection to the motion, and later that month the court decided not to remove Respondent from the case, but referred the matter to the disciplinary authorities.

In the Spring of 2002 Respondent was dealing with the breakup of his marriage of 19 years. The decision to separate from his wife proved extremely difficult for Respondent. Two years before the separation Respondent consulted Dr. Corvmo for assistance in dealing with the deterioration of his relationship with his wife. Respondent's initial objective was to continue in the marriage since he did not believe that divorce would be good for his children. In March of 2002 Respondent left the family home and moved into a house one mile away from his former home. At that lime Respondent had physical custody of his three daughters, born two years apart beginning in 1986, for three to four nights per week. When his children were with him, he did not arrive at the office until 9:00 a.m. and left by 5 p.m. This was a drastic change from his previous schedule. Prior to the separation he would often go to the office early and usually met with his staff and the other lawyers in his office after 5:00 p.m. to review cases and to answer questions they might have about pending cases.

It was at this time that the affidavit filed in Vermont was signed. The affidavit had been prepared by Vermont counsel, copied from a filing in another case in which Respondent had assisted Vermont counsel. Respondent has no recollection of signing the affidavit. His practice at that time was to rely completely on others to prepare documents. He trusted their work and would sign whatever they put in front of him. By his own admission, more than 90 per cent of what he signed he had not read. His practice with documents that required notarization was to sign them and then a member of his staff would later bring them to an attorney who rented space from Respondent who would notarize the document.

At this time there were 80 to 100 cases pending in Respondent's office, all of which were contingent fee cases. In 2002 Respondent tried 6 cases in Massachusetts and Rhode Island.

The disciplinary case in Massachusetts resulted in a hearing panel recommendation that Respondent receive a public reprimand. Massachusetts Bar Counsel appealed the panel's decision, and, on December 8, 2003, the Massachusetts Board of Bar Overseers affirmed the sanction of public reprimand and amended the conclusions of law, finding that Respondent had failed to seek the lawful objectives of his clients, had neglected a client matter and had failed to communicate with his client. Bar Counsel v. Kenneth M. Levine, Esq., BBO File Nos. C1-98-0475 & C1-00-0309, (December 8, 2003). This decision was affirmed by the Massachusetts Supreme Court.

The Rhode Island disciplinary matter resulted in a public reprimand in May of 2003.

Since 2002 when these matters arose, Respondent has made changes to his practice. Whereas in 2002 almost all documents were prepared by others, he now prepares many himself. He also reads all documents before he signs them. He now has an associate to whom he has delegated responsibility for some cases. Her schedule is flexible, and she is able to meet with him on weekends or at other times when he does not have responsibility for his children. He now takes fewer cases and is more selective about the cases that he does take. He does not take new out of state cases and at present has only 5 such cases pending in his office.

As a result of the Massachusetts finding of neglect, Respondent instituted a redundant calendaring system which he finds effective.

Both Respondent and his psychologist believe that Respondent is now better able to handle the details of his practice and his family obligations than he was in 2002.

In addition to his prior discipline, there are several aggravating factors present. Respondent has substantial experience in the practice of law and substantial experience practicing in other states under pro hoc vice provisions. We now agree with the parties that the facts do not support the finding of a dishonest or selfish motive. We do not find this to be either a mitigating factor or an aggravating factor. Respondent did not believe that the Vermont case was a particularly serious one. He did not intend to be the lead counsel, but agreed with local counsel to provide assistance. He continued to do so after withdrawing, but look no fee. We do not find a pattern of conduct since, though the Vermont and Rhode Island cases on their fact appear almost identical, they arose in very different circumstances and arose at the same time. In mitigation, we find that Respondent was experiencing substantial emotional problems in his personal life, has cooperated with Disciplinary Counsel and expressed remorse for his conduct.-

Conclusions of Law

Our conclusions of law do not differ from our previous opinion. The fact that we no longer find that Respondent's filing of a false affidavit with the court was intentional goes to the issue of sanctions, but does not affect our finding of violation of Rules 8.4 (c) and 3.3(a)(l) of the Vermont Rules of Professional Conduct.

Sanctions

ABA Standards

We agree with the parties that the ABA Standards provide important assistance in sanction decisions, but we do not believe that these guidelines suggest the imposition of public reprimand.

Section 6.13 provides that "Reprimand is generally appropriate when a lawyer is negligent ... in determining whether statements or documents are false or in taking remedial action" (emphasis added). Section 6.12 applies, however, when the attorney's state of mind is knowing rather than negligent:

Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding (emphasis added).

The ABA Standards recognize three states of mind in setting out possible sanction: negligence, knowledge and intentional acts. Based upon our reading of the previous stipulation, we concluded that Respondent acted intentionally and our sanction was based upon that state of mind. We now find that Respondent did not act intentionally, but we believe his actions were more than mere negligence. The Standards define "knowledge" as "the conscious awareness of the nature or attendant circumstances of the conduct without the conscious objective or purpose to accomplish a particular result." ABA Standards §HL Respondent did not read over the false affidavit and make a conscious decision to sign it, knowing that it was false, but there are several factors here which lead us to the conclusion that his conduct was more than mere negligence. Respondent was clearly conscious of the "attendant circumstances" surrounding his actions. He conducted his practice in a way that invited just this sort of problem. He had made aconscious and knowing decision to sign without reading virtually everything that was placed before him. In addition, he treated affidavits in the same way as other papers. Rather than acknowledging the document before a notary, which is what the document states on its face,1 he signed the document and left the matter of obtaining the acknowledgment to his staff.

Acceptable office practice offered Respondent two opportunities to correct the false affidavit, once when he could have read the document prepared for his signature by others and once when he could have appeared before the notary who acknowledged his signature. Respondent passed up both of these opportunities.

We consider the timing of the signing of this affidavit and the proceedings in the Rhode Island case are also significant. Respondent signed the Vermont affidavit on April 30, 2002. One month earlier, opposing counsel in Rhode Island had filed a motion to remove Respondent from that case based upon his false affidavit. On May 2, just two days after signing the Vermont affidavit, Respondent filed a lengthy memorandum on the issue of whether or not the Massachusetts discipline should have been revealed on the Rhode Island affidavit. Further, these affidavits were not novel to Respondent. He was involved in a number of cases in other jurisdictions and was frequently filing petitions for pro hoc vice status. Because of the pending motion in Rhode Island, Respondent knew that there was the potential for difficulty in the wording of his affidavit, and at the very least this should have brought to his mind the need for concern about the Vermont affidavit.

Another matter of concern is the fact that Respondent's practice is limited to challenging the competence of other professionals. This should have instilled in him greater appreciation of the need to maintain high professional standards in his own practice.

Viewing Respondent's conduct in light of all of these factors, we believe that it is more consistent with knowing action than it is with mere negligence. This brings it clearly within the scope of the suspension provision of Section 6.12 of the ABA Standards for Imposing Lawyer Sanctions.

We have considered the aggravating and mitigating circumstances. In aggravation, Respondent has substantial experience not only in the practice of law, but in pro hoc vice practice in slates other than the state of his admission. ABA Standards §9.22(i). He also has two instances of prior public discipline. ABA Standards §9.22(a). In mitigation we find that Respondent suffered from emotional problems during the time of the violation. ABA Standards §9.32(c). He cooperated with Disciplinary Counsel, ABA Standards §9.32(i), and has expressed remorse, AHA Standards §9.32(1). The facts do not support a finding of a selfish motive as we believed before, but we do not find this to be either a mitigating or an aggravating factor. Weighing all of these factors does not change our decision to impose suspension.

Vermont Case Law

Based upon the evidence now before the Panel, we do not find that In re Daly, PRB Decision No. 49 (April 7, 2002) is controlling since there is no evidence of intentional misrepresentation to the court. We find the facts to be closer to that of In re Blais, PRB Decision No. 31 ( January 31, 2002). The charges in Blais were that of neglect and failure to keep clients informed, but the Hearing Panel noted that an underlying cause was the fact that Blais was unable to effectively manage his practice. This fact came out more clearly in the decision on his reinstatement petition where the Hearing Panel found that "the root of Respondent's problem was his failure to effectively manage his caseload." //; re Blais, PRB Decision No 58 (October 1, 2003), approved by Supreme Court Entry Order October 21, 2003. Attorney Blais was suspended for longer than the thirty days we have ordered here, but his record of prior discipline was greater than that of Respondent.

We do not agree with Respondent that In re DiPalma, PRB Decision No. 44, (October 22, 2002), is controlling here. The Hearing Panel found that DiPalma's actions were negligent, rather than knowing and his only prior discipline was an admonition.

Were Respondent a resident of Vermont we would impose conditions of probation or otherwise which would insure that Respondent reviewed all of his office practices and instituted procedures designed for efficient office administration and case management. It seemed clear from Respondent's testimony that he has instituted changes in his office practices only in response to specific disciplinary proceedings. After the charges of neglect, he revised his calendaring system. After the two charges of filing false affidavits, he began to read all documents before he signed them. These are good practices, but it does not appear that Respondent has taken any steps to assess all of his office procedures by way of a risk management audit or other comprehensive survey.

It is neither feasible nor appropriate for this Panel to impose any such conditions in this case, as there is no way for the Office of Disciplinary Counsel to monitor compliance. In the event that the State of Massachusetts imposes reciprocal discipline based upon our decision, we would respectfully recommend conditions requiring assessment and monitoring of Respondent's office practices.

Order

Respondent, Kenneth Levme, is hereby suspended from the practice of law in Vermont for a period of thirty days commencing 45 days from the dale of this order. Respondent shall promptly comply with the provisions of A.O. 9 Rule 23.

Dated 9/10/04.

FOOTNOTES:

1 The document reads: "Subscribed and sworn to before me this 30 day of April, 2002. /s Notary Public"

2 While no violation is charged or found in connection with this practice, we note that failure to follow proper procedures in the acknowledging of a deed has been found to be a violation of the disciplinary rules. See In re Coughlin, 450 A.2d 1326 (1982), cited in the Commentary to Section 6.13 of the ABA Standards for Imposing Lawyer Sanctions.



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