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Commonwealth of Massachusetts

NO. BD-2005-011


S.J.C. Judgment of Disbarment entered by Justice Greaney on September 26, 2007.1


This bar discipline matter is before me on an Information filed on July 16, 2007, by the Board of Bar Overseers (board), unanimously recommending that the respondent be disbarred. The recommendation was based on the respondent's default in the proceedings commenced against him due to his conviction of multiple crimes, one of which is a felony, and several of which interfered with (or could have interfered with) the administration of justice.2 3 Bar counsel alleged that the respondent's conduct violated Mass. R. Prof. C. 3.4(c), 3.4(f), and 8.4(b), (d), and (h). I have reviewed the record, conducted a hearing at which the respondent and bar counsel argued, granted the respondent's request for a continuance to obtain counsel on the issue of what sanction to impose, and considered the post-hearing submissions filed by the respondent's newly-obtained counsel and by bar counsel. I conclude that disbarment is the appropriate sanction to be imposed.

The right to practice law "is not one of the inherent rights of every citizen, as is the right to carry on an ordinary trade or business." Matter of Keenan, 314 Mass. 544, 546 (1943). Rather, "[i]t is a peculiar privilege granted and continued only to those who demonstrate special fitness in intellectual attainment and in moral character." Id. "Elaborate machinery has been set up to test applicants by standards fair to all [and] [o]nly those who pass . . . are allowed to enter the profession, and only those who maintain the standards are allowed to remain in it." Id. When imposing discipline, "the recommendation of the board is entitled to substantial deference," and the sanction should not be markedly disparate from that ordered in comparable cases. Matter of Karahalis, 429 Mass. 121, 123 (1999). The primary factor for consideration is "the effect upon, and perception of, the public and the bar." Matter of Concern!, 422 Mass. 326, 329 (1996), quoting Matter of Mclnerney. 389 Mass. 528, 535 (1983).

The sanction of disbarment is appropriate in the circumstances of this case. The crimes of intimidation of a witness and violating a protective order involve the interference with the administration of justice. Consequently, these offenses amount to "serious crime[s]" under S.J.C. Rule 4:01, § 12 (3). Section 5.11(a) of the ABA Standards for Imposing Lawyer Sanctions (1992), recommends that, absent mitigating circumstances, disbarment is appropriate when "a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice." Significantly, disbarment previously has been imposed as the proper sanction for misconduct involving the intimidation of a witness. See Matter of Terzian, 21 Mass. Att'y Discipline Rep. 647, 648 (2005). In addition, the crime of intimidation of a witness constitutes a felony, see G. L. c. 268, § 13B (1), and disbarment is an appropriate sanction, and indeed the presumptive sanction, for a felony conviction. Matter of Otis, 438 Mass. 1016, 1017 (2003); Matter of Concemi, 422 Mass. 326, 329 (1996). While an indefinite suspension also may be imposed for a felony conviction, that lesser sanction is typically warranted only when there are special mitigating circumstances, which are not present here. Matter of Concemi, supra at 330 n.4, and cases cited.

First, mitigation should not even be considered. Because the respondent failed to file an answer to the petition for discipline, the allegations therein are deemed admitted and the respondent waived his right to present evidence in mitigation. See Rules of the Board of Bar Overseers, § 3.15 (e), (f), and (g). That factor aside, no special mitigating circumstances exist. The respondent asks that I consider the fact that his misconduct involved a private family matter (and did not involve clients, the practice of law, or the general public), and that, during the time of the misconduct, "[i] t was an intensely stressful time" during which the respondent repeatedly had "sought out medical relief by way of hospitalization." I agree with bar counsel that application of the so-called "private-citizen" exception to the respondent's misconduct should not apply to his misconduct as effecting the administration of justice. See Matter of Otis, supra at 1017 n.3, and cases cited. In addition, I do not consider the unsupported allegations of stress and hospitalizations. See id. By his own admission, the respondent was free of mental illness at the time of his admissions in the District Court. In addition, at the July, 2007, hearing, the respondent affirmed that he has been free of any mental infirmity for a year, and thus, could have attempted to remove the default against him when he was afforded that opportunity.

I add that the respondent has demonstrated a disregard for, or ignorance of, the disciplinary rules. He failed to notify bar counsel of his convictions within ten days of his convictions as required by S.J.C. Rule 4:01, § 12 (8), and neglected to provide a current address to the board pursuant to S.J.C. Rule 4:02(1). See Matter of Barrett, 447 Mass. 453, 457-458 (2006); Matter of Clooney, 403 Mass. 654, 657 (1988).

In light of the serious crimes for which the respondent stands convicted; the respondent's inattentiveness to, and failure to abide by, the ethical rules; and the absence of any basis to avoid the sanction recommended by the board, I conclude that the sanction imposed by the board is appropriate. Judgment shall enter disbarring the respondent, and assessing him costs of $38.26.


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

2 The respondent was not temporarily suspended from the practice of law, see S.J.C. Rule 4:01, § 12 (4), at the commencement of these disciplinary proceedings because he earlier had been administratively suspended.

3 The underlying crimes, to which the respondent admitted sufficient facts, were: five counts of violation of a protective order, G. L. c. 209A, § 7; three counts of criminal harassment, G, L. c. 265, § 43A; four counts of making annoying telephone calls, G. L. c. 269, § 14A; three counts of threatening to commit a crime, G. L. c. 275, § 2; and one count of intimidating a witness, G. L. c. 268, § 13B. An admission to sufficient facts constitutes a "conviction" for the purposes of bar discipline proceedings. See S.J.C. Rule 4:01, § 12 (1).

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