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Commonwealth of Massachusetts

NO. BD-2005-0017

IN RE: MICHAEL J. EARLY

S.J.C. Order of Term Suspension entered by Justice Spina on June 16, 2005 with an effective date of July 16, 2005.1

AMENDED MEMORANDUM AND ORDER>

The respondent was initially consulted in 1987 about a possible medical malpractice action involving injuries suffered by a child born with spina bifida, believed to be caused by an anti-convulsive drug the mother took during pregnancy. The child's family had significant social, legal and financial problems. The entire family received welfare assistance and the child received SSI and medical assistance on account of her disability. The mother was epileptic and mildly retarded and because of this could not work or be left alone with children. The father had recurrent problems with alcohol abuse, a history of depression, and an expanding criminal record. The father and mother eventually separated and the child was in and out of DSS custody. The respondent's handling of these problems, his varied mishandling of funds from the settlement of the medical malpractice suit placed in trust for the child, and his filing of a false affidavit to defend himself in a civil suit alleging he had breached his fiduciary duty as the child's trustee, form the basis of this disciplinary action. As the specific facts are no longer in dispute, I incorporate by reference the factual background detailed in the amended appeal panel report, which adopted the hearing committee's report in relevant part and which the Board accepted as its own. Because the respondent argues that the inordinate delay in issuing the hearing report should act as a factor in mitigation, I review the procedural history in detail.

Bar Counsel commenced disciplinary proceedings against the respondent before the Board of Bar Overseers (Board) on November 18, 1999. Count I of the petition for discipline alleged:

(a) numerous conflicts of interest in violation of Cannon Two-DR 2-110(B)(2), Canon Four, DR 4-101 (B), and Canon Five, DR 5-101 (A) and DR 5-105(A)-(C);

(b) numerous breaches of fiduciary duty to the child, in violation of Canon One, DR 1 -102(A)(6) and Canon Two, DR 2-106(A) and (B);

(c) neglect of the child and his duties as her attorney and trustee, in violation of Canon Six, DR 6-101(A)(3);

(d) false, deceptive or misleading representations to the court under the penalties of perjury in his summary judgment affidavit and its attachments, in violation of Canon One, DR l-102(A)(4)-(6);

(e) trust fund violations, including the negligent misuse and continued retention of $700 of the trusts funds, in violation of Canon One, DR 1-102(A)(6) and Canon Nine, DR 9-102(A), (B)(3)-(4) and (C); and

(f) advances of financial assistance to the father against the proceeds of the child's settlement, in violation of Canon Five, DR 5-103(B).

Count II alleged commingling fiduciary funds with business and personal funds in his IOLTA account; negligently and temporarily misusing fiduciary funds from the account, without intent to deprive the rightful owners or actual deprivation; failing to keep adequate records of the IOLTA funds; and failing to account for his use and disposition of all the funds, in violation of Canon One, DR 1-102(A)(6) and Canon Nine, DR 9-102(A) and (B)(3) and (4). Bar Counsel sought a three year suspension.

The respondent filed his answer February 14, 2000 and moved to amend his answer on February 25, 2000. His motion to amend was allowed on August 3, 2000. Public hearings were held over eight days in December 2000, May 2001, and July 2001. The hearing committee issued its report on March 25, 2004, finding sufficient support for almost all of Bar Counsel's allegations.2 After considering factors in mitigation and aggravation, two members recommended the respondent be suspended from the practice of law for eighteen months. The dissenting member favored a two-year suspension.

The respondent and Bar Counsel both appealed the committee's report and recommendation. An appeal panel of the Board heard the matter on August 9, 2004. An initial report issued October 13, 2004, but for reasons unrelated to the substance of the report, was remanded to the appeal panel by the Board for amendment. The appeal panel then issued an amended report on January 3, 2005, adopting the hearing committee's findings in relevant part; making its own additional findings of fact regarding the respondent's misrepresentations under oath while defending himself against a suit alleging he had breached his fiduciary duty as the child's trustee; rejecting the hearing committee's recommendation for discipline; and recommending instead that the respondent be suspended for three years. The respondent filed identical objections to both versions of the report.3 On February 14, 2005, the Board voted, "to adopt the [a]ppeal [p]anel [r]eport, as revised, and its recommendation that Mr. Early be suspended from the practice of law for three years."

On February 28, 2005, the Board filed its information with this court. The respondent's April 22, 2005 brief in response to the information makes three arguments, which I address in turn.

First, the respondent asserts that the appeal panel report, which was adopted by the Board, "usurps the role of the [h]earing [c]ommittee as the, 'sole judge of the credibility of the testimony at the hearing' and improperly rejects factors in mitigation." He claims the appeal panel specifically rejected the hearing committee finding that he, "was involved with a difficult family situation, that he tried to consider the family's interests and failed to appreciate the conflicts of interest created by their situation and his representation." Neither of these contentions is supported by the record. The appeal panel did not dispute the complexity of the situation in which the respondent found himself. Rather, unlike the hearing committee, they found it not to be sufficient to offer mitigation.

"[W]e depart from the [h] earing [c]ommittee's finding that respondent's conduct is in some way excused by this family's difficult financial and social situation. We feel that, if anything, those factors ó well known to respondent ó made it all the more crucial that he serve as [the child's] advocate by doing for her what she had no one else to do and by protecting her from those who would take advantage of her. Instead, the respondent enabled [the father] to misuse many thousands of dollars from [the child's] trust, and when his relationship with [the father] broke down, completely absented himself from the entire situation, leaving [the child] with no one to protect her interests."

This was within the appeal panel's provenance to interpret the law as applied to the facts found by the hearing committee. The appeal panel clearly understood its role, stating, "we are mindful of the role of the [h]earing [c]ommittee as the sole judge of the credibility of the testimony presented at the hearing. ... While we recognize that we are not bound by the ultimate conclusions of the hearing committee, we do not disturb the committee's findings of fact."

The respondent's second argument in response to the information from the Board is that an inordinate delay between the close of the last day of hearing and the issuance of the hearing report should mitigate the level of discipline to be imposed.4 The committee first issued its report on March 25, 2004, approximately two years and eight months after the final hearing, which was held on July 20, 2001. During that time, the respondent did not seek an expedited decision or make any inquiry of record about the progress of the committee's deliberations, nor does he assert he made informal inquiries. The appeal panel specifically recognized that, "the delay in the issuing of the [hearing committee report was not due to any dereliction of duty on the part of the [c]ommittee," but nonetheless noted that it was "regrettable."

The court has addressed the potential consequences of undue delay in the conduct of disciplinary proceedings. "In substance, where an attorney has been subjected to a considerable period of public opprobium while awaiting formal discipline, the delay will have already inflicted an unofficial sanction, and the formal sanction should take into account what the attorney has suffered while awaiting resolution of the charges." Matter of Gross, 435 Mass. 445, 451-452 (2001). A disciplinary board should consider whether the delay, "prolong[ed] any form of public embarrassment, humiliation, or anxiety." Id. at 442.

During the pendancy of this disciplinary proceeding, two articles about the matter were published in the Lawrence Eagle-Tribune, on April 27, 2001 and July 23, 2001. The respondent has offered no other evidence of any continuing or prolonged publicity, nor evidence sufficient to prove he suffered any financial, professional, emotional or other consequences as a result of the delay, as opposed to as a result of his underlying conduct. Without any specific evidence beyond the two news articles in the record, the delay cannot be considered a mitigating factor and, even if there was sufficient evidence, it could not weigh heavily against the breadth, seriousness, and continuing nature of the respondent's misconduct.

Finally, the respondent argues that a three year suspension is markedly disparate from discipline imposed in comparable cases. The appeal panel summarized the hearing committee's findings as follows:

"the respondent committed multiple, serious disciplinary violations, to the detriment of an extremely vulnerable, mentally and physically incapacitated minor client, over an extended period of time. His misconduct continued even after [b]ar [c]ounsel's investigation began, and, far from acknowledging his lapses, he committed additional offenses in his successful attempt to conceal his wrongdoing from the Superior Court and to avoid civil liability. Taking into account the entire course or respondent's conduct, coupled with his prior discipline and failure to comply with the conditions,5 we find that a term suspension of three years is appropriate."

The primary basis of the increase in the appeal panel's recommendation of three years over the hearing committee's recommendation of eighteen months is its review of the respondent's affidavit in a civil suit against him. The affidavit was submitted to the court in the context of a motion for summary judgment, in which the respondent was attempting to defeat the claims of Eastern Bank, the child's successor trustee, against him. Had those claims succeeded, the respondent faced civil liability in excess of $50,000 for funds he misappropriated from the child's trust. His misrepresentations to the court were the basis for the judge's belief that the sums expended were from monies that belonged to the mother and father for their loss of consortium claims, never legitimately belonging to the child. The affidavit stated, "[t]he settlement included compensation both to [the child] in the amount of $560,000 and to her parents in the amount of $140,000 for their loss of consortium. The total of $700,000 was reduced by [the settling attorneys] contingent fee and litigation expenses." This is false, as the settlement proceeds were to be paid solely for the child's benefit, a fact about which the respondent can claim no confusion. It was this false statement under oath that led the judge to grant summary judgment on the respondent's behalf.

The respondent's representations were not made "in the overly zealous representation of a client, but rather for personal gain." Matter of Spallina. 99-BD-001 (1999). Such conduct warrants discipline beyond that ordinarily imposed for misrepresentations made on behalf of a client. I agree with the appeal panel that the combination of misrepresentations 1) made for personal gain, 2) under oath, and 3) regarding a crucial and material fact in the litigation warrants a suspension of at least two years, even in the absence of other misconduct. Id.; Matter of Shaw. 427 Mass. 764, 770 (1998) (attorney lies under oath qualitatively different misconduct than attorney false statements or presentation of false evidence). Here, there is more than sufficient additional misconduct to reach a three year suspension. The appeal panel was correct to note that,

"the respondent's long-term representation of [the father, the mother, and the child], in various matters in which their interests differed significantly, demonstrated a complete lack of understanding of his ethical obligations. He represented one client, [the father], in an adversary proceeding against another client, [the mother]. He continued to accede to the demands and instructions of one client, [the father], to the social, financial, and legal detriment of another client, [the child].... These principal ethical violations are compounded by the other violations found by the [h] earing [c]ommittee: improper cash advances to a client, and [various] IOLTA violations ... "

In light of the breadth and serious nature of his misconduct, the aggravating circumstances, and the lack of any significant mitigation, I find there are more than sufficient comparable disciplinary sentences to justify the suspension term recommended by the Board.

For the foregoing reasons, the respondent Michael J. Early is hereby suspended from the practice of law for a period of three years.

Francis X. Spina
Associate Justice

Entered: June 16, 2005

FOOTNOTES

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

2 The committee found insufficient factual basis for the charge of a violation of Canon Four in Count I(a) and Canon Two in Count I(b).

3 These objections made substantially the same arguments the respondent makes in his brief before the court today, though not identical. It is unclear from the record whether the objections were ever explicitly acknowledged or acted on by the appeal panel. As the respondent has not raised this issue, I address only his brief before the single justice.

4 The respondent previously acknowledged before the appeal panel that he makes no claim that there was any unreasonable delay in bringing the petition for discipline or conducting the hearing, so his current claims to the contrary are waived.

5 Respondent received a private reprimand in 1992 for similar though unrelated misconduct, i.e., inadequate record keeping, failure to disburse client funds in a timely manner, and neglect.



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