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Commonwealth of Massachusetts

NO. BD-2005-065

IN RE: ADRIAN A. GAUCHER

S.J.C. Order of Disbarment entered by Justice Spina on December 16, 2005, with an effective date of January 16, 2006. 1
MEMORANDUM AND JUDGMENT

The Board of Bar Overseers (board) filed an Information with the county court, pursuant to Supreme Judicial Court Rule 4:01, § 8(4), recommending that the respondent, Adrian A. Gaucher, Jr., be disbarred from the practice of law. The matter was heard by a special hearing officer, who found that the respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, hi violation of Supreme Judicial Court Rule 3:01, DR 1-102 (A)(4), 382 Mass. 769 (1981); conduct that adversely reflects on his fitness to practice law, in violation of DR 1-102 (A)(6), 382 Mass. 769 (1981); and commingling personal funds in his IOLTA account in violation of DR 9-102 (A), 419 Mass. 1303 (1995). The special hearing officer recommended disbarment. An appeal panel of the board adopted the recommendation of the special hearing officer.

The facts found by the special hearing officer, and on which the recommendation for disbarment are based, can be summarized briefly. The respondent borrowed $170,000 from his mother in the form of a $75,000 loan in March, 1993, and a $95,000 loan in December, 1993. In August, 1994, he deposited $179,498.18 of his mother's money into his IOLTA account to hide it from his wife, with whom he was in the throes of a divorce. He simultaneously executed a $50,000 demand note payable to his mother. The respondent used all but $11,000 of this latter amount for his personal and business expenses, hi 1998, the respondent filed a personal bankruptcy petition under Chapter 7 of the Bankruptcy Act. He identified his mother as an unsecured creditor. His mother, represented by her guardian, instituted an adversary proceeding alleging that the respondent's debt to her was non-dischargeable.

In May, 1999, Judge Queenan of the Bankruptcy Court held an evidentiary hearing on the mother's petition. The respondent appeared pro se. Judge Queenan found that the $75,000 and $95,000 loans were obtained by false statements, false representations, or fraud, and that the $ 179,498.18 had been obtained by fraud or defalcation. Judge Queenan found that all but $11,000 of the $179,498.18 had been used by the respondent. Judgment entered on May 20, 1999, that the debt to the respondent's mother in the amount of $338,498.18 was non-dischargeable. The respondent filed an appeal, which was dismissed in February, 2000, for failure to prosecute.

The respondent does not contend that under these facts, disbarment is not the appropriate sanction. See Matter of Schoepfer, 426 Mass. 183, 187 (1997) (presumptive sanction for conversion of client or fiduciary funds is indefinite suspension or disbarment). If full restitution has been made, an argument can be made for indefinite suspension. See Matter of Bryan, 411 Mass. 288, 292 (1999). Restitution was not made here. The sole issue before me is whether it was error to apply principles of collateral estoppel to prevent the respondent from contesting sixteen findings of fact made by Judge Queenan, essentially the heart of bar counsel's case against the respondent. See Bar Counsel v. Board of Bar Overseers, 420 Mass. 6(1995).

For collateral estoppel to be used offensively, there must be '"an identity of issues, a finding adverse to the party against whom it is being asserted, and a judgment by a court or tribunal of competent jurisdiction,'... [and the party against whom the doctrine is sought to be used] must also have had a 'full and fair opportunity to litigate the issue in the first action."' (Internal citations omitted.) In the Matter of Cohen, 435 Mass. 7, 15 (2001). These prerequisites have been met. The issue of the respondent's conduct and intent, as well as the questions of fraud and misrepresentation, were central to both the matter in the bankruptcy court, which proceeded to final judgment, as well as the matter before the board. The respondent had a full and fair opportunity to litigate the issue in the bankruptcy court, and he had every incentive to litigate the issue, which was central to his petition seeking discharge of a substantial amount of debt through bankruptcy proceedings.

The question of collateral estoppel must also be determined to be fair to the respondent. Bar Counsel v. Board of Bar Overseers, supra at 11. The respondent contends that application of collateral estoppel is unfair because he appeared pro se in the bankruptcy proceeding and was unfairly disadvantaged by his lack of trial experience and his financial inability to hire trial counsel worthy to oppose the experienced trial counsel who represented his mother's interests. Pro se litigations are held to the same standards as represented parties. Here, the respondent is himself an attorney, with more than thirty-five years experience. His claim that an experienced attorney would have presented evidence of his mother's mental condition is unpersuasive. His mother's competence is not necessary to sustain findings of fraud, deceit, and misrepresentation.

There is also no merit to the respondent's claim that his relationship with his mother was familial, and not an attorney-client relationship with respect to these transactions. The special hearing officer found that he acted as his mother's attorney, under written authorization to act as her attorney at law and attorney in fact, and acted as her attorney at law in communications with the banks in order to effectuate or expedite transfers of the monies in question. These findings are supported by substantial evidence In re Discipline of an Attorney, 442 Mass. 660, 667 (2004); S.J.C. Rule 4:01, § 8(4).

For the foregoing reasons, I conclude that there was no error in the application of principles of collateral estoppel to prevent the respondent from relitigating the sixteen findings made by the bankruptcy judge.

The respondent is hereby disbarred from the practice of law.

By the Court,

Francis X. Spina
Associate Justice

ENTERED: December 16, 2005

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



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