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Commonwealth of Massachusetts

NO. BD-2006-006

IN RE: MALCOLM JOEL BARACH

S.J.C. Order of Term Suspension entered by Justice Cowin on August 31, 2006, with an effective date of September 30, 2006.1

This matter came before me on an information and record of proceedings, and a vote of the Board of Bar Overseers (board). Bar counsel's petition for discipline alleged that Malcolm J. Barach (respondent): failed to keep or maintain adequate records of client accounts in violation of Canon Nine, DR 9-102(B)(3)2; failed to return unearned client fees in violation of Canon Two, DR 2-110(A)(3) and Mass. R. Prof. C. 1.16(d), as appearing in 426 Mass. 1301, 1369 (1997) 3 charged "clearly excessive" fees in violation of Canon Two, DR 2-106 (A) & (B), and Mass. R. Prof. C. 1.5(a), as appearing in 426 Mass. 1301, 1315 (1997), and Mass. R. Prof. C. 8.4 (d) & (h), as appearing in 426 Mass. 1301, 1429 (1997)4; and charged for work he did not perform, falsified time records, and made intentional misrepresentations to bar counsel in violation of Canon One, DR 1-102(A)(4), (5), & (6), and Mass. R. Prof. C. 8.4(c), (d), & (h), as appearing in 426 Mass. 1301, 1429 (1997).5,6 A hearing committee found that the respondent had engaged in substantially all of this alleged conduct and had violated the disciplinary provisions enumerated above. An appeal panel adopted the hearing committee's findings of fact and agreed with its recommendation that the respondent should be suspended from the practice of law for two years. The board adopted the reports of the hearing committee and appeal panel and filed an information pursuant to S.J.C. Rule 4:01, § 8 (4), 425 Mass. 1301, 1311-1312 (1997), recommending that the respondent be suspended from the practice of law for two years.7

Before me, the respondent claims that the administrative procedures violated his due process rights",: and contends that the findings are not supported by substantial evidence. He seeks remand for a new hearing. Bar counsel requests that I adopt the board's recommendation of a two-year suspension. For the reasons discussed below, I adopt the board's recommendation and order suspension for two years.

1. Facts. I summarize the findings of the hearing committee which, as stated above, were adopted by an appeal panel of the board and by the full board. Because it is relevant to the respondent's due process and substantial evidence claims, I also summarize the evidence presented to the hearing committee.

Client A. From 1992 through 1996, the respondent8 represented "Client A," who was charged with rape and sexual abuse of a child. At the hearing, the critical issue related to Client A was whether the respondent failed to return unearned fees. The resolution of this issue turned on: (1) the hourly rate for the representation, and (2) the total amount Client A actually paid to the respondent. The board found that the respondent charged $100 per hour and earned $12,025 for 120.25 hours of work, that Client A paid the respondent a total of $16,250,9 and that the respondent failed to return to Client A $4,225 of unearned fees. The evidence in support of these findings is summarized as follows.

The respondent testified that he and Client A agreed upon a fee of $150 per hour, but the hearing committee determined that claim to be "knowingly" false. The respondent did not have contemporaneous notes, time records, accounting records or a fee agreement to support his contention. He merely provided an affidavit from Client A's prior counsel stating that prior counsel charged $150 per hour. Moreover, when the disciplinary investigation began in 1996, the respondent provided bar counsel with itemized bills and a letter stating that his rate was $100 per hour. In 1994, he also provided a bill to the client that, although it did not specify the hourly rate, appeared to incorporate a rate of $100 per hour. It was not until 1999 (after bar counsel provided respondent with copies of checks indicating total payment in excess of what he would have earned in his stated hours at a, rate of $100 per hour) that the respondent first claimed to "discover . . . that the hourly rate of $100 should have been $150. . . "

The evidence regarding the amount of money Client A paid the respondent came primarily from Client A's wife. She provided 124 cancelled checks made out to the respondent totaling $16,250.10 The checks had been delivered by hand to the respondent, and all were endorsed with a signature that "looks like" the respondent's. Most of the checks had been cashed in the area where the respondent practiced. Although the respondent did not keep contemporaneous payment records, he was able to locate photocopies of some of the checks in his files, which he claimed demonstrated that he had not received the other checks. His claims as to how much money he received from the client changed throughout the course of bar counsel's investigation, and at the hearing he only admitted to cashing fourteen of the checks. Based on this evidence, and its evaluation of witness credibility, the hearing committee found that the respondent received and cashed checks totaling $16,250.

Client B. The primary issues related to Client B were whether the respondent charged clearly excessive fees, and whether he billed for work he did not perform or did not need to perform. In May 1997, while the respondent was under investigation by bar counsel for his representation of Client A, he and his son represented a social acquaintance ("Client B") who had been involved in a car accident that killed his wife. The respondent and his son represented Client B for five months, primarily defending the client against a motor vehicle homicide charge and preparing simple estate-planning documents. Client B paid $53,000 in legal fees before terminating the representation in October, 1997, The only court proceeding that occurred while the respondent represented Client B was a clerk's hearing in the Maiden district court on an application for complaints. At the conclusion of the hearing, the complaints issued.

In 1998, after .their representation of Client B terminated, the respondent and his son, at the request of successor counsel, prepared an itemized bill for their services. The bill totaled $56,340, and requested payment of a $3,340 balance due. Of the total, approximately $40,000 was attributed to the criminal representation and approximately $2,900 was attributed to preparation of estate documents.11 Client B filed a civil suit against the respondent and his son to recover excess fees, and the respondent filed a counterclaim for the $3,340 balance. Prior to the hearing in this bar discipline matter, the respondent and his son paid $35,000 to settle the civil suit.

The hearing committee found that fees of almost $40,000 for the motor vehicle homicide representation, and $2,900 for preparing the estate documents were "clearly excessive." Randy Chapman, an attorney experienced in trying motor vehicle homicide cases who succeeded the respondent in,, representing Client B, testified that the motor vehicle homicide case against Client B was a misdemeanor one, was not complex, and that he resolved the matter with pre-trial probation in March 1998. He testified further that, at the relevant time, fees customarily charged in district courts in the Malden area for defending motor vehicle homicide cases through a clerk's hearing ranged from $4,000 to $10,000, and that in his opinion the respondent charges were excessive.

Donna Cohen, an attorney who worked on Client B's estate matters after respondent's representation was terminated, testified that the estate documents prepared by respondent's son were not complex, could be produced in four to five hours, would typically cost approximately $500, and that $2,900 was an excessive fee for the work. She also testified that the documents prepared by the respondent's son for Client B were inadequate in many respects and that she had to redraft them.

Based on its evaluation of witness credibility and the following facts, the hearing committee also found that the respondent charged Client B for services that he did not perform and for unnecessary work. The bill that the respondent prepared at the request of attorney Randy Chapman charged for approximately ninety-six hours of purported tasks that the respondent claimed to remember three to nine months later without the aid of contemporaneous notes. In addition, many entries for the respondent's time were for vague and repetitive tasks such as ."further data review," "file review," and "review related data." To the extent that the respondent actually performed the criminal defense work for which he billed, it was greatly in excess of the twenty-five total hours that Randy Chapman estimated the case required.

2. Respondent's claims. The respondent requests that I remand the matter for a new disciplinary hearing, arguing that the findings summarized above were the result of a proceeding that repeatedly violated his due process rights. He claims specifically that the hearing committee, appeal panel, and board: (1) failed to consider "undisputed" evidence; (2) denied his right to confront witnesses against him; (3)improperly excluded testimony that would have been favorable to his defense; (4) failed to consider the appropriate factors for determining whether a fee is clearly excessive; (5) relied on unqualified and biased experts; and (6) manifested bias.

Bar discipline proceedings are civil matters and the respondent is not entitled to the full panoply of criminal procedural protections. See In re Abbott, 437 Mass. 384, 391 (2002) . Nevertheless, attorneys facing bar discipline proceedings are entitled to due process protection, including the right to fair notice of the charges and the right to be heard, Matter of Eisenhauer, 426 Mass. 448, 453-454, cert, denied, 524 U.S. 919 (1998). I consider the respondent's due process claims in light of the rule that the "fundamental requisite of due process is an opportunity to be heard at a meaningful time and in a meaningful manner." Matter of Kenney, 399 Mass. 431, 435 (1987).

As a necessary aspect of due process, I also consider whether the board's findings are supported by the evidence, a concern the respondent incorporates in his filings to me by reference to his previous appeals, and objections in this matter. In reviewing the subsidiary findings of the board, the inquiry is whether its findings are supported by substantial evidence, Matter of Cobb, 445 Mass. 452, 464 (2005); S.J.C. Rule 4:01, § 8(4), as appearing in 425 Mass. 1311 (1997) (subsidiary findings shall be upheld if supported by substantial evidence), giving due respect to the hearing committee's role as the sole judge of the credibility of testimony presented at the hearing. S.J.C. Rule 4:01, § 8(4). "Substantial evidence" is "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1 (6).

(1) The respondent claims that the hearing committee found that his hourly rate for Client A was, $100 only by ignoring critical evidence. He maintains that the following evidence, not detailed in the hearing committee report, is inconsistent with the finding: Client A1s prior counsel provided an affidavit indicating that prior counsel charged $150 per hour; Client A's wife testified that she did not remember the hourly rate; and a civil suit filed against him by Client A's wife for unreturned fees was dismissed. None of this evidence is relevant to the fee the respondent charged. Although a meaningful hearing requires the fact finder to consider all the evidence, failure to catalogue irrelevant evidence is not indicative of a failure to consider all the evidence.

(2) The respondent claims that his due process rights were violated because Client A, who filed the complaint with the board, did not testify at the hearing and thus was not subject to cross-examination. Bar counsel developed the case and presented evidence to the hearing committee without the necessity of calling Client A as a witness. The only evidence obtained from Client A was letters he wrote to the respondent that were submitted to the hearing committee as part of the jointly stipulated exhibits for the hearing.

The fact that Client A did not testify did not violate due process. There is no requirement that the'" original complainant testify. See S.J.C. Rule 4:01 § 10, as appearing in 425 Mass. 1301, 1313 (1997) (refusal of complainant to proceed with complaint does not require abatement <$£ proceedings) . In addition, the respondent did not attempt to call Client A as a witness. The respondent was not surprised by the proceeding, nor did he have to defend himself without adequate means of testing evidence against him. Where a respondent has access to the documentary evidence produced by a person not called to testify, and has an opportunity to develop a defense to that evidence, we have held that due process in bar .discipline proceedings does not require live testimony subject to cross-examination. Matter of Tobin. 417 Mass. 92, 101-102 (1994).

(3) The respondent claims that he was denied a fair and meaningful hearing when the hearing committee considered a written report from a handwriting expert, but did not allow the expert to testify to explain further the meaning of his report. The background to this contention is as follows. After the hearing began, the respondent requested a continuance for a handwriting expert to analyze the signature on the back of the checks from Client A to determine whether the endorsements were genuine. The continuance was granted. In a report, which was in affidavit form, the expert provided no opinion whether the checks were endorsed by the respondent. The expert explained that he was not provided with adequate exemplars of the respondent's signature to make a comparison. The hearing committee did not permit the expert to testify, and it did not rely on the report for its findings regarding the amount that Client A paid to the respondent. However, in discussing the respondent's "disrespect for the disciplinary proceeding," which it deemed an aggravating factor, the hearing committee noted that the respondent requested a continuance for additional time to retain a handwriting expert but then failed to provide the expert with sufficient exemplars to make the continuance fruitful.

The respondent contends that he should have been allowed to call the expert -- apparently to provide testimony about the endorsements on the disputed checks and to explain what he (the expert) meant by stating that the respondent failed to provide adequate exemplars for comparison. The respondent argues that this decision by the hearing committee "selectively slanted the evidence." Contrary to the respondent's suggestion, the expert's testimony could shed no light on the issue at hand because his affidavits stated that he could not form an opinion as to the signatures on the checks. The committee need only admit evidence "on which reasonable persons are accustomed to rely in the conduct of serious affairs." G. L. c. 30A, § 11(2). It need not use hearing time to confirm that an expert has no opinion.12

(4) The respondent argues that, in finding that he charged Client B clearly excessive fees, the hearing committee and appeal panel failed to consider the eight factors that are supposed to guide consideration of whether the fee in any particular case is "clearly excessive." In Matter of Fordham, 423 Mass. 481, 485-486 (1996), we assessed the question of clearly excessive fees by reference to eight factors initially laid out in Canon Two, DR 2-106(B), and now included in Mass. R. Prof. C. 1.5(a). These "Fordham factors" include: (1) the labor and skill required, plus the novelty and difficulty of issues, (2) the likelihood that representation will preclude other "employment by the lawyer, (3) the typical fee for similar services, (4) the amounts involved and results obtained, (5) time limitations, (6) the length and nature of the professional relationship, (7) the experience of the lawyer, and (8) whether the fee is contingent.

There is no merit to the argument that the Fordham factors were not considered. The hearing committee report explicitly addresses six of the factors, omitting reference only to those that are not conceivably relevant (length of the professional relationship and whether the fee was contingent). The fact that the appeal panel report did not restate each factor in finding that the respondent charged excessive fees'1 does not indicate a failure to address the factors.

(5) The respondent asserts that the findings regarding the propriety of Client B's fees were based on testimony of unqualified and interested "expert" witnesses. He alleges that Randy Chapman, who testified concerning the motor vehicle homicide defense work for Client B, had a conflict of interest: he served as successor defense counsel and received a fee for referring the wrongful death claim of Client B's wife's estate to another attorney - facts disclosed in Mr. Chapman's testimony before the hearing committee. The facts that Mr. Chapman's familiarity with the case came from his work as successor counsel, and that he received a fee for referring a civil claim to another lawyer, did not render him incapable of providing testimony that could assist the fact finder in this matter. The hearing committee was informed of these facts and was able to consider them in weighing Mr. Chapman's credibility.

The respondent also complains that Donna Cohen, who testified about the estate documents drafted for Client B, was biased and not qualified to testify as an expert. His bias claim is based on Ms. Cohen's testimony that her office, which consisted of her and her father, was involved in initiating Client B's bar discipline complaint and a civil action against the respondent. The hearing committee denied respondent's motion to strike Ms. Cohen's testimony, properly stating that the claim of bias went to the weight of the testimony rather than its admissibility.

The respondent also questions whether Ms. Cohen was qualified to testify regarding fees for the estate work. She testified that for seven years she handled approximately three estate planning matters per year and assisted her father in another three or four cases per year. Her familiarity with typical fees derived from her father's discussions with other lawyers. Although Ms. Cohen lacked extensive knowledge of the fees ordinarily charged by other attorneys, the hearing committee (which was comprised of lawyers) based its excessive-fee finding primarily on an assessment of how difficult and time-consuming the work was - matters on which Ms. Cohen was competent to testify. Moreover, Ms. Cohen's testimony was of minimal importance to the ultimate discipline recommendation. Her testimony was relevant only to the finding that fees of $2,900 were clearly excessive for the estate planning documents and had no bearing on the more serious findings that the respondent charged excessive fees for the criminal representation, and that he charged fees for unnecessary and unperformed work in that regard.

(6) Finally, the respondent claims that Thaddeus Beal, a member of the hearing committee, demonstrated bias in favor of bar counsel's witness Randy Chapman. The background of this contention is as follows. When Mr. Chapman completed his testimony, Mr. Beal approached him, shook his hand, and spoke to him privately. Mr. Beal later explained that he had served in the District Attorney's Office with an Al Chapman more than thirty years before, was not close to the man, and had not seen him in three decades. Mr. Beal stated that his conversation with Randy Chapman was limited to inquiring if he were related to Al Chapman. Mr. Beal refused the respondent's request that he recuse himself, and stated that he had no relationship with the witness.

The "right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit," secured by Art. 29 Massachusetts Dec. of Rights, applies "to all persons authorized to decide the rights of litigants." Beauregard v. Dailey, 294 Mass. 315, 324-325 (1936). See Police Commissioner of Boston v. Municipal Court, 368 Mass. 501, 507 (1975) . The matter of recusal is generally left to the discretion of the member of the tribunal, and an abuse of discretion must be shown to reverse a decision not to recuse. Haddad v. Gonzalez, 410 Mass. 855, 862 (1991). Where, as here, the alleged source of bias was a remote professional relationship with the witness's father, it was hardly an abuse of discretion for Mr. Beal to determine that he could perform his functions impartially.13,14

3. Appropriate sanction. Having concluded that the findings in this matter are supported by substantial evidence and that the proceedings below complied with the dictates of due process, I consider the board's recommendation that the respondent be suspended for two years. The facts as accepted by the board constitute multiple, serious violations of our rules of professional conduct. The failure to return the significant unearned fees paid in advance violated Canon Two, D 2-110(A)(3), and Mass. R. Prof. C. l.l6(d) ("[u]pon termination of representation, a lawyer shall take steps, ... to protect a client's interests, such as ... refunding any advance payment of fee that has not been earned"). Charging, collecting, and attempting through a counterclaim to collect excessive fees violated Canon Two, DR 2-106(A) and (B), and Mass. R. Prof. C. 1.5(a) ("lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee"), Knowingly charging for services he did not perform, and deliberately misrepresenting his time and hourly rate to clients and bar counsel violated Canon One, DR 1-102(A)(4), (5), and (6), and Mass. R. Prof. C. 8.4(c) (lawyer shall not "engage in conduct involving dishonesty, fraud, deceit or misrepresentation"); Mass. R. Prof. C. 8.4(d) (lawyer shall not "engage in conduct prejudicial to the administration of justice"); and Mass. R. Prof. C. 8.4(h) (it is misconduct to "engage in any other conduct that adversely reflects on ... fitness to practice law"). The respondent's failure to maintain records of fees received from Client A violated Canon Nine, DR 9-102(b)(3) (lawyer shall maintain records of client funds).

The discipline recommendation of the board is entitled to "substantial deference." See, e.g., Matter of Kersey. 432 Mass. 1020, 1020 (2000). The primary consideration in imposing discipline is the effect on, and perception of, the public and the bar. Matter of Griffith, 440 Mass. 500, 510 (2003). See also Matter of Alter, 389 Mass. 153, 156, (1983) . The board's recommendation is also reviewed to ensure that the sanction imposed is not markedly disparate from those imposed on attorneys in similar cases. Matter of Cobb, 445 Mass. 452, 479 (2005).

Weighty discipline is appropriate in this case because of the seriousness of respondent's retention of money that he did not earn, his extraction of excessive payment from a vulnerable acquaintance, and his falsehoods to clients and bar counsel in an attempt to justify his actions. Indeed, the respondent offers scant argument that a two-year suspension is not warranted.

A two-year suspension is not markedly disparate from discipline imposed in similar cases. See, e.g. In re Broderick, 20 Mass. Atty. Disc. R. 53 (2004) (two-year suspension for refusing to return unearned portions of an advance fee and instead generating false billing records after the fact in attempt to justify the total fee). Since there are no mitigating factors, I conclude that the board's recommendation of a two-year suspension is reasonable.

5. Disposition. A judgment shall enter suspending the respondent from the practice of law in the Commonwealth for two years.

FOOTNOTES

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

2 Canon Nine, DR 9-102(B) (3), states that a, lawyer "shall [m]aintain complete records of , . . properties . . . and render appropriate accounts to his client regarding them."

3 Canon Two, DR 2-110(A)(3): "A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned."

Mass. R. Prof. C. 1.16(d): "Upon termination of representation, a lawyer shall . . . refund[] any advance payment of fee that has not been earned."

4Canon Two, DR 2 -106:

"(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee. "

(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence, experienced in the area of the law involved, would be left with a definite and firm conviction that the fee is substantially in excess of a reasonable fee. "

Mass. R. Prof. C. 1.5(a): "A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee."

Mass. R. Prof. C. 8.4: "It is professional misconduct for a lawyer to:

(d) engage in conduct that is prejudicial to the administration of justice; ...

(h) engage in any other conduct that adversely reflects on his or her fitness to practice law.

5 Canon One, DR 1-102(A): "A lawyer shall not ...

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

(5) Engage in conduct that is prejudicial to the administration of justice.

(6) Engage in any other conduct that adversely reflects on his fitness to practice law."

Mass:. R. Prof. C. 8.4 (c): "It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."

6 The representations at issue in this matter span the years 1992-1997, but the respondent's efforts to bill, collect, and justify-his fees extend into 1998 and beyond. The conduct at issue, then, is assessed under both the Canons of Ethics and Disciplinary Rules, which governed the conduct of lawyers from October 2, 1972, through December 31, 1997, and the Massachusetts Rules of Professional Conduct, which became effective January 1, 1998. See 426 Mass. 1301, 1302 (1997).

7 Bar counsel also alleged that the respondent failed to represent and communicate adequately with a client. I do not consider this count because the appeal panel report, which was adopted by the board, does not rely on it in its recommendation.

8 The respondent was admitted to the bar in 1986.

9 The hearing committee report states that Client A paid a total of $16,300, but I use the figure of $16,250 because the payments detailed in the hearing committee report add up to $16,250, and that figure is consistent with the hearing committee's finding that respondent failed to return $4,225 of unearned fees. The fifty dollar discrepancy is not material.

10 Client A did not testify at the hearing.

11 The remainder of approximately $13,000 was attributed to legal representation on other civil matters, legal representation on unspecified matters, work by law clerks, and expenses.

12 As for the fact that the hearing committee considered respondent's failure to provide exemplars as an example of the respondent's lack of respect before the committee, this was merely considered an aggravating factor by the hearing committee. The appeal panel report, which the board approved, did not rely on this aggravating factor in recommending a two-year suspension.

13 The respondent claims that the proceedings were compromised further because he received ineffective assistance from counsel who did not represent him zealously and disclosed confidential information and strategy to bar counsel. Respondent grounds this argument on the Sixth Amendment to the United States Constitution, which applies to criminal defendants and not to respondents in bar discipline proceedings. See Rule 3.4(d) of the Rules Board of Bar Overseers (1997) ("If the respondent in a formal proceeding desires counsel and cannot afford to retain counsel, then, upon application, the Board will seek to assist the respondent to obtain counsel either at reduced or no cost. Nothing in this subsection (d) accords any substantive right to the respondent with respect to the appointment or payment of counsel." [emphasis supplied]). Even were I to apply a standard of ineffective assistance of counsel such as that utilized in criminal cases, see Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), there has been no showing of ineffective assistance here.

14 The respondent also objects; to the nature of bar discipline proceedings in general, claiming that discovery rights are too limited, that evidentiary standards are too low, and that the process is too slow. I do not address these general claims as they are asserted without argument and without explanation of how such .features of the proceeding prejudiced the respondent.

In addition) these claims touch on procedures that have previously been found permissible in the absence of a showing of prejudice. See, e.g. Matter of London, 427 Mass. 477, 481 (1998) (delay without prejudice does not require dismissal of proceedings); Matter of Tobin. 417 Mass. 92 (1994) (no violation of due process where respondent did not allege that specific discovery requests were denied).



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