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Commonwealth of Massachusetts

NO. BD-2006-042


S.J.C. Order of Term Suspension entered by Justice Spina on March 14, 2007.1

Bar counsel filed a petition for reciprocal discipline based on the respondent's suspension from the practice of law in New Hampshire for six months, effective February 16, 2007. The order for suspension in New Hampshire issued from the Professional Conduct Committee of the New Hampshire Supreme Court, and it has been appealed by New Hampshire disciplinary counsel to the New Hampshire Supreme Court. The basis for the suspension was the respondent's New Hampshire conviction on April 7, 2006, of one count of Class A misdemeanor insurance fraud. He was sentenced in accordance with the terms of a negotiated plea agreement to one year in the house of correction, which sentence was suspended for one year, with probationary conditions that included payment of a $1,000 fine, payment of $284 as restitution, and 100 hours of community service. The respondent has been under an order of temporary suspension from the practice of law in New Hampshire since May 31, 2006. He was temporarily suspended from the practice of law in Massachusetts on June 29, 2006.

The following facts are not disputed. The respondent was admitted to the bar of the Commonwealth on June 6, 2003. He was admitted to the New Hampshire bar on October 26, 2004.

On November 26, 2004, the respondent was involved in a minor motor vehicle accident in New Hampshire for which he was at fault. He backed a motor vehicle he owned into a parked car. At the time, the motor vehicle he was driving was not insured. He gave the owner of the other car all the requisite personal identifying information. However, he asked the other owner to telephone him at a later date to get the vehicle description and plate number, mentioning that his vehicle might not be insured. The other drive made a note of the respondent's license plate number, and told the respondent he was going to walk to a nearby store to telephone police. When he returned, the respondent had left.

The respondent owned a second vehicle that was insured. He telephoned his insurer on November 28, 2004, and reported that his insured vehicle had been involved in the accident. On the same day he left two messages on the answering machine of the other owner to the effect that he reported the accident to his insurer. He provided the name and telephone number of his insurer, the claim number, his policy number, and the New Hampshire registration number of the vehicle he owned that was not involved in the accident.

On November 29, 2004, the respondent falsely reported to a claims adjuster for his insurer that he was driving his insured vehicle at the time of the accident. The other driver had reported to the claims adjuster that the respondent was driving a different vehicle. On November 30, the respondent telephoned the other driver and left a message on his answering machine asking him to return the call so "we can get our facts straight so you can get your car repaired [] promptly."

On December 14, 2004, the other owner's insurer made a written demand on the respondent in the amount of $1,802.11 for repairs made to the other owner's car. On December 16, a claims investigator for the respondent's insurer wrote to the respondent and requested a meeting to discuss issues that had surfaced regarding the accident. The respondent did not telephone his insurer's investigator, but instead sent him an e-mail message on December 22, saying he paid the claim himself because his insurer was not responsible. That same day the respondent sent a check in the amount of $1,802.11 to the other owner's insurer.

The crime to which the respondent pleaded guilty involved the specific intent to defraud his insurance company. He attempted to induce a third party, the other owner, to join in the fraudulent scheme. The Professional Conduct Committee of the New Hampshire Supreme Court found the following facts in mitigation, which merit insertion.

"The Committee concluded that the incident in this case was an isolated one in [the respondent's] personal and professional history and is inconsistent with [the respondent's] historic work ethic, conduct, and commitment to professional and personal achievement. While this case reflects a serious lapse in judgment and constitutes misconduct, it is a single event at a time of personal and financial stress for which [the respondent] has suffered severe consequences, including criminal conviction and payment of restitution. He is sincerely remorseful for his misconduct and has cooperated fully in the Court and Committee process."

"[The respondent's] May 9,2006, admission to the Attorney Discipline Office was particularly significant in the Committee's deliberations. In his submission, [the respondent] describes the difficulties he has overcome and continues to confront in his personal life. Having grown up in poverty, he has worked hard to obtain an education, including his law degree, and is committed to personal accomplishment and providing legal services to low income clients. His personal circumstances have created significant financial stress which, although arguably not unique and certainly not an excuse for his misconduct, reflect the context under which [the respondent] made this misjudgment. These circumstances include the following. [The respondent] and his wife have three young children (ages 6, 4, and 2 months). [The respondent's] father, who suffers from dementia/Alzheimer's disease, lives with the family and is cared for by the [respondent and his family]. One of their children has required medical attention and expense for severe allergies. [The respondent's] wife has suffered medical difficulties related to pregnancy which has added an emotional as well as financial stress to the family. [The respondent] incurred significant debt in order to finance his law school education. His wife's income was reduced because of employment restructuring and he had to relocate his law office because the building was sold. As a result of these and other circumstances, he was unable to pay his mortgage and other bills for a period of time prior to the accident giving rise to this case. Overall, at the time of the accident, [the respondent] was under severe economic stress.

"On the other hand, his professional life, until this incident, reflects his integrity, commitment to serving the public, and commitment to the legal profession. Although newly admitted to the New Hampshire Bar at the time of the incident, he had been admitted to the Massachusetts Bar hi [] 2003, and maintained a solo practice which reflected his dedication of providing quality legal services to low income clients. Unfortunately, that practice did not provide sufficient income for [the respondent] to meet his family's needs. At the time of the accident, two of the three family automobiles were insured. The one [the respondent] was driving was the one that was not insured. As he describes it:

"[W]hen I placed the claim with Progressive I just did not think properly about the wrongness of the act. I was in survival mode. It was not exactly stealing bread for a hungry child - but it was an act I did to protect myself, my wife and my three children from sinking further.... I was trying to save our home - good, bad or indifferent. The act was wrong. I was not properly weighing right and wrong when I made the call."

"Subsequently, although [the respondent] admits that he did commit insurance fraud by reporting the accident occurred while driving one of his insured vehicles, he also appreciates the severity of his misconduct and not only personally paid the cost of repairs to [the other owner], but also has been punished through the criminal process and importantly for purposes of this matter, appreciates the severity of his misconduct.... This is evidenced by his submission to the Committee and conduct in paying restitution and cooperating in the criminal and professional conduct process. Similarly, the actual injury caused by his misconduct has been addressed through payment of restitution and criminal conviction. Finally, based upon the mitigating factors including his lack of a prior disciplinary or criminal record, cooperation with the disciplinary process, substantial penalty already incurred as a result of his misconduct, and obvious remorse from the incident, the Professional Conduct Committee concluded that disbarment would not be appropriate in this case. Accordingly, the Professional Conduct Committee finds that a six month suspension takes into account the nature of [the respondent's] misconduct, the aggravating and mitigating circumstances, and central purposes of the Attorney Discipline System."

I am not bound by the findings of the Professional Conduct Committee of the New Hampshire Supreme Court in this reciprocal discipline case because I must determine the comparable sanction that should be imposed in Massachusetts for the respondent's conduct, independent of whatever sanction is imposed in New Hampshire. However, I give considerable weight to the thoughtful and extensive findings of the Committee, which serves a similar function as our Board of Bar Overseers.

Bar counsel argues that the respondent should be suspended from the practice of law for at least two years. The respondent argues that a six-month suspension is the appropriate term suspension.

"[W]e generally give effect to the disciplinary decisions of another jurisdiction without undertaking the often difficult and protracted task of redoing the inquiry which has already been concluded there. But because the consequences for the attorney are grave and the responsibility of judgment is still ours, such deference does not automatically lead to reciprocity. See Matter of McCabe, 411 Mass. 436 (1991). We consider whether the proceedings accord with our notions of fairness and whether the grounds for the discipline correspond to our own criteria of attorney probity. Rule 4:01, § 16, implicitly adopts a modified rule of res judicata whereby the disciplinary action taken by a foreign jurisdiction will be adopted here unless
' [(a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in this Commonwealth; or (c) the misconduct established is not adequately sanctioned by the same discipline in this Commonwealth.]' SJ.C. Rule 4:01, §16(3)."2

Matter of Lebbos, 423 Mass. 753, 755-756 (1996).

I am mindful that the respondent's suspension has been appealed to the New Hampshire Supreme Court, which may impose a different sanction.3 The parties agree that I should make a decision in this case now. They both appreciate that waiting for the outcome of the New Hampshire appellate process will not serve the interests of the respondent, the bar, or the public in Massachusetts, where the likely sanction in Massachusetts for a comparable ethical violation, see Matter of Alter, 389 Mass. 153, 156 (1983), is a term suspension that falls within an approximate range of not less than six months and not more than three years under our bar discipline jurisprudence.

Bar counsel cites several cases in support of a suspension of at least two years. Three cases that resulted in disbarment are not comparable because they involved convictions of "insurance fraud" in connection with the practice of law, and money was obtained. See Matter of Concemi, 422 Mass. 326,330 n.4 (1996); Matter of Ellis, 16 Mass. Att'y Disc. R. 147 (2000); Matter of Zanoni, 10 Mass. Att'y Disc. R. 297 (1993). In the present case the crime was actually an attempted fraud (no money was received), and it occurred outside the practice of law, a significant difference. Matter of Barrett, 447 Mass. 453,463-465 (2006).

Bar counsel's reliance on cases where a term suspension of two to three years was imposed following a conviction of "bank fraud" that occurred outside the practice of law are somewhat comparable because they involve the specific intent to defraud, but they involve crimes where the fraud was actually consummated. Here, the crime was attempted fraud. See Matter of Behenna, 10 Mass. Att'y Disc. R. 15 (1994); Matter of Bedinger, 10 Mass. Att'y Disc. R. 12 (1994). See also Matter of Segal, 430 Mass. 359, 367 (1999) (after acquittal of "bank fraud," two-year suspension imposed where board found [under civil standard] "bank fraud" in connection with practice of law). Cases involving other types of fraud committed outside the practice of law, resulting in eighteen-month to two-year suspensions also are only somewhat comparable, but unlike the respondent's case, money or something of value actually was obtained. See Matter of Alter, supra (two-year suspension after conviction for making false statements to obtain, and obtaining, social security payments); Matter of Andrews, 21 Mass. Att'y Disc. R. 11 (2005) (suspension of two years and one day after conviction of conversion of public money); Matter of Coughlin, 10 Mass. Att'y Disc. R. 45 (1994) (two-year suspension after conviction of fraudulently obtaining school loan); Matter of Rendle, 5 Mass. Att'y Disc. R. 310 (1987) (two-year suspension after conviction of aiding and abetting receipt of unlawful gratuity).

A closer case is Matter of Morris, 19 Mass. Att'y Disc. R. 324 (2003), where a lawyer, acting outside the practice of law, left the scene of a motor vehicle accident that occurred on an interstate highway. Rather than stop to render assistance, the lawyer sped off, abandoned his vehicle, and reported it as stolen. He was convicted of violating G. L. c. 268, § 39 (falsely reporting vehicle as stolen), and suspended for two years. Here, the respondent did not flee the scene of an accident to avoid all responsibility, and he did not falsely report his vehicle as stolen. The respondent falsely reported which car was involved in the accident with the intent to defraud his insurer. Although two years is arguably within the range of information from insurance companies, and altering a doctor's report to conceal the death of his client from the insurance company, all in connection with the practice of law. Like Goodman, the respondent attempted to defraud an insurance company, and both attorneys attempted to induce third parties to participate in the fraud, an aggravating factor. Significant factors in Goodman's case but not present in the respondent's case are that Goodman's misconduct occurred in connection with the practice of law and involved three separate incidents. A significant factor that is present in the respondent's case but not in Goodman's case is that the respondent's conduct resulted in a prosecution and conviction. Analysis of three cases provides basis for concluding that conviction of conduct outside the practice of law may result in a comparable sanction for similar uncharged criminal conduct occurring in the practice of law. See Matter of Segal, 430 Mass. 359,367 (1999) (two-year suspension imposed for uncharged "bank fraud"[money obtained] in connection with practice of law); Matter of Behenna, 10 Mass. Att'y Disc. R. 15 (1994)(two-year suspension for conviction of "bank fraud"[money received] committed outside practice of law); Matter of Bedinger, 10 Mass. Att'y Disc. R. 12 (1994)(three-year suspension for conviction of "bank fraud"[money received] outside practice of law). I conclude that the appropriate sanction in this case is a suspension that falls within a range between one and two years.

I further conclude that, although the respondent's case is close to Matter of Morris, it is factually closer to Matter of Goodman. Unlike Morris, the respondent was not attempting to escape all responsibility for his actions. The respondent sought an illegal solution to discharge his responsibility. The respondent also did not demonstrate the callous lack of concern for the harm shown by Morris, who left the scene of an accident and offered no assistance to persons he might have injured.

Bar counsel correctly points out that the mitigation found by the Professional Conduct Committee of the New Hampshire Supreme Court either is not recognized in Massachusetts or is not sufficient to warrant reduction of the sanction to six months. However, the significance of this principal is that the mitigating factors in this case may not be applied to reduce a sanction below the comparable sanction for similar misconduct. A judge has discretion to consider those mitigating factors when determining the appropriate sanction within a permissible range of sanctions for a particular case. In the circumstances of this case, taking into consideration the mitigating factors, a two-year suspension is too severe. I conclude that the appropriate sanction in this case is a one year suspension from the practice of law, retroactive to June 29, 2006, the date the respondent was temporarily suspended in Massachusetts.


1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.
2 The quotation in brackets contains the current portion of SJ.C. Rule 4:01, § 16 (3), as appearing in 425 Mass. 1319 (1997).
3 New Hampshire disciplinary counsel is seeking disbarment. However, there are two significant differences between New Hampshire and Massachusetts jurisprudence. First, New Hampshire, it seems, does not make a distinction between misconduct outside the practice of law and misconduct committed in the practice of law. Massachusetts makes such a distinction. See, e.g., Matter of Barrett, 447 Mass. 453, 463-465 (2006). Second, New Hampshire allows a disbarred attorney to petition for reinstatement at any time, whereas Massachusetts does not permit reinstatement until eight years after disbarment, or five years after an indefinite suspension. See S.J.C. Rule 4:01, § 18 (2) (a), (b), as appearing in 430 Mass. 1329 (1999).

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