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Commonwealth of Massachusetts

NO. BD-2006-057


S.J.C. Order of Term Suspension (one year) entered by Justice Ireland on August 18, 2006, with an effective date of September 18, 2006.
Judgement modified on appeal, 449 Mass. 25 (2007).


Both the Respondent and Bar Counsel appeal from the report of a special hearing officer who found that the Respondent violated Mass. R. Prof. C., Rules 3.3(a)(1), 8.1(a), 8.4(c), (d) and (h); rejected certain other charges under Mass. R. Prof. C. 5.5, 8.4(c), (h); and recommended that the Respondent be suspended for a year and a day.

The Respondent’s firm, Gadsby Hannah, LLP, hired Douglas Fineberg as an attorney in 1998. After two years, Gadsby Hannah learned that Fineberg had lied about his admission to the bar. The Respondent knew all along that about four years beforehand Fineberg had fraudulently held himself out as a licensed attorney at law and had committed perjury about his admission to the bar, because the Respondent represented Fineberg at a deposition at which he admitted doing so. Despite this knowledge, the Respondent recommended Fineberg for employment at Gadsby Hannah and for admission to the Massachusetts bar. He did not disclose what he knew about Fineberg when he gave those recommendations or when, after the discovery of Fineberg’s fraud, the Respondent filed an affidavit with a Massachusetts court swearing that he did not know until sometime after 1999 that Fineberg had not been admitted to the bar.

We find no error in, and we adopt, the special hearing officer’s subsidiary findings of fact and conclusions of law. We modify only the recommended sanction, which we reduce to a one-year suspension.

The Facts

The following summarizes the special hearing officer’s findings of fact.

The Respondent is an experienced and sophisticated civil and criminal trial attorney. During the early 1990’s, he was Fineberg’s lead defense counsel in a civil suit that accused Fineberg of converting $200,000 in real estate proceeds. Fineberg falsely testified at his deposition that he was admitted to the bar in California. By late November of 2004, opposing counsel discovered Fineberg’s lie. The Respondent defended Fineberg in the re-opened deposition, where Fineberg admitted his perjury and testified that his California admission had been impeded by criminal and disciplinary investigations into his conduct at a law firm where he clerked. The upshot, Fineberg testified, was a requirement that he take a professional responsibility course and re-take the California Bar examination.

The Respondent joined Gadsby Hannah as a contract partner in 1997. In early 1998, the Respondent arranged for Fineberg to receive an invitation to Gadsby Hannah’s annual reception,1 where he introduced Fineberg to Gadsby Hannah’s managing partner. During the introduction, the Respondent told the managing partner that he and Fineberg had worked on a case at the Respondent’s prior firm.

After the reception, the Respondent learned that Gadsby Hannah was considering hiring Fineberg. Another Gadsby Hannah partner asked the Respondent what he thought of Fineberg. The Respondent described Fineberg as “straight” and gave him a “clean” recommendation. The Respondent did not disclose Fineberg’s 1994 fraud, perjury or unauthorized practice.

In July of 1998, Gadsby Hannah hired Fineberg as “of counsel” and its affiliate hired Fineberg as a director. The Respondent received Fineberg’s oral assurances that he was a California bar admittee, heard in a chance encounter with an employee of Fleet Bank that Fineberg was doing legal work for the bank, and inquired no further.

In May 1999, the Respondent wrote to the Massachusetts Board of Bar Examiners, recommending Fineberg’s admission, and stating:

I have known Mr. Fineberg for some years, both in a professional and personal capacity. Even in the face of some adversity,2 I have found his conduct to be honest, honorable and professional. I am confident that he will uphold the highest standards of the bar.

Fineberg took the July 1999 Massachusetts bar examination. He failed. Fineberg did not tell the Respondent or Gadsby Hannah.

In June of 2000, Gadsby Hannah discovered that Fineberg had never been admitted to the California Bar and had failed the Massachusetts bar examination. Fineberg was fired, and the Respondent was asked to handle the fallout. The Respondent informed Gadsby Hannah personnel in Boston and Washington that he was the coordinator of firm efforts concerning Fineberg, and all matters concerning Fineberg should be referred to him. The Respondent’s efforts at damage control almost succeeded.

Stephen Pytka sued Fineberg, Gadsby Hannah, and the Respondent in Massachusetts Superior Court. He alleged that Fineberg’s bad advice caused him to pay several hundred thousand dollars in additional income taxes. Pytka also alleged that Gadsby Hannah had held Fineberg out as an experienced lawyer knowing that Fineberg was an imposter, and that the Respondent had negligently supervised him.

In May 2001, the Respondent moved the Superior Court to dismiss him from the Pytka litigation. He filed a supporting affidavit stating that,

I did not learn that Douglas Fineberg was not admitted to practice law in California until after the events asserted in the litigation.

The “events asserted in the litigation” began in December of 1999.

The Respondent’s motion to dismiss was denied, Fineberg defaulted, and the case settled. Gadsby Hannah eventually learned that the Respondent had been aware of Fineberg’s earlier fraud and perjury since 1994. In November 2002, under pressure from Gadsby Hannah, the Respondent resigned. He then started his own small firm practice.

Conclusions Of Law

The special hearing officer concluded that the Respondent’s May 1999 letter to the Board of Bar Examiners violated Mass. R. Prof. C. 8.1(a) (misrepresentations in connection with an application for bar admission) and 8.4(c) (dishonesty, fraud, deceit or misrepresentation), (d) (conduct prejudicial to the administration of justice), and (h) (conduct reflecting adversely on fitness to practice law). He also concluded that the Respondent’s May 2001 affidavit violated Mass. R. Prof. C. 3.3(a)(1) (knowingly making a false statement of material fact to a tribunal) and (4) (knowingly offering evidence the lawyer knows to be false) and 8.4(c), (d) and (h). The special hearing officer rejected, however, the charge under Mass. R. Prof. C. 5.5 that the Respondent assisted in the unauthorized practice of law by not disclosing Fineberg’s 1994 perjury to Gadsby Hannah before it hired Fineberg, as well as the charge under Mass. R. Prof. C. 8.4(c) and (h) that the Respondent improperly failed to disclose that he knew of Fineberg’s earlier fraud and perjury when he accepted the lead role in his firm’s response to the discovery of Fineberg’s fraud.

Mitigation And Aggravation

The special hearing officer made no findings entitled “mitigation” or “aggravation,” but his report does mention evidence that he considered in both mitigation and aggravation. Five distinguished lawyers testified in favor of the Respondent, and four others submitted affidavits. The special hearing officer found their testimony “persuasive and compelling,” as was evidence of the Respondent’s pro bono activities and family and religious commitments. However, the special hearing officer concluded that the character evidence was actually an aggravating factor. See Report, p. 18-19 (“[T]he character evidence makes the Respondent’s behavior … more egregious. Simply put, he should have known better.”) and see Matter of Luongo, 416 Mass. 308, 312, 9 Mass. Att'y Disc. R. 199, 203 (1993), citing ABA Standards for Imposing Lawyer Sanctions, § 9.22(i) (1986, as amended 1992). The report also indicates that the special hearing officer properly considered in aggravation the Respondent’s lack of candor and persistent defense of obviously wrongful conduct. See Report, p. 19 (“The Respondent’s recommendation that he be given an admonition is a reflection of a complete lack of insight into the seriousness of his misconduct. … He appears unwilling to concede anything improper ….”) See also Matter of Cobb, 445 Mass. 452, 480 (2005), Matter of Eisenhauer, 426 Mass. 448, 456, 14 Mass. Att'y Disc. R. 251, 261 (1998), Matter of Clooney, 403 Mass. 654, 5 Mass. Att'y Disc. R. 59 (1988).

The Respondent’s Appeal

We have considered and rejected all of the Respondent’s arguments, and address here only those that merit discussion.

Aside from the sanction, the Respondent argues on appeal that the special hearing officer committed two fundamental errors.

First, he argues that the special hearing officer erred in finding that his May 2001 affidavit was intentionally false. The record supports this finding.

The affidavit is one of a series of misleading assertions about Fineberg that omitted reference to Fineberg’s 1994 fraud, perjury and unauthorized practice, and all in contexts where their materiality was obvious:

(i) When introducing Fineberg to Gadsby Hannah’s managing partner, the Respondent said that he and Fineberg had worked together on a case, obscuring Fineberg’s status as defendant in a case alleging theft and averting the obvious follow-up questions;

(ii) When asked for his opinion of Fineberg, the Respondent described Fineberg as “straight” and gave him a “clean” recommendation, knowing that Gadsby Hannah was considering hiring him as a lawyer;

(iii) When recommending Fineberg for admission to the Massachusetts bar, the Respondent praised Fineberg’s moral qualities while omitting reference to his fraud, perjury and unauthorized practice of law four years earlier; and

(iv) When faced with potential liability for negligent supervision, the Respondent gave sworn affidavit testimony that was, as the Respondent’s counsel conceded at oral argument, literally false. That affidavit obscured the Respondent’s knowledge of Fineberg’s fraud, perjury and unauthorized practice before being hired, as well as the Respondent’s failure to disclose that knowledge to Gadsby Hannah.

The special hearing officer rejected the Respondent’s testimony that he believed Fineberg had obtained admission in California between his 1994 fraud, perjury and unauthorized practice and his 1998 employment at Gadsby Hannah. Because the special hearing officer is the sole judge of credibility, S.J.C. Rule 4:01, Section 8(4); Rules of the Board of Bar Overseers, Section 3.53; Matter of Saab, 406 Mass. 315, 328-29, 6 Mass. Att'y Disc. R. 278, 291-92 (1989), we may not disturb that determination. The Respondent did not testify that he forgot representing Fineberg during the deposition at which Fineberg confessed his fraud, perjury and unauthorized practice. Further, the special hearing officer rejected the Respondent’s testimony that he relied on Fineberg’s assurances that he had been admitted to the bar sometime after 1994, Report, p. 14, and likewise did not credit the Respondent’s claim that he relied on the say-so of another victim of Fineberg’s fraud, the Fleet Bank employee. Report, p. 16.3 The Respondent, therefore, knew in 1994 that Fineberg was not admitted to the bar, and nothing in the interim had changed his mind. At best, he simply stopped thinking about it. Such willful blindness, far from being a defense, would be “the functional equivalent of knowledge of the fact” for purposes of bar discipline.4 Matter of Zimmerman, 17 Mass. Att'y Disc. R. 633, 646-47 (2001).

The context of the Respondent’s May 2001 affidavit does not absolve him. Pytka alleged that the Respondent had negligently supervised someone who was held out to be, but was not, admitted to the practice of law. At the very least, Fineberg’s 1994 fraud and perjury about his unauthorized practice, and the Respondent’s knowledge of it, were material. As a sophisticated litigator, the Respondent could hardly have missed the significance of his omission.

For these reasons, the record amply supports the special hearing officer’s conclusion that the Respondent’s May 2001 affidavit was intentionally and knowingly false, and we adopt it.

Next, the Respondent argues that the special hearing officer erred in finding that his letter of recommendation to the Massachusetts Board of Bar Examiners was knowingly or intentionally deceptive. The hearing officer was correct. By expressing an opinion that Fineberg was “honest, honorable, and professional,” the Respondent strongly implied that either (i) he knew of no incidents that would cast doubt on this opinion, or (ii) if he did know of any, they were so remote and offset by other evidence of rectitude that they were immaterial.5 The special hearing officer’s findings and rulings indicate that the Respondent did not believe either of these implied assertions.

The Respondent further argues that the special hearing officer’s finding that the Respondent could not reasonably have thought that Fineberg was “honest, honorable, and professional” exposes his application of a negligence standard where intent is required. Brief, pp. 19-20. The fact found, however, is evidence that the Respondent did not reach that conclusion, and even more so given his background, sophistication and experience. The special hearing officer did not treat the fact as conclusive. Rather, he properly drew “an inference … from all the circumstances,” Matter of Zimmerman, 17 Mass. Att'y Disc. R. at 646 (re knowledge), and see Mass. R. Prof. C. 9(f), that the Respondent’s letter of recommendation was knowingly deceptive.

For these reasons, we affirm the special hearing officer’s conclusion that the Respondent’s May 1999 letter to the Board of Bar Examiners was intentionally and knowingly false.

Bar Counsel’s Appeal

We reject Bar Counsel’s contention that the special hearing officer erred by failing to conclude that the Respondent violated Rules 8.4(c) and (h) when, without disclosing what he knew, he assumed the role of crisis manager after Fineberg’s fraud on Gadsby Hannah came to light. At that point, there was no significant divergence of interest between the Respondent and his partners that rendered his non-disclosure deceptive, misleading or fraudulent, or otherwise adversely reflective on his fitness to practice. No appreciable harm resulted. The findings do not compel the conclusion that Bar Counsel met its burden of proof on this charge.6 In any event, our analysis of the appropriate sanction would not change even if we did reverse the special hearing officer on this point. We are not persuaded to do so.

The Appropriate Sanction

We modify the hearing report to reduce the term of suspension to one year.

For making a deliberate misrepresentation to a court, the presumptive sanction is a one-year suspension. Matter of McCarthy, 416 Mass. 423, 428-29, 9 Mass. Att'y Disc. R. 225, 234 (1993); Matter of Neitlich, 413 Mass. 416, 423-24, 8 Mass. Att'y Disc. R. 167, 175-76 (1992). We do not accept the Respondent’s invitation to depart downward. The Respondent’s misrepresentation to the court is aggravated by his having made it under the penalties of perjury, Matter of Shaw, 427 Mass. 764, 769, 14 Mass. Att'y Disc. R. 699, 706 (1998). Further, he made two separate misrepresentations, Matter of Saab, 406 Mass. 315, 325-26, 6 Mass. Att'y Disc. R. 278, 289-90 (1989). Contrast Matter of Long, 16 Mass. Att'y Disc. R. 250, 256-57 (2000) (suspension of less than a year may be appropriate where the misrepresentation concerns collateral matters). See also Matter of Meade, S.J.C. No. BD 2005-091 (December 16, 2005) (suspension for a year and a day for creating a false trail of evidence to benefit another lawyer, aggravated by lack of candor at the hearing).7

The Respondent’s lack of a prior disciplinary record, his reputation, his pro bono activities and other meritorious conduct are “typical” mitigating factors; they do not constitute the “extraordinary mitigating circumstances [that may] affect a sanction otherwise warranted by an attorney’s conduct.” Matter of Moore, 442 Mass. 285, 294, 20 Mass. Att'y Disc. R. 400, 411 (2004); Matter of Anderson, 416 Mass. 521, 527, 9 Mass. Att'y Disc. R. 6, 11-12 (1993); Matter of Alter, 389 Mass. 153, 157, 3 Mass. Att'y Disc. R. 3, 7 (1983). Nevertheless, the special hearing officer found this “typical” mitigating evidence “persuasive and compelling,” Report, p. 18, and we must ensure that the Respondent receives the most appropriate disposition, taking into account the nature of the offense and all surrounding circumstances, for the purpose of protecting the public and deterring other attorneys from the same behavior. Matter of Moore, 442 Mass. at 291, 20 Mass. Att'y Disc. R. at 407; Matter of Foley, 439 Mass. 324, 333, 19 Mass. Att'y Disc. R. 141, 152 (2003); Matter of Concemi, 422 Mass. 326, 329, 12 Mass. Att'y Disc. R. 64, (1996). Evidence of the Respondent’s character and reputation persuades us that we need not impose an additional day of suspension merely to compel the Respondent to apply for reinstatement following his suspension. A suspension for a year will sufficiently protect the public, uphold the integrity of the bar and impress on the Respondent the seriousness of his conduct.


1 During oral argument, the Respondent’s counsel suggested that Fineberg happened to be on the Respondent’s contact list, which his firm downloaded in gross to generate invitations. The Respondent however, affirmatively chose Fineberg, along with other contacts, to receive an invitation. Tr. 3:63.

2 This adversity had to do with family problems. The record does not disclose how the Respondent learned of it.

3 We reject the Respondent’s subsidiary argument that the special hearing officer improperly disregarded stipulated facts. The special hearing officer simply refused to infer from them what the Respondent wanted. We, therefore, need not address whether and when a fact-finder may disregard stipulated facts in a bar discipline case, where the public interest is at stake.

4 Cf. Report, 32 at p. 15 (“The Respondent’s blasé attitude was reflected by his admission that he had not thought ‘one way or the other’ about the effect the truth might have had on Fineberg’s Bar application.”).

5 Cf. Pritsker v. Brudnoy, 389 Mass. 776, 778-79 (1983) (“It is the function of the court to determine whether an expression of opinion is capable of bearing a defamatory meaning because it may reasonably be understood to imply the assertion of undisclosed facts that justify the expressed opinion…. In making this determination we look to the entire context of the communication.”) (citing Restatement, Second, Torts, § 566 comment c (A.L.I. 1977)).

6 Had Bar Counsel charged that the Respondent acted as his partners’ lawyer yet failed to disclose a conflict of interest, things might be different. It appears, however, that Bar Counsel is prosecuting a violation of Mass. R. Prof. C. 1.7(b)(2) without charging it.

7 Unlike the Respondent, Meade had a prior history of discipline. His misrepresentation, however, was not made directly to a court and was not compounded by multiplicity.

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