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Commonwealth of Massachusetts

NO. BD-2006-063

IN RE: S. MICHAEL BRETT

S.J.C. Order of Term Suspension entered by Justice Spina December 5, 2006.1

MEMORANDUM OF DECISION

Bar counsel filed a petition under S.J.C. Rule 4:01, § 16, requesting reciprocal discipline of Attorney S. Michael Brett, based upon his indefinite

suspension from the practice of law by the Supreme Judicial Court of Maine on June 20, 2006.

The conduct giving rise to the respondent's suspension in Maine includes:

(a) assisting a client to violate the condition of his release in a criminal case by providing the client access to the victim;

(b) requesting and receiving money from a client he was appointed to represent;

(c) failing to appear and notify a client (or have his client transported to court) for arraignment, resulting in a forfeiture of the bail posted by the client's parents;

(d) misrepresenting to the Maine Board of Bar Overseers that the court in (c) above failed to give him notice of the arraignment;

(e) persistently attempting to initiate a romantic relationship with, and against the wishes of, a woman who had been the complainant in a criminal matter against a client of the respondent, after the matter had been concluded;

(f) communicating with an opposing party without the consent of counsel for the party;

(g) pursuing a frivolous appeal resulting in the assessment of treble costs and attorney's fees of $1,000 against his clients; and

(h) holding himself out as a lawyer while suspended from the practice of law.

In aggravation, the respondent had received three public reprimands before his indefinite suspension, on January 25, 2006, involving the following misconduct:

(1) eavesdropping on a judge and a party during mediation of a case in which the respondent was involved;

(2) offering a police officer a fee for each criminal defendant the officer successfully solicited as a client for the respondent at the time of arrest; and

(3) effectively allowing false testimony to be submitted to a court during a criminal trial, thereby failing to rectify a fraud upon a tribunal.

In mitigation, evidence was presented in Maine that the respondent lacked financial resources to treat a condition, attention deficit/hyperactivity disorder, from which he suffers. There was evidence that this disorder caused him to be impulsive and impaired his judgment with respect to the charged misconduct. There is evidence that he has been receiving treatment for this disorder, with success.

The respondent argues that the reciprocal discipline should be comparable to that which would have been imposed for the same conduct in Massachusetts. See In the Matter of Lebbos, 423 Mass. 753, 756 (1996); SJ.C. Rule 4:01, § 16 (3). In particular, he argues that an "indefinite suspension" is a more severe form of discipline in Massachusetts than in Maine. In Massachusetts, an attorney suspended indefinitely may not petition for reinstatement until the expiration of at least five years from the effective date of the order of suspension. See S.J.C. Rule 4:01, § 18 (2)(b). In Maine, an attorney who has been suspended indefinitely may petition for reinstatement at any time. See Maine Bar Rules, §§ 7.3 (j)(3), (5).

If the respondent were sanctioned in Massachusetts for the misconduct found here, taking into consideration the mitigating and aggravating factors, the sanction probably would be a suspension in the order of a term of one year. See Matter of Smith, 13 Mass. Att'y Disc. R. 726 (1997) (six-month suspension for soliciting fee from client attorney assigned to represent after telling client he would give case priority if paid); In re: Molloy, 19 Mass. Att'y Disc. R. 302 (2003) (three-month suspension for attorney who falsely signed client's name to affidavit, failed to advise client of status of matter, and made false statements to bar counsel); In re: Neal, 19 Mass. Att'y Disc. R. 330 (2003) (public reprimand for attorney who neglected matter, failed to inform client of status of matter, and failed to cooperate with bar counsel in investigation). Moreover, while the respondent committed numerous alleged violations of Maine Bar Rules, the cumulative sanction for those violations would not result in an indefinite suspension in Massachusetts. See In re: Walsh, 6 Mass. Att'y Disc. R. 322 (1989) (one year suspension for attorney who mislead clients, neglected various matters, continued to practice law after being suspended, and failed to cooperate with bar counsel during investigation). I conclude that a one year suspension is appropriate here.

The real dispute in this case is whether the respondent should be required to petition for reinstatement in Massachusetts. Although the respondent must petition for reinstatement in Maine, a jurisdiction for which we have the greatest respect, given the somewhat serious and extensive ethical violations he has committed, it would be improper for us to defer entirely to Maine. Should Maine reinstate the respondent, its determination will have considerable weight with Massachusetts, but we must make our own, independent determination of his fitness to practice law in Massachusetts. That is our duty to our profession and to the people of Massachusetts.

An order suspending the respondent from the practice of law for a term of one year shall enter, hi addition, the respondent must take the Multi-State Professional Responsibility Examination during the period of his suspension and receive a passing grade as established by the Board of Bar Examiners, and he must petition for reinstatement pursuant to S.J.C. Rule 4:01, § 18 (2). He may not be reinstated until such time as he has been reinstated in Maine.

Finally, the temporary order of impoundment is hereby vacated. The impounded material concerns the respondent's medical condition, which he offered in mitigation of his misconduct in Maine. The material figured prominently there, and it is likely to figure prominently hi considering the respondent's petition for reinstatement both in Maine and in Massachusetts. For that reason alone, it is inappropriate to continue to impound such material. In addition, the material is open to public inspection in Maine. Any privilege or confidentiality concerning the material was waived when the respondent made his mental condition an issue in his disciplinary proceedings. The respondent's motion to impound is hereby denied.

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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