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Commonwealth of Massachusetts

NO. BD-2006-075


S.J.C. Order of Term Suspension entered by Justice Sosman on October 3, 2006.1


In 2004, the respondent appeared in the district court on behalf of an elderly client to assist him in obtaining a G.L. c. 209A restraining order against his son, who lived in the same two-family home as the client. After a hearing at which the petitioner (the client) and the defendant were both present, the district court judge denied the request for a restraining order, stating on the record that the petitioner had not presented evidence to sustain his burden of proof to show that he was in reasonable fear of immediate physical harm.

Immediately following district court’s denial of the restraining order, the client was advised that one of his options was to go to the probate court and seek the same restraining order from a different judge. The respondent obtained the documents to request an ex parte c. 209A order from the probate court and assisted the client in filling out the documents to request an ex parte c. 209A order from the probate court based on the same set of facts that had been presented to the district court.

In assisting the client to fill out a second complaint for a c. 209A order, the respondent checked “no” in response to a question on the c. 209A complaint that asked: “Are there any prior or pending court actions in any state or country involving the Plaintiff and the Defendant for divorce, annulment, separate support, legal separation or abuse prevention?”

Immediately after filing this second request for a c. 209A order (the same day that the district court had denied the first request for a 209A restraining order), the respondent represented the petitioner in an ex parte hearing in probate court. At no time did the respondent or the client disclose to the probate court judge that the respondent had, earlier that same day, represented the client in a hearing before a district court judge seeking the same relief.

The probate court judge issued the ex parte c. 209A order that day, with a ten-day return date. However, after the defendant was served, the probate court judge learned from the defendant of the district court’s denial of the client’s first c. 209A application. The probate court judge immediately scheduled a review of the ex parte c. 209A. At that hearing, the probate court dismissed with prejudice the client’s request for a c. 209A order. The respondent attended that hearing but did not represent the petitioner at it.

In a Memorandum and Order of Dismissal, the probate court judge also ordered sanctions against the respondent for having failed to discharge her “affirmative duty to inform this Court of the prior proceedings and to review and insure the accuracy of the plaintiff’s complaint.” The probate court judge, ordered the respondent to pay the defendant’s attorney’s fees in the amount of $750 within 10 days of the order and to pay court sanctions in the amount of $5,000. The respondent filed a pro se appeal of the probate court order, which was later was dismissed for failure to prosecute. The respondent did not initially pay the attorneys’ fees or sanctions, and thereafter failed to appear in the probate court. The respondent subsequently paid the attorneys’ fees and began making payments of the sanctions, which have now been paid off.

The defendant in the c. 209A proceeding filed a complaint with bar counsel. On two occasions, bar counsel sent subpoenas to the respondent requiring the respondent to appear, give testimony, and produce certain information. The respondent appeared pursuant to one subpoena but did not appear pursuant to the second subpoena. Thereafter, the Supreme Judicial Court administratively suspended the respondent for failure to appear and cooperate in the investigation of the office of Bar Counsel. The respondent has not been reinstated. Although the respondent is not practicing law, she has not filed with required affidavit of compliance under SJC Rule 4:01, §17(5).

By checking off the box on the second c. 209A complaint in the probate court that indicated there were no prior or pending court actions for abuse prevention between the client and his son, the respondent violated Mass. R. Prof. C. 3.3 (a)(1) and 8.4 (c), (d), and (h).

By appearing at an ex parte hearing before the probate court judge seeking a c. 209A order, without disclosing that, earlier the same day, the district court had denied a c. 209A order request based on the same set of facts, the respondent violated Mass. R. Prof. C. 3.3 (a)(2) and (d) and 8.4 (c), (d), and (h).

By failing to appear in response to a subpoena issued by the Board and failing to cooperate with bar counsel’s investigation, the respondent violated Mass. R. Prof. C. 8.4(g). The respondent’s initial failure to pay $5,750 in sanctions ordered by the probate court judge and her subsequent failure to appear in the probate court, which resulted in a further court order against her, constitute violations of Mass. R. Prof. C. 8.4(d) and (h).

This matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation for a suspension for a year and a day. On September 26, 2006, the Board of Bar Overseers voted to accept the stipulation and to recommend the agreed-upon disposition to the Supreme Judicial Court. On October 3, 2006, the Supreme Judicial Court for Suffolk County ordered that the respondent be suspended for a year and a day.

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

2 Compiled by the Board of Bar Overseers based on the record before the Court.

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