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Commonwealth of Massachusetts

NO. BD-2007-0020

IN RE: CAROL R. WASSERMAN

S.J.C. Order of Indefinite Suspension entered by Justice Greaney on April 18, 2007, with an effective date of May 18, 2007.1

MEMORANDUM AND ORDER

This bar discipline matter is before me on an Information and Record of Proceedings with the Vote and Recommendation of the Board of Bar Overseers (board), all as filed by the board on March 12, 2007. The information pertains to the disciplinary proceedings against Carol R. Wasserman (respondent), who was admitted to practice law in the Commonwealth on December 23, 1980. I have reviewed the record and heard the arguments of counsel. The only issue before me is the appropriate sanction to impose on the respondent.2 For the reasons set forth below, I conclude that the appropriate sanction is an indefinite suspension.

The misconduct arose in connection with an affair the respondent had with a fellow co-worker, John Jones (a pseudonym). Both were married, and both worked at the Department of Environmental Protection (department), the respondent as an attorney, and Jones as an engineer. The respondent worked at the department from January, 1994, until her termination on September 19, 2000. Before July 3, 2000, the respondent and Jones met with a department director to inform him that they had been receiving harassing telephone calls, mail, and interoffice messages. They sought out his assistance to stop the harassment. On July 5, 2000, Jones's wife received an anonymous letter alerting her to the affair. By July 14, 2000, Jones ended the affair. Thereafter, the respondent engaged in a pattern of deceitful behavior that involved making false statements on multiple occasions, and supporting those false statements with fabricated documents. To summarize: (1) the respondent fabricated records indicating that an agency employee, Sheryl Smith (a pseudonym, but the name used differed only with respect to a minor spelling variation in the first name from that of an actual agency employee), had accessed Jones's and the respondent's personnel files; (2) the respondent included private information concerning Jones's family members in her false documents; (3) the respondent falsely stated that Smith held a grudge against Jones, and falsely stated that all the information concerning Smith's misconduct came from an assistant district attorney and a private investigator; and (4) the respondent fabricated court documents to make it appear that she (the respondent) had applied for a criminal complaint against Smith in the Boston Municipal Court (BMC); that a criminal complaint had issued; that Smith had entered a guilty plea to various charges (stalking and larceny); and that Smith had received consecutive suspended sentences of one year and one day to each count, a fine, five years probation, and an order permanently barring her from State service.3

The respondent chose to involve not only her employer, but also several innocent individuals, in her pattern of deceit. The department and these individuals spent unnecessary time and resources due to the respondent's charade. For example, the department needlessly investigated the allegation that Smith had improperly accessed personnel files, and whether Smith had tendered a guilty plea in a case at the BMC. A clerk-magistrate of the BMC repeatedly corresponded with the respondent in her requests for copies of documents on the "Smith" case that did not exist, and the respondent complained about the clerk-magistrate to the Supervisor of Public Records.

After its investigation, the department terminated the respondent based on its determination that the records she had provided had all been fabricated. In the grievance proceedings that later ensued, the respondent again repeated the false statements concerning the BMC proceeding against Smith, and submitted the fabricated court documents. She also submitted two additional fabricated court documents namely, a purported list of show cause hearings held on August 2, 2000, and a purported criminal complaint in the Smith case. The list of show cause hearings was, in fact, an altered copy of an actual list used.

In the bar discipline proceedings, the respondent continued to maintain, under oath, that the Smith prosecution had taken place. She also fabricated a letter dated November 26, 2001, on the letterhead of Harvard Pilgrim Healthcare purportedly signed by Dr. Thomas G. Hawkins, stating that the respondent had recently tested positive for mononucleosis and needed to curtail her activities and avoid stress.4 This fabricated letter was submitted in connection with a request to reschedule a meeting with bar counsel.

As relevant to this appeal, a Special Hearing Officer (SHO) concluded that the respondent's conduct, in making false allegations against a fictitious agency employee and in knowingly providing her employer with fabricated records concerning personnel files, violated Mass. R. Prof. C. 8.4 (c) (dishonesty, fraud, deceit and misrepresentation) and (h) (conduct adversely reflecting fitness to practice). He determined that, by falsely stating to the department that Smith had been prosecuted at the BMC for harassing her, and by knowingly providing the department with fabricated BMC documents concerning Smith's purported prosecution, the respondent violated Mass. R. Prof. C. 8.4 (c) (dishonesty, fraud, deceit and misrepresentation), (d) (conduct prejudicial to the administration of justice), and (h) (conduct adversely reflecting fitness to practice). The SHO found that, by testifying falsely at the grievance conference that Smith had been prosecuted at the BMC for harassing the respondent, and by allowing knowingly fabricated documents concerning the purported Smith prosecution to be introduced at the grievance conference, the respondent violated Mass. R. Prof. C. 8.4 (c) (dishonesty, fraud, deceit and misrepresentation), (d) (conduct prejudicial to the administration of justice) and (h) (conduct adversely reflecting on fitness to practice). The SHO also concluded that, by furnishing the fabricated doctor's letter to bar counsel, knowing the same to be false, the respondent violated Mass. R. Prof. C. 8.4 (c) (dishonesty, fraud, deceit and misrepresentation), (g) (failure without good cause to cooperate with bar counsel), and (h) (conduct adversely reflecting on fitness to practice).

The SHO recommended that the respondent be suspended for six months and a day, and that she be required to apply for reinstatement and demonstrate her fitness to resume practice at a hearing. In mitigation, the SHO noted that the misconduct did not occur in the representation of a client, but rather, in the context of the respondent's private life. In aggravation, the SHO found that the respondent's actions had created a risk of harm to third parties, namely, the agency employee (Smith) and the BMC clerk-magistrate. He found that the respondent's conduct established a pattern of fabricating documents, and included the revelation of private, personal information of Jones's family members, thus invading their privacy.

On appeal, the respondent argued that the sanction was too harsh and that the circumstances warrant only a short term suspension or public reprimand. The Appeal Panel disagreed, concluding that the sanction was too lenient. The Appeal Panel recommended a suspension of one year and one day. The Appeal Panel further recommended that, upon Wasserman's application for reinstatement, she demonstrate her current fitness through opinions of treating or evaluating mental health professionals, as well as a plan of ongoing treatment and evaluation. Because the respondent involved her employer and others in a personal matter, the Appeal Panel found that mitigation in this context was inappropriate. However, the Appeal Panel found the "strong emotional component" underlying the misconduct compelling, taking note that "the very nature of the misconduct strongly suggests that [the respondent] has serious emotional issues."

The board voted unanimously to adopt the Appeal Panel's findings of fact and conclusions of law, but imposed a more severe sanction against the respondent - an eighteen month suspension. The board stated, "Had there been no indication of such [psychological] problems, the [b]oard would have felt compelled to recommend an indefinite suspension. See Matter of Marshall, 16 Mass. Att'y Discipline. Rep. 275 (2000) (indefinite suspension imposed where lawyer appropriated the identity of another lawyer with an almost identical name in seeking admission to bar of another [S]tate)." The board acknowledged that the respondent had not presented any evidence of her mental state as a matter in mitigation, but stated that her conduct "in and of itself bespeaks disturbing psychological problems." The board seeks its costs ($5,960.41).

I now consider the appropriate sanction, mindful of the difficulty inherent in any attempt to categorize particular circumstances of an individual case to achieve a result that is not "markedly disparate" from judgments in comparable cases. See Matter of Neitlich, 413 Mass. 416, 421 (1992). At the outset, the parties admit that there are no cases in Massachusetts involving similar misconduct.

The respondent argues for a reprimand or a short term suspension. She contends that her conduct has "no specific connection to fitness for the practice of law" because it only involved "lying to one's ex-lover during the termination of the adulterous affair [and] carrying the lie forward in ancillary personal matters." The respondent's misconduct may have concerned the breakup of an adulterous affair, but to characterize the misconduct, when it impacted innocent third parties, as carrying lies forward in "ancillary personal matters" is far off the mark. No one compelled the respondent to involve the department, Smith, a BMC clerk-magistrate, the Supervisor of Public Records, another attorney, Harvard Vanguard Medical Associates, Inc., or a private physician in her machinations. Remarkably, the respondent blames Jones for some of her misconduct because, when confronted with the private information from his personnel file, he asked that the department investigate the matter. The respondent continues to ignore the practical consequences of what she set in motion, and she has not acknowledged her misconduct in any meaningful way. Particularly disturbing is that the respondent, an officer of the court, fabricated actual court documents and complained about the BMC clerk-magistrate to the Supervisor of Public Records. Also, while the respondent may suffer from some psychological impairment, she submitted no evidence concerning such an impairment in mitigation.5

The sanction sought by the respondent is too lenient. The case of Matter of Bloom, 9 Mass. Att'y Discipline Rep. 23 (1993), is distinguishable factually (the respondent was publicly censured for having fraudulently attempted to induce a confession), and relatively outdated. Similarly, the case of Matter of Alex Soufflas, BD-2006-0025, is distinguishable. In the Soufflas case, a six month suspension was imposed on a young lawyer who, on two occasions, falsified his own academic records and submitted them to prospective employers. Noteworthy, in that case, were the facts that the respondent had admitted to some of the wrongdoing and had been in desperate financial circumstances. In contrast, the respondent, an experienced lawyer, had fabricated records pertaining not only to herself, but also to others, namely, Jones, Smith, and Dr. Hawkins, and has not admitted any wrongdoing. In fabricating documents pertaining to Jones, the respondent revealed personal information concerning Jones' family members, including a minor. The respondent went so far as to fabricate actual court records. With respect to the fabricated court documents concerning Smith, the respondent continually maintained that the documents were authentic and, at the grievance proceeding, submitted additional fabricated court documents. As had been described, the respondent fabricated multiple documents and multiple types of documents, and on many occasions, to the point that a pattern emerges insofar as it appears to have become her standard operating procedure for responding to conflict.

The facts in the case of Matter of Kevin J. MacDonald, BD¬-2007-0004, are not comparable to those in this case. In the MacDonald case, the respondent, a new attorney overwhelmed as a solo practitioner, was found to have violated multiple disciplinary rules for making false statements in an affidavit to two tribunals (Federal Court and the Massachusetts Labor Relations Commission [MLRC]), and for backdating two documents he submitted to the MLRC. The respondent received a six month . suspension (and probationary terms and conditions for one year). The sanction imposed, however, took into account various mitigating factors. There was evidence that the respondent was depressed, was sleep deprived, and had personal problems. The respondent had made contact with various bar associations seeking a mentor for help, and contacted Lawyers Concerned for Lawyers. Here, the respondent is not a new attorney, did not offer any evidence in mitigation concerning her psychological state, did not acknowledge any problem or wrongdoing, and there was no evidence that she contacted any colleagues or organizations for any assistance.

The respondent cites to numerous out-of-State cases. I am not persuaded by these decisions. The conduct involved in the cases either is not sufficiently comparable to what occurred here or is differentiated by important mitigating factors that are not present here. E.g., In re: Crisel, 101 Ill.2d 332, 343-344 (1984) (staying a three year suspension, but imposing three years of probation, for attorney who had been elected State's Attorney and had perpetrated a fraud on law enforcement officials, because of mitigating evidence from psychiatrist that attorney had been suffering from depressive neurosis during relevant period).

The Marshall case (cited above), admittedly different factually, appears to provide the most guidance. As noted, that case involved the intentional fabrication of documents in support of a bar application, warranting an indefinite suspension. The conduct here seems even more egregious as it involved a pattern of falsehoods over an extended period of time and potentially harmed more than one person, namely, Smith, the BMC clerk-¬magistrate, Jones, Jones's family, various persons employed at the department, and Dr. Hawkins. Further, the conduct involved the repeated fabrication of multiple types of documents: personnel documents, court documents, and a doctor's letter. The respondent's misconduct had the potential to harm so many people and involved the needless expenditure of time and effort of persons uninterested in her affair (department employees, the BMC clerk-magistrate, the Supervisor of Public Records, Dr. Thomas C. Hawkins). The fact that her misconduct began in response to a personal matter (the end of an affair) has little relevance. The respondent's actions demonstrate a substantial lack of professionalism and personal honesty.

Based on the respondent's pattern of wrongdoing as above discussed; the cumulative effect of multiple disciplinary violations, see Matter of Saab, 406 Mass. 315, 326-327 (1989); the absence of sufficient mitigating circumstances; and the fact that our disciplinary system seeks not only to maintain the integrity of the legal professional, but also to safeguard the public, see Matter of Kenney, 399 Mass. 431, 436 (1987), I conclude that an indefinite suspension is the appropriate sanction. The board, in its discretion, may condition the respondent's reinstatement on her demonstrating fitness to return to practice through reports of mental health or other professionals.

Judgment shall enter in accordance with this memorandum and shall also impose costs in the amount of $5,960.41.

FOOTNOTES:

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

2 In the proceedings below, the respondent claimed error in the special hearing officer's handling of the assertion of her Fifth Amendment privilege, and claimed that she was denied due process because she was not permitted a meaningful opportunity to discover relevant information concerning a potential witness. The respondent did not advance these claims before me. She, thus, has waived them.

3 The fabricated records from the Boston Municipal Court (BMC) contain signatures of a defense attorney, prosecutor, and BMC judge. 'The defense attorney submitted an affidavit stating that he had never represented Sheryl Smith and had not signed the records at issue.

4 The Special Hearing Officer (SHO) found that the Massachusetts Board of Registration in Medicine has no record of a Thomas G. Hawkins being licensed to practice medicine in Massachusetts. There is, however, a licensed doctor named Thomas C. Hawkins. He testified at the disciplinary proceedings, and the SHO credited his testimony. At the relevant time, Dr. Thomas C. Hawkins was listed as one of the doctors on Harvard Pilgrim Healthcare's website who would answer health-related questions and did not treat patients, including the respondent. Dr. Thomas C. Hawkins did not write, and had no part in writing, the letter at issue.

5 While the record may bespeak of the fact that the respondent suffers from psychological problems, to me it bespeaks of the fact that she is self-serving, manipulative, and deceptive. To (perhaps) cover-up the fact that she had anonymously disclosed her affair with Jones to Jones's wife, the respondent created the elaborate scheme implicating Smith. To attempt to avoid her termination (or to seek more favorable terms .with respect to her termination), the respondent submitted additional fabricated documents concerning the fictitious Smith prosecution. To-avoid a stage of the bar disciplinary proceedings, the respondent fabricated a doctor letter.



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