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Commonwealth of Massachusetts

NO. BD-2007-116

IN RE: ARTHUR D. MACHADO

S.J.C. Judgment of Disbarment entered by Justice Cowin on February 8, 2008.1

SUMMARY2

On October 12, 2007, disciplinary counsel in Connecticut filed in superior court for the judicial district of New Haven, Connecticut, an application for interim suspension of the respondent based on pending complaints that the respondent had failed to account for over $500,000 received on behalf of a client in a real estate transaction. The application was supported by documents demonstrating that the respondent had received $550,929.66 at a closing to pay off two liens and that the liens had not been paid. According to the application, the respondent “had failed to provide a credible explanation for what he did with the funds.”

On November 6, 2007, the respondent appeared in the New Haven Superior Court and submitted his resignation pursuant to Connecticut Practice Book § 2-52. That section permits an attorney who is the subject of investigation or against whom a presentment for misconduct is pending to resign. Section 2-52 provides that the resignation “shall not become effective until accepted by the court after a hearing following a report by the statewide grievance committee, whether or not the attorney seeking to resign shall, in the resignation, waive the privilege of applying for readmission to the bar at any future time.” The respondent waived his right to apply for readmission, and his resignation was accepted on November 6, 2007.

In violation of S.J.C. Rule 4:01, § 16(6), the respondent did not provide a certified copy of the order accepting his resignation to either the Board of Bar Overseers or bar counsel. On December 3, 2007, bar counsel filed a petition for reciprocal discipline with the Supreme Judicial Court for Suffolk County pursuant to S. J. C. Rule 4:01, § 16(1), which requires bar counsel to file a petition for reciprocal discipline upon receipt of a certified order showing that a lawyer admitted in the Commonwealth “has resigned during the pendency of a disciplinary investigation or proceeding…”

On January 8, 2008, the respondent was served with an order of notice requiring him to show cause why reciprocal discipline should not be imposed. The respondent objected to reciprocal discipline on the grounds that he “did not resign from the bar pursuant to an investigation or during the pendency of a disciplinary proceeding” and that his resignation was prompted by his desire to “avoid the physical risk to myself and my family, the negative publicity and damage to the Bar itself and the loss of membership in the Massachusetts Bar.”

On January 10, 2008, bar counsel filed a memorandum of law to support the petition. Bar counsel contended that the pending complaints and an application for interim suspension in Connecticut fully satisfied the requirement that the resignation occur during the pendency of a disciplinary investigation or proceeding. In addition, bar counsel argued that the respondent’s motive for resigning was not relevant to the petition for reciprocal discipline and that the respondent could not expect to remain a practicing member of the bar in Massachusetts after resigning in Connecticut while an investigation and proceedings were pending there.

On February 4, 2008, the respondent submitted a supplemental memorandum of law to the county court. He argued that his resignation in Connecticut was not submitted in lieu of discipline and that he had made no admission of misconduct in Connecticut. Therefore, his resignation “met none of the factors required for resignation” under S.J.C. Rule 4:01, § 15.

On February 5, 2008, the county court, Cowin, J., heard oral argument on the petition for reciprocal discipline. The parties addressed the question whether the court could enter an order that the respondent had resigned as a disciplinary sanction or any order or judgment, including disbarment, consistent with Massachusetts precedent.

On February 8, 2008, the county court entered a judgment of disbarment, effective immediately upon entry “[f]or the reasons stated in Bar Counsel’s Memorandum of Law in Support of Reciprocal Resignation...”


FOOTNOTES:

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 Supreme Judicial Court.



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