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Commonwealth of Massachusetts

NO. BD-2008-088


S.J.C. Order of Term Suspension entered by Justice Spina on October 10, 2008.1


The Board of Bar Overseers adopted the findings of fact and conclusions of law of a hearing committee, and voted to file an Information with the Supreme Judicial Court recommending that the respondent, Jay M. Lipis, be suspended from the practice of law for two years.2 There is substantial evidence that supports the findings and conclusions of the board, summarized as follows.

Count One. In January, 2003, the respondent telephoned an insurance adjuster's supervisor and, without identifying himself personally, said he was an officer of the court3 who overheard a judge say that he was appalled that the insurer had made only one offer to settle a particular claim that was the subject of an unfair settlement practices (G. L. c. 93 A) case (Baer case) on trial before the judge. He quoted the judge as saying the insurer was going to get "hammered." The respondent told the supervisor that the insurer should consider itself "warned," and advised settlement of the case. The respondent had a similar case pending against the same insurer. The day after he spoke to the supervisor, he telephoned the adjuster in his case to say that the insurer was going to lose the Baer case.

In the meantime, the insurer filed a motion for a mistrial in the Baer case. At an evidentiary hearing on the motion, the insurer's counsel reported that the telephone call had been traced to the respondent's law office. The respondent left a message on the answering machine in the judge's lobby to the effect that he would attend the continued hearing on the motion for mistrial because he wanted to testify that he had been misunderstood. The judge received the message. The judge decided he would allow the motion for a mistrial and recuse himself. He also cancelled the next hearing date. The defendant learned that the judge cancelled the hearing. He telephoned the judge's lobby and left a message on the answering machine to the effect that the allegations against him were "incredible," and he "want[ed] to straighten the record out."

The hearing committee disbelieved the respondent's testimony that he telephoned the judge's lobby solely out of concern for his reputation. Instead, the hearing committee found he wanted to dissuade the judge from declaring a mistrial. The hearing committee found that the respondent fabricated information about the judge's impressions of the Baer trial to affect the insurer's decision in his pending case.

The respondent's intentional misrepresentations to the supervisor violated Mass. R. Prof. C. 8.4 (c), 426 Mass. 1429 (1998) (conduct involving dishonesty, fraud, deceit, or misrepresentation). Because the misrepresentations also were aimed at a witness in an ongoing trial, they cast doubt on the integrity of the judge and the adjudicative process, they could have affected a party's willingness to proceed with trial, and they resulted ultimately in a mistrial, they violated Mass. R. Prof. C. 8.4 (d), 426 Mass. 1429 (1998) (conduct that is prejudicial to administration of justice). The respondent's exparte telephone calls to the judge's lobby constitute violations of Mass. R. Prof. C. 3.5 (a), 426 Mass. 1391 (1998) ("a lawyer shall not seek to influence a judge . . . by means prohibited by law"), 3.5 (b), 426 Mass. 1391 (1998) ("a lawyer shall not communicate ex parte with [a judge] except as permitted by law"), and 8.4 (d) (conduct that is prejudicial to administration of justice).

Count Two. In June, 2004, the respondent refused to turn over, within a reasonable time after discharge, clients' files to successor counsel in a contingent fee case, in violation of Mass. R. Prof. C. 1.16 (d), (e) (5), 426 Mass. 1369, 1370-1371 (1998). His conduct toward successor counsel was intemperate and vulgar.

The respondent made certain knowingly false statements when responding to the grievance filed against him, in violation of Mass. R. Prof. C. 8.1 (a), 426 Mass. 1427 (1998) (knowingly making a false statement of material fact in connection with a bar discipline matter), and 8.4 (c).

Sanctions. The proper sanction must be determined by sanctions imposed in comparable cases. See Matter of Alter, 389 Mass. 153, 156 (1983). The recommendation of the board is entitled to substantial deference. Matter of Tobin, 417 Mass. 81,88(1994).

The respondent's ex parte telephone communications (recorded on an answering machine) to the judge's lobby warrant a sanction of at least a public sanction, but probably a three-month suspension. See Matter of Orfanello, 411 Mass. 551 (1992) (three-month suspension); Matter of Wilson, 17 Mass. Att'y Discipline Rep. 608 (2001) (public censure); Matter of Ryan, 6 Mass. Att'y Discipline Rep. 275 (1989) (public censure).

The misconduct involving misrepresentations intending to interfere with the testimony of a witness in an ongoing trial, which also were intended to affect the outcome in his pending case, and which brought about a mistrial, warrant a suspension of at least one year. See Matter of Goodman, 22 Mass. Att'y Discipline Rep. 352 (2006) (one year); Matter of Ghitelman, 20 Mass. Att'y Discipline Rep. 162 (2004) (one year and one day); Matter of Neri, 17 Mass. Att'y Discipline Rep. 417 (2001) (one year and one day).

The conduct involving client files in count two usually warrants private discipline, see AD-04-07, 20 Mass. Att'y Discipline Rep. 686 (2004), but it is aggravated by the respondent's hostile conduct toward successor counsel. Moreover, in aggravation, the respondent previously had been disciplined by public reprimand for "intemperate remarks during [a] mediation and his use of vulgar and insulting language . . . intended to disrupt a tribunal." Matter of Lipis, 18 Mass. Att'y Discipline Rep. 369 (2002).

The misrepresentations made to bar counsel during the investigation that led to count two involved, as found by the hearing committee, "material elements of his narrative to Bar Counsel to make it more credible that his clients had been lured away from him unlawfully." Such misconduct warrants at least a public reprimand. See Matter of Sprei, 10 Mass. Att'y Discipline Rep. 246, 249 (1994) (prior discipline for filing inaccurate and misleading reports with court and with bar counsel relative to attorney he was to monitor).

Other aggravating factors include the respondent's substantial experience practicing law, see Matter of Luongo, 416 Mass. 308, 312 (1993), and the presence of multiple violations. See Matter of Saab, 406 Mass. 315, 326 (1989). The hearing committee and the board also concluded that the respondent "lacked appreciation of his fundamental ethical responsibilities as an attorney." See Matter of Clooney, 403 Mass. 654, 657-658 (1988).

Considering the various sanctions and aggravating factors, the recommendation of the board, to which substantial deference is owed, is comparable to what has been imposed in qualitatively similar cases. I therefore ORDER that a judgment enter suspending the respondent from the practice of law for a term of two years.


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

2 The hearing committee recommended a suspension of one year and one day. Bar counsel recommended a suspension of three years before the hearing committee and the board, but now recommends a suspension of two years.

3 There was some question whether he said "court officer" or "officer of the court.” The hearing committee found no need to resolve the question.

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