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Commonwealth of Massachusetts

NO. BD-2008-115

IN RE: ROBERT G. O’LEARY

S.J.C. Order of Term Suspension/Suspended entered by Justice Botsford on June 15, 2009.1

MEMORANDUM OF DECISION AND ORDER

The Board of Bar Overseers (board) has filed an information recommending the suspension of the respondent, Robert G. O'Leary, for six months and one day, and further recommending that he be required to petition for reinstatement under S.J.C. Rule 4:01, § 18 (4). The respondent opposes the petition, and argues that the petition for discipline be dismissed or, in the alternative, that he receive an admonition. For the reasons that follow, I conclude that the respondent should be suspended for a term of three months, the term of suspension suspended for one year, and subject to probationary conditions discussed below.

1. Background. The underlying facts are not in dispute. The respondent was admitted to practice in Massachusetts in December, 1992. From 1989 to 1992, the respondent borrowed money through the Law Access Loan Program to help pay for his law school education. The loans were guaranteed by The Educational Resources Institute (TERI). In 1993, the respondent defaulted on two of his student loans, and TERI, as guarantor, paid the lender $12,442.80, which was the balance of the respondent's loans with interest added. In September, 1996, TERI brought suit against the respondent in the Pittsfield District Court, seeking to recover the sums it had paid out. There was initially an issue concerning the respondent's correct address - he had moved from Pittsfield to the Springfield area - but ultimately the respondent was served with the complaint. He did not answer or otherwise respond. On February 4, 1998, in response to TERI's request for default, a default judgment entered, and in March, 1998, an amended default judgment against the respondent entered in the amount of $12,442.80. The respondent did not pay the judgment. Approximately two and one-half years later, on August 30, 2000, TERI's counsel filed a supplementary process proceeding against the respondent in the Pittsfield District Court. In apparent response to this new filing, on October 5, 2000, the respondent filed in the same court a motion to vacate the default judgment and for a change of venue. A judge in the District Court denied the motions, and a single justice of this court denied the respondent's petition for relief under G. L. c. 211, § 3.2

Approximately one month after that denial, in February, 2001, the respondent filed a number of motions in the Pittsfield District Court seeking reconsideration of his motion to vacate. The District Court judge denied the motion on March 12, 2001, concluding that the respondent's motions were without merit, “perilously close to being frivolous.” However, the judge did not sanction the respondent.

Eleven months later, in February, 2002, the respondent filed an action in the Hampden County Superior Court against TERI, a number of companies that served as lenders and servicers of his educational loans, and the various attorneys who had represented TERI in the District Court proceeding. The respondent asserted that his claims against TERI, which concerned the same student loans that were the subject of the District Court proceeding, were an independent action brought pursuant to Mass. R. Civ. P. 60(b). TERI, as well as the other defendants, moved to dismiss the complaint pursuant to Mass. R. Civ. P. 12(b)(6), and TERI sought sanctions pursuant to G. L. c. 231, § 6F. The motions were heard on May 22, 2002, and on March 19, 2003, a Superior Court judge allowed TERI's motion to dismiss, and also its motion under G. L. c. 231, § 6F, writing:

“I find that the plaintiff’s assertion of a so-called independent action in this court seeking post-judgment relief from the judgments of the Pittsfield District Court was contrary to clearly established law, Air Purchases. Inc. [v. Mechanical Coordinators Corp., 21 Mass. App. Ct. 632, 633 (1986)]. I further find that such assertion, coming after the plaintiff’s various efforts to secure post-judgment relief pursuant to Mass. R. Civ. P. 60(b) in the Pittsfield District Court were unsuccessful, after that court (Vrabel, J.) cautioned that various motions filed by the plaintiff, a lawyer, seeking such relief were ‘without merit’ and ‘perilously close to being frivolous,’ and after a single justice denied review of the District Court’s order of November 7, 2000, constitutes conduct that is wholly insubstantial, frivolous, and not advanced in good faith. While Judge Vrabel declined to sanction the plaintiff because G. L. c. 231, § 6F did not apply to claims filed in the District Court Department... in this court the sanctions of § 6F are available. I further find that the plaintiff’s so called independent action is part and parcel of an effort to delay the inevitable repayment of his education loans. Indeed, the plaintiff has implicitly admitted that, in simple truth, he is unable to repay his loans… It is appropriate to award attorneys’ fees and costs to TERI associated with defending the finality and validity of the judgments of the Pittsfield District Court in the Collection Action.... [T]he plaintiff has inflicted a gratuitous burden on TERI regarding its successful prosecution of the Collection Action.”
Ultimately, the Superior Court judge dismissed or granted summary judgment in favor of all the defendants on all claims asserted by the respondent in the Superior Court action, and a judgment of dismissal entered.3 The respondent appealed from the G. L. c. 231, § 6F, sanction awarded to a single justice of the Appeals Court pursuant to G. L. c. 231, § 6G, arguing that § 6F, which does not authorize the award of fees and costs against a party who is not represented by an attorney, did not permit such an award against the respondent, who was not represented by an attorney, but was an attorney. The single justice disagreed, and affirmed the award of costs and fees in an order dated July 15, 2003. The respondent then appealed to the full Appeals Court, which also affirmed the award. O’Leary v. Education Resources Institute. Inc. 61 Mass. App. Ct. 653, 656, further app. rev. denied, 442 Mass. 1112 (2004). The respondent represented himself throughout all the proceedings in all the courts that have been described in the preceding paragraphs.

On May 9, 2006, bar counsel brought a petition for discipline against the respondent that focuses entirely on the Superior Court action, and specifically on the claims against TERI in that action. (See note 2, supra.) The petition charges that “[t]he respondent’s conduct in bringing an action in the [S]uperior [C]ourt on a legal basis that was frivolous, was unwarranted under the existing case law, was not advanced in good faith, and was not based on a good faith argument for the modification or reversal of the existing law” violated Mass. R. Prof. C. 3.1,4 and Mass. R. Prof. C. 8.4 (d) and (h).5

A special hearing officer was appointed to hear the petition. Before the hearing, bar counsel filed a motion to preclude the respondent from contesting (1) the factual allegation in the petition for discipline that he had no good faith basis for claiming a right under Mass. R. Civ. P. 60(b) to challenge the default judgment entered in the Pittsfield District Court by way of an independent action in the Superior Court; and (2) the legal conclusion that in bringing the Superior Court action on a legal basis that was frivolous and not advanced in good faith, the respondent’s conduct violated Mass. R. Prof. C. 3.1 (motion for issue preclusion). The board’s chairman allowed the motion for issue preclusion, ordering as follows: “The respondent is precluded from introducing evidence to contradict any fact or issue of law determined in the underlying proceeding and essential to the judgment, whether that evidence is offered in mitigation of the conduct, if a violation is found, or in support of a contention that his actions did not violate the rules charged in the petition for discipline.”

After hearing, the special hearing officer filed a report in which he recited the history of the collection proceedings set forth above as his findings, and, based on them (as well as, implicitly, the board chair’s allowance of the motion for issue preclusion) concluded that in bringing the Superior Court action against TERI on a legal basis that was frivolous and legally unwarranted, the respondent had violated Mass. R. Prof. C. 3.1, and rule 8.4(d) and (h). He found that the actions taken over a period of time by the respondent in connection with the collection action “were based primarily upon his desire to avoid paying his student loan debt,” and concluded that “the fact that his misconduct was motivated by his own selfish interests is a factor in aggravation." He found no evidence warranting mitigation.

Rejecting the parties’ respective recommended dispositions — bar counsel sought suspension for one year and one day, and the respondent sought dismissal or an admonition -the hearing officer recommended that the respondent be suspended for six months and one day and be required to take and pass the Multi-State Professional Responsibility Examination (MPRE) prior to reinstatement. The hearing officer also stated, however, that in his view, “having heard the respondent’s testimony, a reinstatement hearing is not necessary.”

Bar counsel and the respondent both appealed the hearing officer's recommended disposition.6 After hearing argument, an appeal panel of the board issued a report in which the panel adopted the special hearing officer’s findings and conclusions, but modified the recommended sanction. The appeal panel recommended a six month suspension, with the final three months suspended on the condition that the respondent take and pass the MPRE within one year.

Both parties filed objections to the panel’s report with the board. The board also adopted the special hearing officer’s findings and conclusions, and voted to file an information recommending that the respondent be suspended for six months and one day (which would require him to pass the MPRE), and also be required to petition for reinstatement pursuant to S.J.C. Rule 4:01, § 18(4).

Discussion. The respondent presents essentially two arguments in his challenge to the board’s recommended discipline. He claims that the board’s recommended sanction of suspension is contrary to and exceeds the discipline imposed in similar cases involving the advancement of frivolous claims - discipline that is generally an admonition or a public reprimand. In the respondent’s view, when his case is compared to these other cases, the petition for discipline at issue here should be dismissed or he should receive an admonition. The respondent’s second argument is that the order allowing bar counsel’s motion for issue preclusion, at least insofar as it concerned evidence offered in mitigation, was overly broad, and requires reversal of that order and remand of the matter to the board to consider mitigating facts.

I consider first the respondent’s claim about the order allowing the motion for issue preclusion. There is no question that principles of issue preclusion may be applied in bar discipline proceedings. Matter of Brauer, 452 Mass. 56, 66-67 (2008); Matter of Cohen, 435 Mass. 7, 15-17 (2001); Bar Counsel v. Board of Bar Overseers, 420 Mass. 6, 10-12 (1995). It is also clear, as the board recognized, that in concluding the respondent had violated G. L. c. 231, § 6F, and in requiring him to pay attorney’s fees and costs, the Superior Court judge necessarily found as a matter of fact and law, as his decision expressly states, that the respondent’s conduct in bringing the claim against TERI in the Superior Court was wholly insubstantial, frivolous, and not advanced in good faith. That finding was affirmed on appeal, O’Leary v. Education Resources Institute, Inc., 61 Mass. App. Ct. at 656. The record demonstrates that the respondent had a fair opportunity to litigate and did litigate in the Superior Court the issue whether his conduct was insubstantial, frivolous, and lacking in good faith was litigated. See Matter of Cohen, 435 Mass. at 15. Accordingly, it was proper for the board to apply principles of issue preclusion and to bar the respondent from seeking to challenge this finding in the subsequent disciplinary proceedings against him. See Matter of Brauer, 452 Mass. at 68. As indicated, the respondent’s challenge is not to the overall application of issue preclusion, but to the portion of the order that focused on offering evidence in mitigation. The respondent appears to be misreading the order of preclusion, as the Appeal Panel and the board recognized. The order prohibited him from introducing evidence in mitigation only insofar as such evidence would “contradict any fact or issue of law determined in the underlying [Superior Court] proceeding and essential to the [Superior Court] judgment"; it was not a bar against the introduction of evidence in mitigation generally. Insofar as the respondent offered evidence in mitigation that was not determined in the Superior Court action - for example, the respondent states that he offered evidence that he has been consistently paying $300 per month, and later $350 per month to TERI in satisfaction of the amount he owes TERI - there is nothing in the order on issue preclusion that would bar that evidence. What would be barred, and properly so, would be evidence that sought to explain or justify why the respondent brought the Superior Court action.7 In his report, the special hearing officer - the factfinder — states, “there was no evidence presented warranting any mitigation.” I do not interpret this sentence to mean that he did not consider mitigating evidence that was properly before him, if there was any; the sentence may better be understood to indicate that in his view, none of the evidence offered, whether proper or improper, justified mitigation. In any event, I conclude that there was a satisfactory basis for the offensive use of collateral estoppel or issue preclusion in this case, and no basis on which to reverse the order of preclusion.

I turn to the merits and issue of sanctions. The Superior Court judge’s finding that the respondent’s conduct in bringing his action against TERI in that court was wholly insubstantial, frivolous, and not advanced in good faith - a finding well supported by the other facts found in the judge’s decision and affirmed on appeal - fits expressly within the prohibition set out in Mass. R. Prof. C. 3.1 (“lawyer shall not bring or defend a proceeding. . . unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law”8). The board was correct in so concluding. I also agree with the board that the respondent’s conduct, as found by the Superior Court judge and derivatively by the special hearing officer, qualifies as prejudicial to the administration of justice and as adversely reflecting on the respondent’s fitness to practice law, in violation of Mass. R. Prof. C. § 8.4 (d) and (h), respectively. See, e.g., Matter of Landers, 2008 WL 2532984; Matter of Weissman, 2006 WL 1664 (2006).9 See also Matter of Friedman, 2006 WL 4041611 (disbarment case; among many other violations of rules of professional conduct, respondent’s bad faith filing of his own bankruptcy petition violated Mass. R. Prof. C. 3.4, 8.4(d) and 8.4(h)): Matter of Mason, 2006 WL 4041601 (2006) (disbarment case; among many other disciplinary rule violations, respondent’s assertion of insubstantial and frivolous defenses in bad faith violated DR 1-102(A)(4), (5) (prohibiting conduct prejudicial to administration of justice) and (6) (prohibiting conduct adversely reflecting on fitness to practice law); Matter of Kurker, 18 Mass. Atty. Disc. R. 353 (2002).10

In considering an appropriate disciplinary sanction in this case, I must consider the sanctions imposed in comparable cases, but ultimately, must seek to determine, for this particular attorney, “the disposition most appropriate in the circumstances.” Matter of the Discipline of an Attorney, 392 Mass. 827, 837 (1984). The board recommends that for this misconduct, the respondent (1) be suspended for six months and one day - which would require that the respondent take and pass the MPRE as a condition of reinstatement, see S.J.C. Rule 4:01, § 18(l)(b); and (2) be required to petition for reinstatement under rule 4:01, § 18(4).11 The board made its recommendation about petitioning for reinstatement based on its concern that the respondent had no insight into his misconduct, a concern that the board found reflected in the respondent’s filings on appeal from the special hearing officer’s report and in objection to the appeal panel’s report; these filings, in the board’s view, were “obsessive, abusive, and repetitive,” and “almost unreadable,” as well as “filled with vitriol and unwarranted accusations” against bar counsel and the board chair who allowed the motion on issue preclusion. The board’s conclusions and recommendations are entitled to substantial deference, but in the end, are not binding. Matter of Fordham, 423 Mass. 481, 487 (1996). See Matter of Foley, 439 Mass. 324, 334 (2003).

There is no question that the respondent ignored valid summonses that he received, failed to respond to a valid action against him, and then engaged in repeated and persistent efforts to obtain relief from the default judgment that TERI had obtained in that action; there is also no question that these efforts were rejected by every tribunal that considered the respondent’s filings. As the special hearing officer noted, however, the misconduct cited in the petition for discipline concerns only the respondent’s “filing of frivolous claims in Superior Court,” not his various motions in the District Court, and not his appeals. The respondent’s Superior Court claims against TERI were found to be in violation of G. L. c. 231, § 6F, and the respondent’s action in bringing and asserting those frivolous and unfounded claims required what can be seen as unnecessary expenditure of judicial resources as well as of the time and effort of opposing counsel. But, of course, every judicial award of fees and costs under G. L. c. 231, § 6F, because it must be based on a finding that the claims or defenses at issue were “wholly insubstantial, frivolous and not advanced in good faith,” involves the same arguably unnecessary expenditure of judicial and attorney resources - that is the point of the statute’s provision for the award of fees and costs. It is clear, however, that a judicial imposition of a sanction under G. L. c. 231, § 6F, does not result automatically or generally in the initiation of disciplinary proceedings, much less a sanction of suspension from the practice of law.12, 13

The board (and sometimes a single justice of this court) have considered in the past a number of cases in which an attorney is charged with filing or advancing frivolous actions or claims in violation of Mass. R. Prof. C. 3.1, 8.4(d) and 8.4(h), or the predecessors to these rules (DR 7-102(A)(2), and DR 1-102(A)(5) and (6)). The discipline imposed has been a public reprimand or public censure, or an admonition. See, e.g., Matter of Landers, supra. 2008 WL 2532984 (public reprimand; among number of other disciplinary violations, attorney’s making frivolous allegation in pleading violated Mass. R. Prof. C. 3.1, 8.4(d), 8.4(h)); Matter of Weissman, supra, 2006 WL 1664 (2006) (public reprimand; attorney’s seeking execution and filing for lien against client in amount over what was due to her, without checking what was due, violated Mass. R. Prof. C. 3.1, 8.4(d) and 8.4 (h); other conduct of attorney in relation to same client violated another disciplinary rule); Matter of Dittami, 9 Mass. Atty. Disc. R. 102 (1993) (public censure; attorney brought suit against various parties for payment of debt to his client although attorney knew at time of filing that debt had been paid; court had awarded attorney’s fees and costs under G. L. c. 231, § 6F; attorney's conduct found in violation of DR 7-102(A)(l) and (2), and DR 1-102(A)(5); attorney also violated another disciplinary rule in separate matter); Admonition Nos. 02-09, 02-11,18 Mass. Att’y Disc. R. 619,629 (2002) (admonition for two respondents; by serving client with groundless demand letter, respondents advanced frivolous claim in violation of Mass. R. Prof. C. 3.1, 8.4(d), and 8.4(h); respondents also violated other disciplinary rules in a separate, unrelated matter); Admonition 00-53, 16 Mass. Atty Disc. R. 530 (2000) (admonition; in violation of Mass. R. Prof. C. 3.1, attorney, at client’s request, brought frivolous motion for relief from judgment, resulting in award of counsel fees under G. L. c. 231, § 6F, against client; attorney separately violated another disciplinary rule in connection with representation of same client).

As indicated above, in recommending suspension in this case, the board expressed concern about what it perceived as the respondent’s total lack of acceptance of the judgment that his lawsuit was frivolous, lack of insight about the nature of his misconduct, and his inability to appreciate the abusive (and ultimately self-defeating) nature of his behavior in this matter.14 It is true that in all of the cases summarized in the preceding paragraph, the actions taken by the attorneys that were found to be frivolous, unwarranted, and subject to sanction for that reason, were not shown to be part of an extended and persistent course of conduct, and there was no indication that the attorneys involved failed or refused to recognize the nature of misconduct at issue. However, based on his opposition memorandum filed in this court, I believe that the respondent may, finally, accept the judgment that the Superior Court action was frivolous and unfounded, and it is also worth noting that he apparently has been paying back the monies owed to TERI as well as the attorney’s fees that the judge awarded.15 It is also significant that throughout all the stages of this case in the courts (although not at all of the stages of discipline), the respondent represented himself. He serves, in my view, as a prime illustration of the adage that a lawyer who represents himself has a fool for a client. The respondent has not been subject to any prior discipline. This is not a fact in mitigation, but it might possibly suggest that when he is acting as an attorney for others, his conduct does not reflect the same type of persistent advancement of unlikely (at best) or groundless claims and arguments.16

In consideration of (1) the disciplinary cases cited above that imposed a sanction of public reprimand or less for misconduct involving the advancement of frivolous and unfounded claims, and (2) the concerns articulated by the board (as well as the special hearing officer and appeal panel) in relation to this respondent and this case, I conclude that the appropriate level of discipline is a suspension for three months, suspended for one year under probationary conditions. See Matter of Rubin, 17 Mass. Atty. Disc. R. 490 (2001), S.C. 19 Mass. Atty. Disc. R. 378 (2003). One of the probationary conditions is to be - as the board, the appeal panel, and the special hearing officer all recommended - that the respondent take and pass the MPRE within a year. The second condition is that the respondent enter into a peer review or monitoring agreement, to be determined by bar counsel, for the period of one year.

ORDER

For the foregoing reasons, it is ORDERED that a judgment enter suspending the respondent Robert G. O’Leary for a term of three months, the term of suspension suspended for one year, and subject to the following probationary conditions: (1) that the respondent take and pass the Massachusetts Professional Responsibility Examination within one year from the date of this order; and (2) the respondent enter into and, for the period of one year, abide by the terms of a peer review or monitoring agreement, the terms of which are to be determined by bar counsel.


FOOTNOTES:

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

2 Although not mentioned in the petition for discipline in this case or in the decisions of the special hearing officer, appeal panel, or board, it appears that at some point in the District Court supplementary process proceeding the judge ordered the respondent to pay TERI $300 per month and allowed TERI's motion for sanctions in the amount of $1,500; and that after the respondent filed a motion to vacate or modify this order, TERI moved for contempt, and the judge allowed the motion, also allowing TERI attorney’s fees in the amount of $3,443.48. The respondent filed another petition under G. L. c. 211, § 3, in this court, challenging the finding of contempt and award of fees. A single justice denied the petition, and the full court affirmed. O'Leary v. The Education Resources Institute, Inc., 441 Mass. 1018 (2004).

3 The judge's findings and rulings under G. L. c. 231, § 6F, concerned only the respondent's claims against TERI. None of the other parties to the Superior Court sought relief under this statute, and there is no issue raised in this proceeding with respect to the respondent's claims against those other parties.

4 Rule 3.1 of the Massachusetts Rules of Professional Conduct provides in relevant part:

“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law....”

5 Rule 8.4 (d) and (h) of the Massachusetts Rules of Professional Conduct provide:

"It is professional misconduct for a lawyer to: ...

(d) engage in conduct that is prejudicial to the administration of justice;...

(h) engage in any other conduct that adversely reflects on his or her fitness to practice law."

6 The respondent continued to be represented by counsel in this appeal, but the respondent authored the papers that were filed with the board.

7 The respondent has attached to his opposition a document he entitles “Respondent O’Leary’s List of Mitigating Facts.” This list appears to combine “facts” that would fit within the scope of the order of preclusion because they are attempting to explain his reasons for filing the Superior Court action, and those that would not.

8 The respondent does not suggest that his bringing an action against TERI in the Superior Court itself was premised on a request for the alteration, modification, or extension of existing law. Accordingly, the clause in Mass. R. Prof. C. 3.1 stating that such a request would not be "frivolous" within the meaning of the rule, is not applicable in this case.

9 The disciplinary cases cited here are discussed in the text, infra.

10 This case is discussed in note 11, infra.

11 As also stated previously, the board's recommendation was different from the recommendation argued to it by both bar counsel (who sought suspension for a year and one day) and the respondent (who sought dismissal or an admonition), as well as from the special hearing officer (suspension for six months and one day), and the appeal panel (suspension for six months, final three months suspended, on condition respondent take and pass the Multi-State Professional Responsibility Examination [MPRE]).

12 As the special hearing officer and the appeal panel noted, and contrary to bar counsel’s arguments below, this case is very different from Matter of Cohen, 435 Mass, at 11-12, 16-17 (2001) (suspension for one year and one day, based on finding attorney had engaged in multiple violations of DR 1-102(A)(5) (conduct prejudicial to administration of justice); 1-102(A)(6) (conduct that adversely reflects on fitness to practice law); 7-102(A)(2) (knowing advancement of claim unwarranted under current law); violations were based on attorneys being found in contempt or otherwise sanctioned seven times by four different courts after filing claims on behalf of clients in those courts in contravention of express court orders precluding filing such claim); and Matter of Kurker, 18 Mass. Atty. Disc. R. 353 (2002) (suspension for one year and one day, based on finding that attorney violated Mass. R. Prof. C. 3.1 (prohibiting filing frivolous claims); rule 8.2 (prohibiting making false statement concerning qualifications or integrity of judge); rule 8.4(d) (prohibiting conduct prejudicial to administration of justice); rule 8.4(h) (conduct reflecting adversely on fitness to practice law); violations were based on attorney’s conduct in filing two separate actions in Federal District Court containing wholly unfounded allegations of conspiracy between and misconduct by opposing counsel and several State court judges.

13 The appeal panel concluded that the respondent’s conduct warranted a suspension in part because before he filed his Superior Court action, he had been warned by the District Court judge that his claims lacked merit; the panel cited to the American Bar Association’s Standards for Imposing Lawyer Sanctions (1992), § 6.22, which is a general statement that suspension is ordinarily appropriate when a lawyer knows he is violating a court rule with injury or potential injury to a client, party, or potential interference with a legal proceeding; and § 7.2, stating suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system. I question the relevance of the first of these citations to the facts of this case, and as to the second, it could be said to apply to every lawyer who is sanctioned under G. L. c. 231, § 6F.

14 The special hearing officer found that the respondent was acting to advance his own selfish interests - to avoid paying back his student loans - and considered this motivation as an aggravating factor in this case; the appeal panel agreed. To support this conclusion, the hearing officer and appeal panel cited, respectively, Matter of Pike, 408 Mass. 740,745-746 (1990), and Matter of Kennedy, 428 Mass. 156, 159 (1998). While a lawyer’s engaging in conduct to gain personal financial advantage is “most troubling,” Matter of Kennedy, supra at 159, this case is very different from both Pike and Kennedy, and I note that the board did not appear to base its recommended sanction here on a determination that the respondent’s actions in seeking to avoid or delay repaying the student loans aggravated his misconduct. In my view, the more important question here is the effect of that misconduct. See Matter of Brauer, 452 Mass. 56, 75 (“The overriding consideration in bar discipline is the effect upon, and perception of, the public and the bar. . . . We must consider what measure of discipline is necessary to protect the public and deter other attorneys from the same behavior” [quotations and citations omitted]). If an attorney, on behalf of a client, persists - through stubborn overzealousness and lack of judgment - in advancing a frivolous and unfounded action in order to help the client avoid paying debts, the effect on other parties, the court, and the public is the same as would be the case if the attorney were representing himself.

15 The respondent has made these representations, and bar counsel has not indicated a factual disagreement with them.

16 I note that the respondent has submitted two letters, one from the register of the Hampden County Probate and Family Court, and one from an attorney in Springfield, attesting to his capacity as a lawyer representing clients, and in particular his contributions in providing pro bono legal representation to clients in and around the Springfield area. He has also submitted a certificate he received from the Senior Partners for Justice - West, in connection with his pro bono work for that organization. The respondent cannot be precluded from representing himself, of course, but the record in this case certainly suggests that the respondent would be wise to refrain from serving as his own counsel in the future.



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