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Commonwealth of Massachusetts

NO. BD-2009-048

IN RE: ROBERT V. EBERLE

S.J.C. Order Denying Reinstatement and Amending Previous Temporary Suspension Order entered by Justice Cowin on July 13, 2010.1

MEMORANDUM OF DECISION AND ORDER ON PETITION FOR IMMEDIATE REINSTATEMENT

On December 10, 2009, I temporarily suspended the respondent, Robert V. Eberle, from the practice of law for a period of 120 days while disciplinary proceedings against him were pending. After the expiration of the term of temporary suspension, the respondent attempted to apply for reinstatement, and to tender the necessary registration fees; the board of bar overseers refused to accept his application absent permission from bar counsel that bar counsel declined to give. On June 18, 2010, the respondent filed a petition with this court seeking immediate reinstatement. In response, bar counsel submitted a letter in opposition and a copy of the hearing committee decision and recommended sanction, issued June 29, 2010, in the petition for discipline.

Because the circumstances have changed substantially since I issued the order of temporary suspension, I conclude that the respondent's petition must be denied. The misconduct charged after investigation in the disciplinary action differs significantly from the misconduct for which bar counsel sought the temporary suspension. The original petition for temporary suspension was based on notices of two criminal convictions. These two crimes, although misdemeanors under Massachusetts criminal law, are defined as "serious crime[s]" for purposes of the rules of professional conduct, and thus likely to warrant a sanction greater than a public reprimand. See S.J.C. Rule 4:01, § 12 (3). At the time the term temporary suspension was imposed, however, my concern was that an indefinite temporary suspension might well exceed the term of any sanction the board was likely to recommend. See Matter of Barkin, 1 Att'y Disc. R. 18, 18, 24 (1975). That is no longer the case.

The misconduct found now by the hearing committee includes the two convictions originally before me plus two additional convictions for misdemeanor offenses.2 It includes also commingling of funds in the respondent's IOLTA account; failure to maintain proper records of the IOLTA account; falsification of a bill to a client which the attorney never actually sent; and deliberate misrepresentations to bar counsel concerning that bill. Based on this combined misconduct, the hearing committee has recommended an eight-month suspension from the practice of law.3 Reinstatement at this point is clearly inappropriate.

The respondent's petition for immediate reinstatement is denied. An order shall enter amending the order previously entered so that the suspension shall be for an indefinite period pending resolution of the proceedings before the board. The appeals shall be pursued promptly. This order is without prejudice to the respondent's right to seek termination of the temporary suspension upon a showing of unreasonable delay by bar counsel or the board.


FOOTNOTES:

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

2 These additional offenses do not fall within the definition of a "serious crime" under the rules of professional conduct. See S.J.C. Rule 4:01, § 12 {3).

3 Bar counsel states that she intends to appeal the recommended sentence and seek a one year and one day term suspension. The respondent, in turn, states that he intends to appeal the recommended sanction on the ground that the convictions that formed the basis for the initial disciplinary action are now being appealed.



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