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Commonwealth of Massachusetts

NO. BD-2009-048

IN RE: ROBERT V. EBERLE

S.J.C. Order of Temporary Suspension entered by Justice Cowin on December 10, 2009.1

MEMORANDUM OF DECISION AND ORDER

Pursuant to S.J.C. Rule 4:01, § 12 (4), bar counsel has filed notices of conviction of two criminal offenses and a petition for the temporary suspension of the respondent, Robert V. Eberle, pending further disciplinary proceedings as a result of those convictions. The two crimes, although misdemeanors under Massachusetts criminal law, are defined as "serious crime[s]" for purposes of the rules of professional conduct. See S.J.C. Rule 4:01, § 12 (3). At issue is whether temporary suspension is appropriate in these circumstances. The respondent contends that a temporary suspension should not be imposed because one of the convictions arose in 2001 from a charge of shoplifting over $100 and was the product of an uncontested agreement to accept a continuance without a finding; and there is a pending appeal of his 2009 conviction for larceny under $250 on which he is likely to prevail.

Both parties submitted memoranda and supporting documentation and argued before me at a hearing on October 6, 2009. See S.J.C. Rule 4:01, § 12 (4), as appearing in 425 Mass. 1313 (1997) ("upon the filing with this court of a certificate establishing a lawyer's conviction of a serious crime, this court shall enter an order to show cause why the lawyer should not be immediately suspended from the practice of law, regardless of the pendency of an appeal"). For the reasons discussed below, I impose a four-month temporary suspension of the respondent's license to practice law.

1. Background and procedural history. The first case concerns a District Court disposition of "continued without a finding" on admission to sufficient facts in a 2001 proceeding. That case involved a charge of shoplifting over $100 in violation of G. L. c. 266, § 30A. The respondent waived his right to counsel, stipulated that there were sufficient facts to support a conviction, and the case was eventually dismissed. The respondent argues that he was not familiar with criminal law; was unaware that a disposition of continued without a finding after an admission to sufficient facts is equivalent to a conviction for purposes of the rules of professional conduct; and would not have agreed to waive his right to trial if he had known that such a disposition would be considered a conviction for purposes of bar disciplinary proceedings.

In June, 2009, following a jury-waived trial in the District Court, the respondent was convicted of larceny under $250, a violation of G. L. c. 266, § 30(1), for a shoplifting incident at a North Shore mall. The respondent was found not guilty of larceny over $250 and of receiving stolen property and was sentenced to unsupervised probation until December, 2009.2 The estimated value of the stolen merchandise - CDs and guitar strings - was between $11 and $14. The respondent contends that there was insufficient evidence that any crime occurred to support his conviction. After his motion for a new trial was denied in August, 2009, the respondent filed a notice of appeal.

2. Discussion. The purposes of a temporary suspension differ both from the purposes of imposing a sanction after disciplinary proceedings and from the purposes of the criminal law. In deciding whether a temporary suspension should be imposed, the harm to the attorney is balanced against the public interest in preventing harm to present and future clients. Matter of Abrams, 436 Mass. 650, 654 (2002), citing Matter of Ellis, 425 Mass. 332, 341-342 (1997). The court considers several factors in order to determine if a temporary suspension would be appropriate: "1) whether the sentence was stayed pending appeal; 2) whether the appeal is meritorious; 3) whether the attorney is pursuing the appeal diligently; 4) the seriousness of the crime and whether it is related to the attorney's practice of law; 5) the threat to the public interest should the attorney continue to practice; and 6) whether the temporary suspension would be longer than the sanction imposed after discipline." See Matter of Bryant, 18 Mass. Att'y Disc. R. 91, 95 (2002).

Regarding the first three factors in the 2001 shoplifting charge, the respondent admitted to sufficient facts and accepted a continuance without a finding. That he was not represented by counsel was his choice. I am not concerned here with a helpless or unsophisticated individual; the respondent was a member of the bar with the capacity to decide what was in his interest at that time, and I have been shown no basis for relieving him of the consequences of that decision. A continuance without a finding after admission to sufficient facts is defined as a conviction pursuant to S.J.C. Rule 4:01, § 12(3). See Matter of Goldberg, 434 Mass. 1022, 1023 (2001). Whether the respondent was unaware of this rule is irrelevant; attorneys are expected to know and abide by the rules of professional conduct. See Matter of Balliro, 453 Mass. 75, 88-89 (2009). As to the pending appeal of his 2009 larceny conviction, while the respondent is diligently pursuing his appeal, his sentence has not been stayed. Moreover, I have reviewed the trial transcript and, while the evidence was not overwhelming, it is likely to be considered sufficient on appeal.

I turn to the seriousness of the crimes at issue; their relationship to the respondent's practice of law; and the effect on the public interest should the respondent be permitted to practice pending an adjudication on the merits. Although the crimes for which the respondent has been convicted are misdemeanors resulting in minor criminal sentences, the nature of those offenses, as the rules of professional conduct make clear, involves dishonesty, fraud, deceit or misrepresentation. See S.J.C. Rule 4:01, § 12 (3); Mass. R. Prof. C. 8.4 (b) and (c). Thus, the respondent has been found guilty of behavior which strikes at the heart of what the public has a right to expect of an attorney. I recognize that attorneys are subject to far harsher discipline for crimes involving their practice than for those unrelated to that practice. See Matter of Concemi, 422 Mass. 326, 331, n. 5 (1996). However, notwithstanding that the respondent's convictions did not involve his practice of law, theft of another's property speaks for itself insofar as an attorney's fitness to practice is concerned. See Mass. R. Prof. C. 8.4 (b) and (c); Matter of Leo, 17 Mass. Att'y Disc. R. 371, 377 (2001). Thus, based on the first five factors to be weighed, I conclude that a temporary suspension is appropriate in this case.

Nonetheless, and in view of the final factor, I am concerned that a temporary suspension should not exceed the length of any term suspension that the board is likely to recommend if bar counsel establishes that the respondent is in violation of Mass. R. Prof. C. 8.4 (b) and (c) because of his convictions. In general, bar counsel's investigation and subsequent disciplinary proceedings have tended to be protracted, see Matter of Goodman, 23 Mass. Atty' Disc. R. 352, 366 (2007); Matter of McBride, 21 Mass. Atty' Disc. R. 455, 466-467 (2005), s.c. 449 Mass. 154 (2007), and a temporary suspension in this case should not be coterminous with whatever length of time is required for the board to resolve a petition for discipline. See Matter of Barkin, 1 Att'y Disc. R. 18, 24 (1975) .

I recognize that the length of bar discipline proceedings is affected by the limited resources available to bar counsel. Nevertheless, if we promise a viable system for disciplining attorneys on which the public can rely, the system must provide resources to support those proceedings. At the very least, attorneys facing disciplinary sanctions may not be made the victims of a lack of resources and have imposed on them far greater sanctions through temporary disposition than would have been imposed after final adjudication. The result is that the temporary disposition increases the punishment beyond what is appropriate for the offense even if an offense is established. If the process of resolving cases is going to be long, this must have an impact on the length of temporary suspensions. I will not impose a temporary suspension here that exceeds the likely punishment.

Therefore, I consider the sanction likely to be imposed if bar counsel does establish a violation of the rules of professional conduct in this case. A fundamental tenet of attorney discipline is that the sanction imposed should not be "markedly disparate" when compared to those imposed for similar infractions in other cases. See Matter of Alter, 389 Mass. 153, 156 (1983) . Consequently, the severe sanctions imposed on attorneys engaged in conversion of clients' property would be inappropriate, since the respondent's convictions were unrelated to his practice; additionally, the attorneys' actions in other cases generally involved far larger sums of money misappropriated over a substantial period of time, and took place in conjunction with other violations.

However, the sanctions imposed in other disciplinary actions involving misdemeanors not related to the attorney's practice of law, which range from a public reprimand to a suspension of eighteen months, are of little guidance because the events in those cases bear little relation to the facts of this case. See, e.g., Matter of Harte, BD-2008-074, 25 Mass. Att'y Disc. R. __ (2009) (one year suspension for misdemeanor motor vehicle homicide while intoxicated); Matter of Fraser, BD-2008-051, 25 Mass. Att'y Disc. R. __ (2009) (six-month suspension with three months to serve and three suspended for period of two years where attorney convicted of threatening to commit crime and violation of abuse prevention order); Matter of Hall, 23 Mass. Att'y Disc. R. 258 (2007) (nine-month suspension for wilfully failing to file Federal tax returns); Matter of Debs, 21 Mass. Att'y Disc. R. 163 (2005) (eighteen-month suspension for possession of heroin, possession of cocaine while on probation, and violation of terms of probation); Matter of Grella, 438 Mass. 47, 51 (2002) (two-month suspension after conviction of assault and battery due to violent assault on estranged wife); Matter of Enos, 18 Mass. Att'y Disc. R. 183 (2002) (public reprimand for multiple convictions for operating under the influence of alcohol, negligent operation to endanger, and assault and battery on a public employee where attorney had substance abuse problem; fact that offenses were not part of attorney's practice served as mitigating factor); Matter of Goldberg, 434 Mass. 1022 (2001) (public reprimand following convictions of assault and battery by means of a dangerous weapon [a felony], assault and battery on a police officer, assault and battery on a public servant, and indecent exposure).

There appear to be very few instances in Massachusetts in which the board has been called on to consider convictions of shoplifting.3 The two such cases submitted by the parties at the hearing are not meaningful because each involved additional criminal charges and other violations of the ethical rules. In the case relied on by bar counsel, Matter of Ryan, 16 Mass. Att'y Disc. R. 364 (2000), the attorney was convicted of breaking and entering and malicious destruction of property. He was sentenced to one year in the house of correction, with 100 days to serve and the remainder suspended for two years upon condition that he meet particular terms of probation. The attorney was subsequently convicted of shoplifting, shoplifting over $100, and shoplifting over $100, second offense. He was sentenced to six months in the house of correction, suspended for two years on condition that he comply with specific terms of probation. The attorney thereafter violated the terms of his probation and was incarcerated. While the attorney was incarcerated, bar counsel initiated disciplinary proceedings to which the attorney failed to respond (see S.J.C. Rule 4:01, § 3(2)). The attorney was thereafter suspended indefinitely from the practice of law.

The case relied on by the respondent, Matter of Dobie, 24 Mass. Att'y Disc. R. 364 (2008), is closer to the facts here, but also involves more egregious conduct.4 The attorney made misrepresentations about the shoplifting incident during bar counsel's investigation, failed to cooperate with the investigation as well as to attend the initial hearing, and was also disciplined for misrepresenting the location of his law office in order to avoid the requirement in another jurisdiction that he maintain professional liability insurance. In addition, the attorney was found to have practiced law while temporarily suspended. The attorney was thereafter suspended from the practice of law for six months. Here, in contrast, the record indicates that the respondent has cooperated with the investigation to this point, and does not dispute the fact of the convictions.

One disciplinary case in another jurisdiction is instructive because it involves facts very similar to the circumstances in this case. In Matter of Rocawich, II. Disp. Op. 95 Ch 924 (1997), the attorney was convicted of two incidents of shoplifting within one year. Evidence was admitted at the disciplinary hearing that the attorney suffered from a psychological condition; a two-year suspension from the practice of law was stayed on condition that the attorney continue psychological treatment during her probationary period.5

Here, too, there may be mitigating factors which could reduce the duration of any suspension which might be imposed in pending disciplinary proceedings. In Matter of Schoepfer, 426 Mass. 183, 188 (1997), the court stated: "Our rule is not mandatory. If a disability caused a lawyer's conduct, the discipline should be moderated, and, if that disability can be treated, special terms and considerations may be appropriate." At the sentencing hearing on the larceny conviction, and at a hearing before me on November 16, 2009, the respondent's counsel made representations that the respondent is suffering from a disability or psychological condition that contributed to the offenses here.6 If the existence of such a condition were established, as it was with the attorney in Matter of Rocawich, any sanction imposed might be substantially reduced. However, nothing in the record before me justifies reliance on the existence of any such condition, and therefore I give it no weight in the calculus of a likely sanction.

Assuming that bar counsel is able to establish a violation of the disciplinary rules, it appears likely that, considering the nature of the crimes underlying the convictions, the respondent would be suspended from the practice of law for no more than four months. I base this determination on the Massachusetts disciplinary proceeding which is closest to the facts of this case, Matter of Dobie, 24 Mass. Att'y Disc. R. 364 (2008), in which a six-month suspension was imposed for crimes more egregious than those here and where the conduct also involved violations of other disciplinary rules. Given the longest likely sanction to be imposed as a result of pending disciplinary proceedings, I conclude that any temporary suspension should be no longer than four months.

4. Disposition. A judgment shall enter temporarily suspending the respondent from the practice of law in the Commonwealth for a period of four months. The suspension shall commence thirty days after the date of entry of this order so that the respondent has sufficient time to complete pending matters or to advise clients that their matters should be transferred to other counsel. The suspension will terminate by its own terms one hundred twenty one days thereafter.


FOOTNOTES:

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

2 At the sentencing hearing, the respondent's counsel represented that the respondent has an unspecified condition that contributed to the offense, that he has been undergoing treatment with a counselor for the past two years, and that there have been no subsequent offenses during that time. During a hearing before me, the respondent's successor counsel made representations that she intends to introduce evidence of two different mental conditions (chemical dependency and depression) at future disciplinary proceedings, and asserted that the respondent will be undergoing treatment for these conditions. See discussion on potential mitigating factors, infra. However, there were no references made to any such condition in the parties' papers, and no evidence was introduced before me to support these representations.

3 Similarly, disciplinary proceedings for convictions of shoplifting appear to be very rare in other jurisdictions.

4 The single justice in that case observed that, in situations where a case was continued without a finding, the sanctions imposed have ranged from a reprimand to a six-month suspension whatever the nature of the offense.

5 See note 1, supra.

6 See note 1, supra.



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