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Commonwealth of Massachusetts

NO. BD-2009-108

IN RE: STEVEN F. SMOOT

S.J.C. Order of Term Suspension entered by Justice Botsford on March 22, 2010, with an effective date of April 21, 2010.1
(S.J.C. Judgment of Reinstatement entered by Justice Botsford on August 18, 2010.)

MEMORANDUM AND ORDER

The Board of Bar Overseers (board) has filed an information recommending the suspension of the respondent, Steven F. Smoot, for six months and one day for certifying to a court that he properly served a summary judgment motion on opposing counsel in accordance with Superior Court rule 9A (b) (2), despite the fact that the respondent knew opposing counsel to be deceased. The respondent opposes the petition, and argues that the petition for discipline result in a public reprimand or, in the alternative, that any term suspension imposed be stayed or suspended. For the reasons that follow, I concur with the board that the respondent should be suspended for a term of six months and one day but further conclude that the final three months of suspension should itself be suspended for a period of six months.

Background. The respondent was admitted to the practice of law on January 18, 1985. His practice has been concentrated in commercial debt collection work, and the matter at hand arises out of one such case.

In January, 2005, a Massachusetts lawyer (not the respondent), representing Nike USA, Inc. (Nike), filed a collection action in the Worcester Superior Court against Charles Calcagni, Theresa Calcagni, and Calcagni's Inc. (collectively, Calcagnis), who were sellers of sporting goods manufactured by Nike, among others. Nike sought in the suit to enforce an Oregon judgment against the Calcagnis. The Calcagnis were represented in the case by Attorney Paul C. Irwin. In August, 2005, Nike discharged the lawyer who had filed the case and retained the respondent on an hourly basis. The respondent entered his appearance in the matter on August 8, 2005.

In June, 2006, the respondent took various actions on behalf of Nike, such as filing an amended verified complaint, adding a reach-and-apply defendant, and obtaining an attachment in the amount of $225,000, all of which were allowed without opposition. Throughout the summer of that year, the respondent had a number of communications with Irwin in the hopes of settling the case. Some of the respondent's telephone calls to Irwin were not returned, and the case did not settle.

Paul Irwin died on September 8, 2006, and the respondent learned of this death on September 26, 2006, by virtue of a telephone call from Attorney Michael Eschelbacher. Eschelbacher informed the respondent that he was the attorney for the Irwin estate and that he would be meeting with the Calcagnis to discuss settlement or referral to successor counsel. The respondent, in turn, informed Eschelbacher that he would be filing a motion for summary judgment shortly.

After that telephone call, Eschelbacher failed to contact the respondent again, despite having indicated he would. The respondent, for his part, did not contact Eschelbacher — the respondent apparently lost the note with Eschelbacher's name on it. Rather, the respondent, knowing that Irwin had employed a paralegal, telephoned and left numerous messages at Irwin's office, which the respondent knew to be located in his home. Although the name of Irwin's paralegal was in the respondent's files, he never reviewed his files to find it. Instead, the respondent assumed his messages were being forwarded by the paralegal to the attorney for the estate. The respondent never received a response to his messages. No successor attorney filed an appearance on behalf of the Calcagnis.

On February 9, 2007, the respondent mailed the summary judgment motion papers to Irwin's office, and on March 5, 2007, the respondent filed in the Superior Court the motion for summary judgment and statement of material facts. He included in the motion package a signed notice of filing in compliance with Superior Court Rule 9A (b) (2), indicating that his motion was served on the attorney of record for the defendants and further declaring, "I certify that no opposition was served in a timely fashion by the opposing party." On March 20, 2007, the respondent's motion for summary judgment was allowed without a hearing and judgment entered for Nike on May 21, 2007, in the amount of $268,225.57. The respondent obtained an execution, which was levied and suspended.

The Calcagnis learned of the levy, retained new counsel, and filed an emergency motion to set aside the judgment. The respondent opposed the motion arguing that the judgment should be preserved because the Calcagnis could not meet their burden of showing a likelihood of success on the merits. He did not concede that service had been improper. The Superior Court judge allowed the motion to set aside the judgment. The respondent was sanctioned and ordered to pay all the Calcagnis’ costs and attorney's fees in connection with the motion for summary judgment and their own emergency motion to set aside the judgment. The respondent paid the sanction as ordered, in the amount of $15,000, and withdrew his appearance for Nike.

Bar Counsel subsequently commenced disciplinary proceedings before the board by filing and serving a petition for discipline on July 10, 2008. The petition charged that the respondent's actions constituted a lack of candor toward the tribunal and a false statement to a tribunal in violation of Mass. R. Prof. C. 3.3 (a) and (b); dishonesty, fraud, deceit, and misrepresentation in violation of Mass. R. Prof. C. 8.4 (c); conduct prejudicial to the administration of justice in violation of Mass. R. Prof. C. 8.4 (d); and conduct that adversely reflects on his fitness to practice law in violation of Mass. R. Prof. C. 8.4 (h). The respondent, through counsel, filed an answer to the petition on September 29, 2008. He asserted several mitigating factors including, among others, that he was guided by his review of the rules of civil procedure; he did not personally benefit from his actions; he did not act at any time with the intent to deceive; and he believed in good faith that there were no substantive defenses to Nike's claims and therefore assumed that the Calcagnis had decided not to oppose the motion.

A hearing panel of the board conducted a hearing on the petition on January 14, 2009, and issued its report on February 25, 2009. The panel rejected arguments in mitigation - primarily that the respondent was guided by his reliance on court rules directing that service be made on the "attorney of record" regardless of whether the attorney was deceased, and that his misconduct was mitigated because there was no financial harm to the Calcagnis. The panel concluded that the respondent's conduct was motivated by an intent to serve his client's interests; a belief that there was no defense to the claim; and his frustration that he had been unable to obtain a response from either successor counsel or from attorney Irwin's estate. In aggravation, the panel concluded that the respondent was not candid in his testimony regarding his motivation and the grounds for his motivation at the time of his actions. Finding that the respondent's actions violated the above-cited rules of professional conduct and focusing on the respondent's lack of candor to the court, the hearing panel recommended that the respondent be suspended for one year, but that six months of the suspension be suspended, and, within the first six months, the respondent be required to attend a continuing legal education course selected by bar counsel and take and pass the MultiState Professional Responsibility Examination.

The respondent appealed to the board, which adopted the hearing panel's subsidiary findings of fact and conclusions of law, but slightly modified the hearing panel's proposed disposition. The board recommended that the respondent be suspended for six months and one day2 but omitted the continuing legal education requirement. Notwithstanding its contention that the respondent's conduct - in certifying that he had served a motion on "the attorney of record" whom he knew had died five months earlier, and declaring that the opposing party had served no opposition - was "manifestly dishonest," the board determined that a downward departure from the presumptive sanction of one year was warranted because the misrepresentation did not bear on the merits of his client's case.

In accordance with S.J.C. Rule 4:01, § 8 (4), as appearing in 425 Mass. 1309 (1997), the board caused an information to be filed in the county court on November 18, 2009.

Discussion. The respondent challenges the substance of the board's report. He claims it is erroneously based, in part, on a finding in aggravation by the hearing panel that he was not candid about his belief that the rules of civil procedure required him to serve the deceased attorney of record when no successor counsel had appeared. He also challenges the finding that he made a knowing misrepresentation of a material fact to a tribunal, asserting that the finding was not supported by the record.

The hearing panel is the sole judge of the credibility of the witness testimony presented at the hearing. S.J.C. Rule 4:01, § 8 (4). On consideration of the record and in accordance with S.J.C. Rule 4:01, § 8 (4), I find no basis to overturn the panel's challenged credibility findings; I also conclude more generally that the panel's factual findings, adopted by the board, are supported by substantial evidence. See Matter of Fordham, 423 Mass. 481, 487 (1996), cert. denied, 519 U.S. 1149 (1997) (findings and recommendations of board, although not binding on court, are "entitled to great weight"). They warrant the conclusion that the respondent violated Mass. R. Prof. C. 3.3 (a) and (b); and Mass. R. Prof. C. 8.4 (c), (d), and (h), by certifying to the court that service had been made on the "attorney of record" in accordance with Superior Court Rule 9A (b) (2), and that no opposition had been filed notwithstanding the respondent's knowledge that the attorney of record had died five months earlier.

The remaining issue is the appropriate sanction for the respondent's misconduct. The purpose of discipline is to protect the public and to maintain the integrity of the bar, Matter of Saab. 406 Mass. 315, 328 (1989), and one of the principal aims of every bar discipline case is to ensure that the disposition imposed is not markedly disparate from the dispositions imposed on attorneys in similar cases. Matter of Alter, 389 Mass. 153, 156 (1983). Therefore, in selecting an appropriate sanction, I acknowledge, as did the hearing panel and the board, that the type of misconduct at issue here - making misrepresentations to a court under oath - absent any mitigating or aggravating factors, would presumptively warrant a one-year suspension. See Matter of McCarthy. 416 Mass. 423, 426-427 (1993) (one-year suspension imposed on lawyer who, without premeditation, perpetrated fraud on rent control board by eliciting sworn testimony to prove that two petitions were filed in court when he knew they had not been filed; offering false documents in evidence purporting to be the filed petition and certified affidavit of filing; and failing to correct record); Matter of Neitlich, 413 Mass. 416, 422 (1992) (one-year suspension imposed on lawyer who "perpetrate[d] a fraud on the [probate] court and opposing counsel" by actively misrepresenting terms of his client's pending real estate transaction).

Although the board determined that the respondent's actions were "manifestly dishonest," it determined that a downward departure from the presumptive sanction was warranted because the respondent's misrepresentation did not bear on the merits of his client's case but allowed a dispositive judgment to enter without adequate notice. I agree with the distinction drawn by the board in this regard. See In re Long. 16 Mass. Att'y Discipline Rep. 250 (2000) (McCarthy and Neitlich distinguished on basis that attorneys in those cases perpetrated fraud as to substantive matters whereas attorney in Long lied to court to obtain a continuance; single justice recognized distinction as well as other mitigating factors and suspended attorney for three months).

Notwithstanding the downward departure adopted by the board, the respondent urges that the presence of mitigating factors justifies an additional reduction from the six months and one day suspension to a public reprimand or a suspended suspension. Primarily, the respondent maintains that his failure to inform the court that he had been told opposing counsel was deceased ultimately resulted in no harm to the Calcagnis or anyone else.3 Pointing to Matter of Alter, 389 Mass. 153 (1983), the hearing panel dismissed this claim as a mere typical mitigating factor not entitled to great weight, and the board similarly did not reduce the sanction on this ground.

It is true that the absence of harm generally is regarded as a typical mitigating factor that does not justify deviation from a presumptive sanction. See, e.g., Matter of Foley, 439 Mass. 324, 337 (2003); Matter of Saab. 406 Mass. 315, 327 (1989); Matter of Alter, supra at 156. Nevertheless, the respondent's payment of $15,000 to the Calcagnis as full reimbursement for the attorney's fees and costs they had incurred in seeking to vacate the default judgment makes this case somewhat analogous to ones involving the payment of restitution. Most often associated with matters involving the intentional misuse of client funds, restitution is relevant to the determination of the appropriate disciplinary sanction and, when made in full, weighs in favor of indefinite suspension over disbarment. Matter of Bryan. 411 Mass. 288, 292 (1991). In light of the fact that the Calcagnis were made whole by virtue of the respondent's out-of-pocket payment - itself the result of a sanction imposed by the Superior Court - and in recognition that the respondent has no prior disciplinary record, I alter slightly the board's recommendation. I impose the six month and one day suspension, thereby requiring the respondent to take and pass the Multistate Professional Responsibility Examination, but conclude that the final three months of the suspension should itself be suspended for a period of six additional months.

ORDER

For the foregoing reasons, it is ordered that the respondent, Steven F. Smoot, be suspended from the practice law in the Commonwealth of Massachusetts for a period of six months and one day, with the final three months of the suspension further suspended for a period of six months. The respondent must take and pass the Multistate Professional Responsibility Examination within the initial six-month period. In accordance with S.J.C. Rule 4:01, § 17 (3), the suspension shall be effective thirty (30) days after the entry of this order.


FOOTNOTES:

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

2 A suspension of six months and one day requires that the respondent take and pass the MultiState Professional Responsibility Examination as a condition of reinstatement, see S.J.C. Rule 4:01, § 18 (1) (b), and further requires the respondent to petition for reinstatement under rule 4:01, § 18 (4).

3 In arguing for a public reprimand or completely suspended term of suspension, the respondent also attempts to compare his case to the attorneys whose conduct were at issue in Matter of Foley, No. BD-2009-034, 25 Mass. Att'y Discipline Rep. __ (2009), 2009 WL 1703010; and Matter of Kidd, No. BD-2009-010, 25 Mass. Att'y Discipline Rep. __ (2009), 2009 WL 1543544. These were cases involving neglect by attorneys, not misrepresentations under oath to a tribunal. I do not find them comparable.



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