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Commonwealth of Massachusetts

NO. BD-2010-055

IN RE: CHARLES MICHAEL CLIFFORD

S.J.C. Order of Disbarment entered by Justice Botsford on August 18, 2010.1

Memorandum of Decision and Order for Judgment

The Board of Bar Overseers (board) has filed an information with this court recommending the disbarment of the respondent, Charles Michael Clifford. After hearing, and for the reasons set forth below, I agree with the board's recommendation. A judgment of disbarment shall enter.

Background.2 The respondent was admitted to the Massachusetts bar on June 28, 1994. He practiced law out of an office he shared with his father in Charlestown, but his practice was separate from his father's. His practice primarily, but not exclusively, consisted of representing individuals charged with crimes. In early 2003, he agreed to create a "disability trust account"3 for a client, and received on the client's behalf $75,000, to hold in that trust account. In April, 2003, the respondent opened a checking account entitled "Charles M. Clifford Escrow Agent for [the client]," and deposited the check in that account. Between the day he opened the account and November 25, 2003, the respondent intentionally withdrew and spent a total of $72,820 of the deposited funds for his own purposes, which appear to have been the purchase of illegal drugs for his personal use.4 Between October, 2004, and mid-February, 2005, after receiving an additional $5,000 in checks payable to the client, the respondent intentionally withdrew and spent $4,900 of that sum, apparently for the same purpose. In 2008, the client twice demanded an accounting and the return of all funds in the respondent's possession, but the respondent did not reply and did not provide either the accounting or the funds. The respondent has stipulated that he intended to deprive his client of these funds at least temporarily, and that actual deprivation resulted.

The client filed a complaint with bar counsel, who initiated an investigation in June, 2008. The respondent failed to respond to bar counsel's letters or her subpoena requiring his appearance with his records and files relating to the client. As a result, on December 17, 2008, the respondent was administratively suspended from the practice of law by an order of this court. The respondent did not comply with the order of immediate administrative suspension, which required him to cease practicing law as of December 17, 2008, and if he were not reinstated within thirty days to notify all his clients and all the courts in which he had matters pending of his suspension, return all unearned fees, and take other steps to close out his work as an attorney. Rather, the respondent continued to represent clients and to appear in various courts on their behalf at least through March. 12, 2009. On April 7, 2009,1 entered an order finding the respondent in contempt of the order for immediate administrative suspension.

Based on these facts, the respondent has stipulated - and the hearing committee and board have determined - that he has violated Mass. R. Prof. C. 1.15(a), (b), (c), and (d) (all concerning a lawyer's obligations to hold client property and client funds separately, to safeguard them, to deliver the property and funds promptly, and to render accountings); rule 8.4 (c) (dishonesty, deceit, fraud, misrepresentation); rule 8.4 (h) (other conduct reflecting adversely on fitness to practice); rule 8.1 (b) (failure to respond to lawful bar counsel demand for information in connection with disciplinary matter); rule 8.4 (d) (conduct prejudicial to administration of justice); rule.8.4 (g) (failure without good cause to cooperate with bar counsel); S.J.C. Rule 4:01, § 3 (duty to cooperate with bar counsel investigation); Mass. R. Prof. C. 3.4 (c) (knowing disobedience of rule of tribunal); and rule 5.5 (a) (unauthorized practice of law).

As previously indicated (see note 3, supra), the hearing committee found in mitigation, based primarily on the respondent's testimony that it found credible, that the respondent's conversion of the client's funds was causally related to his addiction to drugs (heroin and oxycontin). The committee also found - and there appears to be no factual dispute - that in late May of 2007, the respondent entered and remained at a residential treatment program for twenty-eight days, and that since June, 2007, he has remained drug and alcohol free. Further, based on the testimony of Dr. Ronald Ebert, a forensic psychologist who, at the respondent's or his counsel's request, interviewed and performed psychological tests on the respondent in connection with these proceedings and testified on the respondent's behalf, the hearing committee found that the respondent suffers from "a major severe bi-polar disorder, manic type."

At the same time, the hearing committee made findings in aggravation that the board adopted. These included that the respondent has not returned any money to the client, even though, following his drug rehabilitation treatment, he continued to practice law (and to earn money) for close to two years (August, 2007 into April, 2009); that in 2005, the respondent, deeded his house to his father for a nominal amount when it was worth enough to support a mortgage loan of $200,000, and the respondent continues to live in it still, even though he might have sold - or asked his father to sell - the house to raise funds to repay the client; that the client is vulnerable, as a physically and perhaps mentally disabled individual; and that whatever the link between his drug addiction and the use of his client's funds, the other misconduct involved - not responding to his client's request for the return of the client's money and misrepresenting the status of the trust account to his client in 2008, failing to cooperate with bar counsel's investigation, and failing to comply with the order of administrative suspension - all occurred after the respondent reported that he was completely sober. In addition, the committee pointed out that Dr. Ebert was not able to draw a specific causal link between the respondent's bipolar disorder and his failure to repay the client, his bipolar disorder and his refusal to cooperate with bar counsel, or that disorder and the respondent's unauthorized practice of law post-suspension; that the respondent understood his use of the drugs in question was illegal; and that the respondent had been admonished by the board in 2005 for neglect of two client matters in 2003.

The respondent accepts that disbarment or indefinite suspension is the presumptive disciplinary sanction when a lawyer has intentionally misused client funds with intent to deprive or actual deprivation. Matter of Schoepfer, 426 Mass. 183, 187 (1997). He points out, however, that in the Schoepfer case, the court specifically recognized that this presumptive 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." Id. at 188. He urges that his drug addiction be considered as a mitigating factor,5 and that the presumptive disciplinary sanction be "moderated" to an indefinite suspension that is stayed for five years with conditions of (1) continued abstinence with periodic testing; (2) continued participation in rehabilitation programs for substance abuse and bipolar disorder; and (3) restitution.

I agree with the board that even if one were to consider addiction to illegal drugs as a "disability" and a mitigating factor, this is not a case where the factor would change the outcome. The respondent's failure to pay back any part of the funds owed to the client, even after he had been treated, apparently successfully, for his drug addiction, argues in favor of disbarment. See Matter of Dasent. 446 Mass. 1010, 1012-1012 (2006) ("It is established that, where a respondent has intentionally misused client funds, and failed to pay his client all that was due to her, the usual and presumptive sanction is disbarment"). Contrast Matter of Collins, 455 Mass. 1020 (2010) (attorney, who had been addicted to cocaine, completed rehabilitation programs, self-reported misappropriation of client funds to bar counsel, and had paid back more than half amount owing at time of disciplinary proceedings; indefinite suspension ordered with requirement for restitution of remaining amount owed). This conclusion is particularly true when the respondent's other charged and admitted misconduct is factored in,6 all of which occurred after his addiction had been treated and which his expert witness was unable to say was causally related to the expert's diagnosis of bipolar disorder.7

The respondent and his counsel are correct that this is a sad case, and that he is to be commended for remaining drug- and alcohol-free since 2007. But in the circumstances presented, I agree with the board and the hearing committee that disbarment is the appropriate sanction.

ORDER

It is ordered that the respondent, Charles Michael Clifford, be disbarred from the practice of law. A judgment of disbarment shall enter, with the disbarment effective as of April 7, 2009.


FOOTNOTES:

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

2 The facts summarized here are taken from the hearing committee's findings, which were generally adopted by the board. Underlying these findings is an amended stipulation of the parties, pursuant to which the respondent - who has been represented by counsel throughout - agreed to the factual allegations in the amended petition for discipline filed by bar counsel as well as to the violations of the rules of professional conduct cited by bar counsel in that petition.

3 The record is not clear as to what a "disability trust account" means. The evidence at the hearing indicated that the client was physically disabled and perhaps mentally disabled to some degree as well. There is no dispute, however, that the respondent was to hold the money in question for the client.

4 The hearing committee found that the respondent "misused the client's money to buy illegal drugs" - oxycontin and heroin - for his own use, and that the respondent was, at the time he received the funds, already addicted to drugs. The hearing committee included these findings under the section of its report dealing with mitigation. The board stated in its own memorandum that it was adopting the hearing committee's findings of fact except its "findings in mitigation because . . . they do not reduce the sanction in this matter." Reading the board's memorandum as a whole, I understand this statement to reflect the board's position that it need not decide whether (a) the respondent's addiction to illegal drugs contributed to his misuse of client funds, or (b) addiction to illegal drugs may be considered as a factor in mitigation, because in this case "any such mitigation does not alter the recommended sanction of disbarment." I do not read the board as having rejected, as a factual matter, the hearing committee's determination that the respondent was using the client's funds to buy drugs or that he was addicted.

5 Although the respondent does not so state directly, presumably he would characterize his bipolar disorder as a disability and mitigating factor as well.

6 I refer in particular to the respondent's failure to cooperate with bar counsel's investigation and his continuing to practice law for several months following his administrative suspension in December, 2008.

7 With respect to the respondent's bipolar disorder, I note that the respondent does not argue directly that it is a disability and mitigating factor. While the disorder may well qualify as a disability, as the respondent's expert, Dr. Ebert, testified, it is treatable, but the respondent has not pursued treatment in any real sense.



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