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Commonwealth of Massachusetts

NO. BD-2010-083

IN RE: ANNA H. RESNICK

S.J.C. Order of Term Suspension entered by Justice Ireland on September 20, 2010, with an effective date of October 20, 2010.1

BOARD MEMORANDUM

The respondent, Anna H. Resnick, appeals from a hearing committee’s findings that her answers to three questions on her petition for admission to the Massachusetts bar were knowingly false. The hearing committee recommended that the respondent be suspended from the practice of law for one year and a day, and that her reinstatement be conditioned on her obtaining a report from the Board of Bar Examiners that she possesses “the qualifications for admission to the bar.” (H.R. p. 15). See Matter of Voykhansky, 24 Mass. Att'y Disc. R. 719, 724 (2008) (reinstatement conditioned on report from BBE that respondent possesses “the character, fitness, and qualifications for admission to the bar”).

On appeal, the respondent argues that we should reverse the hearing committee’s finding that she knowingly and intentionally submitted material and false information to the BBE and the finding that the respondent’s testimony at her disciplinary hearing lacked candor. In addition, the respondent claims that the hearing committee tainted the proceedings by finding that she had disclosed to the BBE that she had been disciplined for plagiarism only because she knew the matter would be reported by her law school. The respondent also seeks a ruling that her conduct did not violate Mass. R. Prof. C. 8.4(c) and (h). The respondent seeks a public reprimand, or, if we find that a suspension is necessary to deter similar conduct, a short suspension without conditions.

Bar counsel has not appealed from the hearing committee’s findings or recommendation. Bar counsel suggests, however, that we recommend the same sanction as that imposed in the Matter of Voykhansky, supra, namely a suspension for one year with reinstatement conditioned on obtaining a report from the BBE that she possesses the qualifications for admission to the practice law. Id. at 724.

For the reasons set forth below, (with two board members voting for a shorter suspension), we adopt and incorporate by reference the hearing committee’s findings of fact, except as specifically modified below, and its conclusions of law. We recommend that the respondent be suspended for one year with reinstatement conditioned on obtaining a report from the BBE that she possesses the character, fitness, and qualifications for admission to practice law in the Commonwealth.

Findings of Fact and Conclusions of Law

The following is a summary of the hearing committee’s findings of fact and conclusions of law pertinent to this appeal. The respondent was born in Moscow, Russia in 1970. She immigrated to the United States in 1989 and obtained American citizenship in approximately 1995. She received a bachelor of science degree in physical therapy, graduating magna cum laude from Northeastern University in 1994. She worked in Massachusetts as a licensed physical therapist from approximately 1994 until 1999.

The respondent attended Suffolk University Law School’s evening program from September 2000 until May 2006, when she graduated. In 2005, Suffolk temporarily suspended her for plagiarism. On or about April 28, 2006, the respondent filed a petition for admission to the Massachusetts bar and was admitted on November 30, 2006. In her petition for admission, the respondent disclosed her temporary suspension from law school for plagiarism.

In 2005, the respondent, her husband, and their three young children moved to Florida. In the summer of 2007, she applied to the Florida bar. Her application for admission to the Florida bar is pending. She practices immigration law in Florida.

In July 2007, the respondent sent a letter to the BBE reporting that her answers were inaccurate in the petition for admission. The BBE reported the matter to the Massachusetts Office of Bar Counsel.

The hearing committee concluded that the respondent’s conduct violated Mass. R. Prof. C. 8.1(a) (knowingly make false statement of material fact in connection with bar admission application) by providing false answers to three questions on her petition for admission to the Massachusetts bar. The three questions were:

Question 10(b): “Have any charges or complaints been made concerning your conduct as an attorney, or as a member of any other profession, or as a holder of any public office?

Question 12(b): “Have you ever been a party on either side in a civil action or proceeding involving a claim of fraud, conversion, breach of fiduciary duty, professional malpractice or other wrongful conduct?”

Question 12 (c): “Have you been a party in any other legal or administrative proceedings?”

The respondent answered “No” to each of these questions. The hearing committee found that these answers were knowingly false.

With regard to Question 10(b), the Board of Registration in Allied Health Professions (the Board of Registration) had received two complaints against the respondent that she failed to disclose in her petition for admission. In approximately 1999, the Board of Registration dismissed a complaint filed by an insurer alleging that the respondent had engaged in over-utilization of services. Ex. 9; Ex. 11. In 2005, the Board of Registration dismissed without prejudice a complaint against the respondent regarding her supervision of a physical therapist, and it issued a non-disciplinary letter advising the respondent to review the pertinent regulations. Ex. 8.

With regard to Question 12(b), the respondent was a defendant in two lawsuits charging fraud. On June 10, 2004, a complaint in Kotlyar v. Zelyony, Essex Superior Court No. 2004-01115, was filed alleging that the respondent and her husband had committed fraud and deceit in connection with their work as business managers of a doctor’s medical practice. Ex. 2. In October 2009, the claims were dismissed. Ex. 3. On December 30, 2005, a complaint in Sivokozov v. Discount Corp. of America, Miami-Dade Co. Superior Court No. 2005-25547-CA-01, was filed alleging that the respondent and a corporation that she had controlled committed common law fraud in the inducement and violated the Florida Deceptive and Unfair Trade Practices Act. Ex. 4.

With regard to Question 12(c), on January 16, 2001, the respondent failed to disclose that she had filed a complaint, Resnick v. White, Essex Superior Court No. 2001-00070. Ex. 6. The matter was dismissed on September 12, 2003, for failure to prosecute after the respondent won a related arbitration award. Tr. 99-100. On January 9, 2006, the respondent filed a complaint, Resnick v. Global Assets, Inc., Miami-Dade Co. Superior Court No. 2006-366-CA-01. Ex. 7. This matter settled shortly afterwards, and was dismissed for lack of prosecution in December 2007. Ex. 7; Tr. 103.

The hearing committee did not credit the respondent’s testimony that she failed to disclose, when answering Question 10 (b), the complaints filed with the Board of Registration because (1) she had not been found to have committed any wrongdoing and (2) she had not been disciplined. In addition to disbelieving her explanations in her July 2007 letter to the BBE, the hearing committee did not credit her testimony during the hearing. It did not believe her claim that she had misinterpreted Question 10(b) as asking for disclosure only when formal proceedings had been commenced against her. The hearing committee did not believe the respondent when she testified that she did not think of the last complaint filed with the Board of Registration as having been filed “against” her. The hearing committee found that Question 10(b) was clear and unambiguous, and that the respondent’s interpretations of Question 10(b) were not only wrong, but also not credible.

With regard to Questions 12(b) and 12(c), the hearing committee did not credit the respondent’s testimony that she did not recall that she was a party in a total of four different lawsuits. The two lawsuits charging her with fraud were each filed before she submitted her petition for admission and both were still pending at the time the bar counsel filed the petition for discipline. The hearing committee did not credit the respondent’s explanation that she did not disclose that she had been named a defendant in Kotlyar because the lawsuit concerned her business dealings, and therefore did not think that it was a matter of concern to the BBE. The hearing committee also concluded that the respondent’s intentionally false answers were material.

The hearing committee found no evidence in mitigation. It rejected the respondent’s assertion that stress caused her not to think about the meaning of the questions on the petition for admission, and found that the respondent did not present credible evidence of events in her life that caused her stress that could be considered mitigating.

The hearing committee found in aggravation that the respondent’s testimony lacked candor, and that she failed to acknowledge the nature, effects, and implications of her misconduct.

Respondent’s Appeal

As set forth above, the respondent claims that the hearing committee erred in finding (1) that the respondent’s answers to the petition for admission were knowingly false and material; (2) in aggravation that the respondent’s testimony lacked candor; and (3) that the respondent disclosed her discipline for plagiarism to the BBE because she knew the matter would be reported by her law school. The respondent also seeks a ruling that her conduct did not violate Mass. R. Prof. C. 8.4(c) and (h).

“A statement is ‘material’ if it tends ‘in reasonable degree to affect some aspect or result of the inquiry.”’ Commonwealth v. Cohen, 456 Mass. 94, 125 (2010), quoting Commonwealth v. D’Amour, 428 Mass. 725, 744 (1999), quoting Commonwealth v. McDuffee, 379 Mass. 353, 360 (1979). A matter is material “if it involves information that would or could significantly influence the hearer’s decision-making process.” Matter of Donahue, 22 Mass. Att’y Disc. R. 193, 262 (2006) quoting Conduct of Kluge, 332 Or. 251, 255 (2000). Clearly, answers to questions regarding the existence of complaints of professional misconduct, proceedings involving the candidate for admission where claims of fraud, conversion or breach of fiduciary duty have been asserted, and the extent of prior involvement in litigation are questions that are material to the BBE because they are relevant to the candidate’s character and fitness to practice law and, thus, the candidate’s qualifications for admission. We find no error in the hearing committee’s conclusions that the questions and answers at issue on the petition for admission were material.

We further find that the hearing committee properly inferred from circumstantial evidence that the respondent knowingly provided false answers in violation of Mass. R. Prof. C. 8.1(a). Mass. R. Prof. C. 9.1(f) in defining “knowingly” specifically provides: “A person’s knowledge may be inferred from circumstances.” The respondent submitted a letter to the BBE in July 2007, in which she acknowledged that her answers to the three questions were false, and which provided explanations as to why she provided the answers that she did. (Ex. 9) The hearing committee did not credit her explanations for her false answers. The hearing committee is the sole judge of the credibility of witnesses appearing before it. See S.J.C. Rule 4:01, § 8(4); Matter of Saab, 406 Mass. 315, 328 (1989). We may not reject a credibility finding “unless it can ‘be said with certainty’ that the finding is ‘wholly inconsistent with another . . . finding.” Matter of McCabe, 13 Mass. Att’y Disc. R. 501, 507 (1997), quoting Matter of Hachey, 11 Mass. Att’y Disc. R. 102, 103(1995). The hearing committee properly found that the respondent gave false answers on her petition for admission and that she gave false testimony during her disciplinary hearing. As the hearing committee’s credibility findings are supported by the record and are not wholly inconsistent with other findings, they may not be rejected or overturned.

On appeal the respondent contends that the hearing committee “reached the extraordinary and totally unsupported conclusion that the Respondent disclosed to the BBE that she had been disciplined for plagiarism because she somehow knew that the incident would be reported by Suffolk Law School.” This erroneous conclusion tainted the proceedings and deprived the Respondent of the force of one of her defenses, which was that she had disclosed in detail on her petition for admission the facts surrounding the plagiarism incident.” (Respondent’s Brief on Appeal, at 5) At the hearing, the respondent raised the issue of her disclosure to the BBE of plagiarism to contend that she did make full disclosure of this fact and therefore her non-disclosure with respect to the other questions was likely unknowing. The hearing committee found that the respondent’s motive for disclosing the plagiarism was not credible. The hearing committee determined that the respondent believed the plagiarism was likely to be reported to the BBE by her law school. The respondent is correct that there is no evidence in the record to support the latter finding. Nonetheless, given the other, independent credibility findings supported by circumstantial evidence, we do not find any error that would warrant reversal or remand. See Matter of Osagiede, 24 Mass. Att'y Disc. R. 523, 527-29 (where it is clear that finding is based on decision to credit client over respondent, use of other evidence did not form basis for disturbing credibility findings); Matter of Doe, 15 Mass. Att'y Disc. R. 799, 805 (1999).

Although bar counsel charged the respondent with violating Rules 8.4(c) and (h), bar counsel has not pressed the point by an appeal. The hearing committee determined that it need not decide whether Rules 8.4(c) and (h) applied because Rule 8.1 provided a basis for discipline and findings of additional rule violations would not change its recommendation. We agree. Since Rule 8.1(a) clearly applies to the instant case, we need not determine whether, under other circumstances, Rule 8.4, which refers to the professional misconduct of “a lawyer,” would be applicable to conduct occurring prior to admission to the bar. Cf. Matter of Donovan, 13 Mass. Att’y Disc. R. 142, 145 (1997) (court accepted parties’ stipulation to violations of predecessor analogs of rules 8.4(c) and 8.4(h), but acknowledged that board’s concerns about applying such rules to pre-admission conduct “have some validity”).

The Appropriate Sanction

The respondent asks that a public reprimand be imposed or a short-term suspension without conditions. Such a sanction is insufficient for the respondent’s dishonest conduct. As the Supreme Judicial Court stated in Matter of Moore, 442 Mass. 285, 295, 20 Mass. Att’y Disc. R. 400, 412 (2004):

Whether an individual is of good moral character and fit to practice law in the Commonwealth is a most serious issue. Questions exploring this issue are not to be answered by gamesmanship. Bar applicants should always err on the side of full disclosure. If the meaning and scope of a particular bar application question is unclear to them, they should contact the Board of Bar Examiners to ascertain exactly what information is being sought in response to that question.
We recommend that the respondent be suspended for one year and that her reinstatement be conditioned on obtaining a report from the BBE that she possesses the character, fitness, and qualifications for admission to the practice law in the Commonwealth, the condition suggested by bar counsel here and imposed in Voykhansky, supra at 719. Because the false statements in Voykhansky were more serious than the respondent’s,2 we would not require her to undergo a hearing on reinstatement.

Conclusion

For the foregoing reasons, we adopt the hearing committee’s findings of fact, as modified above, and conclusions of law. An Information shall be filed with the Supreme Judicial Court recommending that the respondent, Anna H. Resnick, be suspended from the practice of law for one year and that her reinstatement be conditioned on her obtaining a report from the Board of Bar Examiners that she possesses the character, fitness, and qualifications for admission to practice law in the Commonwealth. The record of her disciplinary proceedings in Massachusetts shall be forwarded to the Florida bar admissions authority.


FOOTNOTES:

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

2 In 1999, Voykhansky applied to the Massachusetts School of Law. Having failed to obtain an undergraduate degree in the country where he was born and raised (the former Soviet Union), he purchased a fraudulent diploma purporting to grant him a college degree from a university in Minsk. He intentionally misrepresented on his law school application and again on his petition for admission that he had obtained a bachelor’s degree. He was admitted to the bar in December 2002. Voykhansky became involved in litigation with former business associates, and revealed to the prosecutor that he had obtained a fraudulent diploma. The trial judge told him that he would report him to the Board of Bar Overseers if Voykhansky did not do so himself. He self-reported.



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