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Commonwealth of Massachusetts

NO. BD-2010-097


S.J.C. Order Denying Temporary Suspension entered by Justice Cordy on October 22, 2010.1


Bar Counsel has filed a notice of conviction and a petition for temporary suspension of Herman T. Bayless pursuant to Supreme Judicial Court Rule 4:01, section 12(4). Bayless has filed an opposition. Bayless was indicted on charges of worker's compensation fraud, in violation of G. L. c. 152, § 14, and larceny over $250 in violation of G. L. c. 266, § 30, for continuing to accept worker's compensation benefits arising from the death of his wife after remarriage to a different woman. Bayless' s wife died in 2001 on the job as a Department of Corrections officer, and he remarried in 2004. On September 13, 2010, he tendered a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970) (Alford), and by agreement with the Commonwealth, a Superior Court judge continued the case without a finding for three years subject to probation conditions. Bar Counsel argues that a so-called Alford plea qualifies as a conviction under the definition provided by Rule 4:01, section 12(1), and consequently, places the burden on Bayless to show cause why he should not be temporarily suspended from the practice of law pending final disposition of any disciplinary proceedings. S.J.C. Rule 4:01, § 12(4), as appearing in 425 Mass. 1313 (1997). For the reasons discussed below, I conclude that an Alford plea qualifies as a conviction under the definition provided by Rule 4:01, section 12(1), and refer the matter to the Board of Bar Overseers to proceed as they see fit under these circumstances. However, I deny the petition for temporary suspension since Bayless has shown mitigating circumstances that militate against temporary suspension. See Matter of Norton, 3 Mass. Att'y Disc. R. 164 (1983).

First, Rule 4:01, section 12(1), defines conviction as "any guilty verdict or finding of guilt and any admission to or finding of sufficient facts and any plea of guilty or nolo contendere which has been accepted by the court, whether or not sentence has been imposed." S.J.C. Rule 4:01, § 12(1), as appearing in 425 Mass. 1313 (1997 ). The Rule does not explicitly include Alford pleas.2 In Alford, supra at 37, the plea taken was denominated a "guilty plea," and the Supreme Court discerned no constitutional infirmity in allowing the defendant to so plead while still maintaining his factual innocence. It may well be that Bayless acted out of ignorance, did not act with fraudulent or larcenous intent, and is innocent of the underlying charges, as he contends, but he interposed the legal equivalent of a guilty plea, akin to an "admission to sufficient facts," or a plea of nolo contendere. It is of no consequence that the judge agreed not to enter a finding of guilty, and instead continued the case without a finding. The judge was clear that if Bayless violated the conditions of his probation, a guilty finding would be entered and he would be sentenced. While this disposition reflects the unique circumstances here, it does not change the legal significance of an Alford plea.3

Nonetheless, I decline to temporarily suspend Bayless. Rule 4:01, §12(4), provides that upon establishing a lawyer's conviction of a serious crime, "the court shall enter an order to show cause why the lawyer should not be immediately suspended from the practice of law . . ." S.J.C. Rule 4:01, § 12(4).

Temporary suspension under the rule is not automatic. Even where the seriousness of the crime calls for suspension, mitigating circumstances and the particular facts of each case may justify a delay. Matter of Norton, 3 Mass. Att'y Disc. R. 164 (1983); Matter of Moses Scott, 3 Mass. Att'y Disc. R. 179 (1982). Purely private transgressions may often warrant less severe discipline than misconduct arising from the practice of law. Matter of Concemi, 422 Mass. 326, 331 n. 5 ( 1996). Here, Bayless's conviction was unrelated to the practice of law, and did not involve any attorney-client relationship.

Moreover, there is a pending administrative action before the Department of Industrial Accidents to determine whether any "restitution" is owed to the Department of Corrections. That proceeding may cast more light on the degree of impropriety of Bayless's actions, and be instructive to the Board of Bar Overseers. Through his Alford plea, Bayless has continually maintained his factual innocence. He claims he was entitled to receive the sums he collected after July 2004 to support his minor children, whose entitlement remained unaffected by his marriage. Bayless contends that the disposition of the administrative matter will establish that his minor children, and himself by virtue of his status as their guardian, were, in fact, entitled to even larger sums than already provided by the Department of Corrections, and ultimately will result in a net gain in benefits for his family. It would appear, from the sentencing recommendation in this case, that the Commonwealth may agree with this latter assessment.

Finally, there are a litany of personal mitigating circumstances that counsel against immediate suspension. In a twist of unfortunate irony, Bayless and his new wife were divorced by decree in Worcester Probate and Family Court. Bayless represents that he has struggled not only emotionally, but also financially since the death of his wife, and now even more so since, upon dissolution, he has retained only his assets prior to his most recent marriage. He has four children, and financially supports at least three of them (one son is serving in Afghanistan). As a solo practitioner, the toll of even a temporary suspension would be quite severe.

The court has taken notice of Bayless's convictions, and hereby refers this matter to the Board of Bar Overseers for its consideration. The petition for temporary suspension is DENIED.


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

2 There are two reported cases where an attorney's proffer of an Alford plea, albeit with a finding of guilty entered by the court, constituted a "conviction" within the meaning of Rule 4:01, section 12(1). Matter of Swartz, 9 Mass. Att'y. Disc. R. 316 ( 1993); Matter of Berlandi, 5 Mass. Att'y Disc. R. 31 (1988).

3 I note that other jurisdictions have determined that there is no difference between an Alford plea and a conviction for the purposes of their disciplinary rules. See Roberts v. Kentucky Bar Assoc., 245 S.W.3d 207, 208 (2008) ("Because the Alford plea constitutes a conviction, Roberts's conduct was clearly a "criminal act" within the meaning of [the Kentucky rules of professional conduct].'"); In re Richard John Untalan, 619 A.2d 978, 981, citing In re Kerr, 424 A.2d 94, 96 n. 12 (D.C. 1980) ("an Alford plea is indistinguishable from a guilty plea in result for the purposes of the disciplinary process").

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