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Commonwealth of Massachusetts

NO. BD-2010-106

IN RE: JOHN KENNETH BUCK

S.J.C. Order of Indefinite Suspension entered by Justice Spina on January 25, 2011, with an effective date of February 24, 2011.*

Memorandum of Decision

The Board of Bar Overseers (board) filed an Information pursuant to S.J.C. Rule 4:01, § 8 (6), relating to the character and conduct of John K. Buck, Esquire, who was admitted to practice before the courts of the Commonwealth on December 10,1974. The board found that the respondent participated in a fraudulent sale of certain videotapes, that he misrepresented his authority in the course of that sale, that he falsely notarized a document containing fraudulent signatures, and that he then made knowingly false statements regarding these activities. The board has recommended that the respondent be indefinitely suspended from the practice of law. The respondent has objected to that recommendation and to the board's accompanying report. The issues before me relate to bar counsel's use before the board's hearing committee of certain documents that potentially are protected by attorney-client privilege, the sufficiency of the evidence supporting the board's findings, and the consistency of the recommended sanction with sanctions imposed in similar cases.

1. Standard of Review. "The subsidiary facts found by the Board contained in its report filed with the Information shall be upheld if supported by substantial evidence." S.J.C. Rule 4:01, § 8 (6). See S.J.C. Rule 4:01, § 5 (a) ("the hearing committee ... [shall be] the sole judge of the credibility of the testimony presented at the hearing"). Accordingly, and as with bar discipline cases that have been reserved and reported to the full court, I "review the board's findings and reach [my] own conclusion." See In re Hrones, 457 Mass. 844, 849 (2010), quoting Matter of Fordham, 423 Mass. 481, 487 (1996), cert. denied, 519 U.S. 1149 (1997). "The findings and recommendations of the board, although not binding on this court, are entitled to great weight." Hrones, supra at 849, quoting Matter of Murray, 455 Mass. 872, 879 (2010).

As regards the sanction to be imposed, my review of the board's recommendation is "de novo, but tempered with substantial deference to the board's recommendation." Matter of Jackman, 444 Mass. 1013,1013 (2005). "|I| consider whether the recommended sanction 'is markedly disparate from judgments in comparable cases.'" Hrones, supra at 855, quoting Matter of Finn, 433 Mass. 418, 423 (2001). "Regardless, each case must be decided on its own merits and every offending attorney must receive the disposition most appropriate in the circumstances.'" Hrones, supra at 855, quoting Matter of the Discipline of an Att'y, 392 Mass. 827, 837 (1984). "The consideration of the cumulative effects of several ethical violations is proper when determining the appropriate sanction." Hrones, supra at 855, quoting Matter of Saab, 406 Mass. 315, 326-327 (1989).

2. Applicable Rules. Bar counsel's petition for discipline contains two counts relating to the respondent's actions in notarizing a document containing fraudulent signatures, falsely claiming to represent the true owner of the videotapes, assisting in the fraudulent sale of the videotapes, and making knowingly false statements under oath. The board concluded that the respondent had violated the following Massachusetts Rules of Professional Conduct:

Mass. R. Prof. G. 1.2(d) - "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law."

Mass. R. Prof. C. 3.3 - "A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal...."

Mass. R. Prof. C. 4.1 - "In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6."

Mass. R. Prof C. 8.4 - "It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct. . . (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation . . . (h) engage in any other conduct that adversely reflects on his or her fitness to practice law."

3. Findings of Fact and Conclusions of Law. On September 29 and 30, 2009, a committee of the board held hearings regarding the petition for discipline filed by bar counsel. The cornmittee's findings of fact, conclusions of law, and disciplinary recommendation were submitted to the board in a report dated April 15, 2010. The board voted unanimously to adopt each of these and incorporated them by reference into its memorandum of October 18, 2010. On October 26, 2010, the board filed the information initiating this action. I summarize the relevant findings of the board as follows:

In January, 2000, John Fallon and Rober Grenier, Jr., purchased twenty-four original videotapes depicting John Lennon and Yoko Ono, along with beta tapes containing full copies thereof. The copyright to the videotapes was included in the sale. In March or early April, 2000, the videotapes were stolen from World Wide Video, LLC, the corporation established by Fallon and Grenier for purposes of marketing the videotapes or turning them into a documentary. World Wide Video then brought suit against John Messina alleging that Messina had stolen the videotapes. The respondent defended Messina in that action which ultimately was settled with payment made by Messina as well as his commitment to assist in securing the return of the videotapes.

While the videotapes remained outstanding, World Wide Video was approached by Anthony Pagola who purported to know where the videotapes were located. Pagola reached an agreement with Fallon and Grenier that, subject to approval by World Wide Video, granted him six months to find a buyer for the videotapes. On August 24, 2001, a certificate of incorporation was filed with the Delaware Secretary of State incorporating a business known as Inner Vision, Inc., that listed Pagola as the incorporator. The respondent's testimony regarding his involvement, as well as the involvement of Messina, is conflicting and non-credible but the respondent has admitted filling out and filing the 2001 Delaware Annual Franchise Tax Report for Inner Vision, Inc., in which he identified Pagola, Messina, and himself as directors.

In early 2002 overtures were made to attorneys representing Ono expressing interest in selling the videotapes to her. On February 27, 2002, a fax with respondent's name and fax number in the header was received by Ono's attorney that purported to be a sales agreement between an entity owned by Pagola and Inner Vision, Inc., transferring copyright and ownership of the videotapes. The document was dated March 23, 2000, but was created after the fact in an attempt to create a chain of title to the videotapes.1 Ono's attorney, however, was not satisfied that this document accounted for all potential claimants as he became aware that Fallon and Grenier had held an interest in the videotapes at some point in 2000. Accordingly, the attorney requested the document transferring title from Fallon and Grenier to Pagola's company. A fax purporting to be such a document, and bearing a header with the respondent's name and fax number, was then sent on March 11, 2002. Ono's representatives then continued negotiation of the transaction with what they believed to be a group of sellers represented by the respondent. Indeed, as a result of their communications with the respondent, Ono's attorneys believed that the respondent was representing World Wide Video in connection with the transaction though this was not the case.

Agreement was ultimately reached and a closing was arranged for May 17, 2002, in connection with which a release of Fallon and Grenier's rights to the videotapes was faxed from the respondent's office to Ono's attorneys. The release contained Fallon and Grenier's signatures and was notarized by the respondent. The signatures, however, were fraudulent. Rather than being the genuine signatures of Fallon and Grenier, written in ink and by hand, the signatures appear to be "cut and paste" copies of signatures excised from the Bill of Sale for Rights by which the men initially gained title to the videotapes.2

Following the closing, Ono believed herself to hold copyright to the videotapes. Fallon and Grenier similarly believed themselves to hold copyright to the videotapes which they had recovered by April, 2005. When Ono learned of Fallon and Grenier's plans to promote and show the videotapes she asserted her rights under the May 17, 2002, "release"; The parties' competing claims ultimately resulted in the filing of a lawsuit by World Wide Video in federal district court.

On October 25, 2007, the respondent testified under oath at the office of bar counsel regarding his notarization of the copyright transfer document and his involvement in the sale of the videotapes to Ono. The respondent stated that his first dealings with Pagola occurred on the day of the closing, that Pagola brought two men to the respondent's office who identified themselves as Fallon and Grenier, and that he notarized their signatures after they signed in his presence, and that he had no other involvement in the sale of the videotapes. The respondent made similar sworn statements at a November 26, 2008, deposition taken in the course of World Wide Video's Federal lawsuit.

All of these statements were material to the matters before bar counsel and in the federal litigation. The First of these statements was, at best, intentionally misleading as the respondent knew of Pagola and his involvement with the videotapes, Inner Vision, Inc., and Messina prior to May 17, 2002. The remainder of these statements were knowingly false. Far from being uninvolved in the fraudulent sale, the respondent was a knowing and active participant.

Considering these facts, I conclude that the respondent violated Mass. R. Prof. C. 1.2(d) by actively participating in. the fraudulent sale of the videotapes to Ono; Mass. R. Prof. C; 3.3(a)(1) by making knowingly false statements under oath to the office of Bar Counsel; Mass. R. Prof. C. 4.1(a) by falsely claiming to represent World Wide Video; Mass. R. Prof. C. 4.1(b) by failing to disclose to Ono's attorneys the material facts necessary to avoid assisting Pagola and/or Messina in the fraudulent sale; Mass. R. Prof. C. 8.4(c) by notarizing signatures he knew to be fraudulent, by falsely claiming to represent World Wide Video, by actively participating in a fraudulent transaction, and by making knowingly false statements before the office of bar counsel and in his deposition; and Mass. R. Prof. C. 8.4(h) by notarizing signatures he knew to be fraudulent, by actively participating in a fraudulent transaction, and by making knowingly false statements under oath on two occasions.

4. The Respondent's Objection. The respondent objects to the report of the hearing committee and the board's memorandum, alleging that: (1) bar counsel violated the respondent's attorney-client privilege; (2) the sanctions resulted from a hearing in which there were numerous errors; (3) the evidence does not support the findings of the hearing committee; and (4) the sanctions imposed are markedly disparate from sanctions imposed in similar cases. For the reasons that follow, I decline to disturb the finding of the board and adopt the recommendation that the respondent be indefinitely suspended from the practice of law.

The respondent argues that the use by bar counsel of an allegedly privileged document tainted the proceedings before the hearing committee. During cross-examination of the respondent, bar counsel sought an admission that the respondent was familiar with fax number (178) 975-2267 with the apparent purpose of demonstrating that it was the number associated with the machine in the respondent's office.3 The respondent disclaimed knowledge of the number and bar counsel drew his attention to a letter, admittedly faxed by the respondent to the respondent's attorney, that contained a header with fax number (178) 975-2267 and the respondent's name. The letter itself was not admitted into evidence and its contents (aside from the header) were never discussed before the hearing committee.

This is an unusual circumstance as questions regarding the applicability of a privilege usually arise before a document is produced rather than after it has been used before a tribunal. Regardless, the rule remains that “[t]he burden of proving that the attorney-client privilege applies to a communication rests on the party asserting the privilege." Purcell v. District Att'v for the Suffolk Dist, 424 Mass. 109, 115 (1997). "This burden extends not only to a showing of the existence of the attorney-client relationship but to all other elements involved in determining the existence of the privilege, including: (1) the communication were [made] during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) the communications ,were made in confidence; and (3) the privilege as to these communications has not been waived." Matter of Reorganization of Elec. Mut. Liab. Ins. Co.. Ltd., 425 Mass. 419,422 (1997). The respondent thus had the burden of demonstrating the existence of the privilege and showing that it has not been waived. The respondent has not met this burden as the document was unquestionably in the possession of bar counsel and the respondent has offered no explanation for how this occurred without waiver of the privilege. Because the respondent has failed to meet his burden of proof, I cannot conclude that the document is privileged and thus cannot conclude that its use by bar counsel was inappropriate.

In any event, the respondent's argument is not fully developed as he does not specify the relief he seeks. Presumably, considering his concern regarding a "tainted" proceeding, he is asserting that the use of the letter prejudiced his defense such that a new hearing is required. The minimal use to which the letter was put, however, cannot support that position. There was other evidence in the record as to the respondent's fax number so the information itself would have reached the hearing committee regardless. The substance of the allegedly privileged document was shielded from disclosure and was entirely irrelevant to the use to which the letter was put. Finally, the issue to which the testimony related (the respondent's recollection of his former fax number) was of minimal importance and had an imperceptible impact on the proceeding. The argument regarding privilege is thus unavailing. The respondent develops no argument regarding the further "numerous errors" that allegedly undermined the proceeding before the hearing committee so I find such matters have been waived.

Regarding the merits of the Information, the respondent argues that his version of events, in which he was the unwitting dupe of Pagola and other conspirators, was uncontradicted and that the findings of the hearing committee and board are thus unsupported. The respondent has repeatedly testified that Pagola brought a document to his office for notarization, that Pagola was accompanied by imposters representing themselves to be Fallon and Grenier, and that the imposters appeared to sign the document in ink in his presence. The document, however, was faxed to the respondent's office by Ono's attorney on the afternoon of May 17, 2002, the day of the closing, so it cannot have been brought by the men. Further, in the respondent's telling, Pagola is supposed to have accompanied the imposters to the respondent's office in Lawrence on May 17, 2002. The record shows, however, that Pagola was in the office's of Ono's attorney in New York City on May 17, 2002 and was present that evening to sign other documents and to place his initials beside those of Ono's attorney on the notarized document that had been faxed back from Lawrence. While it is certainly possible for an individual to be in Lawrence and New York City in the course of a single day, the respondent's version of events is difficult to reconcile and strains credulity. Finally, the signatures on the document are identical to those on other documents faxed from the respondent's office which are, in turn, identical to those found on a legitimate document to which Pagola had access. A "cut and paste" forgery is thus likely. Supporting this inference, the legibility of the fraudulent signatures is substantially worse than that of the ink signature admittedly written by the respondent on the same document. This may well reflect the degradation of the "cut and paste" signatures through serial copying and changes of scale. In summary, I have reviewed the entire record, considered whatever evidence detracts from the weight of the board's conclusion, and concluded that there is no reason to disturb the board's finding that the respondent actively participated in a fraudulent transaction and made knowingly false statements under oath regarding this activity. Matter of Segal, 430 Mass. 359, 364 (1999); S.J.C. Rule 4:01, § 8 (6).

As regards the appropriate sanction for the violations found by the board, the respondent argues that the decision to impose the sanction of indefinite suspension is markedly disparate from sanctions imposed in other cases. While the respondent's conduct must be compared with conduct in similar circumstances, "each case must be decided on its own merits and every offending attorney must receive the disposition most appropriate in the circumstances." Matter of the Discipline of an Att'y, 392 Mass. 827, 837 (1984). In establishing a sanction, "[w]e begin by considering the appropriate sanction for the respondent's misconduct, and then we evaluate whether the sanction should be heightened or reduced after weighing any aggravating or mitigating factors." In re Balliro, 453 Mass. 75, 86 (2009).

Here, there are a number of potentially applicable sanctions. The record does not indicate that the respondent has been charged with or convicted of any crime but his conduct in the course of practicing law, not least perjury and the sending of knowingly fraudulent documents by fax in furtherance of a fraudulent scheme, merits consideration of such cases. "Disbarment - or, in some instances, indefinite suspension - is the usual and presumptive sanction for a lawyer who has committed a felony while in the course of practicing law." In re Driscoll 447 Mass. 678,688 (2006). "For the most part, those attorneys who have received a suspension have escaped the greater sanction of disbarment or indefinite suspension due to special mitigating circumstances." Matter of Concemi 442 Mass. 326, 330 n.4 (1996). There is, of course, a distinction between potentially criminal conduct and conduct that is charged and results in conviction but, "[g]iving false or misleading testimony to a tribunal, regardless whether a criminal prosecution for perjury or obstruction of justice occurred, relates to the 'fundamental tenets of [the] oath of office and of [the lawyer's] ethical obligations," In re Finneran, 455 Mass. 722, 731 n.13 (2010), quoting Matter of Balliro, 453 Mass. 75, 89 (2009). Disbarment and indefinite suspension are thus within the range of presumptive sanctions that might be appropriate.

The board has focused, however, on the respondent's knowingly false statements made under oath. The typical sanction for misrepresentation under oath is a two-year suspension, see Matter of Hilson, 448 Mass. 603, 619 (2007); Matter of Shaw, 27 Mass. 764, 769 (1998), and the standard sanction for intentional or knowing misrepresentations (not under oath) to a court is a one-year suspension. See Matter of McCarthy, 416 Mass. 423 (1993); but see Matter of Budnitz, 425 Mass. 1018, 1019 (1997) (attorney disbarred for knowingly lying to grand jury and perpetuating lies in answer to complaint in disciplinary proceeding). The board has determined that the most applicable presumptive sanction is the two-year suspension from the practice of law and I find that it is an appropriate starting point in these circumstances. See In re Jackman, 444 Mass. 1013, 1013 (2005), quoting Matter of Foley. 439 Mass. 324, 333 (2003).

Turning to the surrounding circumstances, I find (and the respondent identifies) no evidence in the record mitigating the wrongfulness of the respondent's conduct. I do find, however, that there are significant aggravating circumstances. First, the respondent's participation in the fraudulent transaction was not a poor decision made when placed on the spot, he was not acting in a fit of passion, and he had adequate opportunity to consider the propriety, impact, and repercussions of his actions. The respondent's wrongdoing was part of a considered scheme, unfolding over months and years, in which he repeatedly engaged in dishonest conduct. Additionally, when the fraudulent scheme began to unravel in 2005-07, the respondent did not admit his wrongful conduct but instead "doubled down" by making knowingly false statements under oath. Indeed, the board found that the respondent's lack of candor has continued through this proceeding. Second, it must be considered that this is the second time that the respondent has been sanctioned for signing (or instructing others to sign) documents without having authority to do so. See In re Buck, 21 Mass. Att'y Discipline Rep. 71, 72 (2005). It is therefore particularly troubling that the respondent had already been suspended from the practice of law (a one year suspension) when he provided the knowingly false testimony presently at issue. I accordingly conclude that the sanction of indefinite suspension is not "markedly disparate from judgments in comparable cases." Matter of Finn, 433 Mass. 418, 423 (2001).

Judgment is to enter suspending the respondent from the practice of law indefinitely.


FOOTNOTES:

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

1 Most notably, the date on the agreement precedes the incorporation of Inner Vision, Inc.

2 The Bill of Sale for Rights had been faxed to Pagola in connection with his agreement to seek a buyer for the videotapes. The hearing committee and the board concluded that the signatures are "cut and paste" copies and, having reviewed the signatures, I agree.

3 During the period in question the respondent has occupied more than one office and utilized more than one fax number. The changes and dates of those changes are irrelevant for these purposes.



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