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Commonwealth of Massachusetts

NO. BD-2011-005

IN RE: MICHAEL J. LIVINGSTONE

S.J.C. Judgment of Term Suspension entered by Justice Cowin on January 27, 2011, with an effective date of February 28, 2011.*
(S.J.C. Judgment of Reinstatement entered by Justice Duffly on January 24, 2013.)

SUMMARY1

This matter came before the Supreme Judicial Court for Suffolk County on a stipulated recommendation of suspension based on the following circumstances.

In 1986, the respondent and a business partner formed, and were the sole general partners in, a general partnership called High Low Properties. High Low owned two multi-unit rental properties in New Bedford.

In December 2002, the respondent was appointed to be a judge of the Massachusetts Probate and Family Court. He resigned from the court effective June 15, 2008. While a judge, he remained general partner of High Low but, consistent with requirements of the Code of Judicial Conduct, initially caused his business partner to assume full managerial responsibilities over the two properties that the partnership owned.

In late 2004, the relationship between the respondent and his business partner suffered a rupture. The partner abandoned, and the respondent took over, management of the High Low properties.

In 2005, a roofer brought a small claims action against the respondent’s business partner, seeking to collect the balance due for work done in April 2004 at one of the properties owned by the partnership. The roofer had done the work at the partner’s request pursuant to a written agreement signed by the partner.

A trial was scheduled for September 2, 2005 in New Bedford District Court. The partner caused a subpoena to be served on the respondent, requiring the respondent to appear for the trial. On August 25, 2005, the respondent filed a “Motion to Quash/Motion to Excuse Presence,” asking that the subpoena be quashed or that the respondent be excused from appearing at the trial.

In support of his motion, the respondent filed a notarized affidavit in which, among other matters including that the respondent would be on vacation on the trial date, he swore under the penalties of perjury that (a) he had “not been actively involved in the management of [the partnership’s real estate] for many years,” and (b) his partner “has acted as property manager for the premises and has been the person who handles all matters pertaining to repair and maintenance of the buildings as well as all tenant related matters, the collection of rent and payment of building-related expenses.” However, the respondent, and not his partner, had been managing the High Low properties since at least December 2004. The respondent’s conduct in making false statements in the affidavit was in violation of Mass. R. Prof. C. 3.3(a)(1) and 8.4(c), (d) and (h).

In mitigation, no harm resulted from the respondent’s conduct. The affidavit was not evidence. In addition, the trial was in fact continued for administrative reasons and the business partner did not notify the respondent or take action to cause him to appear on the new trial date. The business partner admitted liability in the action and was advised by the trial court that he had remedies to seek contribution from the respondent.

The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation for a suspension of one year. On January 10, 2011, the board voted to accept the stipulation and to recommend the agreed-upon disposition to the Supreme Judicial Court. The Court so ordered on January 27, 2011.


FOOTNOTES:

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

1 Compiled by the Board of Bar Overseers based on the record filed with the Supreme Judicial Court.



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