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Commonwealth of Massachusetts

NO. BD-1992-0011


S.J.C. Order Denying Reinstatement entered by Justice Sosman on July 29, 2002.1


I. Introduction.

The Petitioner, Brian J. Sarault, was disbarred in Rhode Island on December 12, 1991, after pleading guilty in the United States District Court for the District of Rhode Island to violations of 18 U.S.C. §§ 1962 and 1963. He was disbarred in Massachusetts on May 14, 1992, on Bar Counsel's uncontested petition for reciprocal discipline. Petitioner now petitions for reinstatement to the bar of the Massachusetts Supreme Judicial Court. He filed his reinstatement questionnaire on May 30, 2001. A hearing on the petition was held on October 15, 2001, before a panel of the Board of Bar Overseers consisting of Mitchell H. Kaplan (Chair), John O. Mirick and Bertie H. Kornegay (the “Panel”). The Panel heard testimony from six witnesses and exhibits were received in evidence. Both the Petitioner and Bar Counsel submitted proposed findings of fact and conclusions of law. Bar Counsel has opposed the Petition. After consideration of the testimony, exhibits, argument of counsel, and post-hearing submissions, the Panel recommends that the petition be denied.

II. Facts.

A. Background and Disciplinary Proceedings.

Petitioner was born in Pawtucket, Rhode Island in 1945. He graduated from Providence College in 1966 and Suffolk University Law School in 1969. He was admitted to both the Rhode Island and Massachusetts Bars in 1969.

Petitioner practiced principally in the area of civil litigation. During the period that he was in private practice, his office was at all times in Rhode Island. Nonetheless, a substantial part of his practice was devoted to cases pending in Massachusetts courts, and he appeared in many of the trial courts in Eastern Massachusetts. Petitioner also became active in politics in Pawtucket. He was elected Mayor of Pawtucket in 1987 and closed his practice at that time.

On June 12, 1991, Petitioner was arrested and charged with violations of Federal criminal law, all arising from a conspiracy to extort money from vendors and contractors seeking to do business with the City of Pawtucket. The Petitioner entered a plea of guilty to these charges on November 7, 1991. This led to his disbarment in both Rhode Island and Massachusetts, as noted above. The Petitioner was sentenced to sixty-six months of incarceration to be followed by three years of supervised release, $80,829 in restitution to the City of Pawtucket, a fine of $24,150, and 150 hours of community service.

B. The Period from Incarceration to the Present.

Petitioner was incarcerated at a Federal correctional institution in Pennsylvania from March 1992 until December 1996. He completed his period of supervised release in December 1999. Petitioner has made his ordered restitution to the City of Pawtucket and paid a portion of his fine. There was still approximately $20,000 outstanding on the fine at the time of the hearing. His ability to pay the balance has been limited by his financial circumstances.

Since his release, Petitioner has been employed at a series of sales positions in truck dealerships in Rhode Island and Southeastern Massachusetts. He performed his mandated community services at the Food Ministry Program at St. Anthony's Church in North Providence. Although he completed his required community service in 1998, he has continued to volunteer at the Food Ministry two weekends a month. Petitioner also redevoted himself to his religion while incarcerated and led a bible study class in prison. He has continued to be involved with his Church and religious organizations since his release.

With respect to the maintenance of his learning in the law, Petitioner has subscribed to and read the Massachusetts Lawyers Weekly for the last several years. He has taken a course in personal injury litigation and a course in computerized legal research. In March 2001, Petitioner took and passed the MPRE.

The Governor of Rhode Island, who was the U.S. Attorney for Rhode Island at the time of Petitioner's prosecution, submitted a letter objecting to this Petition. The City of Pawtucket notified the Board that it was taking no position with respect to Petitioner's reinstatement.

III. Conclusions.

On a petition for reinstatement, the petitioner has the burden of proving that he has the moral qualifications required for admission to practice law; that he has the competency and learning in law required for admission; and that his resumption of practice will not be detrimental to the integrity or standing of the bar, the administration of justice or the public interest. S.J.C. Rule 4:01, §18(5); Matter of Cappiello, 416 Mass. 340, 9 Mass. Att'y Disc. R. 47 (1993); Matter of Waitz, 416 Mass. 298, 9 Mass. Att'y Disc. R. 336 (1993). In evaluating a petition for reinstatement, the true test must always be the public welfare. Matter of Waitz, supra. In the present case, a review of the factors that must be considered in acting upon a petition for reinstatement is also instructive:

(1) the nature of the original offense for which the petitioner was disbarred, (2) the petitioner's character, maturity, and experience at the time of his disbarment, (3) the petitioner's occupations and conduct in the time since his disbarment, (4) the time elapsed since the disbarment, and (5) the petitioner's present competence in legal skills, (footnotes omitted)

Matter of Hiss, 358 Mass. 447, 460 (1975). As discussed in Matter of Cappiello, supra; Matter of Allen, 400 Mass. 417 (1987) and Matter of Prager,2 422 Mass. 86 (1996), when the cause of an attorney's disbarment was the commission of a serious felony, the “public interest” factor becomes particularly important. This is because “[i]n this inquiry, [the Court is] concerned not only with the actuality of the petitioner's morality and competence, but also on the reaction to his reinstatement by the bar and public.” Matter of Gordon, 385 Mass. 48, 52 (1982). In consequence, it is necessary to weigh whether the crime committed by the Petitioner is of a nature that sufficient time has passed since the criminal activity to permit him to establish that he is fully rehabilitated and that reinstatement will not have a detrimental impact on public confidence in the bar. See, Matter of Prager, 422 Mass, at 86 n.16. Clearly, the Petition now before the Panel raises this issue.

It is perhaps best to address first those factors that have not significantly impacted this Panel's recommendation. The Panel credits the testimony of the Petitioner and his witnesses that the Petitioner has experienced true remorse for his past criminal conduct and that he has sought to rehabilitate himself. His participation in charitable activities and religious organizations appears voluntary and genuine, and not undertaken simply to further his interest in reinstatement. He has paid and is paying the financial commitments attendant to his sentence to the full extent permitted by his present financial circumstances and takes this obligation seriously. While he has not practiced law for 15 years, (i.e., since he was elected Mayor of Pawtucket), he appears to have once been a well-regarded practitioner and has taken steps to maintain his learning in the law. Further, if the Panel were otherwise prepared to recommend reinstatement, educational conditions or a probationary period of peer oversight could be fashioned.

The Hiss factors, however, direct the Board carefully to consider the nature of the crime for which Petitioner pled guilty, his maturity and experience at the time of his criminal conduct, and how much time that has elapsed since disbarment. Petitioner's criminal conduct involved a conspiracy to use his position of public trust as Mayor of Pawtucket to extort money from contractors and vendors. The conspiracy involved both public officials and private individuals. As in Prager, it continued for a period of years. The criminal conduct occurred after Petitioner had practiced law for more than eighteen years, having been a successful, seasoned and mature attorney. At the time of the hearing, less than two years had passed since the end of his supervised release. Given these factors, and having in mind the Supreme Judicial Court's prior rulings on the timing of petitions for reinstatement following criminal convictions for serious felonies,3 the Panel simply cannot say, at this time, “that [Petitioner's] [re]admission would not be detrimental to the integrity of the bar or the public interest.” Matter of Prager, 422 Mass., at 99.

The Panel believes that it may, nonetheless, be useful to comment upon points that Petitioner may want to consider if he chooses to reapply; although this Panel's views would not be binding on any Panel reviewing a new petition or, of course, upon the Board generally. Bar Counsel argues that because Petitioner's office and home was always in Rhode Island while he was a member of the bar, he should be required first to seek readmission in Rhode Island before petitioning in Massachusetts. The Panel finds no support for that contention in rule or case law. Petitioner was a member of the Bar of the Massachusetts Supreme Judicial Court. He practiced frequently in the courts of the Commonwealth. He may be reinstated to the Massachusetts bar when he meets the requirements set out by our Court for reinstatement. The reasons for his decision to resume practice in Massachusetts instead of Rhode Island do not appear pertinent. It is, however, Petitioner's obligation to prove that reinstatement will not be detrimental to the integrity of the Massachusetts bar. While the views of Rhode Island lawyers on Petitioner's reinstatement are of interest, it is the effect of reinstatement on the integrity of the Massachusetts bar that the Board must consider.

IV. Conclusion.

For the foregoing reasons, the Panel recommends that the Petitioner be denied at this time.

Respectfully submitted,

Mitchell H. Kaplan, Chair
John O. Mirick
Bettie H. Kornegay

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

2 While the Matter of Prager involved an original application for membership in the bar, the Court found that the same standards apply to consideration of an original application as to a petition for reinstatement. See 422 Mass, at 95.

3 See Matter of Prager, 422 Mass, at 95 n.13 and 98 n.16.

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