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NO. BD-95-035


This is the second discipline involving attorney Robert J. Catalano. See Matter of Catalano, 11 Mass. Att’y Discipline Rep. 28 (1995) . He previously was disciplined on June 5, 1995, held in contempt on August 21, 1996, for failure to comply with the terms of that order of discipline and purged of contempt on September 12, 1996 when he complied with the requirements of the order of this Court entered on June 5, 1995.

The present disciplinary proceedings were commenced by bar counsel on March 4, 1997. A hearing on the petition was held on September 17, 1997. On January 28, 1998, a hearing committee of the Board of Bar Overseers (board) filed its findings of fact, conclusions of law, and recommendation for discipline. The hearing committee recommended that the attorney be disbarred from the practice of law and that he be permitted to apply for reinstatement at the expiration of five years from the date of the order of disbarment. The attorney took an appeal to the board, which was opposed by bar counsel. On November 9, 1998, the board recommended that the Supreme Judicial Court enter an order disbarring the attorney, but that the disbarment be retroactive to September 12, 1996.

The attorney and bar counsel have informed the Court that they agree with the discipline recommended by the board. However, they do not agree as to the date on which disbarment should take effect. Bar counsel argues that disbarment should not be retroactive, as the hearing committee recommended. The attorney seeks retroactive disbarment, as the board voted unanimously to recommend.

Because the parties agree in substantial respect with the sanction recommended by the board, I need not recount in detail the findings of fact made by the hearing committee and adopted and incorporated by the board in its decision. Suffice it to say that previously the attorney was disciplined for, inter alia, knowingly violating court orders concerning the handling of clients', misuse of clients' funds for his own benefit, and contempt of court. In this case, the board found the attorney had failed to maintain client funds in a segregated client fund account, converted client funds to his own use, and made false representations to his clients about the status of their funds. The board also found that the attorney had failed to notify his clients about his suspension from the practice of law in violation of the earlier order of this Court and that he was in contempt of this Court's order. None of those factual findings are disputed here. These findings reveal at a minimum a continuing failure of the attorney to understand the distinction between a client's trust account and a general bank account, and a failure to recognize that it is impermissible to use a client's funds for his own purposes.

Turning to consider on what date the attorney's agreed-to sanction should be made effective, I note that the board recommended retroactive disbarment because, in its view, the weight of authority favors some form of retroactivity when a lawyer previously has been suspended from the practice of law and has not been reinstated. The board cited, in particular, Matter of Dawkins, 10 Mass. Att’y Discipline Rep. 49 (1994); Matter of Friedman, 9 Mass. Att’y Discipline Rep. 119 (1993); Matter of Wynn, 6 Mass. Att’y Discipline Rep. 335 (1989); Matter of Waitz, 5 Mass. Att’y Discipline Rep. 389, 391 (1987). It also sought to avoid markedly disparate sanctions, citing Matter of Alter, 389 Mass. 153, 156 (1983). The board recommended that the order be effective on the date that this Court previously determined that the attorney had purged himself of contempt for failing to file his affidavit of compliance with his order of suspension.

Although I give substantial deference to the recommendation of the board, I conclude that the facts of this case are different from the cases relied upon by the board. Respondent has repeated substantial violations of the disciplinary rules, misconduct that ordinarily should not receive a discounted sanction for the sole reason that he presently is under suspension from admittedly unrelated misdeeds. Moreover, at least with respect to the theft of one client's funds, that theft occurred while bar counsel was investigating the very claims that gave rise to the suspension in the previous disciplinary proceeding. The attorney was therefore on plain notice that his conduct was unacceptable, and there is no claim before me of any special mitigating circumstances to explain his continuing misdeeds. In these circumstances I conclude that the order of disbarment should not be made retroactive, and should take effect as of the date of this order.

Margaret H. Marshall

Associate Justice

Entered: January 8, 1999

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