Order Entered by the Board on March 8, 2004 Dismissing Petition for Discipline.
Board Memorandum
This is an appeal by Bar Counsel from a hearing report recommending dismissal of a petition for discipline, which charged the Respondent, Richard Roe, with four counts of misconduct arising out of his practice of law and his employment as police chief of a town. Bar Counsel contends that the Hearing Committee erred in failing to adopt in full certain stipulated facts and further misapplied the law concerning the charged offenses. After reviewing the record and considering the arguments raised on appeal, we reject Bar Counsel’s appeal and adopt the Hearing Committee’s findings of fact, conclusions of law and recommendation for dismissal.
Summary of Proceedings
After filing the petition, Bar Counsel filed a Motion to Preclude the Respondent from contesting certain facts and issues, based on prior decisions in other administrative matters before the State Ethics Commission and the Civil Service Commission. Bar Counsel subsequently withdrew the motion and, in lieu thereof, filed a limited stipulation of facts with respect to each count, taken from portions of a disposition agreement in Matter of [Roe], Ethics Comm’n, 1996, and Recommended Decision of ALJ in Civil Commission Appeal, 1998. At the disciplinary hearing five exhibits were admitted into evidence, and the Respondent was the only witness to testify. Eight exhibits proffered by Bar Counsel, primarily concerning agency or court decisions in matters involving the Respondent, were excluded from evidence, and Bar Counsel has not appealed their exclusion.
Findings of Fact and Conclusions of Law
The following is a summary of the Hearing Committee’s findings of fact and conclusions of law, as necessary to this appeal.
During the period relevant to this matter, the Respondent served as the police chief for the Town of Y. He also was admitted to practice as an attorney in 1988 and since then has engaged in a small private practice.
Count One
From at least December 1991 until late December 1992, the Respondent represented Jane Doe in her efforts to sell her home in the Town of Y. The Respondent also represented Ms. Doe in a contempt action brought against her for failing to make mortgage payments on her home as required by a divorce judgment.
From February 1991 to March 1993, the Respondent was of counsel to law firm Z. Prior to November 1991, Ms. Doe consulted the Respondent in connection with a possible personal injury case to be brought on behalf of her son John Doe. In November 1991, the Respondent referred the personal injury case to an attorney in law firm Z. Although the Respondent was of counsel to the firm, he received no referral fees and had no contract for services. Upon the referral of John’s tort claim, the Respondent retained no financial or professional interest. In June 1992, the attorney handling the case asked the Respondent for help in obtaining another written statement from John since the attorney had lost the original statement. John prepared and delivered another written statement to the Respondent, which he, in turn, arranged to have delivered to the attorney handling the matter on June 19, 1992.
On or about May 29, 1992, the house owned by Ms. Doe burned down. As police chief, the Respondent had overall responsibility for the Town of Y’s Police Department’s investigation of the fire and assigned various police officers to conduct the investigation, in cooperation with the State Fire Marshall’s office, which was primarily responsible for the investigation.
In September 1992, the Respondent learned that arson was determined to be the cause of the fire and that John might be a suspect. When no further progress was made in the arson investigation by December 1992, the Respondent ordered that John be brought in for questioning. On December 4, 1992, the Respondent, along with a police detective, interviewed John at the police station for approximately two hours, after reading him his rights because he was a suspect. The Respondent and the detective also interviewed a purported alibi witness on the same date. The Hearing Committee credited the Respondent’s testimony that Ms. Doe and her son John received no favorable treatment from him in his capacity as chief of police for the Town of Y. Indeed, they found that it was primarily due to the Respondent’s persistence that John was interrogated as a suspect. John was subsequently charged with the crime of arson.
The Hearing Committee found on these facts that the Respondent did not violate the charged disciplinary rules. The Hearing Committee found that the Respondent was not acting or participating as an attorney in John’s tort claim: he had simply referred the matter to another attorney. They also found that his representation of Ms. Doe in the sale of her home and in a contempt proceeding relating to her divorce was not related to any matter in which he had “substantial responsibility” as a public employee, especially since Ms. Doe was never a suspect in the arson investigation and the arson investigation was conducted under the supervision of the State Fire Marshall’s Office. The Hearing Committee cited PR-92-40, 8 Mass. Att’y Disc. R. 339 (1992) (attorney who worked as a staff attorney for a state agency and also as a private attorney for a client who attempted to obtain a benefit provided by the same state agency, did not violate DR 9-101(B) because he never had ‘substantial responsibility’ for the specific program or any decision making authority regarding his client’s application) in support of its rejection of Bar Counsel’s Canon Nine charges. The Hearing Committee also concluded that the Respondent’s conduct did not violate Canon One, DR 1-102(A)(6), reasoning that such a “catch-all” charge should not be sustained unless “reasonable attorneys would not differ in appraising the propriety of that conduct.” PR-94-2, 10 Mass. Att'y Disc. R. 309 (1994), citing In re Ruffalo, 390 U.S. 544, 556 (1968) (White, J., concurring).
Count Two
ABC, Inc. does business as Joseph’s, one of the largest bars in the Town of Y. James Smith is the manager of Joseph’s and the president, director and owner of ABC, Inc. From 1989 to 1991, the Respondent served as Mr. Smith’s attorney in four real estate transactions.
On January 20, 1990, Mary Moe was injured while a patron at Joseph’s. As a result of her injury, Ms. Moe sued ABC, Inc. on June 25, 1990. Between June 1991 and January 1992, at Mr. Smith’s request, the Respondent assisted insurance counsel representing ABC, Inc. in its defense of the lawsuit, by helping Mr. Smith respond to discovery requests filed by Ms. Moe and by arranging meetings with various witnesses.
The Hearing Committee found that, as chief of police, the Respondent designated a sergeant in the police department who was responsible for developing a plan and protocol for the issuance of liquor licenses and the investigation of liquor law violations. This sergeant’s reports were submitted directly to the Board of Selectmen, and the Board determined which violations would be pursued. They credited the Respondent’s testimony that there were liquor law violations reported against ABC, Inc. by the liquor officer, and that the Respondent had no involvement and played no role in the outcome of any of the violations reported against ABC, Inc. In addition, the Hearing Committee credited the Respondent’s testimony that Mr. Smith and ABC, Inc. received no favorable treatment from him in his capacity as chief of police for the Town of Y.
Based on its finding that the Respondent had no role in any reported violations involving ABC, Inc., and the fact that the Respondent’s representation of Mr. Smith in the real estate transactions and ABC, Inc. in the civil suit were not related to any matter in which he had “substantial responsibility” as a public employee (noting that it was the Board of Selectmen who determined which liquor law violations would be pursued), the Hearing Committee concluded that the Respondent’s conduct did not violate the charged disciplinary rules.
Count Three
Jones Funeral Home, Inc. is a funeral home in Town Y, which is substantially owned by Julie Jones. The Respondent served as attorney for Julie Jones and Jones Funeral Home, Inc. in 1989 in a civil collection matter and was paid for those services on February 14, 1990. The Hearing Committee credited the Respondent’s testimony that he performed no further legal services for Ms. Jones and/or Jones Funeral Home, Inc. other than those he performed in 1989.
In August 1990, Ms. Jones and Jones Funeral Home, Inc. submitted a site plan to the Planning Board of the Town of Y for an expansion of the funeral home’s parking lot. On August 27, 1990, the Planning Board conducted a public hearing on the parking lot expansion matter. Ms. Jones and the funeral home were represented by other counsel in this matter. A safety report prepared by the safety officer of the Police Department of the Town of Y had been submitted to the Planning Board supporting the funeral home’s parking lot expansion. The Hearing Committee credited the Respondent’s testimony that he was present at the Town Hall to conduct other business on the date of the public hearing, but that he went to the hearing after his business was concluded. His statement that the lot expansion would promote safety by getting traffic off the street, was made in response to a specific question directed to him in his capacity as police chief and was consistent with the safety report prepared by the police department safety officer. The Hearing Committee credited the Respondent’s testimony that he was not biased in favor of Ms. Jones and the funeral home, and that he had no intention of misleading anyone at the hearing.
The Hearing Committee concluded that the Respondent’s representation of the funeral home had ended long before the site plan for the expansion of the parking lot was even submitted to the town Planning Board. The Respondent did not attend the public hearing in any representative capacity for Ms. Jones and/or the funeral home, and in response to the question posed to him in his capacity as chief of police during the public hearing, the Respondent simply agreed with the conclusion reached by the safety officer. Based on these facts, the Hearing Committee found no violation of Canon Nine. In addition, based on their finding that there was no attorney-client relationship between the Respondent and Ms. Jones and/or the funeral home at the time of the Planning Board hearing, the Respondent’s failure to disclose his prior, unrelated representation did not violate Canon One, DR 1-102(A)(6). The Hearing Committee distinguished this situation from PR-92-28, 8 Mass. Att’y Disc. R. 317 (1992), where an attorney received a private reprimand for his conduct in failing to disclose his active and current attorney-client relationship with a business entity and its principal prior to acting as a member of the state agency to approve the purchase of real estate from said business entity.
Count Four
On February 5, 1994, a woman named Linda filed a rape report with the police department of the Town of Y. This report was fully investigated by the police department and the department concluded that the report was false. In September of 1994, the Respondent discovered a file of five reports to the police department from Linda, who claimed that she had been assaulted various times over a six to eight month period, all by a man in a blue pick-up truck. The Respondent conducted his own investigation of these reports and concluded that these incidents had no basis in fact and that Linda had fabricated the story concerning the man in the blue pick-up truck.
The Hearing Committee credited the Respondent’s testimony that he first met a woman named Linda in approximately 1987 when Linda, a known member of a local motorcycle gang, asked the Respondent if she could join a drug task force he was creating. Although Linda was a police informant, she was never paid for the information she provided to the police department. At least initially, some of the information provided by Linda proved to be accurate and was useful to the task force. However, some of Linda’s information was not accurate, including an alleged attack on her that she reported to the state police, and which the state police determined was made up by her.
In December 1994, Linda testified before a grand jury against the Respondent and in September 1995, she testified for the prosecution at a trial of the Respondent in Superior Court. The parties stipulated at the hearing that the Respondent felt recriminatory against Linda.
G.L. c. 41, §97D provides that police reports concerning rape and sexual assaults shall be confidential. In February of 1996, two years after the filing of Linda’s rape report with the police department, the Respondent spoke with a reporter from a magazine concerning his opinion that Linda had a history of filing false rape reports. The Respondent discussed with the reporter his conclusion that the rape report filed with the police department in February 1994 was simply not true. The Hearing Committee credited the Respondent’s testimony that, before his interview with the reporter, Linda had been the subject of discussion at meetings of the Board of Selectmen and had received public attention in the town. At the time of the interview with the reporter, the reporter already knew Linda’s identity and that she had filed a rape report. The Respondent did not discuss the contents of the rape report with the reporter: he discussed his conclusion, after his investigation was completed, that the rape report was false.
Based on their findings that the Respondent did not discuss the contents of Linda’s rape report with the reporter, but only his conclusion as to its veracity, that the reporter already knew Linda’s identity at the time of the interview, and that Linda had received prior public attention in the Town of Y through her own actions, the Hearing Committee concluded that the Respondent’s conduct did not violate Canon One, DR 1-102(A)(5), citing Matter of Discipline of Two Attorneys, 421 Mass. 619, 627-29 (1996).
Bar Counsel’s Appeal
Counts One Through Three
DR 9-101(B)
With respect to the first three counts of the petition, Bar Counsel claims on appeal that the Hearing Committee misunderstood and misapplied the law concerning the charged offenses. Specifically, Bar Counsel contends that DR 9-101(B) in prohibiting acceptance of private employment in a matter in which the attorney had “substantial responsibility” as a public employee, did not mean that the private employment and the public employment had to be related, citing PR-82-14, 3 Mass. Att'y Disc. R. 221 (1982). Contrary to Bar Counsel’s assertions, the private and public matters in that case were in fact more closely related than those involved in this case, both in terms of time and substance. PR-82-14 involved an attorney who was a member of a town’s real property board. This board awarded parking garage leases to a company, as the highest bidder, and later granted abatements on most of the same garages. The attorney voted in favor of these awards. He was friendly with one of the partners of the company, and loaned him money and represented him in the formation of another parking lot company. This new company was awarded leases by the real property board for several parking garages, again as the highest bidder and again with the attorney voting in favor of the awards. The new company was also granted abatements on these facilities. Thus, the attorney had a personal relationship with a partner in both companies and represented him in the formation of a new company, whose purpose, at least in substantial part, was to obtain parking garage leases and abatements from the board on which the attorney was a member, throughout the relevant period of time. As such, that matter is readily distinguishable from the instant case, since in all of the counts, the matters in which the Respondent represented the parties were not substantially related to those in which he acted as police chief. Compare In Re LaPinska, 72 Ill.2d 461, 381 N.E.2d 700, 21 Ill.Dec. 373 (1978) (attorney, who was a city attorney and also maintained a private practice, was retained by buyers, who complained to city council about zoning violations committed by seller, to pursue civil suit on contingency basis against seller for zoning violations and attorney used position as city attorney to pursue quasi-criminal continuing-violation complaints against seller for zoning violations, using leverage as city attorney to secure personal gain and a favorable settlement for private client).
Bar Counsel also tries to distinguish PR-92-40, 8 Mass. Att'y Disc. R. 339 (1992),1 relied on by the Hearing Committee, claiming that, unlike the attorney in that case, who did not have “substantial responsibility” for the program in the agency responsible for ruling on his private client’s application, the Respondent here had official responsibility for the arson investigation in Count One, the liquor law violations in Count Two, and the advice on public safety in Count Three. Bar Counsel’s argument misses the thrust of the charged disciplinary rule: DR 9-101(B) prohibits an attorney from accepting private employment in a matter in which the attorney had substantial responsibility as a public employee. Thus, showing that the Respondent had substantial responsibility as chief of police in certain matters, standing alone, does not establish a violation. Here, the Respondent represented certain clients privately and his representation in most matters ended before his responsibilities as police chief commenced. In addition, the nature of his private representation was not “substantially related” to the matters for which he was responsible as police chief.
Based on the facts presented, we conclude that the Hearing Committee properly found no violation of Canon Nine, DR 9-101(B), because the Respondent did not, in any of the cases “accept private employment in a matter in which he had substantial responsibility as a public employee.” The private employment in Counts Two and Three occurred prior to the public responsibilities, and in none of the cases was there any significant nexus between the matters he handled as a private attorney and those in which he had responsibility as police chief.
DR 9-101(C)
Bar Counsel contends that the Hearing Committee erred in concluding that the Respondent did not violate DR 9-101(C)2 in Counts One through Three, claiming that the Respondent’s admission in his Disposition Agreement with the State Ethics Commission, that he “knowingly acted in a manner which would cause a reasonable person to conclude that [his clients] could unduly enjoy his favor in the performance of his official duties as police chief”, constituted an admission that he implied that he was subject to improper influence, and thus, violated DR 9-101(C). However, this “admission” to essentially a conclusion of law was made as part of a disposition or settlement agreement in another administrative agency matter, and was not a part of the parties’ stipulation in this matter. As such, we believe it would be improper to find a violation of the disciplinary rules based on such statement.3 See Matter of Sullivan, S.J.C. No. BD-2003-013 (March 4, 2003, Ireland, J.) (attorney entered into agreement with S.J.C.’s Committee on Professional Responsibility for Clerks of Courts for suspension from clerk magistrate position and disposition agreement with State Ethics Commission; suspension from practice as attorney based on stipulation to facts and to disciplinary rule violations before the Board of Bar Overseers). Admissions or stipulations as to facts are distinguishable from those as to law, the latter having no effect. Liacos, Handbook of Massachusetts Evidence (7th Ed.), §2.5, p. 17. “Testimonial admissions relating to questions of law and not of fact, are not binding….” Id. at §2.11, p. 41.
Moreover, the facts presented here are clearly distinguishable from Matter of Allison, 6 Mass. Att'y Disc. R. 3 (1989), relied on by Bar Counsel, and other cases of violations of this disciplinary rule. Compare Allison, supra (violation of DR 9-101(C) where attorney, while employed as staff attorney with EPA, solicited employment with company regulated by the EPA, accepted travel expenses from the company, discussed litigation and another matter involving the company and the EPA, and misled state authorities by implying he was still employed by the EPA when he had started employment with the company); PR-81-5, 2 Mass. Att'y Disc. R. 230 (1981) (violation of DR 9-101(C) where attorney contacted criminal defendant, who he knew was already represented by counsel, regarding unrelated matter and in course of conversations attorney used language likely to cause defendant to hire attorney as successor counsel in belief that attorney’s friendship with a public official could influence the outcome of his case).4 On the facts presented here, we do not find that the Respondent’s actions would lead a reasonable person to conclude that he was subject to improper influence, particularly in view of the fact that the Hearing Committee specifically found that the Respondent’s clients did not receive any favorable treatment.
DR 1-102(A)(6)
Bar Counsel argues that the Hearing Committee erred in finding that the Respondent’s conduct did not violate DR 1-102(A)(6) (conduct adversely reflecting on fitness to practice). He contends that the Respondent’s conduct was such that “a reasonable lawyer would or should have known that [the attorney’s] conduct would bring disrepute upon [himself] and the bar in general”, citing PR-94-2, 10 Mass. Att'y Disc. R. 309, 314-316 (1994). We agree with the Hearing Committee and reject Bar Counsel’s arguments. As the Hearing Committee found, the attorneys’ conduct in PR-94-2, was significantly different than that presented here. In that case, Attorney A, who had represented a wife in divorce proceedings, hired Attorney B, the husband’s counsel in the divorce matter, to collect his fee from the wife. The Hearing Committee and the Board in that case had no difficulty finding Attorney A’s conduct “both outrageous and unethical.” Id. at 316. That is not the case here.
This section and DR 1-102(A)(5), discussed below, are “catch-all” rules subject to the dangers of vagueness in application. We agree that the standard should be that the conduct is unethical “so long as reasonable attorneys would not differ in appraising the propriety of that conduct.” Id. Clearly, given the Hearing Committee’s decision here, and we agree, reasonable attorneys do not view the Respondent’s conduct as unethical. Compare, PR 92-28, 8 Mass. Att'y Disc. R. 317 (1992) (attorney who served on state agency interested in purchasing land and practiced real estate law violated DR 1-102(A)(6) and received a private reprimand where he represented a corporation and its owner who were in the business of purchasing and developing real estate; sellers agreed to sell a parcel to the attorney’s client, client then agreed to sell parcel to the state agency; attorney inspected the parcel as member of the state agency and then voted to approve agency’s purchase without disclosing his attorney-client relationship).
Count Four
Bar Counsel contends that the Hearing Committee erred in concluding that the Respondent’s conduct in discussing a rape complaint with a reporter and telling her that the police had concluded the complaint was false did not violate DR 1-102(A)(5), because this conduct violated the rape shield law G.L. c. 41, §97D, even where the name of the rape complainant was already known to the reporter. In so arguing, Bar Counsel relies on an unpublished Superior Court case involving the Respondent and his appeal of his demotion from police chief and subsequent termination as a police officer. In that decision,5 the Superior Court held that the rape shield statute had no exceptions, even where the public had become aware of a report and the identity of the alleged rape victim. However, Bar Counsel ignores the fact that he withdrew his motion for issue preclusion and that the court opinions on which he relies were excluded from evidence. Nonetheless, assuming that the Respondent violated the letter of the statute, we are not persuaded that his conduct constituted a violation of DR 1-102(A)(5). Not every violation of a statute by an attorney is a violation of the disciplinary rules, which appears to be the core of Bar Counsel’s claim here.
This disciplinary rule is another of the “catch-all” provisions, and as such, the S.J.C has addressed its potential for over breadth and vagueness:
The New Jersey Supreme Court has said that ‘on those few occasions when the rule has served as the sole basis for discipline, it has been applied only in situations involving conduct flagrantly violative of accepted professional norms.’ Matter of Hinds, 90 N.J. 604, 632 (1982). Without such limiting interpretations of DR 1-102(A)(5), the rule presents the risk of vagueness and arbitrary application. See C. Wolfram, Modern Legal Ethics §3.3.1 at 87-88 (1986); 2 G. Hazard & W. Hodes, The Law of Lawyering, §8.4:501, at 957 (2d ed. Supp. 1994), discussing Rule 8.4(d) of the ABA Model Rules of Professional Conduct, which preserves the same language.
Matter of the Discipline of Two Attorneys, 421 Mass. 619, 628-629 (1996). We cannot say that the Respondent’s disclosure to the reporter that the police had concluded the rape report was false, under circumstances in which the report and the identity of the alleged victim were already public knowledge, constituted “conduct flagrantly violative of accepted professional norms,” particularly where reasonable persons could differ as to their interpretation of the dictates of the statute.
Conclusion
For the foregoing reasons, we unanimously vote to deny Bar Counsel’s appeal and adopt the Hearing Committee’s report. The petition for discipline is dismissed.
______________________________
Alan D. Rose
Secretary of the Board of Bar Overseers
Dated: _________________
FOOTNOTES
1 In that case, the attorney worked for a state agency and privately represented a client in the client’s efforts to obtain a benefit provided by the same agency. The attorney was fined by the State Ethics Commission for violating the state conflict of interest law and the appearance of conflict section of the law by acting in a manner making it appear that the attorney could improperly influence other agency employees to benefit the attorney’s client. However, because the attorney did not have any substantial responsibility in the agency for deciding the client’s application for benefits, his conduct did not violate DR 9-101(B).
2 Canon Nine, DR 9-101(C) provides: “A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.”
3 Our reasons for rejecting admissions to violations of law in a settlement of a collateral matter before another agency, particularly where, as here, the parties have not so stipulated in the matter before the Board of Bar Overseers, have their genesis in the Restatement of the Law of Judgments (Second), §27, Comment e: “A judgment is not conclusive in a subsequent action as to issues which might have been but were not litigated and determined in the prior action. There are many reasons why a party may choose not to raise an issue, or to contest an assertion, in a particular action. The action may involve so small an amount that litigation of the issue may cost more than the value of the lawsuit. Or the forum may be an inconvenient one in which to produce the necessary evidence or in which to litigate at all. The interests of conserving judicial resources, of maintaining consistency, and of avoiding oppression or harassment of the adverse party are less compelling when the issue on which preclusion is sought has not actually been litigated before. And if preclusive effect were given to issues not litigated, the result might serve to discourage compromise, to decrease the likelihood that the issues in an action would be narrowed by stipulation, and thus to intensify litigation…. In the case of a judgment entered by confession, consent or default, none of the issues is actually litigated.” See also, LePage v. Bumila, 407 Mass. 163 (1990) (it would be unfair to take payment of fine, rather than appeal of motor vehicle citation, as an admission that motorist had committed the charged violation, because motorist may choose to pay fines to avoid the inconvenience of contesting them).
4 See also In the Matter of Gorecki, 2002 WL 32309353 (Ill.Atty.Reg.Disp.Com. 2002) (violation of DR 9-101(C) where attorney in private practice, who was a former county assistant attorney, had a series of conversations with a woman in which the attorney made statements about the possibility of obtaining employment for the woman’s boyfriend by making payments to the chair of the county board, by calling them “campaign contributions”); In the Matter of Marcanti, 1997 WL 839651 (Ill.Atty.Reg.Disp.Com. 1997) (violation of DR 9-101(C) where attorney, while employed by the administrative office of the court, approached an undercover police officer, told her he was a judge from Chicago, that he wanted to spend the night with her and that he wanted her to get him some drugs).
5 Town of [Y] v. Civil Serv. Comm’n, Superior Court (1999), affirmed on other grounds, [Roe] v. Town of [Y], (2002) (unpublished opinion).
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