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Commonwealth of Massachusetts

NO. BD-1998-049

IN RE: PAUL R. CACCHIOTTI

S.J.C. Judgment of Disbarment entered by Justice Ireland on December 16, 2002.1
(S.J.C. Judgment of Reinstatement with Conditions entered by Justice Duffly on September 28, 2012.)

SUMMARY2

In 1993, the respondent was engaged in the private practice of law and registered with the Private Division of the Committee of Public Counsel Services (“CPCS”) as eligible to provide representation to indigent defendants in criminal cases. Attorneys accepting assigned counsel appointments are governed by G.L. c. 211D and S.J.C. Rule 3:10, which provide that an indigent party may not be required or solicited to make any payment of the cost to counsel.

In April 1993, the respondent was appointed to represent a criminal client in two cases on charges of drug trafficking and conspiracy in Middlesex Superior Court. The respondent advised the client, held on bail, that he could provide better representation if the client paid him $3,000 in cash. The client agreed to pay the respondent $1,500 and to pay the $1,500 balance at the conclusion of his case. In April and June 1993, the respondent received $1,500 in two cash installments. The respondent provided receipts for these payments and retained a copy of at least one of the receipts in his office.

After receiving payment on behalf of the client, the respondent did little work of substance on his cases. The respondent did not visit the client again, and conducted little or no investigation of the client’s cases. The respondent failed to respond to the client’s requests for information on the status of his cases. In August 1993, the client discharged the respondent in both cases, and privately retained another lawyer.

Between July and October 1993, the respondent filed with CPCS four bills for the client’s representation in which he certified under the pains and penalties of perjury that he had not received and would not accept any payments for services other than from CPCS. CPCS paid the respondent’s bills.

After trial by jury on July 20, 1998, the respondent was convicted for attempted extortion of the client under G.L. c. 265, § 25, by soliciting payment from the client for representation in the Middlesex cases. The respondent was also convicted of larceny over $250 by false pretenses from the Commonwealth of Massachusetts. The respondent was sentenced to imprisonment of two years followed by two years of probation and 400 hours of community service.

Bar Counsel filed a petition for temporary suspension. The parties waived a hearing and on October 8, 1998, an Order of Immediate Temporary Suspension entered.

On December 11, 1998, the hearing committee filed its report. The respondent filed an appeal and a request for a stay in the board’s proceedings until final resolution of his appeal from his criminal conviction. The Board allowed the deferral in February 1999. On July 24, 2002, the Appeals Court affirmed the judgments against the respondent. See Commonwealth v. Cacchiotti, 55 Mass. App. Ct. 499 (2002). The respondent withdrew his appeal from the hearing committee report after he was denied further appellate review.

The respondent’s convictions for attempted extortion of a fee from a client he had been appointed to represent constituted conduct prejudicial to the administration of justice in violation of Canon One, DR 1-102(A) (5), and the respondent’s conviction of larceny over $250 by false pretenses violated DR 1-102(A) (4), (5) and (6), and Canon Two, DR 2-106(A). The respondent’s neglect of the client’s cases by failing to adequately communicate with his client violated Canon Six, DR 6-101(A) (3).

The respondent was also found to have neglected three other criminal clients, whom he was appointed to represent. In the second count, the respondent’s client was charged with burglary, armed robbery and breaking and entering at night. The client was incarcerated prior to trial. Despite many written requests by the client, the respondent never met with him in a private setting to discuss his case. The respondent’s neglect of his client’s case due to failure to meet with his client as required by the CPCS Performance Guidelines and his failure to adequately communicate with his client violated Canon Six, DR 6-101(A) (3).

In the third count, the respondent was appointed to represent an indigent client charged with rape, assault with intent to rape, assault and battery and assault. The client was being held on bail, and he requested that the respondent schedule a bail hearing to reduce his bail. At the bail hearing, the respondent argued the wrong dates and confused the names of the people involved in the case. Although bail was reduced to $100,000 surety and $10,000 cash, the client was unable to pay the bail and remained incarcerated. The client requested that the respondent move for reconsideration of bail or appeal the bail, and the respondent agreed to do so, but the respondent never took any further action. The client wrote to the respondent requesting reconsideration or an appeal from the bail. The respondent did not answer the client’s letter. The respondent also failed to respond to the client’s numerous written requests for information on the status of his case, and to take any action of substance to prepare for the client’s trial. The respondent’s failure to maintain reasonable communication with his client and his failure to carry out his obligations to the client causing potentially serious harm violated Canon Six, DR 6-101(A) (2) and (3), and Canon Seven, DR 7-101(A) (1), (2) and (3).

In the fourth count, the respondent was appointed to represent an indigent client charged with escape in Middlesex Superior Court. Between October 1991 and October 1992, the client repeatedly attempted to communicate with the respondent by telephone or mail about the status of his case. The respondent never visited the client in prison, or in a private setting to discuss his case as required by CPCS Performance Guidelines. On October 1, 1992, the respondent recommended to the client that he enter a plea of guilty to escape and request a sentence of three to five years to serve in prison from and after his current sentence. The respondent twice incorrectly advised the client that he would be eligible for parole one year after he completed his current sentence. In fact, under G.L. c. 127, § 133, the client would not be eligible for parole on a sentence arising from an escape conviction until he served two-thirds of his sentence. The court accepted the client’s plea and adopted the 3-5 year sentence. Once the client learned that the respondent had misadvised him about his parole eligibility and that he would have to serve two years of his sentence, he wrote to the respondent and requested that the respondent request a hearing on a motion to revise and revoke the sentence. The respondent agreed to file the motion to review his sentence, but he failed to file the motion and took no action of substance. The respondent failed to communicate with his client and twice gave the client incorrect advice regarding the availability of parole in violation of Canon Six, DR 6-101(A) (2) and (3).

In aggravation, the respondent is an experienced criminal defense attorney whose clients were vulnerable, indigent clients, unable to make bail and incarcerated during their criminal proceedings. ABA Standards for Imposing Lawyer Sanctions, §§ 9.22 (h) and (i). Further, the respondent has a history of prior discipline, an informal admonition for similar misconduct in failing to keep his clients informed about the progress of their cases.

On December 16, 2002, the Supreme Judicial Court for Suffolk County ordered that the respondent be disbarred retroactive to October 8, 1998, the date of his temporary suspension.

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

2 Compiled by the Board of Bar Overseers based on the record before the Court.



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