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This matter is before me on an Information and Record of Proceedings filed by the Board of Bar Overseers (board) concerning the discipline of respondent Richard S. Gonick. After hearing and upon consideration, and for the reasons described below, I conclude that the respondent should be suspended from the practice of law for an indefinite period.
The board adopted the subsidiary findings of the hearing committee and concluded that the respondent intentionally deprived his client of funds with an intent to deprive her of those funds permanently. The hearing committee had recommended a two-year suspension. The board here recommends an indefinite suspension, as opposed to disbarment, primarily because the respondent made complete restitution to his client.
My decision is controlled by Matter of Schoepfer, 426 Mass. 183, 187 (1997), in which the court reaffirmed that if "an attorney intended to deprive the client of funds, permanently or temporarily, or if the client was deprived of funds (no matter what the attorney intended), the standard discipline is disbarment or indefinite suspension," citing Matter of the Discipline of an Attorney, 392 Mass. 827, 836 (1984) (known as the Three Attorneys case).1 The court also stated: "Our rule is not mandatory. If a disability caused a lawyer's conduct, the discipline should be moderated, and, if that disability can be treated, special terms and considerations may be appropriate." Id. at 188.
1 The respondent argues that Matter of Schoepfer, 426 Mass. 183 (1997) does not apply because that case was prospective in its application and his conduct occurred in 1994. This argument is without merit. Matter of Schoepfer, supra at 187, reaffirmed the court's holding in the Three Attorneys case, 392 Mass. 827 (1984), which predated the respondent's conduct by almost a decade. In addition, in Matter of Schoepfer, supra, discipline was imposed for conduct that had occurred between 1986 and 1989.
I look to the hearing committee's findings concerning the respondent's intent and whether the client was deprived of funds. Matter of Schoepfer, supra at 188; See Three Attorneys, supra at 828. The hearing committee specifically found that the respondent acted with "the intent to deprive [his client] of her funds either temporarily or permanently," based on "the committee's assessment of the respondent's demeanor and on the other evidence presented. ..."2 The record is more than adequate to support this finding, and I will not disturb it.
2 The hearing committee found, by contrast, that the respondent "mistakenly and negligently deposited" another check belonging to his client into his office as opposed to an IOLTA account "based on [their] evaluation of the witnesses' demeanor and testimony, and other evidence presented. ..."
Disbarment or an indefinite suspension is therefore appropriate, absent clear evidence that a disability caused the respondent's conduct. Matter of Schoepfer, supra. The respondent presented the testimony of his treating psychiatrist, Dr. Howard Abrams, attempting to show that his impaired mental state had caused him to engage in the alleged conduct. The hearing committee concluded that "there was insufficient evidence for any findings in mitigation to be made concerning the respondent's mental state at the time of the misconduct here." The committee also concluded that the respondent failed to establish a causal connection between his claimed mental impairment and his misconduct. The respondent claims now that these conclusions were in error.
I have reviewed carefully Dr. Abrams' testimony and conclude that the respondent has failed to demonstrate that his mental state at the time of the misconduct caused him to act in violation of his clear ethical obligations. There is no basis on which the discipline should be moderated.
The board's request for an indefinite suspension, as opposed to disbarment, because the respondent made full restitution is appropriate. See Matter of Bryan, 411 Mass. 288, 292 (1991). I therefore conclude that the respondent should be suspended from the practice of law for an indefinite period.
By the Court, (Marshall, J.)
Entered: July 22, 1999
ORDER OF INDEFINITE SUSPENSION
This matter came before the Court, Marshall, J., on an Information and Record of Proceedings and Vote and Recommendation of the Board of Bar Overseers filed by the Board on May 12, 1999. Upon consideration thereof and for reasons stated in the Memorandum of this date, it is ORDERED that:
1. RICHARD S. GONICK is hereby suspended from the practice of law in the Commonwealth of Massachusetts for an indefinite period. In accordance with SJC Rule 4:01, Sect. 17(3), the suspension shall be effective 30 days after the date of the entry of this Order. The lawyer, after the entry of this Order shall not accept any new retainer or engage as lawyer for another in any new case or legal matter of any nature. During the period between the entry date of this Order and its effective date, however, the lawyer may wind up and complete, on behalf of any client, all matters which were pending on the entry date.
It is FURTHER ORDERED that:
2. Within fourteen (14) days of the date of entry of this Order, the lawyer shall:
a) file a notice of withdrawal as of the effective date of the suspension with every court, agency, or tribunal before which a matter is pending, together with a copy of the notices sent pursuant to paragraphs 2(c) and 2(d) of this Order, the client's or clients' place of residence, and the case caption and docket number of the client's or clients' proceedings;
b) resign as of the effective date of the suspension all appointments as guardian, executor, administrator, trustee, attorney-in-fact, or other fiduciary, attaching to the resignation a copy of the notices sent to the wards, heirs, or beneficiaries pursuant to paragraphs 2(c) and 2(d) of this Order, the place of residence of the wards, heirs, or beneficiaries, and the case caption and docket number of the proceedings, if any;
c) provide notice to all clients and to all wards, heirs, and beneficiaries that the lawyer has been suspended; that he is disqualified from acting as a lawyer after the effective date of the suspension; and that, if not represented by co-counsel, the client, ward, heir, or beneficiary should act promptly to substitute another lawyer or fiduciary or to seek legal advice elsewhere, calling attention to any urgency arising from the circumstances of the case;
d) provide notice to counsel for all parties (or, in the absence of counsel, the parties) in pending matters that the lawyer has been suspended and, as a consequence, is disqualified from acting as a lawyer after the effective date of the suspension;
e) make available to all clients being represented in pending matters any papers or other property to which they are entitled, calling attention to any urgency for obtaining the papers or other property;
f) refund any part of any fees paid in advance that have not been earned; and
g) close every IOLTA, client, trust or other fiduciary account and properly disburse or otherwise transfer all client and fiduciary funds in his possession, custody or control.
All notices required by this paragraph shall be served by certified mail, return receipt requested, in a form approved by the Board.
3. Within twenty-one (21) days after the date of entry of this Order, the lawyer shall file with the Office of the Bar Counsel an affidavit certifying that the lawyer has fully complied with the provisions of this Order and with bar disciplinary rules. Appended to the affidavit of compliance shall be:
a) a copy of each form of notice, the names and addresses of the clients, wards, heirs, beneficiaries, attorneys, courts and agencies to which notices were sent, and all return receipts or returned mail received up to the date of the affidavit. Supplemental affidavits shall be filed covering subsequent return receipts and returned mail. Such names and addresses of clients shall remain confidential unless otherwise requested in writing by the lawyer or ordered by the court;
b) a schedule showing the location, title and account number of every bank account designated as an IOLTA, client, trust or other fiduciary account and of every account in which the lawyer holds or held as of the entry date of this Order any client, trust or fiduciary funds;
c) a schedule describing the lawyer's disposition of all client and fiduciary funds in the lawyer's possession, custody or control as of the entry date of this Order or thereafter;
d) such proof of the proper distribution of such funds and the closing of such accounts as has been requested by the bar counsel, including copies of checks and other instruments;
e) a list of all other state, federal and administrative jurisdictions to which the lawyer is admitted to practice; and
f) the residence or other street address where communications to the lawyer may thereafter be directed. The lawyer shall retain copies of all notices sent and shall maintain complete records of the steps taken to comply with the notice requirements of SJC Rule 4:01, Sect. 17.
4. Within twenty-one (21) days after the entry date of this Order, the lawyer shall file with the Clerk of the Supreme Judicial Court for Suffolk County:
a) a copy of the affidavit of compliance required by paragraph 3 of this Order;
b) a list of all other state, federal and administrative jurisdictions to which the lawyer is admitted to practice; and
c) the residence or other street address where communications to the lawyer may thereafter be directed.
By the Court, (Marshall, J.)
Entered: July 23, 1999
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