B.B.O. File No. C5-03-0022
Order Entered by the Board on July 9, 2007 Dismissing Petition for Discipline.
On October 6, 2005, bar counsel filed a petition for discipline against the respondent John Doe, alleging that the respondent, in advising his client to tape record her husband, failed to provide competent representation, failed to seek the lawful objectives of his client through reasonably available means permitted by law, failed to act with reasonable diligence, and failed to explain the matter to the extent reasonably necessary for the client to make informed decisions.
The respondent, represented by counsel, filed an answer on November 16, 2005. The respondent filed a motion to dismiss the petition for discipline on March 23, 2006, an opposition was filed by bar counsel on March 27, 2006, and the motion was denied by the Chair of the Board of Bar Overseers on March 29, 2006. A hearing was held in this matter before a hearing committee on April 11, 2006. Sixteen exhibits were admitted into evidence, and two witnesses testified at the hearing.
At the conclusion of the hearing on April 11, 2006, the respondent filed another motion to dismiss the petition for discipline, which bar counsel opposed. In accordance with the Rules of the Board of Bar Overseers Section 3.32, the respondentís motion to dismiss and bar counselís opposition were reserved for the Boardís consideration and are attached to this hearing report. On August 7, 2006, the parties filed their proposed findings of fact, conclusions of law and recommendation for discipline.
I. FINDINGS OF FACT
- The respondent John Doe was admitted to the Massachusetts bar on December 26, 1968. (Ans. ∂21)
- At all relevant times, the respondent was engaged in the practice of law in Massachusetts, primarily in the areas of civil litigation, real estate, probate and domestic relations. (Doe Tr. 29)
- In February 2002, the Wife retained the respondent to represent her in possible divorce proceedings. (Doe Tr. 32-33; Ans. ∂3) We credit the respondentís testimony that at their initial meeting, the Wife was distraught, shaking, nervous and fearful of her home situation, and that she appeared afraid of her husband because of threats he had made against her. (Doe Tr. 32) We also credit the respondentís testimony that he advised the Wife to seek a restraining order pursuant to G. L. c. 209A, and she expressed her interest in doing so. (Doe Tr. 33)
- On February 19, 2002, the Wife, accompanied by Attorney Sally Smith, an associate at the respondentís law firm, went to Probate and Family Court to seek a temporary restraining order pursuant to G. L. c. 209A. (Doe Tr. 33-34) Despite completing all the necessary forms, including an affidavit, the Wife decided not to proceed and instructed Attorney Smith to not file the 209A complaint. (Doe Tr. 38; Ex. 8)
- On February 20, 2002, the Husband filed a complaint for divorce along with a motion for temporary orders seeking sole and exclusive use and occupancy of the marital home, sole physical and legal custody of their daughter, and a restraining order against the Wife from any contact with the Husband at home or his place of employment. (Doe Tr. 39-41; Ans. ∂4; Ex. 7; Ex. 9)
- About March 4, 2002, the Wife also filed a motion for temporary orders accompanied by an affidavit detailing the verbal abuse she had suffered and seeking an order for her husband to vacate the marital home. (Doe Tr. 42; Ans. ∂5; Ex. 7; Ex. 10)
- On March 14, 2002, a hearing was held on the partiesí cross motions. (Ans. ∂6; Ex. 7) We credit the respondentís testimony that at this hearing, the Husband denied engaging in any aggressive or abusive behavior toward his wife. (Doe Tr. 56) In his temporary orders, Judge Richard Roe granted the parties joint legal and physical custody of their daughter and did not order either party to vacate the marital home. (Doe Tr. 46-48; Ans. ∂6; Ex. 12)
- We credit the respondentís testimony that after this hearing, the Wife began stopping by the office at least three times a week to tell him what was happening in the house, what she was going through, how horrible her relationship was with her husband, and how everything was more intense than previously stated in her affidavit. (Doe Tr. 49) We also credit the respondentís testimony that during her visits, the Wife was nervous and crying, and that the respondent completely and totally believed, both then and now, that the Wife was in real potential physical harm from her husband. (Doe Tr. 54-55)
- On March 28, 2002, the Husband filed a motion for temporary restraining order with an affidavit seeking to prevent the Wife from allowing their daughterís friend to live with them at the marital home. (Doe Tr. 50; Ex. 11) In his affidavit, the Husband alleged that his wife was ďa very vindictive, angry alcoholic with a bi-polar disorder.Ē (Doe Tr. 56; Ex. 11)
- A hearing was held before Judge Roe on March 28, 2002. (Ex. 7) We credit the respondentís testimony that he made a conscious decision to have his associate, Attorney Smith, attend that hearing with the Wife in an attempt to diffuse some of the animosity that had arisen between him and the Husband and the Husbandís counsel. (Doe Tr. 51)
- At the hearing on March 28, 2002, the Wife filed an affidavit opposing her husbandís affidavit regarding their daughterís friend. (Doe Tr. 51-52; Ex. 7, Ex. 13) Judge Roe again did not order either party to vacate the marital home, and allowed the daughterís friend to remain in the marital home provided the friendís father submitted a written statement allowing her to stay there, which he did. (Doe Tr. 52-53; Ex. 7)
- We credit the respondentís testimony that after these two hearings before Judge Roe, with the judge refusing to order the husband to vacate the marital home in both instances, the respondent suggested that the Wife tape record her conversations with her husband in order to show who was telling the truth about the husbandís aggressive behavior toward her. (Doe Tr. 55, 56-57) We also credit the respondentís testimony that he advised the Wife to not do anything to aggravate the situation with her husband, but to just tape record the conversations when they occurred. (Doe Tr. 56)
- We credit the respondentís testimony that he had had at least one prior case where a husband remained in the home and then beat up the wife and was charged with assault and battery with intent to kill, as well as three prior cases where people killed themselves during litigation. (Doe Tr. 57-58) We also credit the respondentís testimony that he had observed the Husbandís belligerent behavior towards the Wife in the courthouse corridors, and then ďin the courtroom he [the Husband] was an angel.Ē (Doe Tr. 56, 58)
- We credit the respondentís testimony that his only experience with the legality of tape recording conversations arose from a criminal defense case he handled involving the federal wiretap statute, and that he believed one-party consent was legally sufficient. (Doe Tr. 59-60, 97) We also credit the respondentís testimony that he had no specific experience with or knowledge of the Massachusetts wiretap statute, that he did not research the Massachusetts wiretap statute, and that he simply relied upon his previous federal experience when he advised the Wife to tape record her husband to show his abusive behavior. (Doe Tr. 60-61, 97)
- We find that the respondent should have researched and investigated the Massachusetts wiretap statute rather than simply rely upon his previous federal wiretap experience in advising the Wife to tape record her husbandís abusive behavior.
- We credit the respondentís testimony that he never met the Wifeís sister and that the sister was never present during any conversations that the respondent had with the Wife about tape recording her husband. (Doe Tr. 104) We do not credit the allegations made by the sister in her letter dated July 8, 2003, that after a court hearing in April 2002, the respondent spoke to both her and the Wife about tape recording the Husbandís verbal abuse. We do not credit these allegations made by the sister because they are contradicted both by the fact that the Wife tape recorded her husband on March 31, 2002, which tape was played to the probate court at the emergency 209A hearing on April 4, 2002 (see ∂∂17, 18 below), and by the allegations made by the Wife herself in her letter dated April 24, 2003 that the respondent advised her to tape record her husband at a meeting in his office on or before March 28, 2002. (Ex. 5)
- We credit the respondentís testimony that he was never told by the Wife that the salesperson at a store at the Mall would not sell her a tape recorder for the purpose of tape recording her husband because it was against the law. (Doe Tr. 103) The Wife admitted at the hearing that she did not relay this information to the respondent, and we credit this testimony. (Wife Tr. 108, 119, 121) Except for this one admission, and her testimony that she filed her complaint with bar counsel against the respondent in order to protect herself from further threats of legal action by her ex-husband (Wife Tr. 111-112), we did not generally credit the Wifeís testimony at hearing.
- In late March 2002, the Wife advised the respondent that she had tape recorded her husbandís tirades, and produced four tapes. (Doe Tr. 62) We credit the respondentís testimony that the worst tirade in terms of the level of intensity and hatred towards the Wife occurred on the tape from March 31, 2002. (Doe Tr. 62) We also credit the respondentís testimony that as a result, he prepared an affidavit with the Wife incorporating the March 31, 2002 tape to seek a 209A restraining order. (Doe Tr. 62-63; Ex. 14)
- On April 4, 2002, the Wife filed her 209A complaint along with her affidavit. (Ex. 15) After an ex parte hearing before Judge Paul Poe that same day, at which time the judge reviewed the Wifeís previous affidavit, Judge Roeís prior orders, and listened to a portion of the tape from March 31, 2002, Judge Poe issued an emergency 209A order for the husband to vacate the marital home and scheduled a hearing for April 9, 2002. (Doe Tr. 66-68; Ex. 1)
- We credit the respondentís testimony that after the ex parte hearing on April 4, 2002, and before the hearing scheduled for April 9, 2002, the Husbandís attorney came to the respondentís office without an appointment and demanded to hear the tape that had been played to the court, and the respondent played it for him. (Doe Tr. 69-71; Ans. ∂12)
- At the hearing on April 9, 2002, Judge Poe had a portion of the same tape played again in court. (Doe Tr. 72; Ans. ∂13; Ex. 2, p. 8) The Husbandís attorney objected to the tape being played in court (Doe Tr. 72; Ans. ∂13; Ex. 2), and subsequently questioned the Wife about when she began to tape record her husbandís conversations, whether she told her husband at the time that she was tape recording him, and why she did not tell her husband when she was tape recording him. (Ex. 2, pp. 16-18) After taking the matter under advisement, Judge Poe then continued the 209A restraining order against the husband until July 1, 2002. (Doe Tr. 73-74; Ans. ∂13; Ex. 15)
- On April 9, 2002, the same day as the probate court hearing, the Husband filed an application in District Court seeking the issuance of a criminal complaint against the Wife for tape recording him without his consent and knowledge and then disseminating and using the tape in a civil proceeding against him in violation of the Massachusetts wiretap statute, G. L. c. 272, ß 99 (c) (1). (Doe Tr. 74-76; Ans. ∂14; Ex. 4) We credit the respondentís testimony that the Husband also filed an application for issuance of a criminal complaint against the respondent for violation of the Massachusetts wiretap statute. (Doe Tr. 77, 81; Ans. ∂14)
- We credit the respondentís testimony that after he was served with the application for criminal complaint, he had his associate, Attorney Smith, research the Massachusetts wiretap statute, and realized he had made a mistake in advising the Wife. (Doe Tr. 77-78) We credit the respondentís testimony that he notified the Wife about the criminal proceeding, apologized for giving her the wrong advice, and told her that he would help her handle the criminal matter. (Doe Tr. 77-78)
- We credit the respondentís testimony that he met with the Wife after she received notice of the criminal proceeding, and that the Wife reacted by shaking her shoulders and expressing her happiness that her husband was no longer in the house. (Doe Tr. 78-79) We credit the respondentís testimony that he spoke with two criminal defense attorneys and retained counsel to represent the Wife in the criminal proceeding at the respondentís expense. (Doe Tr. 78-80; Ans. ∂14) We also credit the respondentís testimony that he spoke with the first assistant district attorney in order to notify the DAís office that the Wife had done the tape recording based upon the respondentís advice. (Doe Tr. 82)
- A hearing was held on May 6, 2002 in the criminal proceedings against the Wife and the respondent before the First Assistant Clerk Magistrate at District Court. (Ex. 3) The complaint against the respondent was heard first, and the assistant clerk-magistrate found insufficient evidence was presented for a criminal complaint to issue against the respondent. (Doe Tr. 83-85; Ex. 3, p. 2) During the hearing on the complaint against the Wife, the respondent and Attorney Smith were excused by the assistant clerk-magistrate. (Doe Tr. 85; Ex. 3, p. 5) The assistant clerk-magistrate then found sufficient evidence presented for a criminal complaint to issue against the Wife, but continued the matter for one year. (Ex. 3, p. 8)
- The Husband appealed the assistant clerk-magistrateís decision to not issue a criminal complaint against the respondent, and that matter was then heard by a judge, who also determined that a criminal complaint should not issue. (Doe Tr. 86-87; Ans. ∂16)
- The respondent continued to represent the Wife in her divorce proceeding through trial in the probate court in January 2003. (Doe Tr. 93; Ans. ∂17; Ex. 7) The respondentís motion to withdraw as counsel for the Wife was filed on April 22, 2003, and allowed by the probate court on April 29, 2003. (Ex. 7) The Wifeís request for investigation against the respondent dated April 23, 2003 was received by the Office of Bar Counsel on April 28, 2003. (Ex. 5)
II. CONCLUSIONS OF LAW
- Bar counsel charges that the respondentís conduct in giving legal advice to his client to secretly tape record another person, without researching the applicable law, violated Mass. R. Prof. C. 1.12, 1.2(a)3, and 1.3.4 Bar counsel also charges that the respondentís conduct in giving legal advice to his client to secretly tape record another person, without explaining the matter to the extent reasonably necessary to permit the client to make an informed decision as to the consequences, violated Mass. R. Prof. C. 1.4(b).5
- We acknowledge in our findings that the respondent should have investigated and researched the Massachusetts wiretap statute instead of simply relying upon his previous federal wiretap statute experience in advising the Wife to tape record her husbandís abusive behavior. However, we also consider our findings that the respondent sincerely believed that the Wife was verbally and emotionally abused by her husband and in danger of being physically harmed by her husband, and that the Wife had failed to obtain any assistance from the police or the court against her husband.
- We also believe that the Wife was so desperate to have her abusive husband removed from the marital home when all recourse to the police and the probate court had failed that she would have proceeded to tape record her husbandís abusive behavior even if the respondent had properly advised her that it was an illegal act in Massachusetts and could subject her to criminal charges. In so finding, we note that the Wife had been advised by the sales clerk that it was illegal in Massachusetts to tape record someone without their consent. Rather than confer with the respondent, the Wife proceeded to purchase a recorder from a different store and tape record several conversations with her husband, and in fact the playing of one of these tapes before the court resulted in her husbandís removal from the marital home.
- While not excusing the respondentís failure to research the state wiretap statute before advising his client, we also consider our findings that the Wife did not appear overly concerned when the criminal proceeding was brought against her because she was so happy to have her husband out of the house, that the respondent retained and paid for a criminal defense attorney for the Wife, and that no criminal complaint ever issued against the Wife. In light of our findings, we therefore conclude that the respondent did not violate Mass. R. Prof. C. 1.2(a)6 and 1.3.7
- Although we firmly believe that after receiving no assistance from the police and the court, the Wife was desperate enough to tape record her husbandís abusive behavior even if the respondent had properly advised her that it was an illegal act in Massachusetts and could subject her to criminal charges, we nonetheless acknowledge that the respondent technically violated Mass. R. Prof. C. 1.18 and 1.4(b).9 However, on these facts, we do not find that discipline would be warranted. See Matter of the Discipline of an Attorney, 437 Mass. 1001 (2002), affirming 18 Mass. Attíy Disc. R. 586 (2001).
III. FACTORS IN MITIGATION AND AGGRAVATION
- In light of our recommendation that this matter be dismissed as set forth below, we make no findings in mitigation or aggravation.
IV. RECOMMENDATION FOR DISCIPLINE
Bar counsel seeks a public reprimand, while the respondent continues to seek a dismissal or at most an admonition. We recommend that the petition for discipline brought against respondent John Doe be dismissed and no discipline be imposed.
After listening to all the testimony and reviewing all the evidence, especially the testimony of the Wife whom we found to be completely unbelievable and who apparently only submitted her complaint to bar counsel to avoid further threats of legal action by her ex-husband, we find that the respondent represented the Wife to the best of his abilities in light of an escalating abusive situation, and that his lapse in judgment in relying upon his prior federal wiretap experience instead of researching the applicable state wiretap statute does not merit discipline in the circumstances of this case.
1 The transcript shall be referred to as ďTr. _Ē; the answer shall be referred to as ďAns. ∂_Ē; and the exhibits shall be referred to as ďEx. _.Ē
2 Mass. R. Prof. C. 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
3 Mass. R. Prof. C. 1.2 Scope of Representation
(a) A lawyer shall seek the lawful objectives of his or her client through reasonably available means permitted by law and these rules. A lawyer does not violate this rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his or her client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process. A lawyer shall abide by a clientís decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the clientís decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.
4 Mass. R. Prof. C. 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client. The lawyer should represent a client zealously within the bounds of the law.
5 Mass. R. Prof. C. 1.4 Communication
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
6 See n.3 supra.
7 See n.4 supra.
8 See n.2 supra.
9 See n.5 supra.
© 2007. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.