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Commonwealth of Massachusetts


August 1999

UP CLOSE AND PERSONAL:
ETHICS AND THE LAWYER-LITIGANT

by

Roger Geller and Susan Strauss Weisberg

 

Personal conduct is not always a private matter. Under Supreme Judicial Court Rule 4:01, § 3(1), a lawyer may be sanctioned for ethical violations even if those violations occurred outside the practice of law. Criminal conduct, certain sexual misconduct, and dishonesty or financial improprieties in personal or business dealings have all given rise to the discipline of attorneys. This article addresses one aspect of a lawyer’s personal life which can result in the imposition of discipline: willful violations of court orders entered against the lawyer as a party to litigation.

A particularly egregious example of a lawyer’s disobedience of court orders appears in Matter of Ring, 427 Mass. 186 (1998). In that case, over a two-year period, a lawyer repeatedly and willfully flouted a series of payment orders entered against him as a defendant in divorce proceedings brought by his wife. The lawyer’s misconduct resulted in seven separate adjudications of contempt, the issuance of three separate warrants for his arrest, and two brief incarcerations. The Board of Bar Overseers and the Supreme Judicial Court determined that this misconduct violated former Canon One, Disciplinary Rule 1-102(A)(5) and (6), now Mass. R. Prof. C. 8(d) and (h), prohibiting conduct prejudicial to the administration of justice and conduct adversely reflecting on a lawyer’s fitness to practice law. Rejecting the lawyer’s argument that his actions involved a purely private matter, the Court ordered him suspended from the practice of law for three months. The Court indicated that it would have imposed a longer suspension but for mitigating evidence of the lawyer’s severe psychological impairment.

Ring was not the first case in which a lawyer was disciplined for misconduct of this nature in the lawyer’s own divorce proceeding. In Matter of Hodges, 11 Mass. Att’y Disc. R 116 (1995), the lawyer repeatedly failed to pay court-ordered child support and defaulted at contempt hearings. He was adjudicated in contempt on five occasions, and capias warrants were issued for his arrest. The Court suspended the lawyer for three months for this and other, unrelated misconduct. Similarly, in Private Reprimand No. PR-92-37, 8 Mass. Att'y. Disc. R. 334 (1992), a lawyer’s former wife brought contempt proceedings against him to collect child support arrears. After the lawyer failed to appear in court, he was found in contempt, and an order was entered for his incarceration. A capias was issued but never served on the lawyer. He subsequently purged himself of the contempt, and the capias was withdrawn. For this conduct the lawyer received a private reprimand. In Admonition No. 93-34, 9 Mass. Att'y. Disc. R. 470 (1993), the lawyer, a defendant in a paternity action, was privately admonished for his failure to comply with a lawful court order to pay an increased amount of child support. The lawyer appealed the increased support order and brought a motion to stay or modify the order pending appeal. The lawyer paid the amount due under the previous support order, but not the increased amount, pending the outcome of his appeal. He was adjudicated in violation of probation after the motion to stay was denied.

Another recent case illustrates how a lawyer’s personal misconduct in handling an underlying professional obligation may result in bar discipline. In Admonition No. 99-25 (4/29/99), the Board of Bar Overseers admonished an attorney who had disobeyed a court order to pay a stenographer’s bill. The gravamen of this lawyer’s offense was not that he had failed to pay the bill, but rather that a court had to issue a capias to compel his obedience to its commands. The stenographer had brought a small claims action against the lawyer to recover her fee for a deposition transcript in a case handled by the lawyer. Following mediation, the lawyer agreed and was ordered to provide work to the stenographer of a specified value within three months or to pay her bill in full within four months.

The lawyer did not provide the stenographer with any work, did not pay the bill, and did not appear in court for a scheduled review. As a result, the court entered a default judgment against the lawyer and issued a notice to show cause why he should not be held in contempt. Although he was served with the notice, the lawyer failed to appear, and the court issued a capias for his arrest. The lawyer was notified of the capias before it was served and paid the full amount of the judgment, plus costs, that same day.

A majority of the hearing committee which had considered the matter concluded that the lawyer’s payment of the judgment after the capias had issued was sufficient to discharge his obligations and that to impose discipline would subvert the disciplinary rules into a means of mere "debt collection." On Bar Counsel’s appeal, the Board of Bar Overseers determined that the lawyer’s conduct, culminating in the issuance of the capias, violated DR 1-102(A)(5) and (6) because it "undermine[d] the legitimacy of the judicial process."

The Board’s decision in this case is consistent with earlier cases in which similar misconduct resulted in the imposition of discipline. In Admonition No. 96-31, 12 Mass. Att’y Disc. R 650 (1996), a lawyer was defaulted after he failed to defend a suit brought by a title examiner to collect fees owed by the lawyer. When the lawyer did not pay the judgment, the court issued a notice to show cause. The lawyer failed to appear at the show cause hearing, and the court issued a capias to compel the lawyer’s compliance. In Admonition No. 93-39, 9 Mass. Att’y Disc. R 476 (1993), a lawyer failed to pay a small claims judgment until after he defaulted on an order to show cause and a capias issued. In both cases, the Board found violations of DR 1-102(A)(5) and (6).

Lawyers do not shed their ethical obligations when they become litigants. As officers of the court, they cannot deliberately disobey judicial directives, regardless of the nature of the litigation. Even if the underlying controversy is purely personal, a lawyer’s willful disobedience of a court order may have disciplinary implications.

_____________________________________________________________

Roger Geller and Susan Strauss Weisberg are assistant bar counsel
with the Office of the Bar Counsel, Board of Bar Overseers.

 



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