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Commonwealth of Massachusetts


March 2000

 

Collateral Consequences of a Criminal Conviction

By Nancy Kaufman, First Assistant Bar Counsel


It is a good thing to have convictions and to live according to them—unless the conviction is for a criminal offense. Lawyers convicted of criminal offenses face serious consequences and might well be more concerned about the impact of the conviction on the right to practice law than about the sentence likely to be imposed in the criminal case. Lawyers who represent such clients must also be aware of the consequences of a criminal conviction on the client’s status as a lawyer.

All convictions must be reported to bar counsel, regardless of the nature of the crime, within ten days of the conviction. Moreover, "conviction" has a broad meaning under the governing S. J. C. Rule 4:01, § 12. "Conviction" includes not only a guilty verdict or finding but also an admission to or finding of sufficient facts and a plea of nolo contendere accepted by the court, even if a sentence is not imposed. Failure to report the conviction to bar counsel is a violation of S. J. C. Rule 4:01, § 12, and may be grounds for discipline or justify a greater level of discipline as a matter in aggravation.

The report of a conviction will not necessarily result in disciplinary proceedings. Although bar counsel is required to notify the Supreme Judicial Court of all convictions, he is not likely to request and the court is unlikely to order a remand for "minor offenses."

On the other hand, a conviction of a "serious crime" will always be remanded to the Board of Bar Overseers for investigation and prosecution. A "serious crime" as defined by S. J. C. Rule 4:01, § 12(3), includes any felony, regardless of its elements, and any lesser crime "a necessary element of which, as determined by the statutory or common law definition of such crime, includes interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy, or solicitation of another, to commit a ‘serious crime.’"

This list of elements for defining a serious crime is by no means exhaustive. In Matter of Tatel, 4 Mass. Att’y Disc. R. 138 (1984), the court found that a misdemeanor violation of G. L. c. 268A, § 3(a), which prohibits giving anything of value to a government employee for or because of an official act, could be prosecuted as a "serious crime." Although there was no need to prove "corrupt intent" and the crime was not specified in § 12(3), the court found that the crime was "serious" because the lawyer’s conduct "erode[d] public confidence in bar" and was "totally inconsistent with the moral character that the public is entitled to expect from . . . members of the bar".

The court may also refer other crimes which are not "serious" to the Board of Bar Overseers for such further action as the Board deems fit. Recently, a lawyer convicted of driving to endanger was referred to Board of Bar Overseers in view of the circumstances of the case. When a misdemeanor conviction suggests an alcohol or other substance abuse problem, bar counsel may pursue disciplinary action or disability status, or, as an alternative in an appropriate case, require that the lawyer seek assistance from Lawyers Concerned for Lawyers or other agencies.

If the lawyer is convicted of a serious crime, the lawyer is generally required to show cause why his or her license should not be suspended pending the outcome of the disciplinary proceedings. The court may suspend the lawyer or otherwise restrict the lawyer’s practice until further order. When an appeal has been taken from the conviction, bar discipline proceedings are typically deferred, upon the lawyer’s request, until the appeal is decided.

In the bar discipline proceedings, the conviction is "conclusive evidence of the commission of that crime[,]" S. J. C. Rule 4:01, § 12(2), and as to each element of the offense. Matter of Concemi, 422 Mass. 326 (1996), confirmed that the lawyer cannot relitigate the issues of knowledge or intent or any other element necessary to establish the conviction.

The lawyer is entitled to produce evidence in mitigation, but "typical" mitigation such as the absence of prior disciplinary sanctions, a good reputation in the lawyer’s community, the performance of pro bono and community service, and cooperation with criminal and bar discipline authorities is not considered sufficient to reduce the sanction. The court has considered in mitigation such factors as whether or not the lawyer acted at the direction of superiors on the threat of loss of employment, extraordinary financial or other duress caused by personal or a family member’s illness or disability, and substance abuse that caused or contributed to the misconduct. On the other hand, there may also be evidence in aggravation, such as a prior record of discipline, which might justify an increase in the sanction.

Absent special mitigation, the typical sanction for a felony conviction involving the practice of law is disbarment. Disbarment may also be ordered for felony convictions arising from the abuse of a fiduciary position or fraud on a court not involving the lawyer’s legal practice. The presence of mitigation in felony conviction cases generally serves to reduce the disbarment to indefinite suspension. Misdemeanor serious crimes involving the practice of law have also resulted in indefinite suspensions, although some misdemeanor serious crimes such as misdemeanor larceny convictions might well call for disbarment.

Felony convictions arising in the lawyer’s personal life are subject to bar discipline as well. Pornography and child exploitation, drug offenses, and vehicular homicide are examples of convictions which have been sanctioned in Massachusetts although the lawyer’s conduct was strictly personal. The discipline imposed has ranged from disbarment to term suspensions. Misdemeanor tax offenses such as willful failure to file income tax returns typically result in a six-month suspension, while felony tax offenses generally result in longer term suspensions.

Finally, criminal conduct which preceded the lawyer’s admission to practice can be sanctioned if the conviction occurs after the lawyer becomes a member of the bar. In Matter of Donovan, 13 Mass. Att’y Disc. R 142 (1997), a lawyer was suspended for eighteen months as a result of her conviction of student loan fraud, committed when the lawyer was an undergraduate.

All lawyers, whether on their own behalf or when they are representing other lawyers, need to be alert to the requirements of the Supreme Judicial Court Rules governing professional discipline and the reporting obligations. The ramifications of criminal misconduct affect not only the lawyer’s standing as a citizen but also as a member of the bar.

 

 

 



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