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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