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OBC/BBO HIGHLIGHTS

July 2, 2014

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Bar Discipline Cases

[Highlights Archive]


Bar Discipline Cases

  • Full Court Disbars Attorney Based, In Part, On Misconduct In Dealings With Other Members Of The Bar
  • In In Matter of Haese, 468 Mass. 1002 (2014), the full bench of the Supreme Judicial Court affirmed a decision of the single justice disbarring the respondent for converting client funds in two separate matters. Notwithstanding that the respondent made prompt restitution in both instances, the full bench agreed that disbarment, and not indefinite suspension, was the appropriate sanction because the respondent had “engaged in more and wider misconduct” in his dealings with other members of the bar, adversely reflecting on his fitness to practice law.

    In 2001 and 2004, clients in two different matters retained the respondent and paid him a retainer. In both instances, the respondent converted the retainers before they were earned. After the cases settled, he converted the clients’ settlement money for his own use. The respondent subsequently paid the clients the amounts due them but, with respect to the first matter, only after misrepresenting to the clients that the delay in their payment resulted from accounting issues rather than misuse.

    Around the same time, the respondent associated with other attorneys in unrelated matters. In one case, the respondent filed suit on behalf of himself and two other law firms who were owed legal fees. After recovering $75,000, the respondent paid one firm its share but failed to pay the other firm the amount to which it was entitled. Instead, the respondent intentionally misappropriated that firm’s funds to his own use.

    In a second matter, the family of a minor child injured by a defective product retained the respondent to bring suit against a manufacturer and retailer. The respondent associated with a North Carolina attorney to assist him in the trial and agreed to pay that attorney thirty-five percent of the respondent’s fee. The respondent did not disclose to the attorney that he had already pledged all of his legal fees in that case to a commercial lender as collateral for a $250,000 loan. As the case progressed, the respondent asked the North Carolina attorney to also loan the respondent money, promising to pay the attorney from the legal fees earned in the child’s case. Relying on the respondent’s promise, the North Carolina attorney loaned the respondent a total of $81,000. When the child’s case settled, the respondent failed to notify either the North Carolina attorney or the commercial lender of his receipt of the settlement funds. Instead, the respondent indorsed the attorney’s name on the settlement check without authorization and deposited it in his trust account. The respondent then withdrew and used for his own purposes the funds that he owed to the North Carolina attorney and the commercial lender.

    Where an attorney intends to deprive, or actually does deprive, a client of funds, the standard discipline is indefinite suspension or disbarment. Where restitution is made, an indefinite suspension rather than disbarment is typically the sanction. In this instance, the respondent made prompt restitution to his clients whose funds he had converted. Here, however, because “Both clients and other attorneys must be able to rely on the personal integrity of members of our bar”, the full court determined that the respondent’s conversion of client funds, when taken together with his intentional, dishonest conduct toward other members of the bar, warranted his disbarment.

  • Full Court Disbars Attorney Convicted of Conspiracy to Possess Cocaine With Intent to Distribute
  • In Matter of Burnbaum, 466 Mass. 1024 (2013), the respondent lawyer had been a member of both the Florida and Massachusetts bars. He was indicted in 1995 and ultimately pleaded guilty in the United States District Court for the Southern District of Florida to one count of conspiracy to possess cocaine with intent to distribute. The facts underlying the conviction were that the respondent had met with an incarcerated client, received from the client a map to a warehouse where 145 kilograms of cocaine were located, and sent that map to another client. He was sentenced in 1999 to a term of 105 months of incarceration, ultimately serving six years.

    The respondent tendered a disciplinary resignation to the Florida bar in 1999, but failed to report the conviction to Massachusetts bar counsel in violation of Supreme Judicial Court Rule 4:01, § 12(8). Bar counsel learned of the conviction in 2011, filed a notice of conviction with the SJC, and commenced a reciprocal disciplinary proceeding. The single justice ordered a three-year suspension.

    Following bar counsel’s appeal, the full bench of the Supreme Judicial Court ordered disbarment, retroactive only to December 7, 2012, the date on which the respondent was suspended by the single justice. Reaffirming that the appropriate discipline in a reciprocal proceeding is the sanction appropriate in Massachusetts and that, absent mitigation, the usual disciplinary sanction for a felony conviction is disbarment, the Court found that “[c]onsidering both the fact and circumstances of the respondent's conviction, the context of his felonious conduct, and the absence of special mitigating circumstances, we are led inexorably to the conclusion that disbarment is the appropriate sanction.”

  • Full Court Disbars Atttoney With Felony Convictions, Emphasizes Waiver of Evidence of Mitigation
  • In Matter of Patch, 466 Mass. 1016 (2013), the full bench of the Supreme Judicial Court ordered that the respondent be disbarred. The matter came before the Court on appeal by bar counsel from a decision by a single justice indefinitely suspending the respondent.

    The underlying disciplinary case arose from two felony convictions, one in 2006 for criminal harassment and violation of a protective order and a second in 2007 for witness intimidation, as well as a finding of probation violation on the 2006 conviction. The respondent was temporarily suspended in 2007 and a petition for discipline was filed with the Board of Bar Overseers. Hearing on the disciplinary charges was stayed pending appeals of the convictions. When the appeals did not go forward, a disciplinary hearing was scheduled in 2012. The respondent in his answer to the petition for discipline raised as mitigation certain facts concerning a court-ordered mental health evaluation in connection with one of the convictions, but did not expressly claim that his misconduct was the result of psychological issues and then presented no evidence of mitigation, “expert or otherwise,” at the disciplinary hearing.

    The Board of Bar Overseers recommended that the respondent be disbarred. The single justice, based on his own assessment of the lawyer’s mental health, determined that the appropriate sanction was indefinite suspension. In granting bar counsel’s appeal and entering the order of disbarment, the full bench ruled that the respondent had waived claims of mitigation by failing to plead expressly in the answer to the petition for discipline that his misconduct was the result of psychological issues and to present evidence of such mitigation at the disciplinary hearing. The full bench noted that disbarment or indefinite suspension is the standard sanction for a felony conviction that affects the administration of justice, even if it does not arise from the practice of law.

All recent bar discipline decisions of the Board of Bar Overseers and the Supreme Judicial Court can be found at Recent Disciplinary Decisions.

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