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Commonwealth of Massachusetts

OBC/BBO HIGHLIGHTS

March 13, 2014

Index

OBC/BBO News

Recent Bar Overseer Articles

Bar Discipline Cases

[Highlights Archive]


Bar Discipline Cases

  • 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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