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Commonwealth of Massachusetts

PUBLIC REPRIMAND NO. 2000-8



IN RE: TERENCE J. FITZGERALD

ORDER OF PUBLIC REPRIMAND

This matter came before the Board on appeal from a Hearing Committee Report. On May 8, 2000, the Board voted to administer a public reprimand to Mr. Fitzgerald for the reasons set forth in the Board's Memorandum. The Board's Memorandum is attached to this order.

Whereupon, pursuant to Supreme Judicial Court Rule 4:01, Section 8(4), and the Rules of the Board of Bar Overseers, Section 3.57, it is ORDERED AND ADJUDGED that Terence J. Fitzgerald, Esq. be and hereby is PUBLICLY REPRIMANDED.

BY:
      Robert V. Costello, Esq., Chair
      BOARD OF BAR OVERSEERS


Administered on June 12, 2000





BOARD MEMORANDUM

A hearing committee sustained charges against the respondent, Terence J. Fitzgerald, on two counts alleging ethical misconduct. Under the first count, the committee found he had attempted to disrobe in front of the foster mother of a juvenile client in violation of Canon One, DR 1-102(A)(6) (conduct adversely reflecting on fitness to practice law). Under the second count, the committee found that the respondent had made dishonest and deceitful responses during the course of Bar Counsel's investigation, in violation of Canon One, DR 1-102(A)(4) (dishonesty, fraud, deceit or misrepresentation), (5) (conduct that is prejudicial to the administration of justice), and (6) (conduct that adversely reflects on fitness to practice law). The committee recommended that the respondent be suspended from the practice of law for sixty days and be required to participate in a therapy program.

Both parties have appealed. Bar Counsel asks that we recommend a suspension of at least six months' duration and require that therapy be completed before the respondent files any petition for reinstatement. The respondent has moved for a new hearing on the first count and seeks dismissal of the second; alternatively, he asks that the matter be terminated by admonition.

The cross-appeals were argued before the full Board on February 14, 2000. Upon consideration, we deny the motion for new hearing, sustain the findings under both counts, and order the administration of a public reprimand.

The Hearing Committee's Report

For the reasons discussed later in this memorandum, we adopt and incorporate by reference the hearing committee's findings of fact and conclusions of law. The following summary is adequate for purposes of these appeals.

Count I

In the spring of 1994, the respondent was assigned to represent a juvenile on criminal charges pending in the Fitchburg District Court. A hearing on the-charges was scheduled for Tuesday, May 31, 1994. On the Saturday before the scheduled hearing, the respondent telephoned the juvenile's foster mother, Maria Rivera, a mother of five and grandmother of thirteen. He asked Rivera to come to his office to talk about her foster son. After initially resisting the suggestion, Rivera acceded, and he picked her up at her home in Fitchburg and, telling her he had left his file at home, drove her to his home instead of his office.

The meeting took place at the respondent's house on a .deck overlooking his back yard. After fetching a pad of paper (not the file) from inside his house, the respondent began asking Rivera questions about her foster son. After about five minutes, the respondent asked her if he could take his shirt off. He was wearing a tank shirt, shorts, and sneakers. When she made no objection, he stood up, removed his shirt, and pulled down his shorts, exposing a pair of bikini briefs underneath. Rivera was shocked. Upon observing her reaction, the respondent then pulled his shorts back up and resumed his questioning, which was repetitive. He concluded the interview shortly thereafter and drove Rivera back to her home.

Rivera was shocked that the respondent had attempted to take his clothes off in front of her. She was unable to speak and wanted to leave his deck. She told her daughter about the incident when she returned home and, early the next week, reported it to her foster son's social worker. She also filed a grievance against him with the Office of Bar Counsel.

In a written response to the grievance, the respondent denied having attempted to take his clothes off. He did not testify at the hearing.

The hearing committee concluded that the respondent's conduct in disrobing in front of Rivera at a meeting called to discuss the criminal charges against his client, her foster son, violated Canon One, DR 1-102(A)(6) (conduct adversely reflecting on fitness to practice law).

Count II

On May 16, 1995, the respondent was interviewed by Bar Counsel in connection with Rivera's grievance against him. The respondent's responses during the interview were not made under oath. During the interview, Bar Counsel asked the respondent, "Have you had any occasion where the Sterling police have investigated you?" The respondent answered, "I have no knowledge if they've investigated e ' Bar Counsel also asked, "Mr. Fitzgerald, have there been any other occasions when anybody accused you of taking your clothes off?" The respondent answered, "Not that I'm aware of."

In fact, the Sterling police had interviewed the respondent less than two years previously about charges that he had asked a neighbor, Kathleen Greenwood, to lend him some sugar and to bring it to him at his house, which was two doors away. Greenwood drove to his house in the company of her neighbor and their eight-year-old daughters. When they pulled into the respondent's driveway, they saw him sitting nude on his deck. He sought to cover himself and ran into the house.

Greenwood called the police, who sent an Officer Monaghen to respond. Monaghen interviewed Greenwood, her neighbor, and the respondent. Monaghen informed the respondent that he would be charged with indecent exposure. Monaghen filed an application for a criminal complaint. In the fall of 1993, the respondent, Monaghen, Greenwood, and her neighbor appeared for a hearing on the application before a clerk magistrate in the Clinton District Court. The clerk continued the matter without a finding and ordered the respondent to stay away from Greenwood and her neighbor. No further action was taken on the application.

The hearing committee expressly noted that it weighed Greenwood's testimony, taken over the respondent's objection, only as it bore on the issues raised in the second count and not on those in the first count. Again, the respondent did not testify at the disciplinary hearing on the allegations of Count II.

The hearing committee found that the respondent's statements to Bar Counsel that he had "no knowledge" of "any occasion where the Sterling police ha[d] investigated" him, and that he was "not aware of any other occasions when someone had accused him of "taking his clothes off," were knowingly false, misleading, and deceitful. These statements, the committee concluded, violated Canon One, DR 1-102(A)(4) (dishonesty, fraud, deceit, misrepresentation), (5) (conduct prejudicial to the administration of justice), and (6) (conduct adversely reflecting on fitness to practice law).

The Motion for New Hearing

The respondent has moved for a new hearing on the first count. He argues that Greenwood's testimony on the second count was so highly prejudicial that it effectively placed him on trial for an uncharged offense and necessarily infected the hearing committee's determination to credit Rivera's testimony on the first count, which alleged misconduct similar to that described by Greenwood. Any necessary evidence on the incident, he argues, could be found in the police report and in Officer Monaghen's testimony. Although the question is a close one and while we ourselves might have ruled otherwise in the first instance, we do not believe the committee abused its discretion in allowing Greenwood's testimony.

It was the respondent himself who opened the door to Greenwood's testimony by implying he would defend himself by claiming to have forgotten the incident at the time he was interviewed by Bar Counsel. In his answer to the petition for discipline, the respondent stated he had only "recently" received a police report of the incident. Answer 1 8. Attaching the report and expressly incorporating it in his answer, the respondent pointedly noted that the "incident had occurred approximately two years prior to the date of the interview." Id. During his opening statement to the hearing committee, the respondent's counsel stressed the "great time lag" between the Greenwood incident and Bar Counsel's interview. (Tr. 2:8). These statements plainly implied that the respondent's defense would be that he had forgotten the incident during Bar Counsel's interview. In his proposed findings after hearing, the respondent reiterated that the interview had occurred "almost two years later." Far from being "entirely irrelevant," as the respondent now claims, the details of the Greenwood incident clearly were relevant evidence with which to rebut such a defense.

Furthermore, the information available to the committee at the point Bar Counsel proffered Greenwood's testimony suggested that the respondent might attack the veracity of the police report and Officer Monaghen's testimony. The parties' joint pre-hearing memorandum listed as a contested issue whether Greenwood had "informed the Sterling police that the Respondent had asked her to come to his house and was lying nude on a lounge in his back yard when she arrived." Joint Pre-Hearing Memorandum at 3. Also described as "contested" was the question whether "the Sterling police went to the Respondent's home in response to Greenwood's complaint and interviewed the Respondent concerning those charges." Id. Nothing in the respondent's opening suggested he had changed his mind about contesting these issues or that he later would choose not to testify despite having listed himself as his only witness.

It is true that similar and less inflammatory evidence was available in the police report of the Greenwood incident and in the testimony of Officer Monaghen. This was not so clear, however, when the hearing opened. On the first day of hearing, Rivera, who was Bar Counsel's principal witness, had failed to appear. (Tr. 1:40-42). Officer Monaghen was not available because of a change in the scheduling of the hearing. (Tr. 1:40-41). Unless the first session of the hearing were to be cashiered-an option neither party proposed-Bar Counsel was forced to proceed with Greenwood, his only available witness. As a consequence, the hearing committee had a foreshortened basis for determining whether Monaghen's testimony, in conjunction with the police report, would be adequate to serve Bar Counsel's legitimate evidentiary purposes. The committee understandably took the evidence and strove to limit its effect to those legitimate purposes.

While the hearing committee might well have concluded that the incremental probative value of Greenwood's testimony on the second count was outweighed by its potential for unfair prejudice on the committee's determination of Rivera's credibility under the first count, this is second-guessing long after the fact and far removed from the heat of trial. In the end this kind of balancing is entrusted to the sound discretion of the factfinder, and we believe the committee's decision falls within the bounds of the permissible scope of its discretion.

Moreover, two additional factors demonstrate that the Greenwood testimony did not unfairly prejudice the respondent. First, the hearing committee took great care to specify that it considered evidence of the Greenwood incident solely on the question whether the respondent had given misleading answers to Bar Counsel's questions during the interview. The committee expressly noted that its findings under the first count were based entirely on the credibility of Rivera alone. A hearing committee is not a jury; like a judge sitting as factfinder, it should enjoy more trust in its ability hipline its decision making so as not to consider inappropriate matter.

Second, the evidence against the respondent on the first count was strong and essentially unrebutted. No motive was raised to explain why a grandmother of thirteen who met the respondent only twice in her life should have concocted such an outlandish incident , repeated it to her daughter and her foster son's social worker, and traveled to Worcester to deliver it under oath before the hearing committee. Her cross-examination elicited virtually nothing that called her credibility into serious question. There was no suggestion by anyone that she had mistaken the nature or exaggerated the extent of the respondent's actions in disrobing. To the contrary, the respondent's position throughout was that the incident never happened and that her claim that he lowered his shorts sprang from "contrivances." (See Ex. 3 [respondent's July 16, 1994 response to Rivera's grievance]). Against her testimony the respondent offered no evidence at all. He chose not to testify on his own behalf, as was his right, but in doing so he left Rivera's testimony uncontradicted.

Under these circumstances, there is no basis for the Board to find that the committee's determination of Rivera's credibility on the first count was reached improperly.

The Respondent's Objections to Findings under Count II

The respondent claims the evidence does not support the hearing committee's findings that he gave "knowingly false, misleading or deceitful" answers to Bar Counsel's questions when he was interviewed. We disagree.

When asked if he had ever been investigated by the Sterling Police Department, the respondent answered, "I have no knowledge if they've investigated me." The record is clear that he was investigated about the Greenwood incident and, like the committee, we find it altogether implausible that he could have forgotten the incident. The respondent insists that we view his answer "in context." "Clearly," he argues, his "train of thought was still focused at the time of Bar Counsel's questions on Respondent's generalized discontent with the Sterling Police Department and . . . not on any specific event, incident or occurrence."

There are two problems with his argument. First, there is no evidence whatsoever that this was his "train of thought" at the time. As with the first count, he declined to testify at the hearing. The committee was left to draw its own inferences from the record. Clearly, it had adequate evidence to sustain its factual findings.

Second, given what we know he knew about the Greenwood incident (with or without Ms. Greenwood's own testimony), the respondent could not have answered that question as he did without knowing he was concealing his knowledge of the incident. Answering as he did, he deliberately sought to keep Bar Counsel from discovering the incident. Similarly, when asked if there had "been any other occasions where anybody has accused you of taking off your clothes," the respondent answered, "Not that I'm aware of." Here again, the inescapable inference is that the negative answer was given in an effort to deflect Bar Counsel from learning about the Greenwood incident. We do not agree with the respondent's claim on appeal that the incident "was sufficiently dissimilar from the Rivera incident . . . to precipitate a negative response" to Bar Counsel's question.

It may be, as the respondent's counsel argued to the hearing committee, that "[t]echnically, this was a correct statement." Sitting naked on a deck visible from your driveway may or may not be an instance of "taking off your clothes," but this disciplinary charge does not depend on what the definition of "off' is. To be sure, if the statement had been made under oath, its literal truth would have been a defense to a criminal charge of perjury. United States v. Bronston 409 U.S. 352 (1973). But DR 1-102(A)(4) prohibits more than outright perjury. Attorneys may not engage in conduct involving dishonesty, fraud, deceit; or misrepresentation, and there can be little doubt that the respondent dishonestly sought to mislead Bar Counsel in giving his answer. See Matter of Dittami, 12 Mass. Att'y Disc. R. 98, 112 (1996). This is particularly true in the context of questioning by Bar Counsel, as lawyers have an affirmative obligation to cooperate in the disciplinary investigation. See SJC Rule 4:01, § 3(b).

We find no error in the committee's findings and conclusions of law under the second count.

The Appropriate Sanction

The hearing committee recommended a sixty-day suspension with therapy. Bar Counsel seeks a six-month suspension with therapy to be completed satisfactorily before reinstatement. The respondent asks for private discipline. We reject all these recommendations and determine that the matter should be concluded by public reprimand.

In recommending a suspension, the hearing committee relied heavily on Matter of Hachey, 11 Mass. Att'y Disc. R. 102 (1995). Hachey was suspended for thirty days for intentionally urinating on a client's file before returning it to her, apparently in retaliation for her role in her daughter's bringing rape charges against him. That case had about it, as the respondent points out, something "contemptuous and vile" that is altogether lacking in the misconduct described in the first count here. The respondent does not appear to have targeted Rivera for an act of vindictive crudity. It is difficult to understand just what he intended by starting to disrobe in front of her, but once he perceived her reaction he stopped immediately. Nor did his conduct sink to the level of that at issue in Matter of Kelly, 12 Mass. Att'y Disc. R. 214 (1996), in which a lawyer was publicly reprimanded for masturbating in front of a client in his office. The respondent's actions resemble more closely the "unwelcome advances" made to female clients in Admonition 95-35, 11 Mass. Att'y Disc. R 372 (1995). If we were dealing here only with the misconduct charged under the first count, we would accept the respondent's suggestion that we conclude the matter with an admonition.

We must factor in, however, the respondent's dishonest dealings during Bar Counsel's investigation. The two cases Bar Counsel cites as authority for suspension involved much more serious misconduct. In Matter of Brown, 12 Mass. Att'y Disc. R 23 (1996), a lawyer was suspended for two years for neglecting cases, lying to clients, fabricating pleadings, failing to respond to Bar Counsel's inquiries, lying when she did respond, ignoring subpoenas to appear before Bar Counsel, and providing him with false evidence that she had filed a lawsuit. Matter of Sprei, 10 Mass. Att'y Disc. R 246 (1994), involved neglect, noncooperation, misrepresentations to a client, prior public discipline, and the submission to Bar Counsel of false testimony under oath and fabricated documents. Sprei was disbarred. Neither case has much to do with this one, aside from incidentally involving attempts to mislead Bar Counsel. We have found only two cases more directly on point. In Matter of Provanzano, 5 Mass. Att'y Disc. R. 300 (1987), an attorney was publicly censured for submitting a fabricated document to a hearing committee in an attempt to influence its decision. The committee found he had not committed the misconduct of which he was initially charged. Provanzano is distinguishable on that ground and because he had prior discipline, both factors figuring in the Court's decision to censure him. Id. at 304, 306. At the same time, however, he sought to work a fraud on the tribunal in formal proceedings-a premeditated deception that far outstrips the respondent's dishonesty during an informal interview.

The case closest to this one, we believe, is Matter of Keefe, 7 Mass. Att'y Disc. R. 138 (1991). Keefe neglected a medical malpractice case and then sought to cover up his neglect by misrepresenting that he had rejected the case, had obtained an unfavorable medical opinion, and had informed the client of that fact. Then Justice Wilkins ordered a public reprimand.

We believe the same disposition should be reached here. As in Keefe, we are faced with a single instance of underlying misconduct that standing alone would warrant private discipline, but is aggravated by deceptive answers given during informal questioning by Bar Counsel. We see nothing here, or in the other cases cited to us, that would indicate a different disposition should be entertained here.

Because we view the disrobing incident alone as deserving admonition, the public reprimand we impose for the cumulative misconduct under both counts might be construed as implying that, standing alone, the making of deliberate misrepresentations to Bar Counsel during an investigation merits only private discipline. The disposition we reach here is consistent with the sanctions imposed in Provanzano and Keefe, and we have found no Massachusetts cases where greater discipline has been imposed under similar circumstances. A harsher sanction, therefore, would be markedly disparate. See, e.g., Matter of Alter, 389 Mass. 153, 156, 3 Mass. Att'y Disc. R 3; 6-7 (1983).

Nevertheless, we believe private discipline is generally an inadequate sanction for lying to Bar Counsel. The single justice who decided Keefe would have agreed. See 7 Mass. Att'y Disc. R at 139-40 (Wilkins, J.) ("If the Bar Counsel and the Board are no more concerned about an attorney lying to Bar Counsel in the course of a disciplinary investigation than appears on this record, I suppose I should not be either. If the Board had requested a suspension from the practice of law, I certainly would have endorsed it."). In our view, lawyers who knowingly give false or misleading answers to Bar Counsel during an investigation should receive some manner of public discipline, absent very compelling mitigating circumstances. Cp. Matter of Kane, 13 Mass. Att'y Disc. R 320, 326-29 (1997) (enunciating, for future neglect cases, disciplinary standards that would be markedly disparate if applied to present case).

There remains the question of requiring therapy. The hearing committee recommended it. Bar Counsel seeks to make the requirement more rigorous. The respondent does not seek it, but characterizes his conduct as "essentially self-destructive" and "psychologically or emotionally based." Viewed intuitively, what took place in front of Rivera does not appear to speak well of the respondent's mental health at the time.

The record is barren, however, of expert testimony or other evidence of any mental impairment on which to predicate a requirement that the respondent undergo therapy. The hearing committee found no evidence in mitigation. As a consequence, there is no basis in the record for concluding that the respondent had, or still has if he ever did have, a mental health problem that contributed to his misconduct or for which a program of therapy is needed to prevent its recurrence. If anything, the absence of any further episodes in the almost six years since the Rivera episode militates against the inference-which it would be inappropriate for us to draw without benefit of expert opinion-that the misconduct is part of some recurrent psychological pattern.

This not to say that the respondent would not be well advised to seek professional help regarding his actions. Common sense should join us in urging him to do so. In the absence of an adequate record on the issue, however, we make no order respecting therapy.

Conclusion

For all of the foregoing reasons, we deny the motion for new hearing and adopt and incorporate by reference the hearing committee's findings of fact and conclusions of law, but modify its suggested disposition. A public reprimand shall be administered to the respondent, Terence J. Fitzgerald.

      Respectfully submitted,
      THE BOARD OF BAR OVERSEERS


By:
      Mitchell H. Kaplan
      Secretary


Approved: May 8, 2000



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