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Commonwealth of Massachusetts

Public Reprimand No. 2006-7


Order (public reprimand) entered by the Board May 25, 2006.


After sixteen days of hearing, the Hearing Committee recommended a three - month suspension, to be suspended subject to the Respondent taking and passing the MPRE exam. Bar Counsel filed this appeal seeking an actual suspension of six months and a day. The Appeal Panel believes that while the original sanction was within the range of reasonableness for the violations found, the more appropriate sanction is public reprimand, also subject to the Respondent taking and passing the MPRE exam. Among the factors that militate in favor of a reprimand are that the Respondent encountered an ethical problem in a very difficult area of law; was motivated not for personal gain but by a desire, albeit poorly executed, to do what he perceived to be the right thing, and has frankly admitted his errors and taken responsibility for his actions.

The Hearing Committee’s report, which includes 189 findings covering fifty-eight pages, is extremely thorough and complete. Neither party challenged the factual findings and the only issue is the appropriate sanction. There are three counts. In two of the counts, the Respondent took positions adverse to a client whom he perceived to be acting in breach of the client’s duties to others. In the remaining count, it was alleged that the Respondent failed to segregate approximately $11,000 of funds after the client provided notice that he was contesting the Respondent’s entitlement to the funds as a fee. The Hearing Committee rejected the client’s belated contention that he did not agree to the use of the funds to pay a preexisting debt, and found that the third count did not warrant discipline.

The Appeal Panel finds that several factors support public reprimand as the appropriate level of discipline. First and foremost is that the Respondent was not motivated by personal gain or advantage. The Respondent sincerely, if somewhat prematurely, believed that his clients intended to breach their fiduciary duties to third persons, and the actions adverse to the clients which he undertook were for the purpose of preventing those perceived breaches. Ironically, the courses of actions that the Respondent undertook were more onerous for him than paths of less resistance, such as withdrawal from the situation, which would have insulated him from exposure to discipline but may have also enabled wrongdoing by the clients. Although the choices the Respondent made were improper, the Panel nonetheless acknowledges the Respondent’s efforts to choose the right, rather than the easy, course of action.

Equally significant is that the Respondent was faced with a fairly complex dilemma. The proper course of action for an attorney faced with a difficult client who appears to be committed to breaching his fiduciary duties to others in favor of his personal financial interests is a difficult dilemma. See Matter of Baylis, 19 Mass. Att’y Disc. R. 44 (2003); Rutenen v. Ballard, 424, Mass. 723 (1997). The choices the Respondent made, which included seeking to remove the client as fiduciary and breaching client confidences in the process, were improper as the Respondent now appreciates. Nonetheless, the Panel understands why an attorney might believe that simply withdrawing from the situation and allowing the client to retain another attorney more willing to assist in the breach of duty might appear to be a less attractive option.

Finally, the Respondent has clearly indicated that he accepts full responsibility for his actions, understands the mistakes he made and has educated himself in the field. Respondent represented himself on a pro se basis on the appeal. The Panel was impressed with the quality and thoroughness of the Respondent’s appellate brief, which demonstrated a mature understanding of the ethical issues, an appreciation of the mistakes made and an awareness of the more appropriate choices he should have pursued. Throughout the brief and appellate argument, the Respondent repeatedly indicated not only his understanding of the mistakes he had made, but a willingness to accept the discipline recommended by the Hearing Committee. If not for the appeal of Bar Counsel, it was clear that the Respondent would have accepted the sanction without further complaint. Such maturity in accepting outcomes with which one might disagree is a trait which should be more widespread.

In considering the appropriate sanction, the Hearing Committee correctly noted that “this case presents a relatively unique fact pattern.” When pressed as to the case most supportive of his request for a one - year suspension, Bar Counsel cited Matter of Wise, 433 Mass. 80 (2000), 16 Mass. Att’y Disc. R. 416 (2000), which resulted in a six - month suspension. Wise is similar only in that it also involves an attorney who engaged in a conflict of interest and who revealed confidential information about one client to disadvantage. It is dissimilar, however, in that Wise engaged in the conflicts only after the corporation which was his original client refused to pay his fee. His actions were expressly found to have been primarily motivated by personal financial gain. In addition, he “intended that harm…flow” to his client, and there was “nothing to suggest the respondent acknowledges wrongdoing and he has shown no remorse”. Id. at 430. In the present case, the Respondent was not motivated by personal financial gain and, in fact, his actions were likely against his financial interest as they angered the client while generating substantial additional work for which he was unlikely to be paid. He has also accepted responsibility and manifested and understanding of his errors. For these reasons, Respondent’s conduct is significantly less egregious than that of the attorney in Wise. Wise, therefore, not only fails to support Bar Counsel’s recommendation for a year’s suspension, it is authority for the proposition that a six - month suspension would be excessive.

Another case similar to Wise is Matter of Thurston, 13 Mass. Att’y Disc. R. 776 (1997). In that case, the attorney received a six - month suspension for engaging in a conflict of interest and making misrepresentations to one corporate partner in order to conceal fraud by the other partner. In recommendeding a six month suspension, the Board cited as aggravating factors that the lawyer had engaged in “actual fraud,” Id. at 792, an important factor not present in this case.

The Appeal Panel finds a more appropriate analogy to Matter of Baylis, 19 Mass. Att’y Disc. R. 44 (2003). Baylis violated various ethical rules in administration of a trust. In recommending a public reprimand the Board stated:

With respect to disposition, we find nothing in the respondent’s conduct, taken as a whole, to warrant the suspension Bar Counsel seeks. There was no self-dealing here, with the possible exception of paying, on his counsel’s advice, the expenses of defending actions he believed in good faith to be in the trust’s interests. The respondent was saddled with a bull-headed co-trustee, and while he did not handle the situation as he should have, he does not deserve to be suspended. The matter should be concluded by public reprimand.

Id. at 53. Much the same can be said of the Respondent’s dilemma and his response to it.

For all of the above reasons, the Appeal Panel recommends that the Respondent receive a public reprimand.

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