The respondent, Matthew Cobb, appeals from the judgment of a single justice disbarring him from the practice of
On appeal the respondent claims that the single justice abused his discretion or committed a clear error of law (1) by adopting unsupported findings of the board that he converted client funds; (2) by failing to rule that statements made by the respondent, even if unfounded, were protected by the First Amendment to the United States Constitution; and (3) by failing to find that the respondent’s due process rights under the Fourteenth Amendment to the United States Constitution were violated where, he alleges, (a) the cases were improperly consolidated, (b) he was prejudiced by assistant bar counsel’s intentional delay in bringing charges, (c) the evidence did not establish conversion as pleaded, (d) the conduct for which the respondent was prosecuted is reasonably susceptible of different interpretations, (e) assistant bar counsel prosecuted the respondent unethically
1. Facts. We summarize the findings of fact and conclusions of law of the hearing committee that were adopted by an appeal panel of the board, and eventually by the full board itself. The single justice determined that the evidence supported these findings of fact. He also determined that the factual findings and inferences therefrom supported the board’s conclusions of law, and he adopted the conclusions of law.
a. Count one. The respondent, who has been a member of the bar of the Commonwealth since December 20, 1990, was retained by Dr. Omar Jaraki to represent him in his claim for damages arising from his termination as an emergency room physician at Melrose-Wakefield Hospital. The respondent filed suit on Dr. Jaraki’s behalf on June 11, 1993. In answers to interrogatories propounded by James Anderson of the firm Taylor, Anderson & Travers, attorney for the defendants, the respondent listed “Dr. Leo Rozenbaum” as one of Jaraki’s witnesses. Anderson recognized Dr. Rozenbaum as a client of one of his partners, Attorney Ellen Epstein Cohen. By letter dated January 19, 1995, Cohen notified Dr. Rozenbaum and asked him to contact her so the firm could determine whether it was in a conflict of interest by virtue of its representations of the defendants in the Jaraki suit.
On March 3, 1995, the respondent filed an ex parte motion seeking to restrain “Attorney Diane Taylor” of the firm Taylor, Anderson & Travers, as well as another attorney who is currently a judge in the United States District Court for the District of Massachusetts and who formerly had been Dr. Rozenbaum’s attorney, from “communicating by any means with Leo Rozenbaum, M.D., a witness in [this] action.” The motion also sought a short order of notice and contained a prayer for preliminary injunctive relief preventing the defendants, their officers, agents, and attorneys from contacting Dr. Rozenbaum. Although the judge did not consider the motion ex parte, he issued a short
The respondent’s ex parte motion falsely asserted that Attorney Taylor and Dr. Rozenbaum’s former attorney were urging Dr. Rozenbaum not to testify or were attempting to influence and alter his testimony in the Jaraki matter. The respondent drafted and filed an affidavit of Dr. Jaraki in support of the motion that also contained several false allegations. He had relied entirely on the representations of his client with no attempt at corroboration. He had no good grounds to support them.
On March 4, 1995, the respondent caused a subpoena duces tecum to be served on Dr. Rozenbaum at his place of employment, requiring production of a “letter from Attorney Diane Taylor.” On March 7, Attorney Cohen filed a motion to quash the subpoena on behalf of Dr. Rozenbaum. In a supporting affidavit Dr. Rozenbaum denied the allegations in the respondent’s motion and stated that he had no information about the Jaraki case, that he never discussed the Jaraki case with his former attorney or with Attorney Cohen (his personal attorney), and that he did not have a letter from an “Attorney Diane Taylor,” whom he did not know. Dr. Rozenbaum sought costs, attorney’s fees, and other sanctions. On March 16, the defendants in the Jaraki matter filed an opposition to the respondent’s motion for injunctive relief, together with a motion for sanctions. The motions were supported by the affidavit of Attorney Anderson, which stated, in part, that there was no attorney at his firm by the name of Diane Taylor. In fact, there was no Attorney Diane Taylor at the firm, a matter that was easily ascertainable.
On March 17, 1995, a hearing was held on the respondent’s motion, at which Drs. Jaraki and Rozenbaum testified. At the hearing the respondent asserted that Dr. Rozenbaum, Dr. Rozenbaum’s former attorney, and Attorney Diane Taylor were engaged in a criminal enterprise to prevent Dr. Rozenbaum from testifying. The judge denied the respondent’s motion and found that the respondent filed the motions for injunctive relief “in bad faith and without any reasonable inquiry,” in violation of Mass. R. Civ. P. 11,
The board adopted the conclusions of law of the hearing committee and found that the respondent’s conduct in filing pleadings with the court that contained scandalous or improbable allegations without conducting an investigation into those allegations violated S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (5), as appearing in
The board determined that the respondent’s conduct in asserting that Dr. Rozenbaum, Dr. Rozenbaum’s former attorney, and “Attorney Diane Taylor” were engaged in a criminal conspiracy when he had no grounds to support that claim violated DR 1-102 (A) (5), DR 1-102 (A) (6), and SJ.C. Rule 3:07, Canon 7, DR 7-106 (C) (1), as appearing in
The board further found that the respondent’s conduct in exposing and subjecting his client to sanctions for violation of rule 11 was a violation of S.J.C. Rule 3:07, Canon 7, DR 7-101 (A) (3), as appearing in
b. Count two. On February 26, 1992, the respondent sent a demand letter under G. L. c. 93A on behalf of John and Jane Doe (pseudonyms) to Dr. Michael Hayes and South Shore Neurology Associates, Inc. (South Shore), alleging that Dr. Hayes had sexually assaulted Mrs. Doe during a physical examination at South Shore in December, 1990. Attorney Alan Rose, then a partner at Nutter, McClennen & Fish (Nutter), responded on behalf of Dr. Hayes and South Shore. In his letter,
The respondent filed a suit against Dr. Hayes and South Shore. On November 12, 1992, he filed a complaint against Nutter and Attorney Rose that alleged the mailing of a copy of South Shore’s response to his thirty-day demand letter pursuant to G. L. c. 93A (demand letter) directly to Jane Doe was a violation of the disciplinary rules that subjected Nutter and Attorney Rose to civil liability. Instead of serving the complaint, the respondent mailed a copy to Attorney Rose and invited him to discuss settlement.
On December 1, 1992, the respondent served Nutter and Attorney Rose with an undated demand letter in which he referred to Dr. Hayes and South Shore as “[Nutter] and Rose’s (former?) clients.” By this letter the respondent was suggesting that Nutter and Attorney Rose could no longer represent their clients in light of the allegations against them in the matter. The purpose and effect of the letter was to interfere with the attorney-client relationship between Nutter and Attorney Rose on the one hand, and Dr. Hayes and South Shore on the other.
On December 4, 1992, Attorney Joseph Blute wrote to the respondent on behalf of Nutter and Attorney Rose. Citing relevant case law, Attorney Blute explained why the respondent’s claims were either not actionable or barred, and he suggested
On December 17, 1993, the respondent filed a new complaint on the Does’ behalf against Nutter, Attorney Rose, Dr. Hayes, and South Shore in which he alleged that mailing a copy of the response to the demand letter directly to Jane Doe violated G. L. c. 93A and the Massachusetts Civil Rights Act, invaded the Does’ privacy, and intentionally inflicted emotional distress on them. Nutter and Attorney Rose filed a motion to dismiss alleging several grounds, including absolute privilege, together with a motion for attorney’s fees under rule 11 and G. L. c. 231, § 6F. On February 2, 1994, a judge in the Superior Court (motion judge) conducted a hearing on the motion to dismiss. She dismissed the complaint against Nutter and Attorney Rose, concluding that Attorney Rose’s actions were “clearly privileged” and that the “mailing of the 93A reply directly to the plaintiff was not actionable.” On August 12, 1994, she conducted a hearing on the motion for sanctions and found that the complaint filed by the respondent was “patently lacking in any even arguable merit,” that the respondent had received the relevant legal research from Attorney Blute “demonstrating that lack of any viable cause of action,” and that the respondent had “pursued the action for the apparent purpose of depriving South Shore [and Dr. Hayes] of its chosen counsel.” The motion judge found that the respondent had violated rule 11, and she awarded
On September 29, 1994, the respondent filed a petition for interlocutory review and a motion for a stay of the order for sanctions. In his affidavit in support of interlocutory review, the respondent alleged that Nutter “must have some particular power or influence with the trial court judge” for the judge to overlook Nutter’s ethical breaches. A single justice of the Appeals Court denied the petition, and he awarded Nutter and Attorney Rose additional attorney’s fees of $3,244.50 and double costs for the respondent’s conduct in filing a “scandalous,” “impertinent,” and “frivolous” petition that is “devoid of any rational or supportable basis in fact or law, to the extent it accuses the judge of bias, unethical conduct, and inappropriate susceptibility to unspecified illegitimate influence of the lawyer respondents.”
On April 28, 1995, a different Superior Court judge (judgment judge) ordered entry of separate and final judgment on behalf of Nutter and Attorney Rose. He ordered the respondent to pay the $4,000 sanction, and erroneously ordered the Does to pay the $3,244.50 sanction (the sanction ordered by the Appeals Court single justice). The order was received by the respondent after Doe had paid him the $2,000 he requested. On June 5, 1995, the respondent filed a notice of appeal from the separate and final judgment. Also in June, 1995, the respondent settled the complaint against Dr. Hayes for $45,000. In his accounting of the settlement proceeds, the respondent credited the Does with their $2,000 payment for the sanctions ordered by the motion judge, but he deducted from their portion of the proceeds $3,244.50, plus $227.11 interest for the sanctions imposed by the single justice of the Appeals Court. He told the Does that he
In September, 1995, the respondent filed a brief on appeal from the entry of separate and final judgment of dismissal and the orders for sanctions. He charged the Does for work done on this appeal. On August 16, 1996, the Appeals Court affirmed the orders of the motion judge and its single justice. The court stated, “[W]e affirm the judgment dismissing the complaint and the orders of the motion judge and the single justice’s assessing sanctions against plaintijfs’ counsel. We also consider this appeal frivolous and award double costs against the plaintiffs’ counsel.” (Emphasis added.) Doe v. Nutter, McClennen & Fish,
The board adopted the conclusions of law of the hearing committee and found that the respondent’s conduct in filing suit against Nutter and Attorney Rose when he knew or should have known that the claim was unwarranted under existing law and when there was no good faith basis for pursuing the claim constituted a violation of rule 11; DR 1-102 (A) (5); DR 1-102 (A) (6); and S.J.C. Rule 3:07, Canon 7, DR 7-102 (A) (2), as appearing in
The board found that the respondent’s conduct in alleging in pleadings filed in the Appeals Court that the motion judge had been influenced improperly in dismissing the complaint and in imposing sanctions on him when he had no good ground to support such accusations was a violation of rule 11; DR 1-102 (A) (5); DR 1-102 (A) (6); and S.J.C. Rule 3:07, Canon 7, DR 7-102 (A) (1), as appearing in
The board determined that the respondent’s conduct in misrepresenting to his clients that sanctions had been assessed against them instead of telling them that he had been sanctioned personally was a violation of S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (4), as appearing in
The board further found that the respondent’s conduct in converting $3,471.61 of the clients’ share of the settlement proceeds to pay sanctions that had been assessed to him personally violated DR 1-102 (A) (4); DR 1-102 (A) (5); S.J.C. Rule 3:07, Canon 9, DR 9-102 (B) (3), as appearing in
In February, 1998, the respondent represented to counsel for the defendants and to the judge that Malave would accept $30,000 to settle all her claims against the defendants. On March 11, 1998, during a break in Malave’s deposition, counsel for the defendants told the respondent that his clients would not settle for $30,000, but that he would recommend settling for $15,000. The respondent conveyed the offer to Malave, who telephoned the respondent’s office the next day and left a message on his answering machine informing him that she would not settle for less than $30,000. On March 16, Malave repeated her decision to the respondent directly over the telephone.
On March 18, 1998, the respondent telephoned counsel for the defendants and made a demand of $15,000 to settle the case. That same day the respondent telephoned Malave and tried to convince her to settle for $15,000, but she refused to settle for that amount. The respondent telephoned counsel for the defendants later that day to confirm the $15,000 settlement. Malave telephoned her son in Atlanta, Georgia, and asked him to contact the respondent and tell him to stop trying to force her to settle for $15,000. Malave’s son left a detailed message with a woman who answered the telephone at the respondent’s law office. The respondent never returned the telephone call to Ma-lave’s son. On March 24, 1998, Malave engaged Attorney Robert Hernandez to assist her. On March 25, Attorney Hernandez telephoned the respondent, who said that as far as he was concerned the case was settled for $15,000 in accordance with the authority Malave had given him.
On May 14, 1998, the defendants’ motion to enforce the settlement was allowed, without an evidentiary hearing. On June 28, 1998, Attorney Hernandez, on behalf of Malave, appealed from the order to the United States Court of Appeals for the First Circuit. The Court of Appeals vacated the order and remanded the case for an evidentiary hearing on whether the respondent had actual authority from Malave to settle her case. See Malave v. Carney Hosp.,
The board found that the respondent’s conduct in failing to advise opposing counsel that his client did not wish to settle for $15,000 violated Mass. R. Prof. C. 1.2,
The board further found that the respondent’s conduct in purporting to disclose client communications to the judge and opposing counsel without his client’s authorization and against his client’s interests violated Mass. R. Prof. C. 1.6 (a),
2. Sufficiency of the evidence of conversion. The respondent argues that the single justice erred by concluding that the evidence supports the board’s finding that he converted $3,471.61 of the Does’ share of the settlement proceeds to pay sanctions that had been assessed to him personally. He contends that there was no evidence to support this finding. When reviewing the subsidiary findings of the board in a bar discipline case, we inquire whether the findings are supported by substantial evidence. See Matter of Segal,
There is substantial evidence in the record to support a finding of conversion. First, the order of August 12, 1994, required
Second, the respondent has converted $3,471.61 of the Does’ property by misrepresenting to them that they were sanctioned by the single justice of the Appeals Court, when it was he who was sanctioned. Although the single justice did not specify who was to pay the $3,244.50 sanction, a point the respondent relies on for his contention that the order was unclear as to whether it was directed at him or his clients, it is obvious from the nature of the proceedings that the sanction was directed at him. The petition for interlocutory relief concerned the dismissal of the action under G. L. c. 93A action against Nutter and Attorney Rose that arose out of the conduct of litigation about which the respondent, and not his clients, possessed knowledge. It was the respondent’s conduct that produced the dismissal of that portion
Moreover, in the background portion of its opinion in Doe v. Nutter, McClennen & Fish,
The single justice did not abuse his discretion or commit a clear error of law by adopting the findings of the board that the respondent converted client funds.
3. Protected speech. The respondent contends that two statements he made concerning the motion judge and Dr. Rozenbaum’s former attorney (now a United States District Court
The respondent’s reliance on Bridges v. California,
The Supreme Court has said that “[i]t is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed .... Even outside the courtroom, a majority of the Court in two separate opinions in the case of In re Sawyer, [
Statements by an attorney critical of a judge in a pending case in which the attorney is engaged are especially disfavored. In Bradley v. Fisher,
We turn to the question of the standard to be applied in
A majority of State courts that have considered the question have concluded that the standard is whether the attorney had an objectively reasonable basis for making the statements. Generally, these cases involve the application of the equivalent of current Mass. R. Prof. C. 8.2,
The majority view, which rejects the applicability of the “actual malice” or subjective knowledge test of New York Times Co. v. Sullivan, supra, is best expressed by reasoning from two cases. The first is Matter of Terry, supra at 502-503, where the court said:
“The Respondent is charged with professional misconduct, not defamation. The societal interests protected by these two bodies of law are not identical. Defamation is a wrong directed against an individual and the remedy is a personal redress of this wrong. On the other hand, the Code of Professional Responsibility encompasses a much broader spectrum of protection. Professional misconduct, although it may directly affect an individual, is not punished for the benefit of the affected person; the wrong is against society as a whole, the preservation of a fair, impartial judicial system, and the system of justice as it has evolved for generations .... Unwarranted public suggestion by an attorney that a judicial officer is motivated by criminal purposes and considerations does nothing but weaken and erode the public’s confidence in an impartial adjudicatory process.”
The second case is In re Graham, supra at 322, where the court said:
“This court certifies attorneys for practice to protect the public and the administration of justice. That certification implies that the individual admitted to practice law exhibits a sound capacity for judgment. Where an attorney criticizes the bench and bar, the issue is not simply whether the criticized individual has been harmed, but rather whether the criticism impugning the integrity of judge or legal officer adversely affects the administration of justice and adversely reflects on the accuser’s capacity for sound judgment. An attorney who makes critical statements regarding judges and legal officers with reckless disregard as to their truth or falsity and who brings frivolous actions against members of the bench and bar exhibits a lack of judgment that conflicts with his or her position as ‘an officer of the legal system and a public citizen having special responsibility for the quality of justice.’ Minn. R. Prof. Conduct, Preamble.”
We agree with the reasoning in these cases.
We also agree with the Court of Appeals of New York, where it said in Matter of Holtzman, supra at 192, that “[ajccepting petitioner’s argument [as to the applicability of the ‘actual malice’ or subjective knowledge standard] would immunize all
Judges are not above criticism or immune from review of their court room conduct. See, e.g., Commonwealth v. Sylvester,
This requirement may be inconsistent with the manner in which one generally may engage in free and public debate in our society, but it is essential to the orderly and judicious presentation of cases in a court room. “Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” Bridges v. California,
We turn to the particulars of the speech in question and review the record to determine whether there is substantial evidence to support the finding that the respondent had no good ground to support his allegation as to the motion judge (DR 1-102 [A] [5], [6], and DR 7-102 [A] [1]). With respect to the allegations concerning the attorney who has become a United States District Court judge, we inquire whether there is substantial evidence to support the finding that the respondent had no reasonable basis to believe that his statements about her would be supported by admissible evidence (DR 1-102 [A] [5], [6], and DR 7-106 [C] [1]). Although these rules do not use the precise terms, we conclude that they require attorneys to have an objectively reasonable basis for allegations made in court.
The respondent asserts that the facts in the Doe matter permitted a “reasonable inference of bias [on the part of the motion judge], because ... a judge is absolutely required to act when she is made aware of unethical conduct.” We need not belabor this point because it has been decided by the Appeals Court in Doe v. Nutter, McClennen & Fish,
There is no merit to the respondent’s assertion that the other basis for alleging bias on the part of the judge is her alleged failure to disclose to him that Attorney Blute had engineered, ex parte, a change in the assignment of the judge originally assigned to the case, and that Attorney Blute admitted as much at the hearing before the hearing panel. The hearing committee rejected these assertions and found to the contrary. The panel found that one Superior Court judge, who originally was assigned to the Doe matter, recused himself because he had been a partner at Nutter before becoming a judge. The case thereafter was reassigned. There is no evidence of any impropriety by the judge to whom the case was reassigned, and the need for reassignment of the case because of the potential conflict for both is obvious and unremarkable. The respondent voiced no objection when the motion judge to whom the case was reassigned appeared on February 2, 1994, to preside over the hearing. Moreover, the transcript of that hearing indicates that she was patient, respectful, and courteous, that she conducted a thorough hearing, and that she gave the respondent every opportunity fully to argue his motion.
The respondent’s assertion in the Jaraki matter that Dr. Rozenbaum, Dr. Rozenbaum’s former attorney, and Attorney Diane Taylor were engaged in a criminal conspiracy to prevent Dr. Rozenbaum from testifying was based entirely on the affidavit of Dr. Jaraki, which had been prepared by the respondent. Dr. Jaraki’s assertions, in turn, purportedly were based on statements of Dr. Rozenbaum, which, in his affidavit, Dr. Rozenbaum denied making. In his testimony at the hearing on Dr. Jaraki’s motion for a preliminary injunction, Dr. Rozenbaum
Finally, the respondent contends that the single justice committed a manifest error of law and otherwise abused his discretion by ignoring the respondent’s “right to, as an officer of the court, report — without fear of penalty therefore ] — under his safe harbor responsibility the prima facie unethical doings of Judges in ongoing court proceedings.” The “safe harbor responsibility” of which he speaks is not a responsibility, but a provision in a court rule concerning extrajudicial statements by attorneys. The respondent’s reliance on Gentile v. State Bar of Nev.,
4. Due process claims.
a. Consolidation. There is no merit to the claim that the consolidation of the cases to establish a “pattern” of misconduct violated the respondent’s due process rights. We have said that
b. Delay. The respondent contends that he was prejudiced by delay in the disciplinary proceedings because it rendered Dr. Jaraki, who moved out of State, unavailable. He also claims that the first two cases are too old (the petition for discipline was filed on February 12, 2001).
The appeal panel correctly rejected this argument because the respondent did not properly argue the issue to the hearing committee, but only baldly asserted that Dr. Jaraki was unavailable and that the delays were per se unconstitutional. See Rule 3.51(a)(1)(iv) of the Rules of the Board of Bar Overseers (2005) (“briefs on appeal shall contain . . . [t]he argument in support of the appeal with appropriate references to the record and legal authorities”). The claim lacks merit, in any event. Mere delay does not require dismissal of the proceedings, see Matter of London,
The respondent received a subpoena for Dr. Jaraki, and if Dr. Jaraki were not subject to service of the subpoena because he moved out of State, the respondent could have taken his deposition. See Rules 4.9(a), 4.11 of the Rules of the Board of Bar Overseers (2005). The record includes both Dr. Jaraki’s affidavit and the transcript of his testimony at the hearing on his motion for a preliminary injunction on March 17, 1995, in the Superior Court where he was questioned about his affidavit. They were considered by both the hearing committee and the board. In addition, Dr. Rozenbaum’s former attorney testified that she never spoke to Dr. Rozenbaum in 1995, and Attorney Ellen Epstein Cohen testified that she never told Dr. Rozenbaum not to testify in the Jaraki matter and that she did not know Dr. Rozenbaum’s former attorney. The record also includes the transcript of Dr. Rozenbaum’s testimony at the March 17, 1995, hearing. The allegations against the respondent
c. Variance. The respondent contends that his due process rights were violated because the evidence on which his discipline rests as to conversion of the Does’ money is at variance with the allegations. Dismissal on the grounds of variance between the allegations and the proof is not required if the charges have been correctly specified, unless the respondent is thereby prejudiced in his defense. Cf. Commonwealth v. Grosso,
This claim was not made before the hearing committee or the board, and is deemed waived. See Sugarman v. Board of Registration in Med.,
Assistant bar counsel modified her theory of conversion in response to the respondent’s evidence. For example, she claimed error by the judgment judge who ordered entry of judgment (his only contact with the case) for payment of the $3,244.50 sanction to be made by the Does. What is important is that the essence of the charge did not change. The respondent’s due process rights were not violated, and he has shown no prejudice. See Matter of Saab, supra at 324-325.
d. Notice. The respondent contends that he may not properly
The respondent had argued in the Superior Court that Attorney Rose’s letter could provide the basis for a civil action because the letter was not privileged. He argued that it was not privileged because it did not in good faith threaten a lawsuit. He reasoned that because his own demand letter was absolutely privileged under Sriberg v. Raymond, supra, it could not provide a good faith basis for a defamation action as Attorney Rose had intimated in his response. Because Attorney Rose lacked a good faith basis to sue for defamation, the mention of defamation in his letter could not be privileged. The motion judge rejected this argument, as did the Appeals Court. See Doe v. Nutter, McClennen & Fish, supra at 140-141, quoting Sriberg v. Raymond, supra at 109 (“the privilege . . . attaches to statements made by an attorney ‘in the institution or conduct of litigation or in conferences and other communications preliminary to litigation’ ” [emphasis added]). The “litigation” privilege does not benefit only potential plaintiffs in G. L. c. 93A cases, and the Federal magistrate judge recognized this. See Meltzer v. Grant, supra at 379, discussing Doe v. Nutter, McClennen & Fish, supra. The Meltzer case does not support the respondent’s claim. Moreover, the respondent ignores the significant factual difference between the two cases.
e. Prosecutorial misconduct. The respondent claims that his due process rights were violated by the prosecutorial misconduct of assistant bar counsel. His claims are conclusory and unsupported by the record. There is no evidence, as he claims, that assistant bar counsel “intentionally tricked” and “economically coerced” the Does into signing on to her accusation of conversion of client funds. The testimony of John Doe, but especially the documentary evidence and the transcript of the hearing on
f. Vindictiveness. There is utterly no support for the respondent’s claim that assistant bar counsel vindictively sought to punish him for “reporting] highly questionable acts of two popular judges.” Moreover, it is waived because it was not argued before the hearing committee. Sugarman v. Board of Registration in Med., supra.
g. Arbitrariness. The respondent alleges that “the entire Lawyer Discipline . . . System in Massachusetts . . . cannot produce anything other than an arbitrary result.” The issue was first presented to the appeal panel as nothing more than a bald assertion and was properly rejected because it was not properly argued in his brief. See Rule 3.51(A)(14)(iv) of the Rules of the Board of Bar Overseers. We likewise reject the claim.
The single justice did not abuse his discretion, nor did he commit a clear error of law, by rejecting the respondent’s due process claims or by adopting the findings and rulings of the board.
5. Appropriateness of sanction. When reviewing a sanction imposed by the single justice we inquire whether it is markedly disparate from judgments in comparable cases. Matter of Alter,
Other misconduct of the respondent that warrants suspension includes groundless and scandalous accusations of misconduct against judges and opposing counsel, previously discussed. The respondent also made misrepresentations to the court about his
In aggravation, the hearing committee and the board found that, at the time of his misconduct, the respondent had substantial experience in the practice of law. See Matter of Luongo,
The respondent has demonstrated rather convincingly by his quick and ready disparagement of judges, his disdain for his fellow attorneys, and his lack of concern for and betrayal of his clients that he is utterly unfit to practice law. The only appropriate sanction is disbarment.
The judgment of the single justice is affirmed.
So ordered.
Notes
Of the three counts considered against the respondent, two counts address conduct before 1998 and one count addresses conduct after 1998. The Massachusetts Rules of Professional Conduct took effect on January 1, 1998, and apply to conduct occurring on or after that date.
The complaint was dismissed without prejudice on March 16, 1993, for lack of prosecution pursuant to the Superior Court Standing Order 1-88 on Time Standards.
In re Sawyer,
Rule 8.2 of the Massachusetts Rules of Professional Conduct,
Supreme Judicial Court Rule 3:07, Canon 8, DR 8-102 (B),
Kentucky Bar Ass’n v. Waller,
Rule 3.6 of the Massachusetts Rules of Professional Conduct,