435 Mass. 445 | Mass. | 2001
The present bar discipline matter is before us on a reservation and report from a single justice of this court. Bar counsel asks us to adopt the recommendation of the Board of Bar Overseers (board) and suspend the respondent from the practice of law for eighteen months. The respondent does not challenge the underlying findings pertaining to his violations, but argues that, in light of the significant and unexplained delay in bringing the petition for discipline, during which time he committed no further violations, the appropriate sanction would be something less than suspension. We agree with bar counsel, and we impose an eighteen-month suspension from the practice of law.
In 1991, the respondent was engaged to represent a defendant charged with operating a motor vehicle while under the influence of alcohol (second offense) and leaving the scene after causing personal injury. At the time of her arrest, the defendant admitted that she was the operator of the vehicle involved in the accident. Notwithstanding that admission, a friend of the defendant came forward as an alibi witness, claiming that the defendant had been with her watching television at the time of the accident. Having done nothing to attempt to suppress his client’s statement to the police, and having failed to interview any of the three eyewitnesses to the accident named in the police report, the respondent decided to pursue a defense based on alibi and mistaken identification.
On the day of trial, the defendant and her alibi witness went to the Somerville Division of the District Court Department. At the respondent’s instruction, the defendant answered the first call of the list and requested that the matter "be held for second call. The respondent arrived shortly thereafter and spoke to the victim. From that conversation, he concluded that the victim would probably not be able to identify his client. Because his client and the alibi witness were somewhat similar in appearance, the respondent concocted a plan to have the alibi witness impersonate the defendant at second call, hoping thereby to confuse the victim and prompt a misidentification at trial. The respondent advised his client to remain in the back of the court room, and told the alibi witness to come forward to the microphone at second call.
The witness complied with this scheme, and came forward in answer to the second call of the defendant’s case. At that point, the prosecutor asked for a continuance due to the unavailability of a witness, and a continuance was granted. Consistent with the impersonation of the defendant, the alibi witness proceeded
By that time, the police investigator realized that-the person who had come forward was not the defendant. He notified the prosecutor, and the two approached the respondent. The prosecutor pointed at the woman signing the continuance form and asked respondent if the woman was his client. The respondent said that she was. The police investigator interrupted, insisting that the woman signing the continuance form was not the defendant. He pointed to a woman who was walking out of the court room, and identified her as the defendant. The respondent then acknowledged that the woman leaving the court room was in fact the defendant.
The respondent, the defendant, and the alibi witness left the court house. The prosecutor, after examining the forged signature on the continuance form and confirming that it was not the defendant’s signature, asked the court for a third call, where she alerted the judge to the impersonation that had occurred at second call. As a result, the judge issued a default warrant for the defendant.
Three days later, the respondent and the defendant appeared in court again. At that time, the respondent misrepresented to the court that there had been “some confusion” during the second call on trial day and that he had not realized at the time that the defendant’s alibi witness had come forward in answer to the call instead of the defendant herself. He claimed that he had had his back to the microphone and had not seen who was standing at the microphone. The judge then issued a capias for the arrest of the witness who had impersonated the defendant.
The respondent contacted his client and her witness later that same day. Explaining that they would be questioned about the incident, he advised them to tell the judge that they, too, had been “confused” at the time. The next day, when the witness appeared in court in response to the capias, the judge informed her that she faced criminal contempt charges and appointed counsel for her. One month later, in exchange for an agreement not to prosecute, the witness confirmed that her impersonation of the defendant had been orchestrated by the respondent.
The respondent proceeded to represent the defendant at her
On April 29, 1992, the prosecutor’s office notified the board of the incident and asked that the board investigate. The respondent claims that, shortly thereafter, he had discussions with bar counsel and that, within one year from the date the investigation had started, he was led to believe that the matter would be resolved by his attendance at a skills practice course. He attended the course, and claims that he thought the investigation had concluded.
On May 29, 1998, six and one-half years after the impersonation incident, bar counsel filed a petition for bar discipline alleging various ethical violations stemming from that incident. The petition also alleged other violations stemming from an unrelated small claims matter that had been reported to the board in 1995. On this record, there is no explanation for the delay in bringing the petition for discipline.
The hearing committee conducted a hearing on the petition for discipline on December 2 and 4, 1998, and issued its report on July 15, 1999, finding no violation with respect to the small claims matter. However, the hearing committee sustained the allegations concerning the 1991 impersonation incident and concluded that the respondent had violated S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (4) (conduct involving dishonesty, fraud, deceit, or misrepresentation); S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (5), as appearing in 382 Mass. 769 (1981) (conduct prejudicial to administration of justice); S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (6), as appearing in 382 Mass. 769 (1981) (conduct adversely reflecting on fitness to practice law); S.J.C. Rule 3:07, Canon 6, DR 6-101 (A) (2), as appear
Bar counsel appealed from that recommendation, and appealed the committee’s decision with respect to the small claims matter. On December 13, 1999, the board voted to adopt the hearing committee’s findings of fact and conclusions of law with respect to both matters, but increased the recommended discipline to an eighteen-month suspension. The respondent sought reconsideration, which the board allowed but, on reconsideration, the board again recommended a sanction of an eighteen-month suspension. The matter was filed in the county court on June 5, 2000, and reserved and reported to the full bench on August 10, 2000.
2. Discussion. Bar counsel contends (and respondent does not dispute) that violations of the type at issue here ordinarily result
The respondent contends that the sanction to be imposed should be reduced due to the board’s delay in commencing disciplinary proceedings against him. He recommends as appropriate discipline either a public reprimand or, in the alternative, a term of suspension that is itself suspended during a probationary period. The delay warrants such a reduction in the sanction, he argues, because the delay was prejudicial to his defense against the charges and because he has, in the intervening years, practiced law without committing any further ethical violations. The sole disputed issue before us is whether a protracted and unexplained delay in the commencement of disciplinary proceedings should operate to reduce the sanction that is to be imposed.
Mere delay in the commencement of disciplinary proceedings does not result in dismissal of the proceedings. See Matter of London, 427 Mass. 477, 481 (1998), and cases cited. Rather, delay may be considered in mitigation. See Matter of Kerlinsky, 406 Mass. 67, 76 n.8 (1989), cert, denied, 498 U.S. 1027 (1991)
The respondent suggests a similar sort of prejudice here. He contends that, due to the passage of years, he could not locate other witnesses who had been present in court at the time of the incident. However, the hearing committee heard testimony from three percipient witnesses to the fraud on the court —- the assistant district attorney, the police investigator, and the respondent’s client — who confirmed that the impersonation scheme and subsequent attempted cover up had been concocted by the respondent. (Although the witness who impersonated the defendant did not testify before the hearing committee, her prior testimony under oath had also attributed responsibility for the scheme to the respondent.) While the respondent understandably would have liked to identify and question anyone who had been present, it appears speculative at best to suggest that any of those missing witnesses would have assisted the respondent. As in Matter of Kerlinsky, supra, the allegations against the respondent were well corroborated from other sources, and the delay was not “substantially prejudicial.”
Although- we have no case on point in Massachusetts, other jurisdictions have noted that delay in disciplinary proceedings can result in substantial hardship to an attorney where the public has already become aware of the misconduct and the attorney has suffered ongoing public censure prior to the conclusion of the delayed disciplinary proceedings. See Florida Bar v. Randolph, 238 So. 2d 635, 638 (Fla. 1970) (attorney suffered “professional embarrassment” and was “subjected to the stigma of community suspicion and criticism” prior to resolution of disciplinary complaint); Louisiana Bar Ass’n v. Edwards, 387 So. 2d 1137, 1139-1140 (La. 1980) (delay in disciplinary proceedings “operated to punish” attorney who was “subjected to years of public scrutiny, censure”). In substance, where an attorney has been subjected to a considerable period of public
The respondent contends that, notwithstanding his prior misconduct, he was capable of and did achieve a significant degree of rehabilitation prior to the commencement of disciplinary proceedings. During the six and one-half years that elapsed between the time of the impersonation incident and the issuance of the petition for discipline, the respondent contends that he practiced law without any further ethical violation. Thus, the respondent argues, the fact of his rehabilitation should be viewed as a substantial mitigating factor.
We recently rejected such an argument in a case where many years had elapsed between the commission of the violation and the commencement of disciplinary proceedings. Matter of Finn, 433 Mass. 418, 425 (2001). “The passage of time is not an appropriate factor in mitigation because many violations otherwise would go unvindicated, a result contrary to the best interests of the legal profession. We consider the absence of any complaints against the respondent for the past eight years a ‘typical’ mitigating factor that does not warrant a reduction in his sanction.” Id., citing Matter of Budnitz, 425 Mass. 1018, 1019 (1997), and Matter of Anderson, 416 Mass. 521, 527 (1993). The same is true here. The absence of ethical violations is the norm that is to be expected of any attorney. It is not a mitigating factor that would justify a significant reduction in sanction.
Even assuming that a demonstration of rehabilitation in the ' intervening years might be an appropriate factor to consider in a close case, it would not suffice to overcome the gravity of the original offenses at issue here. A knowing misrepresentation to a court is itself a serious violation, and that serious violation was then compounded by other aggravating factors. The
We also note that the respondent’s prior discipline was for a violation that also involved deceit, albeit a form of deceit that did not involve any tribunal.
We thus conclude that a suspension from the practice of law is still warranted, despite the passage of time, and agree with bar counsel that an eighteen-month suspension is comparable to the term of suspension ordered in such cases. The matter is
So ordered.
She presented not the original alibi defense, but testified that the defendant told her, immediately after the accident, that the victim (a teenage boy on a bicycle) had run into her car and that he was not injured.
The earlier admonition arose out of a misrepresentation to an insurance company that was a copayee on a settlement check. As a result of that misrepresentation, the respondent was able to cash the check and distribute the entire proceeds to himself and his client when a portion of those proceeds was owed to the copayee to discharge a lien.