429 Mass. 121 | Mass. | 1999
Lead Opinion
This is an appeal from an order of a single justice of this court, acting on an information filed by the Board of Bar Overseers (board), suspending Alan J. Karahalis (respondent), from the practice of law for two years. Both the respondent and the bar counsel appealed from the judgment of suspension.
In November, 1995, bar counsel filed a petition for discipline against the respondent, alleging violations of S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (5), as appearing in 382 Mass. 769 (1981) (engaging in conduct that is prejudicial to the administration of justice), and S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (6), as appearing in 382 Mass. 769 (1981) (engaging in any other conduct that adversely reflects on his fitness to practice law).
1. Facts as found by hearing committee. In 1985, Andrew and Deborah Gerakaris approached the respondent and suggested that the respondent’s uncle, who was in the Federal prison system, could be moved to a more convenient location if several thousand dollars were paid to Congressman Mavroules.
The respondent knew that the purpose of these payments was to induce a public official to utilize his official position in facilitating the transfer of the respondent’s uncle to a prison in
In referring the matter to the board, the office of the United States Attorney noted the respondent’s complete cooperation and assistance in the prosecution of Mavroules. The respondent was neither convicted nor even charged with any criminal violations as a result of his conduct. Mavroules pleaded guilty to a multi-count indictment, including one count relating to the extortion of $12,000 from the respondent’s family to influence the transfer of the respondent’s uncle.
2. Appropriate discipline. In reviewing the judgment of the single justice, we inquire “whether the sanction imposed is markedly disparate from sanctions imposed in similar cases.” Matter of Chambers, 421 Mass. 256, 259 (1995), quoting Matter of Garabedian, 416 Mass. 20, 24 (1993). “In selecting a sanction, we should consider its effect on, and the perception by, the public and its deterrent effect on other lawyers contemplating similar conduct.” Matter of Kennedy, 428 Mass. 156, 158 (1998). “In applying this standard, it is appropriate for us to consider the cumulative effect of the several violations committed by the respondent.” Matter of Palmer, 413 Mass. 33, 38 (1992), citing Matter of Saab, 406 Mass. 315, 326-327 (1989). We are mindful that the recommendation of the board is entitled to substantial deference. See Matter of Palmer, supra at 40; Matter of Alter, 389 Mass. 153, 157-158 (1983).
In cases where an attorney has engaged in conduct similar to the respondent’s, the sanction imposed has often resulted in indefinite suspension. In Matter of O’Donnell, 5 Mass. Att’y Discipline Rep. 279 (1987), an indefinite suspension was imposed on an attorney who was convicted of violating the Travel Act, 18 U.S.C. §§ 371, 1952, where the attempt to bribe the public official occurred out of State, in violation of G. L. c. 268A, § 2.
Both parties contest the board’s reliance on Matter of DeMarco, 5 Mass. Att’y Discipline Rep. 94 (1987), as guidance for determining the appropriate sanction in the present case. In Matter of DeMarco, supra, a single justice imposed a two-year suspension on an attorney who was a principal in a cable company and was aware his agent bribed a public official but took no action to reveal or to correct the fraud. Although this case is similar to Matter of DeMarco, supra, the respondent’s conduct was more egregious in that he actively participated in the bribery. In addition, the respondent has a history of misconduct.
However, we are cognizant of mitigating factors in this case. The respondent fully cooperated with the office of the United States Attorney in the prosecution of Mavroules. The respondent’s illegal actions were motivated by his desire to help a family member, rather than for his own pecuniary interests. Moreover, the respondent was not convicted of any crime relating to this matter. See Matter of Alter, supra at 155 (these circumstances do not implicate court’s “special concern for the public interest when an attorney has been convicted of a serious crime”).
Nevertheless, we conclude that the committee’s recommendation that the respondent be suspended from the practice of law for a period of four years is consistent with sanctions imposed in similar cases. Accordingly, we vacate the judgment ordering a two-year suspension and direct that a judgment suspending the respondent from the practice of law for a period of four years be entered.
So ordered.
The former Canons of Ethics and Disciplinary Rules have been replaced by the Massachusetts Rules of Professional Conduct which became effective January 1, 1998. S.J.C. Rule 3:07, as appearing in 426 Mass. 1303 (1998) (Massachusetts Rules of Professional Conduct).
The respondent argues that the complaint was stale and should have been dismissed. Section 2.5 of the Rules of the Board of Bar Overseers (1985) provides:
“Except where the Bar Counsel or the Board determines otherwise for good cause, the Bar Counsel or the Board shall not entertain any grievance . . . arising out of acts or omissions occurring more than six years prior to the date of the .grievance . . . .”
In the present case, the misconduct was not discovered until 1992, and the Federal prosecution of Congressman Mavroules was not completed until 1993. The petition for discipline was filed with the board on November 30, 1995. The matter was subsequently approved for formal prosecution by a board member on January 17, 1996. The respondent’s contention that the complaint was stale because bar counsel failed to demonstrate good cause for delay is without merit. See Matter ofAbagis, 386 Mass. 1001, 1001 (1982) (delay due to civil litigation pending was implicitly “good cause” and therefore timely); Matter of Kipp, 383 Mass. 869, 870 (1981) (relevant inquiry is whether complaints were timely prosecuted after discovery).
Deborah Gerakaris is Mavroules’s daughter. Prior to 1985, the respondent’s uncle, who resided in Florida, had been convicted of felony drug charges and was assigned to a Federal prison in Danbury, Connecticut. This assignment was inconvenient because it was difficult for the family, who lived in Florida, to visit him.
The respondent in that case was also indicted for wrongfully conspiring to travel in interstate commerce and to use wire and telephone facilities to promote, carry on, and facilitate bribery, in violation of G. L. c. 268A, § 2. The indictment charged that there was a direct or indirect corrupt giving, offering, or promising of $50,000 to a selectman to influence his vote for the purposes of securing a cable television license for the respondent’s client. Matter of O’Donnell, 5 Mass. Att’y Discipline Rep. 279 (1987).
The hearing committee disregarded the respondent’s disciplinary history, stating that these prior decisions were procedural and administrative in nature. The board properly concluded that the committee erred, and noted that prior discipline should be a factor in determining the appropriate sanction. The primary factor for consideration in matters of bar discipline is the effect on and the perception of the public and the bar. Matter of Alter, 389 Mass. 153, 156 (1983). Accordingly, it is appropriate to consider the respondent’s disciplinary record in determining the appropriate sanction to be imposed without regard to when the infractions occurred. See Matter of Palmer, 413 Mass. 33, 40 (1992), citing Matter of Saab, 406 Mass. 315, 327 (1989).
Concurrence Opinion
(concurring). Although I join the court in imposing a four-year suspension in this case, I believe the two-year suspension recommended by the board and imposed by the single justice is more appropriate. The two-year suspension takes into consideration the deference due the board, the recommendation of the United States Attorney, the fact that no criminal sanctions were imposed on the respondent, that this was more a case of extortion than bribery, that the respondent was motivated by family loyalty rather than pecuniary gain, that ten years elapsed from the events to the time of prosecution, and that the impetus behind the fraudulent scheme came from Congressman Mavroules and his family.