430 Mass. 359 | Mass. | 1999
This is an appeal from a decision of a single justice on an information filed in the county court by the Board of Bar Overseers (board) recommending that the respondent be suspended from the practice of law for two years. On February 25, 1994, a judge in the United States District Court for the District of Massachusetts entered an order for a judgment of
The respondent asserts that the board’s proceeding was barred by preclusion principles, the board’s findings were not supported by substantial evidence, and the length of the suspension was disproportionately long. We reject each of the respondent’s contentions and conclude that a two-year suspension is appropriate.
1. Facts. We summarize the facts found by a hearing committee of the board. The respondent was admitted to the Massachusetts bar in 1974. Since his admission, the respondent has engaged in a general legal practice with an emphasis on real estate matters. In the spring of 1987, the respondent was hired by the Dime Savings Bank of New York (Dime) as a closing attorney. On behalf of Dime, the respondent conducted all of the closings on the condominium units at Hawthorne Village in North Attleborough.
In order to facilitate the sale of the condominium units, the owner offered incentives to buyers, which included second mortgage financing, a decorating allowance, and cash credits. These incentives obviated the need for a buyer to make a down payment to purchase a condominium unit.
Charles McCormick became the lead condominium unit purchaser. He located and organized a syndicate of investors to buy condominium units. Attorney Thomas Behenna represented McCormick in the condominium unit sales and coordinated financing with the parties including second mortgages.
The closings on the condominium units began in September, 1987. Dime acted as the mortgage lender to the McCormick
The respondent presided over closings on September 16, 1987, October 28, 1987, November 4, 1987, and December 1, 1987, where secondary loan financing was discussed. On September 16, the participants engaged in an argument, in front of the respondent, over who was to pay for preparing the second mortgages.
Included among the closing documents were regulatory forms, which the respondent had an obligation to see were complete and accurate, but which failed to disclose the existence of any secondary financing. Thus, the board concluded that, because the respondent knew of the second mortgages, he falsely submitted the documents and did not notify Dime about concerns he had regarding the forms’ false information.
The respondent was charged in the Federal District Court with making false statements to a federally insured bank under 18 U.S.C. § 1014. At the close of the evidence, the judge allowed the respondent’s motion for an acquittal because the
2. Preclusion. The respondent first contends on appeal that, because he was acquitted in United States District Court, the board is prohibited from bringing a subsequent disciplinary action against him arising from the same conduct. He relies on SJ.C. Rule 4:01, § 11, as appearing in 425 Mass. 1313 (1997), to support his position. The rule provides in part:
“The acquittal of the respondent lawyer on criminal charges, or a verdict, judgment, or ruling in the lawyer’s favor in civil, administrative, or bar disciplinary proceedings shall not require abatement of a disciplinary investigation predicated upon the same or substantially similar material allegations.”
The respondent asserts that the interpretation of rule 4:01 is governed by the maxim, the expression of one thing is an implied exclusion of things omitted. See Harborview Residents’ Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425, 432 (1975), and cases cited. The respondent argues that, by expressly permitting the board to conduct further investigations after an acquittal, the rule impliedly denies the board the power to proceed with a bar disciplinary proceeding after an acquittal. The maxim on which the respondent relies “is not to be followed where to do so would frustrate the general beneficial purposes of the legislation.” Brady v. Brady, 380 Mass. 480, 484 (1980), quoting Harborview Residents’ Comm., Inc. v. Quincy Hous. Auth., supra. Furthermore, each portion of a rule must be read in relation to the entire scheme to understand the relation of one part of a rulé to the rule as a whole. Cf. Saccone v. State Ethics Comm’n, 395 Mass. 326, 334 (1985) (“We look ... to the
We conclude that S.J.C. Rule 4:01, § 11, does not prevent the board from conducting a bar disciplinary proceeding after an attorney has been acquitted in a substantially similar criminal matter.
In the absence of any specific provisions in the rule, general rules of collateral estoppel govern. It is well established that an acquittal in a criminal trial does not prevent civil proceedings addressing the same facts because civil sanctions require a different standard of proof than a criminal conviction. See Krochta v. Commonwealth, 429 Mass. 711, 718 (1999); Doherty v. Retirement Bd. of Medford, 425 Mass. 130, 140 (1997); Commissioners of Civil Serv. v. Municipal Court of the Brighton Dist., 369 Mass. 166, 173-174 (1975), cert. denied sub nom. Patuto v. Commissioners of Civil Serv., 429 U.S. 845 (1976); Chief of the Fire Dep’t of Boston v. Sutherland Apartments, Inc., 346 Mass. 685, 690 (1964); Matter of Dolan, 10 Mass. Att’y Discipline Rep. 59, 62 (1994). The omission of the term “prosecution” from the last sentence of the rule is not an implied deviation from this long-standing principle. Cf. Cousineau v. Laramee, 388 Mass. 859, 862 (1983), quoting Dexter v. Commissioner of Corps. & Taxation, 316 Mass. 31, 38 (1944) (“A statute should not be interpreted to ‘require a radical change . . . in the existing law [if] the act does not manifest any intent that such a change should be effected’ ”).
Our decision in Matter of Concemi, 422 Mass. 326 (1996), is not to the contrary. There we held that “the certificate of conviction is conclusive as to the conduct alleged therein,” id. at 329,
The judge in the United States District Court did not conclusively find facts that would require that the bar discipline proceedings be decided in the respondent’s favor. In the Federal court he was charged with making false statements to a federally insured bank. He was acquitted because there was no proof that the respondent made the statements to a federally insured bank. Thus, the fraudulent nature of the respondent’s statements was not conclusively determined by the judgment of acquittal. Therefore, bar counsel could properly litigate the respondent’s knowledge and intent before the board.
3. Substantial evidence. We review the determination of the board only to determine whether it is supported by substantial evidence in the record. See G. L. c. 30A, § 14 (7) (e). “ ‘Substantial evidence’ means such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6). The scope of our inquiry is limited. While we review the entire record and consider whatever detracts from the weight of the board’s conclusion, as long as there is substantial evidence, we do not disturb the board’s finding, even if we would have come to a different conclusion if considering the matter de nova. See Arthurs v. Board of Registration in Medicine, 383 Mass. 299, 304 (1981). The thrust of our inquiry is to determine by what process and by what evidence the board reached its ultimate conclusion.
The hearing committee heard live testimony and considered documentary evidence and substantial portions of transcripts from the respondent’s criminal trial.
It was not improper for the committee to rely on transcripts from the criminal trial in reaching its conclusion. The admissibility of evidence in board proceedings is governed by the
Here, the declarants were testifying under oath on a contested issue in the criminal trial and were subject to a vigorous cross-examination by the respondent’s attorney. There was sufficient indicia of reliability for the hearing committee to rely on the transcript.
The respondent contends that the trial testimony contains internal contradictions and the board cannot choose which version of facts to believe.
In this case, however, there is ample support for the board’s reliance on the transcript.
The board also relied on live testimony before the hearing committee. Behenna’s testimony before the hearing committee supports the board’s version of facts over conflicting versions which appear in the criminal transcript. There is conflicting testimony in the transcript whether the respondent was present at Greene’s closing on December 1. See note 8, supra. Behenna testified that the respondent was present at the closing and that second mortgaging was discussed.
4. Disposition. We review the sanction imposed by the single justice to determine, “whether the judgment is markedly disparate from those ordinarily entered by the various single justices in similar cases.” Matter of Kerlinsky, 428 Mass. 656, 664 (1999), quoting Matter of Clooney, 403 Mass. 654, 658 (1988). The respondent was suspended for two years for making false statements and material omissions. The respondent was not disbarred because he was not convicted of a crime. See Matter of Concemi, 422 Mass. 326, 329 (1996) (“disbarment or indefinite suspension is the usual sanction imposed for a felony conviction”). However, cases involving the making of false statements are dealt with seriously because of “the effect upon, and perception of, the public and the bar.” Matter of Mclner-ney, 389 Mass. 528, 535 (1983), quoting Matter of Alter, 389 Mass. 53, 56 (1983).
The facts of this case are closely related to Matter of Eastwood, 10 Mass. Att’y Discipline Rep. 70 (1994). Eastwood closed two mortgage loans in which secondary financing was not recorded on the closing documents. He did not know until the closings that the buyers were giving a second mortgage to
So ordered.
The board concluded that the respondent violated S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (4) and (6), as appearing in 382 Mass. 769 (1981); S.J.C. Rule 3:07, Canon 2, DR 2-110 (B) (2), as appearing in 382 Mass. 774 (1981); and S.J.C. Rule 3:07, Canon 7, DR 7-102 (A) (3), (5), (7) and (B) (1), as appearing in 382 Mass. 785 (1981).
Behenna also purchased several of the condominium units for himself.
Behenna testified before the hearing committee that the respondent had a “look of disgust on his face” during the discussion of secondary financing.
In allowing the motion for acquittal the judge wrote:
“This Court hereby finds that there is insufficient evidence to warrant a jury to find, beyond a reasonable doubt, that any false statements contained in the HUD-Is [forms] were made ‘for the purpose of influencing’ the actions of the Dime Savings Bank of New York, FSB on loans. Rather the evidence establishes that the HUD-Is were made to Dime Real Estate Services of Massachusetts, which in turn issued the mortgage money directly from its bank account with the Union Bank of Lowell, Mass.”
The text of S.J.C. Rule 4:01, § 11, as appearing in 425 Mass. 1313 (1997), provides: “The investigation or prosecution of grievances or complaints involving material allegations which are substantially similar to the material allegations of pending criminal, civil, administrative, or bar disciplinary proceedings in this or another jurisdiction shall not be deferred unless the Board or a single member designated by the chair, in its discretion, or the court, for good cause shown, shall authorize such deferment, as to which either the court or the Board may impose conditions. The acquittal of the respondent-lawyer on criminal charges, or a verdict, judgment, or ruling in the lawyer’s favor in civil, administrative, or bar disciplinary proceedings shall not require abatement of a disciplinary investigation predicated upon the same or substantially similar material allegations.”
The hearing committee conducted five days of hearings on March 20, 21, 25; Apfil 23; and May 5, 1997.
General Laws c. 30A, § 11 (2), provides: “Unless otherwise provided by any law, agencies need not observe the rules of evidence observed by courts .... Evidence may be admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. . .
For example, Charles McCormick testified that, during one of the closings he said, “what [he] liked about this property, [was] with the second that it was a no-money-down deal.” And the respondent answered, “I am not supposed to know that.”
Brendan Greene, a condominium unit purchaser, testified that Attorney Thomas Behenna was present at his December 1 closing and that, when second mortgages were mentioned, the respondent deferred to Behenna. The respondent’s paralegal testified that the respondent was playing racquetball and was not present at the Greene closing.
The board is not precluded from considering the transcript of the criminal trial even though the respondent was not convicted of the charges. See Doherty v. Retirement Bd. of Medford, 425 Mass. 130, 133, 143 (1997) (board consideration of transcript in which defendant acquitted proper).
The respondent argues that Behenna’s testimony cannot be credited because he is a convicted felon and may have been influenced by bias. This argument was foreclosed by our decision in Doherty v. Retirement Bd. of Medford, supra at 141. In Doherty, the agency relied on the trial transcript testimony of Joseph Bangs, a police officer and prosecution witness. In response to an argument that Bangs’s testimony could not be credited, we noted, “Although Bangs may have been a man of unsavory character, and his cross-examination testimony reveals strong indication of bias, the board was
The respondent contends that, even if the board could conclude that he was present and heard the secondary financing conversations, there is no evidence that he knew the context of the conversations. Rule 9.1 (f) of the Massachusetts Rules of Professional Conduct, 426 Mass. 1432 (1998), provides that “[a] person’s knowledge may be inferred from circumstances.” The evidence in this case was more than sufficient for the board to infer that the respondent had knowledge of the improper secondary financing.
The single justice noted that he would have favored a two-year suspension. Matter of Eastwood, 10 Mass. Att’y Discipline Rep. 70, 75 (1994).
