Not For The Weak Willed

A justice of the Massachusetts Supreme Judicial Court agreed with Bar Counsel that private discipline was not appropriate for a violation of Rule 1.2(d) – assisting a client’s criminal conduct.

The respondent’s practice centers on real estate, probate law, and conveyancing. One of her clients is in the business of making private loans, primarily to business borrowers in need of financing for the purchase, rehabilitation, or refinancing of commercial real estate. At issue in this complaint are at least five loans that violated G. L. c. 271, § 49 (a), the Massachusetts criminal usury statute, because the terms of the loan charged interest rates, as defined by the statute, in excess of twenty per cent when, as the respondent knew, the client had not notified the Attorney General of his intent to engage in such transactions as required to avoid criminal liability.

The borrowers were all in need of rapid, alternative financing.  Accordingly, the respondent’s duties included drafting loan documentation, the terms of which were determined by the client. The nature of the work required tight deadlines. The respondent maintained the documentation of loans in her office.

Justice Spina

The Board found that the essence of the respondent’s misconduct was not the result of true ignorance nor willing and zealous participation in the lending scheme. Rather, it was “her failure to take a strong stand as an independent professional in response to a stubborn and opinionated client.” However, the respondent did not fall into a “trap for the unwary.” She knowingly assisted her client in the commission of a felony. As such, she was an accessory before the fact and potentially liable as a principal to the crime. 

And public discipline should result

I am persuaded by Bar Counsel’s argument that no violation of rule 1.2( d) has previously resulted in a private admonition. The public is best served by reminding attorneys that they must resist strong-willed clients who insist 0n pursuing a course of conduct that clearly violates the criminal law, even if the client does not believe his conduct may be criminal, and that they should not assist the client in such a pursuit. For the foregoing reasons, the appropriate sanction is a public reprimand.

Bar Counsel had appealed the private reprimand recommended by the Board of Bar Overseers. (Mike Frisch)