Death Of First Wife No Mitigating Factor
Justice Spina of the Massachusetts Supreme Judicial Court denied reinstatement to an attorney who had stipulated to serious misconduct in handling client funds and accepted an indefinite suspension.
Part of the problem was his effort to deny misconduct despite the prior stipulation, as set forth in the Hearing Panel Report (appended to the justice’s order)
Having reviewed the stipulation, we are struck by the petitioner’s reluctance to acknowledge unequivocally the facts and implications of the serious misconduct to which he stipulated. In this context we note that to gain reinstatement, we do not require a petitioner to “proclaim his repentance and affirm his adjudicated guilt.” Matter of Hiss, 368 Mass. at 455, 1 Mass. Att’y Disc. R. at 129. However, having stipulated to the truth ofthe allegations and having admitted disciplinary violations, a petitioner cannot later come before us and try to distance himself from his earlier admissions. Without the petitioner’s unequivocal acceptance of responsibility, we cannot find reform.
Perhaps even worse than his attempt to relitigate settled matters, the petitioner blames Attorney Duggan and the client (Mesheau) and attorney who reported him (Brodeur-MeGan) to bar counsel. Ex. 1 (BC-0019-0021; 0022-0027). He claims as well that bar counsel refused to modify the petition, and that bar counsel would have sought disbarment had the petitioner not signed the stipulation.
Nor did late-blooming mitigation claims help
By signing the stipulation, the petitioner made the strategic decision to give up the right to offer facts in mitigation. Ex. 3, ~ 4 (BC-0096). We recognize that the petitioner has suffered terrible personal loss. His son died of a brain tumor in 1993 at the age of four. See Ex. 1 (BC-00 16-00 17). He also described to us the cancer diagnosis in 1985 and eventual death of his wife, Cassandra. Ex. 1 (BC-0016); Tr. 14 (Petitioner). However, he neglected to disclose, until prodded by bar counsel, that she was his first wife, that she had remarried, and that at the time of her death twenty-four years later in 2009, his third marriage was imminent. Tr. 101, 103, 104-105 (Petitioner). His father’s death, also cited in mitigation, occurred in 1990 or 1991. Tr. 107-108 (Petitioner). While we in no way wish to appear unsympathetic to what were admittedly tragic events, their relevance was waived by the stipulation. Further, we question their applicability at this juncture, particularly without any attempt to tie them temporally or causally to the 2002-2004 misconduct at issue. For instance we note that in 1997, the petitioner apparently went on to have his greatest success as an attorney, enjoying a highly favorable and well-publicized outcome in a personal injury case. Ex. 1 (BC-0071).
He failed to demonstrate his present competence to practice law
Having reviewed the evidence, we conclude that the petitioner does not currently possess the necessary competence and learning in the law sufficient for reinstatement. We recognize the weight of the petitioner’s twenty-year pre-suspension practice. But we are not convinced that he has remained sufficiently current. We have heard no evidence that the petitioner has studied trust accounting, or the IOLTA rules, or that he has reviewed the rules of professional conduct since 2010. This paralegal work for the Florida firm ceased in 2008, over six years ago. We do not agree that knowledge of Florida law, assuming without deciding that such has been proven, is equivalent to knowledge of Massachusetts law. While the petitioner has claimed that there is much overlap, noting that “[i]t’ s not like we’re talking about Chinese law here” (Tr. 114 / (Petitioner)), we respectfully disagree. And even if we agreed that a solid grasp of Florida law was sufficient for the learning in the law criterion, we cannot make such a finding on the evidence we have received.
(Mike Frisch)