Not Easy, Not Reinstated

The full Massachusetts Supreme Judicial Court agreed with a single justice’s denial of an attorney’s third petition for reinstatement, describing the process of its review.

Weiss has failed to meet this burden. He has demonstrated none of the bases for reversal identified in the rule. The argument made in his memorandum is essentially that the single justice’s probing questions of bar counsel at the hearing before him indicated that the single justice may have been inclined to grant reinstatement, yet ultimately did not do so, and that this somehow constitutes reversible error; alternatively, Weiss argues, the full court, with the single justice included, should review the matter anew. Neither position has merit or satisfies the letter or the spirit of the rule…

“Unlike nearly all other States, which require that judgment in bar discipline cases shall be by the full court, we in this Commonwealth use the single justice system in such cases.” Matter of Alter, 389 Mass. 153, 156 (1983). We review the single justice’s decision (on issues other than the initial choice of a sanction at the disciplinary stage) to determine whether there has been an abuse of discretion or clear error of law. See Matter of McBride, 449 Mass. 154 (2007); Matter of Cobb, 445 Mass. 452, 466, 475 (2005). While we share the single justice’s stated concern in this case that bar counsel may have been attempting to use the reinstatement process to some extent “to extract further punishment for past acknowledged and sanctioned misconduct,” which would have been improper, we find no error in the single justice’s ultimate ruling that the hearing committee’s and board’s findings, report, and recommendation reflect a “careful consideration of the matter” and support the denial for reinstatement. The petitioner has not shown otherwise in his memorandum.

The denial of the petition was not “markedly different” from other cases disposed of by a single justice.

Bottom line

As the single justice observed, this is not an easy case. The petitioner, who was suspended for one year and one day, has not practiced law since May, 2011. As the hearing committee recognized, he has a sincere desire to return to practice. The focus of reinstatement proceedings, however, is on the “integrity and standing of the bar, the administration of justice, [and] the public interest,” S.J.C. Rule 4:01, § 18 (5), rather than on a petitioner’s private interests. See Matter of Fletcher, 466 Mass. at 1020. Neither the hearing committee, nor the board, nor the single justice was satisfied that those interests would adequately be protected if the petitioner were reinstated, on this record, at this time.

The 2011 suspension order is linked here. (Mike Frisch)