Yogurt Store Mitigation

A single justice of the Massachusetts Supreme Judicial Court (Associate Justice Duffley) has ordered a six-month suspension of an attorney for an instance of misuse of client funds “with deprivation” and rejected the proposed sanction of indefinite suspension.

For the reasons set forth below, I conclude that the recommendation is not in accord with the record in this case, and does not comport with the evidence of the respondent’s conduct that was introduced at the disciplinary proceeding. Accordingly, having carefully considered all of the circumstances, I conclude that the appropriate sanction is a six-month suspension from the practice of law, with conditions…

It was undisputed that the client was paid in cash and thus there were no bank records to corroborate the payment.

Although there were no bank records of the transaction and it was undisputed that the respondent’s client had been paid in full (and in cash)  assistant bar counsel began the hearing by telling the committee that  “Bank records don’t lie, People lie (TR 5 -B).”  He argued “If something isn’t consistent with the bank records, it’s incorrect. If something isn’t consistent with common sense, it’s not true.” This set the tone for the entire proceeding, Bar counsel relied on repeated assertions that the respondent and [his father] Anthony Strauss were lying, resulting in a proceeding that placed the burden on the respondent to disprove bar counsel’s assertions, rather than requiring bar counsel to establish, on the basis of substantive evidence, that the respondent engaged in each element of the asserted misconduct.

There were more harsh words for bar counsel and the disciplinary process brought to bear on the attorney

Having carefully reviewed the transcripts, the record, and the findings of the hearing committee and the board, I agree with the respondent that the volume of irrelevant or incompetent evidence, assertedly introduced to challenge the credibility of bar counsel’s subpoenaed witness, Anthony Strauss, was unfairly prejudicial to the respondent. The extent of the problem is evident beginning with the denial of the respondent’s motion to limit testimony to “matters charged in the petition for discipline.” Rather than being focused on the respondent’s asserted misconduct, the proceeding focused largely on Anthony Strauss’s asserted business practices, unsupported by competent evidence.

As to sanction

The single instance of misuse, for a brief period, in circumstances such as these, where there was no evidence of intent to deprive the client of her funds, or of misuse of the funds for the respondent’s personal benefit, the respondent was working many hours per week beyond full time to establish a new business, and had a broken ankle that would have made driving from Brookline to Brockton difficult, is far less egregious than in other cases where a sanction of a term suspension has been imposed.

As noted above, the attorney had been distracted by non-legal pursuits

The board found that, at the time of these events, the respondent was in the process of opening a frozen yogurt store. The respondent testified that he was working in the store approximately 100 hours per week during that period, and that his attention was distracted from the conduct of his part-time law practice, he testified that, since the store has been fully operational, he spends much less time on day to day operations·. The board found that, during the period from December, 2012, through February, 2013, the respondent spent the “vast majority” of his working time at the frozen yogurt store, and, at the time of the disciplinary proceeding, he was spending approximately twenty percent of his working time there. The board stated further that it declined to consider any “distractions or time commitments of the yogurt shop” in mitigation.

So, I suppose that one take away point is that the distraction of opening a frozen yogurt store may be a mitigating factor. (Mike Frisch)