Yogurt Store Mitigation

The District of Columbia Court of Appeals has imposed reciprocal discipline based on an attorney’s Massachusetts suspension.

From the opinion of the Massachusetts Supreme Judicial Court

The respondent was admitted to the practice of law in the Commonwealth on December 17, 2004, He has maintained a general practice as a solo practitioner since his admission to the bar. During the period at issue, the respondent operated his part-time law business from his home. He also was engaged in opening another small business — a frozen yogurt shop — which he continued to own and operate at the time of the disciplinary proceedings…

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.

The charges involved record keeping violations and deprevation of funds. 

The court expressed concerns about the evidence used to attack the attorney’s attorney father

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 Straus’ s asserted business practices, unsupported by competent evidence.

On intent with respect to client funds

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.

The Massachusetts suspension of six months was imposed as reciprocal discipline. (Mike Frisch)