A Police Officer Is A Professional

A justice of the Massachusetts Supreme Judicial Court has ordered a five-month suspension of an attorney for a false statement in his bar application.

The December 2011 application denied that he had previously sanctioned as a professional

Question 10 (b) of the application was in two parts. The first part asked: “Have you ever been disbarred, suspended, reprimanded, censured, or otherwise disciplined or disqualified as an attorney, or as a member of any other profession, or as a holder of any public office?” The respondent answered: “No.” The second part asked:  “If yes, state the dates, the details and the name and address of the authority in possession of the record thereof and attach a copy of the record.” Having already answered in the negative, the respondent left the second part of the question blank.

The charges

In May, 2016, bar counsel filed a petition for discipline against the respondent, alleging that his answer to Question 10 (b) of his application was false, and violated Mass. R. Prof. C. 8.1 (a) and (b), because he had twice been disciplined while employed as a police officer. Specifically, bar counsel alleged that, in August, 2002, the respondent had been suspended for one day without pay after making two serious, unsubstantiated accusations against two fellow officers. In one statement, the respondent claimed that another officer was the target of a town investigation; in another, he stated that he thought a different officer had tipped off a drug dealer who was under investigation. Bar counsel additionally alleged that, in  December, 2008, the respondent had again been suspended, this time for four days without pay, for sleeping on the job and insubordination.

He claimed to have misinterpreted the question but his testimony was not credited.

Sanction

With respect to the question of sanction, the committee weighed in aggravation the respondent’s lack of candor in his testimony, and weighed in mitigation evidence proffered by the respondent concerning certain whistleblowing activities. In general, those whistleblowing activities consisted of reporting to State police the lieutenant who had verbally and physically assaulted his subordinates. After the report, the lieutenant was arrested; he eventually admitted to sufficient facts, and was placed on probation for eighteen months. Considering aggravating and mitigating factors together, and the sanctions imposed in similar cases, the committee recommended that the respondent be suspended from the practice of law for one month. Both bar counsel and the respondent appealed to the board.

The Board of Bar Overseers adopted the one-month recommendation.

The court sustained the violation

Without unpacking the outer boundaries of the phrase “member of a profession” in Question 10 (b), there is substantial evidence to support the board’s conclusion that the respondent knowingly made false statements of material fact in his application for admission in violation of Mass. R. Prof. C. 8.1 (a), and that his failure to provide the requested information concerning his discipline as a police officer constituted a violation of Mass. R. Prof. C. 8.1 (b).

But upped the suspension

Considering the respondent’s lack of candor in aggravation, and the absence of factors in mitigation, I conclude that a suspension for a period of five months is appropriate.

Justice Lowy acted for the court. (Mike Frisch)