Casting Blame Does Not Help

The Massachusetts Supreme Judicial Court has affirmed the disbarment order of a single justice.

Although the board focused on the misconduct for which the most severe sanction is warranted, intentional misuse of client funds, bar counsel established a far broader swath of misconduct. Considering the cumulative effect of that misconduct reinforces the conclusion that disbarment is the correct sanction

The violations included misconduct in connection with a factoring agreement

In connection with the factoring agreement, the respondent disclosed confidential client information for his own benefit, i.e., obtaining financing for the firm. In so doing, he created a conflict of interest between his contractual obligation to Durham and his professional obligations to his clients. See Matter of Wise, 433 Mass. 80, 90-92 (2000) (six-month suspension for conflict of interest and revealing confidential client information); Matter of Pike, 408 Mass. 740, 745-746 (1990) (six-month suspension for engaging in conflict of interest).

The respondent made material misrepresentations to Durham concerning the firm’s solvency and falsely represented that pledged assets had not been previously encumbered.

The crux

After learning that the firm’s IOLTA accounts were being used to fund the firm’s operational needs, and knowing the firm’s strained financial condition, the respondent continued to collect his salary and use the firm’s funds to pay his own personal expenses. He did not take necessary steps to ensure that IOLTA funds were properly managed, notwithstanding that bar counsel had twice previously investigated the firm when IOLTA checks were returned for insufficient funds. At least one client was not compensated for its loss. He “engaged in more and wider misconduct.” Matter of Haese, 468 Mass. 1002, 1008 (2014).

Conclusion

A bar discipline proceeding is not a forum best used broadly to cast blame or aspersions on others. It is a proceeding with a narrow focus: to determine whether there is a preponderance of evidence that an attorney has violated one or more rules of professional conduct and, if so, what sanction is warranted. The respondent’s continued focus in these proceedings on matters other than the charged misconduct does him a disservice because evidence of misconduct is neither excused nor obscured by accusations of misconduct by others. With deference to the sanction recommended by the board, we affirm the judgment of the single justice that disbarment is warranted.

(Mike Frisch)