A Private Affair

When a bar discipline case is styled something like Matter of Anonymous, it is a safe bet that the bar prosecutor will be  unhappy with the result.

I speak from personal experience.

The full Massachusetts Supreme Judicial Court rejected Bar Counsel’s contentions on appeal and affirmed the imposition of a private reprimand

Bar counsel filed a two-count petition for discipline against the respondent, alleging multiple acts of misconduct arising out the respondent’s several roles as special personal representative for the estate of an elderly client (grandmother), guardian and coguardian for her disabled grandson (ward), and cotrustee of a special needs trust established for the ward’s benefit. A hearing committee of the board conducted an evidentiary hearing and thereafter issued a report of its findings, concluding that bar counsel had established some of the misconduct — primarily a lack of diligence — alleged in count one, but none of the violations alleged in count two. It recommended that the respondent be admonished. One member filed a substantial dissent; that member would have found additional misconduct and recommended that the respondent be suspended from the practice of law for six months and a day.

Both sides appealed. The Board of Bar Overseers recommended a three-month suspension.

The single justice disagreed

She concluded that the differences between the hearing committee and the board as to misconduct largely revolved around disputes of fact, which in turn rested substantially on witness credibility. She also reasoned that the differences in the recommended sanctions rested principally on the weight given to certain aggravating factors and the extent to which the individual violations were treated as part of the same misconduct. We agree that the substantial evidence supports the single justice’s findings and that an admonition is the appropriate sanction.

The full court

In the main, the facts establish that the respondent failed to act with reasonable diligence in his role as guardian, coguardian, and trustee. The hearing committee did not, however, find that the conduct constituted a pattern or repeated failure, nor that there was either serious harm or a potential for serious harm an issue here: among other things, although not excusing the misconduct, the hearing committee considered that the conduct occurred in the context of the respondent’s undertaking multiple roles at the behest of his long-standing client, the grandmother, and that he was placed in the “unenviable position between family members who were hostile to each other.”

Absent aggravating factors, similar misconduct has typically resulted in either a private admonition or a public reprimand.

(Mike Frisch)