Hockey Night In Massachusetts

The Massachusetts Board of Bar Overseers recommends a fully served six-month suspension of an attorney, rejecting a hearing committee’s proposal that the sanction be fully stayed.

The board also rejected the Respondent’s motion to reopen the record.

He had been appointed represent a minor child in a care and protection action

Although the father had separate counsel, he and the respondent communicated. On March 8, 2019, the two discussed a party the father wanted to throw for the child. The respondent offered to pay for the party. On March 9, 2019, the father picked up the respondent and drove him to an ATM where the respondent withdrew money, which he gave to the father.

In the car were two minor children, the sister of the respondent’s client as well as her friend. During the car ride, the father offered the respondent a beer, which he accepted and which at the time (but not currently) violated Mass. G. L. c. 90, § 241 (the open container law). According to his own testimony, the respondent had been drinking heavily for several weeks and hoped that the beer would help him feel better. They then drove to a liquor store at the respondent’s suggestion. The respondent purchased a fifth of cognac for himself and one-ounce containers of whiskey for the father. He did so despite his knowledge that the Juvenile Court had concerns about the father’s alcohol use and had ordered him to abstain. Also, the respondent bought alcohol when he knew there were minor children in the back seat of the father’s car.

After dropping the respondent at his home, the father went to a hockey game. After becoming visibly intoxicated, he was unable to drive home. Authorities had to escort the father from the arena.

Based on the events at the hockey game, a report under Mass. G.L. c. 119, § 51A was filed against the father with DCF. The 51A report mentioned and implicated the respondent as a contributing factor to the father’s behavior. After an emergency hearing, the minor child was removed from the father’s custody and placed in the custody of DCF. The Juvenile Court judge ordered the respondent to withdraw from representing the child. The hearing committee found, based on substantial evidence, that the respondent’s conduct was a contributing factor to the father’s loss of temporary custody and that in providing alcohol to the father, the respondent acted contrary to the interests of his client, the minor child.

Alcohol use was not mitigation

As the hearing committee noted, the respondent’s misconduct was unrelated to his alcohol use issues. As an initial matter, he apparently did no work on the case. He had no information about the underlying family situation and whether the father was an appropriate custodial parent. He had some sort of relationship with the father of his minor client, in a case where the dispute centered on custody. He had frequent contact with the father, even though the father was represented by a lawyer. He allowed a person known to have issues with alcohol to give him a beer and drive a car with two children in the backseat. He bought whiskey for this person. His recklessness led to the father becoming belligerent to such an extent that he had to be removed from a hockey arena. The chain of events unsurprisingly ended in the respondent’s client being removed from the father’s home. None of this resulted from alcohol use.

Dissent favoring stay

We part with the majority regarding whether the suspension should be stayed for two years, as recommended by the hearing committee. As the respondent points out in his motion to reopen, he has taken significant steps toward recovery from alcohol use disorder. Although he may not have been completely and flawlessly successful, we do not view 100% success as the standard by which to impose a stayed suspension. We should not demand perfection.

Even against a high standard, the respondent has accomplished a great deal. As he explains in his motion to reopen, he successfully complied with a two-year monitoring agreement. After completing the monitoring program, he continued to attend voluntarily monthly LCL meetings as well as AA meetings four to five times per week. On his own initiative, he has attended fifty hours of mindfulness classes, which have helped him manage stress.

In rebuffing the respondent’s efforts at sobriety, the hearing committee imposed on him an unduly high burden. Unfortunately, our colleagues in the majority have perpetuated the misunderstanding. The committee derided the respondent’s own testimony as to his sobriety, apparently because it deemed the testimony self-serving. (Hearing Committee Report, ¶ 39). The analysis is both factually and legally incorrect. As a factual matter, the committee had before it (as do we) evidence of the respondent’s compliance with the two-year monitoring agreement as well as documents from Dr. Jeffrey Fortgang of LCL, in addition to the respondent’s testimony about his attendance at meetings. There was no evidence to contradict the respondent’s narrative. As a legal matter, we have relied on a similar quantum of evidence in concluding that a respondent has shown sufficient progress to merit a stayed suspension. Matter of Crowley, 9 Mass. Att’y Disc. R. 75, 76 (1989).

( Mike Frisch)