Stayed Suspension For Misconduct Representing Minor Child

A stayed six month suspension has been imposed by the Massachusetts Supreme Judicial Court for an attorney’s conduct as appointed counsel in a child custody matter.

The attorney was aware of the father’s alcohol abuse but nonetheless

The respondent and the father communicated frequently. On March 8, 2019, they discussed a party the father wanted to have for the child. The respondent offered to pay for the party and the father accepted. The next day, the father picked up the respondent and drove him to an ATM from which he withdrew money and gave it to the father. Also in the car were two minor children, the respondent’s client’s sister, and her friend.

During the ride, the respondent informed the father that he did not feel well, because he had been drinking the day before. In response, the father offered a twelve-ounce can of beer to the respondent. The respondent accepted the can of beer, opened it, and drank it in the vehicle in violation of G. L. c. 90, § 241, the open container law. Leading up to this incident, the respondent had been drinking heavily for several weeks.

At the respondent’s suggestion, the father drove to a liquor store. The respondent purchased a fifth of cognac for himself and several one-ounce containers of whiskey for the father. After leaving the respondent at his home, the father went to a hockey game with his daughter and her friend. The father subsequently became intoxicated and had to be escorted from the arena by authorities. His daughter and her friend were driven home by a third party.

Based on the father’s behavior at the game, a report under G. L. c. 119, § 51A (51A report), was filed with DCF. The 51A report mentioned the respondent as a contributing factor to the father’s behavior that night. Following an emergency hearing on March 20, 2019, the child was removed from the father’s custody and placed into the care of DCF. A juvenile court judge subsequently ordered the respondent to withdraw from representing the child.

The court on sanction

This case is atypical insofar as there does not appear to be a comparable fact pattern.

A stayed suspension was deemed appropriate

The nature of the respondent’s misconduct can best be characterized as gross negligence and lack of judgment in violation of rules 1.3 and 8.4 (d) and (h). The respondent has no prior disciplinary history; rather, he has collaborated with the investigation and shown no pattern of neglect. However, the misconduct did cause serious harm to a vulnerable client, a factor in aggravation, thus the committee’s recommendation of a six-month suspension is warranted.

Next, the issue of a stay. I agree with the hearing committee and the board that the respondent’s alcohol issue was not a causal factor of his misconduct. However, the primary purpose of a stay is to “function[] as an incentive or a deterrent . . . to encourage or discourage certain conduct, whether for the sake of safeguarding the public or assisting the lawyer to take  certain remedial steps, or both.” Matter of O’Neill, 30 Mass. Att’y Discipline Rep. 289 (2014). Although not a causal factor, his struggle with alcohol “does serve to provide context for the misconduct.” See Matter of Discipline of an Att’y, 489 Mass. 1018, 1024 (2022). Indeed, it was implicit in the hearing committee’s recommendation that a stay would further the goal of protecting the public and helping the respondent. See id.

Here, a stay is not a sign of leniency. Cold calculus determines that the public interest will best be served by a stayed suspension. The respondent has taken significant, albeit imperfect,  steps toward his recovery, such as regularly attending AA and LCL meetings, and entering into a two-year monitoring agreement with LCL. Imposing a six-month suspension on the respondent, unstayed, very well could drive him back into a state of alcohol dependency. Then, following the expiration of his suspension, he would reenter the profession all the worse off, and the public along with him.

(Mike Frisch)