False Testimony Draws Proposed Suspension
The Massachusetts Board of Bar Overseers has recommended a two-year suspension for an attorney’s allegedly false testimony in litigation in which he was a party.
Respondent was involved in the break up of an 18-year domestic partnership and had made claims against his partner’s brother
In his affidavit, the respondent asserted that McCarthy assaulted and attempted to intimidate him. Specifically, the respondent claimed that on February 28, 2019 (six days prior to filing the affidavit), as he was walking to his car in a private parking lot after court had recessed, McCarthy “suddenly lurched [at the respondent] with his truck. [McCarthy] was driving his truck at the time. [McCarthy] had a license to carry a gun, so this threatening behavior with his vehicle is especially alarming.” (Hearing Committee Report (HCR) ¶ 23). The respondent explained that he believed McCarthy had reason to harm him because the respondent’s testimony at trial alleged that McCarthy had failed to report significant income to the IRS from his contracting business.
Findings
In sum, the hearing committee determined that, “[t]he respondent made knowing false statements in his Affidavit [sic] signed under penalty of perjury during his testimony and under oath. Armed with the knowledge of McCarthy’s license plate number, which he had seen numerous times at his house and which was easy to remember, he fabricated from whole cloth an absurd and incredible story. In a deeply cynical and dishonest move to harm [his former partner] and her family, he lied intentionally when he drafted his Affidavit [sic] and when he testified in court.” (HCR ¶ 75). “We find that the respondent’s allegations, in court and under oath, that he was threatened with a truck by someone he believed to be McCarthy were false, and the respondent knew them to be false at the time he signed his Affidavit and gave his testimony..” (HCR, ¶ 66).
Among the rejected contentions
the respondent relies on the anti-SLAPP statute, Mass. G.L. c. 231, § 59H, which precludes civil claims brought against a party based on the party’s exercise of its constitutional right of petition. The statute does not apply here, since it is limited to civil claims, not bar discipline matters.
Burden shifting
The committee rejected the testimony because the overwhelming weight of the evidence showed that the event did not occur, regardless of who supposedly was behind the wheel. In addition, it made credibility findings against the respondent. Not believing the respondent’s testimony is not the same thing as requiring that he disprove bar counsel’s case.
The board noted that the application of Rule 4.4 to an attorney acting pro se is a question of first impression in Massachusetts
Having established the rule applies, we conclude that the respondent’s conduct violated it. His false and frivolous complaint was designed solely to harass or embarrass McCarthy, with whom the respondent had a long and adverse history. His conduct had no legitimate purpose.
As to matters of aggravation of sanction
Exhibiting a pattern of frivolous litigation, the allegations are troubling, but they should not have been considered in aggravation. As we have instructed, bar counsel must disclose in advance any evidence it intends to introduce at a hearing, including evidence to be considered in aggravation. We require this out of concern for due process and fairness, and to prevent the sand-bagging of respondents. Respondents are entitled to adequate notice so they may defend against the allegations.
Sanction
The presumptive sanction for lawyer misrepresentations under oath is a two-year suspension. Matter of Diviacchi, 457 Mass. 1013, 32 Mass. Att’y Disc. R. 268 (2016 (27 months); Matter of Finneran, 455 Mass. 722, 26 Mass. Att’y Disc. R. 178 (2010) (two years). It goes without saying that lying under oath is a serious offense, which strikes at “matters at the very heart of the legal profession.” Matter of Balliro, 453 Mass. 75, 89, 25 Mass. Att’y Disc. R. 35, 50 (2009). In this case, the respondent’s misconduct was not in furtherance of zealous representation of a client. Rather, he did so apparently for his own self-centered reasons.
(Mike Frisch)