“A Web Of Misconduct”

The Massachusetts Supreme Judicial Court found that misconduct of an attorney in his own divorce  warranted a suspension of 18 months. 

The respondent and his former wife, Lucretia A. Kaplan, were married for twenty-six years and raised two sons. Lucretia was the family’s primary wage earner, and she funded the respondent’s college and law school educations as an adult. Since 2000, Lucretia has been unable to work due to a workrelated injury and has been collecting disability benefits. On November 10, 2008, the respondent filed for divorce, and a judgment of divorce entered on November 3, 2009. The divorce judgment contained no provision for alimony.

Allegations

In the complaint, bar counsel alleged that the respondent, as part of postdivorce probate court litigation with Lucretia, asserted issues without a basis in fact; made false statements of fact to the judge while failing to correct earlier false statements; unlawfully obstructed Lucretia’s access to evidence; concealed material documents from her or otherwise failed to act reasonably in response to proper discovery requests; and knowingly disobeyed obligations under the relevant rules. The respondent’s conduct was alleged to violate Mass. R. Prof. C. 3.1 (claims or defenses that are frivolous in law or fact); rule 3.3 (a) (1) (false statements of fact or law to tribunal or failure to correct false statement previously made); 3.4 (a) (unlawful obstruction of another party’s access to evidence or unlawful concealment of document having potential evidentiary value); 3.4 (c) (failure to obey obligations under rules of tribunal); 8.4 (c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4 (d) (conduct prejudicial to administration of justice); and 8.4 (h) (other conduct reflecting adversely on fitness to practice law).

Below

the committee determined that bar counsel proved that the respondent violated rule 3.1 (a), asserting a defense without a good faith, nonfrivolous basis for doing so; rule 3.3 (a) (1), making knowingly false statement of  fact or law to a tribunal; rule 3.4 (a), obstructing unlawfully another party’s access to evidence or unlawfully concealing a document having potential evidentiary value; rule 3.4 (c), knowingly disobeying obligations under the rules of a tribunal; rule 8.4 (c), engaging in conduct that involves fraud, deceit, or dishonesty; and rule 8.4 (d), engaging in conduct prejudicial to the administration of justice.  The committee disagreed, however, that the respondent should be found in violation of rule 8.4 (h) (lawyer may not “engage in any other conduct that adversely reflects on his or her fitness to practice law”). The committee reasoned that bar counsel had not directed its members to any “other” additional conduct that would violate rule 8.4 (h), and, consequently, a sanction for that rule would be duplicative of the sanction for violating rule 8.4 (c). The committee rejected all of the respondent’s proposed mitigating factors.  In aggravation, the committee found the following factors to be material: the respondent’s lack of candor; the multiplicity of violations; his greed and selfinterest; and the harm he caused to his former wife Lucretia and the administration of justice. The committee did not agree that the respondent’s failure to comply with probate court orders should be considered as a factor in aggravation, because that misconduct formed the very basis of the violation of rule 3.4 (c). As an appropriate sanction, the committee recommended a license suspension of eighteen months.

Before the Board of Bar Overseers

The board determined that the respondent’s mendacity and multiple rule violations “form[ed] a web of misconduct” that “displayed contempt for the probate court, his [former] wife and the administration of justice.” The board therefore agreed with the committee’s recommendation of suspension for eighteen months.

The single justice accepted the recommendation. (Mike Frisch)