Reinstatement Denial Recommended

A Massachusetts Board of Bar Overseers Hearing Panel recommends that a petition for reinstatement be denied.

The basis for Petitioner’s 2006 disbarment arose from his purchase of a deceased lawyer’s practice

Prior to his death, Sudalter had been the primary debt collection attorney for Sears, Roebuck and Co. (“Sears”) in eastern Massachusetts. Ex. 10, at BC0676. Sudalter’s wife, Janice, had worked in Sudalter’s office for many years until her husband’s death , including preparing the monthly billings for Sears. Id. The petitioner had never worked with Sudalter or discussed the firm’s billing practices with him. Id.

Misconduct

The hearing committee found that “…the [petitioner’s] actions in billing Sears for costs and fees totaling $1.1 million for approximately 15,000 files over an extended period of time, where the [petitioner] chose not to determine from Janice Sudalter whether these costs had in fact already been billed to and paid by Sears, constitutes willful blindness and intentional misconduct by the [petitioner].” Ex. 8, at BC0643-44. The hearing committee also found that the petitioner “wrongfully and intentionally withheld funds due to Sears on the active files and used those funds to defray expenses for which he was responsible…” Id., at BC0648. The hearing committee found that the petitioner’s conduct violated the predecessor rules to Mass. R. Prof. C. 1.2, 1.5(a), 1.15, and 8.4(c) and (h) and recommended disbarment. Id.

The Board of Bar Overseers agreed, commenting that the petitioner “viewed the presence of the 15,000 files as a cash cow which he proceeded to milk until dry.” Ex. 9, at BC0672. In addition, the Board stated that the petitioner “clearly intentionally over-billed and collected from his client hundreds of thousands of dollars in fees and costs to which he was not entitled. Where, as here, an attorney lacks a good faith belief he has earned and is entitled to the monies, such conduct constitutes conversion and misappropriation of client funds. His conduct deprived the client of its funds and was motivated purely by personal pecuniary gain.”

In addition to its conclusion that he lacked present comptence in the law, the board noted

We divide our discussion of the petitioner’s moral qualifications into the following subsections: (1) Lack of Insight into Misconduct; (2) Failure to Make Restitution to Former Client; (3) Work and Volunteer Activities; (4) Inadequate Preparation of Questionnaire and Lack of Financial Transparency; (5) Witness Testimony and Letters; and (6) Conclusions as to Moral Qualifications…

The petitioner’s primary motivation for seeking reinstatement appears to be financial: he would like to be making more money and that higher salary would lead to a higher pension (if he stays in government service). Tr. I:147-151. Of course, there is nothing wrong with seeking career advancement and financial success. However, under the facts of this case, we agree with bar counsel that it is troubling that this was a primary motivator. Given our determinations above, we must conclude that the petitioner has not established that his reinstatement would be in the public interest. He has not carried his burden to prove his competence and learning in Massachusetts law. Further, he failed to establish that he presently has the moral qualifications necessary to practice law. Therefore, given the magnitude of the petitioner’s misconduct that led to his disbarment, reinstatement at this point would be detrimental to the public interest and confidence in the integrity and standing of the bar.

(Mike Frisch)