The Lighter Side

The Massachusetts Board of Bar Overseers recommends a three year suspension for misconduct in three matters

On Count One, the committee concluded that bar counsel had proven that Baker had filed a frivolous claim in his motion for sanctions in the Hoover bankruptcy, thereby violating Rule 3.1 of the Massachusetts Rules of Professional Conduct. It also concluded that he misrepresented applicable law to the bankruptcy judge in both his Objection to the Motion to Convert and his Motion for Sanctions, rejecting as not credible his contention that he had advanced the arguments in good faith. The misrepresentation of the law (citing cases for the incorrect proposition and excising key language from a quoted statute) violated Mass. R. Prof. C. 3.3(a)(1). The committee concluded that Baker failed to obey the ensuing sanctions order in contravention of Mass. R. Prof. C. 3.4(c). Baker admitted that same conduct violated Mass. R. Prof. C. 8.4(d) (conduct prejudicial to the administration of justice), and the hearing committee concluded that the misconduct in the Hoover matter adversely reflected on Baker’s fitness to practice law (Mass. R. Prof. C. 8.4(h)).

On Count Two, the hearing committee concluded that Baker’s knowingly false statement to the bankruptcy court about compliance with discovery violated Mass. R. Prof. C. 3.3(a)(1). The same behavior violated Mass. R. Prof. C. 3.4(c) and (d) in that Baker failed to comply with a legally proper discovery request and a court order. It rejected his argument that the requests were abusive and excessive as impertinent. As on Count One, the conduct also violated Rule 8.4(d) and (h) according to the hearing committee.

Turning to Count Three, the committee concluded that Baker had failed to take meaningful steps to distribute the excess foreclosure proceeds to Sonya Leak in violation of Mass. R. Prof. C. 1.3 (lack of reasonable diligence) and 1.15(c) (promptly notify and distribute trust funds in which client or third party has an interest). According to the committee, Baker also violated Rule 1.5(b)(1) by not providing his client a written retainer agreement and Rule 1.7(b) (concurrent conflict of interest) when he failed to obtain Zaina’s consent to Sonya paying her legal bills (although the committee characterized the violation as “technical” since the interests of mother and daughter were “more or less congruent”). (HCR ¶ 147). Lastly, the committee concluded that Baker violated Mass. R. Prof. C. 3.3(a)(1) as well as 8.4(d) and (h) when he intentionally misrepresented himself to the Probate Court as Sonya’s attorney and the estate’s fiduciary.

According to the hearing committee, several charges in Count Three were not proven. These included an allegation that Baker failed to consult with his client Sonya about the status of her case (Mass. R. Prof. C. 1.4(a)) and that he had charged an excessive fee in violation of Mass. R. Prof. C. 1.5(a) when he apparently charged Sonya for work that he had agree to do on a pro bono basis.

Similarly, the committee rejected an argument by bar counsel that Baker violated Mass. R. Prof. C. 1.8(f) (accepting compensation from a non-client) because it had not been charged in the Petition for Discipline. Along the same lines, because bar counsel had not charged that Baker’s unauthorized representation of Sonya in order to obtain an unlawful fee violated Mass. R. Prof. C. 1.5(a), 3.3(a)(1) and 1.16(a)(3) (duty to withdraw from engagement after discharge), the hearing committee declined to find violations of those rules as to that specific misconduct (although as discussed above, the committee found other facts supporting the Rule 3.3(a)(1) charge).

On review

we adopt the hearing committee’s conclusions that the respondent violated multiple Rules of Professional Conduct. We reject Baker’s argument that the evidence did not support the legal conclusions.

Sanction

Based on the presumed sanctions for each series of wrongdoing as well as the aggravating factors, we agree with and adopt the hearing committee’s recommendation to the Supreme Judicial Court to suspend respondent Baker’s law license for three years. We consider this recommendation on the lighter side of what would be justified by the facts of the case in light of the numerous rules violations and the repeated nature of the misconduct.

(Mike Frisch)