Reinstatement Favored After Suspension For Billing Misconduct

A Hearing Committee of the Massachusetts Board of Bar Overseers majority recommends reinstatement of a suspended attorney over a vigorous dissent in a matter in which the underlying misconduct involved billing violations of a big firm partner

The petitioner was admitted to the bar of the Commonwealth on June 20, 1991. Ex. 1 (001); Ex. 4 (250). During all relevant times, she practiced law as a partner at a large firm, first in a construction practice and then as a commercial litigator. Bar counsel’s petition for discipline charged her with intentionally inflating, by approximately 450 hours, the amount of attorney time she billed to her four largest clients, and falsely ascribing, to herself and other attorneys, work that was not actually performed. It was alleged that by adding these hours to her bills in 2015, she caused her firm to charge and collect more than $200,000 in unearned fees.

Sanction imposed after a single justice had ordered a six-month suspension

Bar counsel appealed. On March 25, 2021, the full bench of the SJC imposed a two-year suspension. Noting that the petitioner had added “fictional” hours to her clients’ bills, the Court agreed that the petitioner’s bills “were intentionally false and fraudulent in two aspects”: they failed accurately to reflect work performed by the identified attorney, and they included charges for legal services that were not rendered. Ex. 6 (318-319). The Court’s iteration of the petitioner’s dishonesty included two notable illustrations. First, on twelve different dates, had the petitioner worked the hours she claimed she had actually worked but instead attributed on the bills to her associates, she would have worked more than twenty-four hours. Ex. 6 (319). On at least seven different dates, she billed for her attendance at depositions she did not attend. Ex. 6 (320).

The Court found that it was “the established dishonest nature of the [petitioner’s] billing that differentiates this case from cases involving charging ‘excessive’ fees.” Ex. 6 (322). It rejected her claim that the stress she had suffered from her workload and family pressure was mitigating. Ex. 6 (323-324). The Court found in aggravation that the petitioner was experienced, had not been candid in her hearing testimony, and failed to acknowledge the nature, effects or implications of her misconduct. Ex. 6 (325).

The suspension order of the full court is linked here.

Hearing committee majority findings on work history

She left CDM [Smith] for a series of law firm jobs, working first as a construction attorney/litigator at the Boston law firm Hinckley Allen for twelve years, then moving in October 2011 to Saul Ewing, where the misconduct occurred. Ex. 4, ¶ 4 (251); Tr. 37 (Petitioner). From there, she moved to Duane Morris in March 2016.

Majority favoring reinstatement on public harm

The public interest factor looms especially large in a case like this one, which elicited significant public interest, especially among lawyers. We take administrative notice of the SJC’s docket in connection with bar counsel’s appeal to the full bench, SJC-12850, where an amicus brief was submitted by amici curiae consisting of former Board chairs and BBO members. This is a highly unusual circumstance.

The “Statement of the Amici Curiae” notes that the brief was submitted so the amici could “advocate for the integrity of the bar discipline system and to express their concern that the Single Justice’s order in this case fails to recognize the gravity of Respondent’s intentional and fraudulent overbilling of multiple clients.” Matter of Zankowski, Brief of Amici Curiae, Former Members of the Board of Bar Overseers in Support of Appellant, Office of Bar Counsel, p. 5. While the amici took no position on the appropriate sanction, they asked the Court “to make a clear and unambiguous statement that deliberate overbilling by a lawyer, as found at every stage of this proceeding, is anathema to everything the profession should represent and will not be tolerated.” Id. Cf. Matter of Finnerty, supra, 34 Mass. Att’y Disc. R. at 104, 111 (in underlying disciplinary matter, Finnerty had urged his client to lie about John Bulger’s contacts with his 25 26 brother, notorious fugitive Whitey Bulger; Court writes that “[d]espite the gravity of the events underlying Finnerty’s disbarment – and the seriousness of the charges that prompted that sanction – Finnerty appears to have come to terms with what led him to this juncture in his professional life”).

Panel members Hayes and Allen conclude that even under enhanced public scrutiny, our recommendation to reinstate the petitioner is supported and sound and based on solid evidence.

Dissent of Member Van Nostrand (presumably no relation to Cosmo Kramer)

At the core of my dissent are two separate but interrelated aspects of the reinstatement proceeding that preclude me from finding that the petitioner is rehabilitated. The first is my conclusion that the petitioner is unable or unwilling to acknowledge the gravamen of her prior suspension: (a) that she proactively altered her billing with the result that her firm stole money from clients; and (b) that her overbilling was intentional and not the product of sloppy or negligent timekeeping and billing practices. The second is my concern regarding her actions in the litigation with Dr. Hill. While that dispute arose prior to her suspension, the litigation continued after her suspension, culminating in a bench trial at which the petitioner testified while this reinstatement petition was pending. Both lead me to the conclusion that she has not been sufficiently rehabilitated and has not regained the moral character to warrant restoring her privilege to practice law.

The Hill litigation involved a dispute with formerly close friends over the sale of real property in Hawai’i. 

The property was sold for $5.5 million in 2022 with net proceeds of approximately $1.8 million available for distribution to the owners. Ex. 2 (230-231). A dispute arose and litigation resulted between Dr. Hill and the petitioner regarding the distribution of the net proceeds (and other issues). The petitioner maintained that she was entitled to 50% of the proceeds based upon the ownership interests reflected in the deed rather than the 60/40 split that Dr. Hill maintained was the parties’ agreement. Tr. 88 (Petitioner). Given the disconnect between the differing financial contributions made by each side and the equal ownership set forth in the deed, a significant issue in the litigation was whether Dr. Hill reasonably expected that the petitioner was looking out for all of their collective interests from a legal perspective at the time of the acquisition.

A bench trial in this litigation took place over five days in May 2024. The petitioner testified at this trial, as did Dr. Hill. This petition for reinstatement was filed in February 2024 and was pending at the time of the trial in the Hill matter. We have had the benefit of the Findings of Fact and Rulings of Law issued by Superior Court Judge Lynn Rooney on July 31, 2024. Ex. 2 (224-239). Judge Rooney’s conclusions are telling.

On the most significant factual issues, she found the petitioner lacking in credibility. Relative to the core issue of the ownership split, she sided with Dr. Hill and effectively awarded him 60% of the net proceeds from the sale. With respect to this determination, Judge Rooney relied in part on contemporaneous notes made by the petitioner reflecting the 60/40 split. Ex. 2 (225).

Judge Rooney also addressed the factual issue regarding legal representation. The judge found that the petitioner acted as attorney for Dr. Hill. In doing so, she rejected the petitioner’s testimony that she repeatedly told Dr. Hill that he needed to retain his own attorney, and credited Dr. Hill’s testimony that the petitioner assured him that he did not need to hire his own attorney. Ex. 2 (226).

Acknowledgment of misconduct

As carefully as I parse and dissect the petitioner’s testimony and questionnaire responses, I cannot find the full-throated admission of understanding that I believe is necessary to a finding that rehabilitation has occurred and that the petitioner is now morally fit. To the contrary, the petitioner focused on her sloppiness, negligence and mistakes, while repeatedly professing that she “owns” her misconduct. But because she never brought herself to identify her intentional overbilling that resulted in theft from her clients, despite being given numerous opportunities to do so, it is not clear what she “owns.” It is her burden to prove that she truly “owned” that misconduct in all its depth, not our burden to speculate as to what she means by the words she carefully chose.

Public harm

I cannot agree that there would be no harm to the public or the bar if the petitioner were to be reinstated. This follows logically from my conclusions about her lack of moral fitness, but there is an equally compelling reason. The publicity surrounding the petitioner’s misconduct demands a concomitant response; we need to be particularly scrupulous about the petitioner’s readmission. The public and the bar, having been made aware of the extent and gravity of the petitioner’s misconduct, deserve nothing less than a meticulous and searching review of the evidence she has adduced in support of her petition. While she should not be held to a higher standard than any other petitioner, I do not think it is unreasonable to demand compelling proof that she has satisfied the elements to warrant reinstatement.

(Mike Frisch)