Channeling George Costanza

A justice of the Massachusetts Supreme Judicial Court has approved a proposed three-year suspension for misconduct in three matters

In the first, he represented a client in a chapter 11 bankruptcy proceeding. In the course of the representation the respondent was twice sanctioned by the bankruptcy court for “flagrantly” mispresenting the law: on one issue he cited cases that, in the court’s words, “[stood] for the exact opposite of what [the respondent] claims,” and on another he egregiously misquoted a key statutory definition by “omitting most of the words in the definition.” The court ordered the respondent to complete a three-credit legal ethics course; although the respondent enrolled in such a course he never completed it.

In the second matter, also a bankruptcy, the respondent neglected to respond to discovery, resulting in a ruling that any objections were waived. After a motion to compel, he failed to produce documents as ordered. Finding no credible reason for the respondent’s failures, and that such failures prejudiced his client, the bankruptcy judge imposed sanctions of nearly $10,000 to be paid personally by the respondent, and also defaulted the respondent’s client, exempting a $91,673.45 debt from discharge.

Finally, the respondent represented a mother and daughter in several matters connected to a bankruptcy, foreclosure, and eviction. During the course of these proceedings he: (1) made false statements regarding his compensation in disclosures filed with the court; (2) retained as compensation thousands of dollars from a settlement, well beyond his disclosed fee; (3) failed to notify the mother of a $34,735.40 check he received — sale proceeds from her mother’s estate — while simultaneously filing an interpleader action in the Probate Court seeking additional compensation out of that estate; (4) represented the mother without a written retainer agreement in place; and (5) filed several papers in the Probate Court misidentifying himself, under oath, as the mother’s attorney or the fiduciary of the estate, when his representation had concluded by that time.

The court rejected Respondent’s arguments in favor of a reprimand rather than suspension.

Here the respondent had much more than that solitary violation; as the board wrote, “[h]e spoke and wrote numerous lies in three separate matters.” And on top of the repeated instances of deceit, the respondent’s conduct established an array of other violations which, though varying in severity, must be accounted for, as must the aggravating factors. See Matter of Kerlinsky, 428 Mass. 656, 666 (1999) (“The cumulative effect of these violations further supports our conclusion that an additional period of suspension is appropriate,” resulting in a three-year suspension). See also Matter of O’Donnell, 23 Mass. Att’y Disc. Rep. 508, 514, n.3 (2007) (false testimony under oath alongside misuse of client funds justified indefinite suspension); Matter of Early, 21 Mass. Att’y Disc. Rep. 220, 226 (2005) (three-year suspension for numerous violations including misrepresentation made under oath). I therefore conclude that the board’s recommended sanction of a three-year suspension is appropriate, given the seriousness and extent of the respondent’s misconduct.

(Mike Frisch)