It’s Over When It’s Over

The Massachusetts Supreme Judicial Court affirmed the dismissal of a petition filed by a disbarred attorney for relief from the sanction that had been imposed

On appeal, Gannett filed a motion to expand the record to include information concerning a new claim, raised for the first time before this court, that the attorney who had represented him at the evidentiary hearing had an “unwaivable conflict of interest.” See Matter of Gannett, 489 Mass. 1007, 1007 (2022). We remanded the matter to the single justice to consider this new claim in the first instance. Upon doing so, the single justice found that Gannett “became aware of the facts underlying the alleged conflict before the hearing committee issued its report, but he failed to petition to reopen the hearing committee proceedings or to raise the argument before the board or the single justice prior to the entry of judgment.” Id. at 1010, citing Rule 3.59(a) of the Rules of the Board of Bar Overseers (2017) (reopening of record). The single justice thus concluded “that the claim had not been properly raised, declined to exercise her discretion to consider it nonetheless, and denied as moot [Gannett’s] motion to expand the record.” Id. at 1007.

This court subsequently affirmed the judgment of disbarment and the denial of Gannett’s motion to expand the record. See Matter of Gannett, 489 Mass. at 1007. In so doing, we held that the single justice did not err in declining to reach the merits of Gannett’s waived conflict of interest claim, and we similarly declined to consider it. See id. at 1010. We also rejected Gannett’s argument that any alleged deficiencies in his attorney’s performance before the board constituted a violation of due process, as this court has “not recognized either a right to counsel in bar discipline proceedings or a claim of ineffective assistance of counsel in that regard.” Id. at 1010. See id. at 1010 n.5 (noting that single justice did not err in declining to consider new arguments concerning alleged inaction by counsel, where those arguments had not been raised below).

Four months after this court affirmed the judgment of disbarment, in July 2022, Gannett petitioned to reopen the disciplinary proceedings before the board. As grounds for his request, Gannett relied on the same arguments of an “unwaivable conflict of interest” and deficient performance by the attorney who had represented him before the hearing committee. The board denied Gannett’s petition. Gannett then commenced the instant action in the nature of certiorari, challenging the denial of his petition to reopen the disciplinary proceedings. The board moved to dismiss the complaint, arguing, inter alia, that Gannett’s claims had been waived. A single justice of this court allowed the board’s motion, and this appeal followed.

No relief

Here, Gannett cannot meet that burden, as he seeks to repackage the same waived claims that he previously raised, unsuccessfully, to this court in his appeal from the judgment of disbarment. Those claims were rejected, and “[c]ertiorari simply does not provide an additional or alternative avenue of appellate review.” Picciotto v. Superior Court Dep’t of the Trial Court, 436 Mass. 1001, 1001, cert. denied, 537 U.S. 820 (2002). Accordingly, the single justice correctly dismissed the complaint.

(Mike Frisch)