Ipso Fatso And Corleone V. The Three Stooges

A Hearing Committee Report to the Massachusetts Board of Bar Overseers has recommended a three-year suspension and fitness for an attorney’s vigorous prosecution of a slip-and-fall case and the litigation spawned after the fall

As a preliminary matter, we note that the respondent’s charged misconduct occurred over eight years (2015-2023). It occurred in five lawsuits and eight appeals, all stemming from injuries allegedly sustained by the respondent’s client, Nellie Saninocencio, in a slip and fall in 2012.

The fall

On or about January 23, 2012, Saninocencio slipped and fell on ice/snow outside her residence at 13 Myles Standish Drive, Bradford, Massachusetts, a condominium complex known as Bradford Village Condominiums. (Ex. 3, AGR-0014 to 0015).

The relevant parties to the litigation commenced by the respondent are as follows:

(a) Bradford Village Condominium Trust (Bradford Village) owned the property. (Ex. 3, joint pre-trial memorandum, AGR-0014).

(b) KJ Decker Enterprises, Inc. d/b/a Property Management, Inc. (KJ Decker or Property Management, Inc. New England) managed the property. (Ex. 3, AGR-0015).

(c) Kershaw Landscaping contracted with KJ Decker for the removal of snow and ice. (Id.).

(d) The removal of snow and ice was subcontracted to Erhardt & Shallow Landscaping, LLC (Erhardt), which was run by Ryan Erhardt. (Ex. 3, AGR0016).

The defendants claimed that Erhardt and his crew performed the snow removal in the following fashion: A crew would arrive at the scene with two trucks and at least two men to shovel and treat the walkways. Once walkways were shoveled and treated, they would knock on doors to ask residents to move their cars so that the areas in which the cars are parked could be plowed. The cars would be moved to areas already plowed, and then the areas where the cars were previously parked would be plowed. They did not knock on the doors to contact residents to move their cars until the walkways were shoveled and treated. (Ex. 3, AGR-0014 to 0015).

In response to a knock on her door by the Erhardt crew, Saninocencio came out to move her car and fell after having done so, while returning to her apartment.

Respondent was admitted in 2010

The respondent has been employed as a heating fuel delivery truck driver since approximately 2015. He described his only legal work from 2015 to the date of the hearings in this matter as trying to expose alleged corruption in the courts through litigation of Saninocencio’s slip and fall case.

The suits

We adopt the nomenclature assigned in bar counsel’s amended petition for discipline, as follows:

• “Personal Injury Action”: Saninocencio vs. Bradford Village Condominium Trust, et al., Essex Superior Court Civil Action No. 1277CV02240.

• “PI Appeal”: Appeal from the defense verdict in Saninocencio vs. Bradford Village Condominium Trust, et al. Appeals Court No. 2016-P-1265.

• “SJC PI Appeal”: petition for further appellate review (FAR) in the Personal Injury Action. SJC No. FAR-25622.

• “Middlesex Superior Court Action”: lawsuit filed against the lawyers who defended the Personal Injury Action, Saninocencio vs. Pierce & Mandell, PC, et al., Middlesex Superior Court No. 1881CV00900.

• “Middlesex Appeal”: appeal from the dismissal of the Middlesex Superior Court Action and interlocutory orders. Appeals Court No. 2019-P-480.

• “Middlesex SJC Appeal”: petition for FAR from Appeals Court judgment in the Middlesex Appeal. SJC No. FAR-27673.

• “Federal Court Action”: lawsuit in federal court against the defense lawyers in the personal injury action, as well as one superior court judge and the entire bench of the SJC. Saninocencio vs. Pierce and Mandell, P.C., et al., United States District Court for the District of Massachusetts, Case No. 1:21-cv-11455-RGS.

• “First Circuit Action”: appeal from sanctions imposed on the respondent in the Federal Court Action. First Circuit No. 22-1110.

• “2020 Suffolk Superior Court Action”: lawsuit against Lubin & Meyer, P.C., the law firm to whom the respondent had referred the medical malpractice case on behalf of Sanincencio for injuries she sustained in the treatment of the injuries allegedly sustained in the original 2012 slip-and-fall injury. Saninocencio vs. Lubin & Meyer, P.C., Suffolk Superior Court No. 2084-CV-02420.

• “2020 Suffolk Appeal”: appeal from the dismissal of the 2020 Suffolk Superior Court Action. Saninocencio vs. Lubin & Meyer, P.C., Mass. Appeals Court No. 2021-P-1126.

• “2020 Suffolk SJC Appeal”: petition for FAR from Appeals Court judgment in the 2020 Suffolk Appeal. SJC No. FAR-29101.

• “2022 Suffolk Superior Court Action”: a re-filed lawsuit against Lubin & Meyer, P.C. Saninocencio vs. Lubin & Meyer, P.C., Suffolk Superior Court, No. 2284-CV-01319.

• “2022 Suffolk Appeal”: appeal from the dismissal of the 2022 Suffolk Superior Court Action. Saninocencio vs. Lubin & Meyer, P.C., Mass. Appeals Court No. 2023-P-0552.

The facts and violations are set forth in an 112-page opinion. 

Among the many violations

Bar counsel charged that the respondent’s conduct, in asserting claims that lacked a basis in law or fact that were not frivolous, was in violation of Mass R. Prof. C. 3.1 and 8.4(d) (conduct prejudicial to the administration of justice). For the reasons detailed above, we conclude that bar counsel has proved these charges. Among other things, and as the respondent admits, by August of 2019, the courts “denied eleven post-trial motions, an appeal and petition to [the Appeals] Court, and an application for further review by the SJC.” Despite these adverse rulings, he persisted in claiming that the Executed PTC Memorandum was a forgery, there was no Dr. Kennedy retained by the defendants, and that the defense lawyers had perpetrated a fraud.

Bar counsel charged that the respondent’s conduct of making statements concerning the qualifications and integrity of judges and attorneys, knowing the statements to be false or with reckless disregard as to their truth or falsity, was in violation of Mass. R. Prof. C. 8.2 and 8.4(c), (d), and (h). For the reasons detailed above, we conclude that bar counsel has proved these charges. As to the charge that the respondent made knowing false statements about Judge Welch concerning the alleged concealment of evidence (and his refusal to present evidence concerning what he was allegedly told), we add the following: when a respondent is in possession of evidence that could explain or defend the charged misconduct, but does not present it, “the hearing committee [is] warranted in drawing an ‘adverse inference from the respondent’s failure to offer materials, readily available to [him], that would presumably support [his] version of the facts if true.’” Matter of Zankowski, 487 Mass. 140, 149, 37 Mass. Att’y Disc. R. 554, 565 (2021). We draw such an adverse inference in this case.

Further

Bar counsel charged that the respondent’s conduct in asserting claims that lacked a basis in law or fact that were not frivolous was in violation of Mass R. Prof. C. 3.1 and 8.4(d). For the reasons detailed above, we conclude that bar counsel has proved these charges.

Bar counsel charged that the respondent’s conduct in making statements concerning the qualifications and integrity of judges and attorneys, knowing the statements to be false or with reckless disregard as to their truth or falsity, was in violation of Mass. R. Prof. C. 8.2 and 8.4(c), (d), and (h). For the reasons detailed above, we conclude that bar counsel has proved these charges.

Respondent had referred the client to another firm that had filed but later dismissed a medical malpractice claim; Respondent made assertions about that case

Ultimately, the respondent had no evidence of bias by Judge Deakin or any evidence that the judge had an improper relationship with counsel for Lubin & Meyer; the respondent made these allegations based upon his disagreement with the judge’s interpretation and application of case law. (Tr. IV:149-154, respondent). Lipchitz denied having personal relationship with Judge Deakin and had not appeared before Judge Deakin prior to the motion to dismiss hearing. (Tr. II:23, Lipchitz).

After he had attempted to undo the dismissal, he sued the law firm and appealed the loss.

This litigation led to additional findings of frivolous litigation and baseless allegations.

In pleadings

The citation the respondent referenced for Corleone v. Howard, Fine and Howard, was the actual citation reference for the Ruggieri case, as referenced above. Corleone v. Howard, Fine and Howard is a fictitious case and does not exist. (Ans. ¶ 243; Tr. II:49, Lipchitz; Tr. IV:166-167, respondent).42 337.

In the appellant brief, the respondent also: (a) occasionally referred to former Massachusetts Governor Charlie Baker as “Charlie Parker;” and (b) substituted the phrase “ipso fatso” for the phrase “ipso facto.” (Ans. ¶ 244; Ex. 135, AGR-1995 and 1996 (“Charlie Parker”) and AGR-1981, 2002 and 2175 (“ipso fatso”)).

Courthouse entry issues

When told that a no-trespass order had been issued and that, if he set foot in the building he would be arrested for trespass, the respondent said, “let’s do it.” He walked back across the street, entered the building, and was arrested by the state police trooper. (Ex. 155, BC073). After being taken by cruiser to the Newbury State Police barracks (Ex. 155, BC-073), the respondent said that he would rather be placed in a cell while the trooper wrote his report, “because it would make a good story.” (Tr. IV:139-140, respondent).

The respondent was charged with trespass and arraigned on the charges. (Ex. 157, 158; Tr. IV:141, respondent). As one of the conditions of the respondent’s pretrial release, he was ordered to stay away from the Salem, Lawrence and Newburyport Superior Courts. (Ex. 159; Tr. IV:140, respondent).

After the bar had filed charges

The respondent also continued to engage in the unethical behavior at issue during the disciplinary hearing. Not only did he respondent fail to acknowledge his misconduct during his testimony at the heating [sic], but after the hearing started, he traveled to the Lawrence Superior Courthouse and Newburyport Superior Courthouse to gather video evidence of his misguided claims of corruption and was subsequently arrested after violating a “no trespass” order.

Proposed sanction

Bar counsel recommends that the respondent be disbarred. The respondent, obviously frustrated with the travel of the underlying case as well as the disciplinary process, submitted no PFCs and makes no recommendation. We recommend that the respondent be suspended for three years, with an additional condition (beyond what is required by the case law interpreting S.J.C. Rule 4:01, § 18)

…we are also concerned about the respondent’s obsession with the Saninocencio case, such that he perceived each adverse ruling to be part of an ever-increasing conspiracy by lawyers and judges.

(Mike Frisch)