The Second Time Around

A Hearing Panel of the Massachusetts Board of Bar Overseers recommends that a second petition for reinstatement be denied

After its review, the full Court, on April 20, 2018, imposed a fifteen-month suspension. Ex. 2 (015). The Court found, among other misconduct, that in the context of representing two elderly clients, the petitioner had “knowingly misrepresented estate assets on an inventory he filed, under oath, in the probate court, the effect of which was to obscure from the probate court’s consideration payments the [petitioner] had made or intended to make to himself and others”; that he had charged and collected clearly excessive fees from the two clients and, after their deaths, from their estates; and that he had drafted testamentary instruments for them which provided for substantial gifts to himself. Ex. 2 (022-23); Matter of Moran, 479 Mass. 1016, 1021-1022 (2018). The Court found no mitigation, but found several factors in aggravation, among them the petitioner’s substantial experience, including in the area of law in which the misconduct occurred; the multiple acts of misconduct he had engaged in; the vulnerability of the clients, both of whom were elderly, infirm and without relatives to oversee the petitioner’s work; the petitioner’s failure to demonstrate understanding of his misconduct; and his failure to refund or repay to the two clients or their estates the excessive fees he had taken. Ex. 2 (023-024); Matter of Moran, supra, 479 Mass. at 1022-1023. The suspension was made retroactive to June 4, 2017, the effective date of the Single Justice’s order.

First failed effort

Our predecessor hearing panel rejected the petitioner’s request for reinstatement for many reasons, but two were prominent: his reluctance to admit that his misconduct had been dishonest, as opposed to merely erroneous; and his failure to make restitution. The centerpiece of the current reinstatement petition and presentation should, accordingly, have been a focus on the concerns enumerated by the first hearing panel. As described in more detail below, we did not see this. See Matter of Solomon, 38 Mass. Att’y Disc. R. 486, 495 (2022) (hearing panel writes that “[t]he petitioner’s audacious decision to do nothing different this time around proves to us that he still does not appreciate what is expected of him in a reinstatement hearing”). Cf. Matter of Lakin, 39 Mass. Att’y Disc. R. __ (2023), SJC No. BD-2019-050, p. 7 (hearing panel writes that in second petition, the petitioner “overc[a]me the shortcomings that resulted in his being denied reinstatement in 2021”).

This go-around

Threaded throughout the entire hearing was the petitioner’s failure to forthrightly and consistently acknowledge that his misconduct had involved dishonesty. While he admitted under questioning by his own counsel that since the denial of his first petition he had gradually come to realize that what he had done was his fault, he later pivoted and stated that at the time of the misconduct he had not had a sufficient understanding of the Rules of Professional Conduct, knowing basically that “you had to generally be honest and all that kinda thing.” Tr. 120-121, 151-153 (Petitioner). After acknowledging, his wrongdoing and dishonesty in response to a very pointed question about whether he had remorse for what he had done, he backtracked and began a long explanation about how the hearing committee at the disciplinary hearing “didn’t even call it a misrepresentation because they said it wasn’t a material fact.” Tr. 123 (Petitioner). We note that the earlier hearing panel, confronted with a similar argument by the petitioner about what had been found, outright rejected it as “wholly discordant with the findings of the Board and the decision of the Supreme Judicial Court.” Ex. 7 (051).

The equivocation continued. When again asked about dishonesty, the petitioner first admitted that he knew there was a “right” way to file an inventory in the probate court, and then proceeded immediately to undermine himself by, once more, claiming that his misrepresentation had not been material, and adding that when he finally reported it, “nobody cared about it.” Tr. 161-162 (Petitioner). He summed up by concluding that it was wrong, “regardless of characterizing it as immaterial.” Tr. 162 (Petitioner). Offered a lifeline to clarify further, he explained that he should not have omitted so-called pre-death expenses, but that he did eventually report them “so in that sense it wasn’t—nobody had balked about it, so it wasn’t material, I guess.” Tr. 164 (Petitioner).

Pay back

We turn to restitution. Despite the first hearing panel’s focus on the weight of restitution and the petitioner’s failure to make it, he wrote in the petition before us that he “was not ordered by the Court to make any restitution to clients or others.” Ex. 1, ¶ 3 (001); Ex. 2 (006) (“I was never ordered to make any form o[f] restitution by the Hearing Committee, the BBO or the SJC”). While this is technically true, it is somewhat disingenuous, eliding the importance that both the Court and the Board have placed on making restitution both here, specifically, and in the case law, generally.

In addressing the gross overcharging found by every tribunal, the petitioner wrote: “I did make a few relatively minor downward adjustments to one bill as a result of a few errors that I became aware of during the [disciplinary h]earing.” Ex. 2 (006). Asked at our hearing about what, specifically, he had done to rectify these overcharges, he stated: “Well, first of all, I can’t. I don’t have enough money to do that.” Tr. 176-177 (Petitioner). He proceeded to digress about how, when in practice, his hourly rate had been quite low, and how he could have, but did not, charge for his paralegal’s time. Tr. 177-178 (Petitioner). In effect, the petitioner again seemed to be justifying his billing as not actually excessive. These are arguments the prior hearing panel decisively rejected. See Ex. 7, n.8 (059-060). He eventually agreed that he would “be willing to sit down with somebody and recalculate the whole thing . . . .” Tr. 179 (Petitioner). However, he obviously has not done so.

Conclusion

Having found the petitioner wanting in the areas of moral redemption and learning in law, it goes without saying that his reinstatement would be inimical to the public good. While it is, accordingly, unnecessary to say more about this criterion, we recognize that the opinion evidence we have received from Fahey- to the effect that the petitioner has been away from practice for significantly more than the te1m of suspension, and that he cannot imagine anyone would be surprised or upset by it – was worthy of our consideration, but not dispositive. This finding does not meaningfully impact our conclusion that in all three areas, the petitioner has failed to carry his burden.

The hearing panel was chaired by Richard Van Nostrand, presumably no relation to Cosmo Kramer. (Mike Frisch)