A Private Affair

The Massachusetts Supreme Judicial Court affirmed the imposition of private discipline on two attorneys

Here, the respondents violated two rules. First, they violated Mass. R. Prof. C. 1.15 (f) (1) (E) by failing to perform the three-way reconciliations required by that rule. The respondents violated the rule despite having notice since September 2013 as to how properly to perform the required reconciliations, and although bar counsel informed the respondents in April 2019 that their records did not comply with this rule, they again submitted noncompliant records to bar counsel approximately a year later. Second, the respondents violated Mass. R. Prof. C. 1.15 (c) by failing to disburse certain funds that had accumulated in their IOLTA accounts, amounting to over $100,000. As did the board and the single justice, we consider as factors in aggravation the respondents’ substantial experience in the practice of law and the cumulative effect of the violations at issue here. See Matter of Foster, 492 Mass. at 751, 767; Matter of Moran, 479 Mass. 1016, 1022 (2018). We note, however, that the cumulative effect herein considered is limited to the two violations at issue. See Matter of Kirby, 29 Mass. Att’y Discipline Rep. 366, 374 (2013). We do not consider the conduct underlying bar counsel’s 20132014 investigation as a factor in aggravation. See Matter of Foster, supra at 762 n.18.

Bar Counsel had appealed a single justice’s order

We acknowledge that the respondents had notice as of the commencement of bar counsel’s investigation in 2019 of how to prepare a proper three-way reconciliation report, yet they twice submitted noncompliant reports to bar counsel in the course of the investigation. See Matter of Beatrice, 23 Mass. Att’y Discipline Rep. at 32. Nevertheless, where we agree with the single justice that the most closely analogous cases, cited supra, have previously resulted in private admonitions, we conclude that the sanction imposed by the single justice was not markedly disparate from those imposed in comparable cases. We therefore affirm the order of the single justice imposing a private admonition on each of the respondents and requiring that their firm submit its IOLTA records to bar counsel for review every three months for one year.

(Mike Frisch)