Trauma-Related Violations Result In Proposed Suspension With A Dissent

An attorney’s failure to properly file a document and subsequent false statements have led to a proposed six-month suspension with three months stayed by a Hearing Committee of the Massachusetts Board of Bar Overseers with a dissent favoring fewer findings of misconduct and a public reprimand.

The petition charged that the respondent committed misconduct in connection with her failure to properly file a trust-related document with the Probate Court. The charged misconduct included failures of diligence and competence as well as intentional misrepresentations to cover up her misconduct. The petition charged further that, once her alleged misconduct was reported to bar counsel, the respondent lied repeatedly during her Statement under Oath (SUO) and in the course of the investigation, and knowingly submitted a fabricated document to bar counsel.

Distressing mitigation

In May 2021, the respondent’s husband was arrested at the Norfolk, Massachusetts commuter rail station on charges of “open and gross” conduct, and “lewd and lascivious conduct.” Ex. 30. The local newspaper wrote that he allegedly “fondled himself in front of a woman parked in her car at the station.” Id. He claimed that he had been urinating in bushes near the parking lot and that there had been a “complete misunderstanding.” Id. 84. We credit that it was deeply humiliating for the respondent to see this article on the first page of the local newspaper, and to have to meet with her law partners and then with her staff to explain what had happened. Tr. 1:163; Tr. 2:73 (Respondent).

As a result of the allegations, the husband was terminated from his job as an art teacher in a private Catholic high school. Tr. 1:164 (Respondent). The respondent became the primary breadwinner for the family, which includes two young daughters. The husband spent his time in the marital home, smoking marijuana daily. Tr. 1:167 (Respondent). In November 2021, the husband admitted to “sufficient facts to be found guilty,” and the criminal matter was continued without a finding of guilt. Tr. 1:161, Tr. 2:48 (Respondent).

On June 21, 2022, her fourteenth wedding anniversary, the respondent was cleaning the guest room where her husband had been sleeping when she discovered what she described as “weird provocative clothing,” some with cutouts for genitals. Tr. 1:165-166, 169, Tr. 2:63-64 (Respondent). She also discovered drug paraphernalia. She photographed all of this. Ex. 31.

A few weeks later, the respondent discovered that her husband had Twitter and email accounts under a false name, accounts in which he engaged in sexually suggestive correspondence with others and shared sexually explicit photographs. Tr. 1:168-170, 172-174 (Respondent). She testified: “[A]ll of this weird public fetish stuff . . . basically made my brain explode. That I had been supporting somebody who had this narrative about his arrest, that [discovery] then made me believe that a lot of what was contained in that police report . . . was true.” Tr. 1:169 (Respondent).

Respondent filed for divorce and was deeply affected by the circumstances which the committee found mitigating

We are aware that the time of the stressors does not track precisely with the time of the misconduct. The husband’s arrest was in May 2021, and his plea in November 2021. This preceded the respondent’s December 2021 engagement with Mignanelli. The respondent’s dishonesty began in March 2022, and continued through her May 24, 2023 SUO. This is both before and significantly after the summer 2022 discovery of the clothing and the secret social media accounts.

We conclude that the case law does not demand precision timing as long as there is a causal connection between the trauma and the misconduct.

Client harm was an aggravating factor.

Sanction

Bar counsel recommends a suspension of at least six months and up to a year and a day. The respondent recommends dismissal. We recommend a six-month suspension, with three months stayed, on conditions.

A dissent on the misconduct conclusions

My view of the case leads me to conclude that bar counsel did not prove many of the allegations. As to the Conclusions of Law in Count One, I do not agree that bar counsel has proved the Rule 1.1, 1.2(a) and 1.3 violations described in ¶ 44. As noted above, I cannot agree with the allegation therein that the respondent “took no action of substance to advance the matter”; I would have found that she mailed the March 22, 2022 letter, and that it was returned. This constitutes “some” action. I do agree with the majority’s conclusions in ¶ 47 that the respondent violated Rules 1.4(a) and 1.4(b) by failing properly to communicate with her clients.

Under my view of the facts, the respondent made no intentional misrepresentations to Mignanelli, either that she had filed the Petition, or that it had been heard. I therefore conclude that bar counsel has not proved the Rule 4.1 or 8.4(c) violations charged in ¶¶ 48 and 50. Having failed to find these proved, I cannot agree that there was any prejudice to the administration of justice (Rule 8.4(d))

Turning to Count Two, my disagreement with the majority begins at ¶ 64. As noted, I would have found both that the respondent mailed the Petition to the court, and that it was mailed back to her with a sticky note. I found the respondent’s testimony on these points to be sufficiently credible to overcome the lack of documentary evidence. On this record, I could not determine what the Probate Court’s practice had been at the relevant time with reference to non–compliant filings; there was evidence that up to thirty-five different people took turns opening the mail, that different people followed different protocols, and that the office was only partially staffed due to the COVID-19 pandemic. See Tr. 2:9-13 (Benoit); Tr. 2:22-23 (Clarke).

In this context, I found credible the respondent’s testimony that she mailed the package and that the court returned it with a sticky note. The “sticky note” detail was supported by the testimony of Katie Benoit, an experienced employee in the Probate and Family Court. Benoit agreed that someone could put a sticky note on a filing and send it back. Tr. 2:13 (Benoit). In addition, Clark testified that an employee “could have sent out a deficiency or an email or made a phone call. We just don’t have a record of it.” Tr. 2:30. This supports my view that a petition could have been received and sent back with a sticky but no records were kept with some employees. This is consistent with the respondent’s testimony. I found more likely than not the respondent’s explanation that her filing had been returned to her.

It follows logically from my analysis that I do not believe that bar counsel proved any of the Count Two rule violations.

Sanction dissent

As to the proper disposition, I conclude that under Matter of Kane, the respondent’s conduct warrants at least a public reprimand, if not a short suspension. Her repeated failures to respond to Mignanelli’s office, and her ultimate failure to properly complete the discrete and straightforward task she was hired to do, constitute a pattern of neglect. See Matter of Foster, supra, 492 Mass. at 794 (defining “pattern of neglect” as several instances of misconduct or a protracted period of neglect). I agree with my colleagues’ findings that there are a number of aggravating factors, including harm to the sisters. Under Kane, this could nudge the sanction into the short suspension range. However, in light of the significant mitigation I have found, I believe a public reprimand is the appropriate sanction for the respondent’s misconduct.

(Mike Frisch)