No Abuse Of Discretion

The Maine Supreme Judicial Court has affirmed the decision of a single justice to deny a petition for reinstatement

Diviacchi contends that the single justice erred or abused her discretion in denying his petition for reinstatement under Rule 29(e). He further contends that the single justice abused her discretion by setting the period after which he may reapply for reinstatement at twenty-seven months.

When reviewing findings of fact that a party is required to prove by clear and convincing evidence, we determine “whether the factfinder could reasonably have been persuaded that the required factual finding was or was not proved to be highly probable.” Bailey v. Bd. of Bar Exam’rs, 2014 ME 58, ¶ 17, 90 A.3d 1137 (quotation marks omitted). We review the single justice’s factual findings for clear error and the ultimate decision for an abuse of discretion. Id.; In re Prolman, 2022 ME 25, ¶ 9, 273 A.3d 352. As the unsuccessful party with the burden of proof before the single justice, Diviacchi can prevail on appeal only if he can establish that the single justice was compelled to find in his favor. In re Williams, 2010 ME 121, ¶ 10, 8 A.3d 666. Although we review the single justice’s decision as an appellate body, In re Prolman, 2022 ME 25, ¶ 9, 273 A.3d 352, we also retain “ultimate authority to regulate attorneys and the practice of law in Maine,” In re Jonas, 2017 ME 115, ¶ 30, 164 A.3d 120; see also In re Prolman, 2022 ME 25, ¶ 9, 273 A.3d 352.

Single justice

Here, the single justice’s findings that Diviacchi failed to recognize the wrongfulness and seriousness of the misconduct as found by the Massachusetts court, and that he therefore is not capable of identifying similar conduct in the future as wrongful, are supported by ample record evidence. A statement in his reinstatement questionnaire underscores these findings: “My suspension in Massachusetts that led to my reciprocal suspension in Maine was wrongful and founded upon false findings and conclusions. What was wrongfully done to me was immoral.”

At the same time, Diviacchi admitted that he made false statements but justified them by testifying that he had acquired some bad habits from being overworked—such as “shooting from the hip,” “taking shortcuts,” and “not paying attention.” He also testified that making false statements to the court was a “stupid mistake” but that some of the statements that he made to the court about his client were untrue only because he drew a “bad inference” by not investigating his client’s wrongdoing more thoroughly.

The record is replete with examples of Diviacchi minimizing his actions; making excuses; and testifying that the false statements that he made were based on a “good faith mistake,” the result of “bad wording,” or made in the “heat of the argument.” The single justice astutely noted, however, that there is a “significant difference between recognizing the seriousness and wrongfulness of the misconduct as found by the Massachusetts court and offering testimony about other misconduct . . . [that] was not the thrust of the Court’s findings.” As the single justice found and the record supports, “[i]n significant measure, Mr. Diviacchi diverted his attention away from demonstrating that he recognized the wrongfulness and seriousness of the misconduct for which he was suspended.”

The record provides ample support for the single justice’s findings that Diviacchi failed to recognize the wrongfulness and seriousness of his misconduct and that he would be unable to identify similar misconduct on another occasion. Finding no error or abuse of discretion, we affirm the finding that Diviacchi failed to satisfy the requirements of Rule 29(e)(4).

Next chance

Given that the minimum waiting period before reapplication is generally one year and that Diviacchi demonstrated little if any progress toward satisfying the criteria required for reinstatement in the ten years that have passed since he engaged in the misconduct, we conclude that the single justice did not abuse her discretion in setting the period after which Diviacchi may reapply at twenty-seven months.

(Mike Frisch)