Single Justice Affirmed

The full Massachusetts Supreme Judicial Court affirmed the conclusions of a single justice imposing a three-year suspension for misconduct in bankruptcy matters

On August 11, 2022, the Office of Bar Counsel (bar counsel) filed with the Board of Bar Overseers (board) a three-count amended petition for discipline alleging that the respondent had violated a number of the Massachusetts Rules of Professional Conduct. Each count related to a separate client matter, two of which involved bankruptcy proceedings and one of which involved bankruptcy, foreclosure, and eviction proceedings. In the first two bankruptcy matters, the allegations of misconduct included asserting frivolous claims, making false statements, and failing to obey court orders. In the third matter, the allegations of misconduct related to the scope of the respondent’s representation of, and the fees charged to, his clients as well as to his failure to transmit excess foreclosure proceeds to the proper party.

Sanction

In reaching its decision to recommend a three-year suspension, the board first addressed what it considered to be the respondent’s most serious offenses: the numerous times he knowingly made false statements of fact or law to the courts, in violation of Mass. R. Prof. C. 3.3 (a) (1), and the related professional misconduct in violation of Mass. R. Prof. C. 8.4 (d) and (h). In cases in which an attorney has made intentionally false statements to a court, a one-year suspension has been imposed. See Matter of McCarthy, 416 Mass. 423, 431432 (1993); Matter of Neitlich, 413 Mass. 416, 421-422 (1992). When those statements have been under oath, the concomitant sanction has been at least a two-year suspension. See Matter of Diviacchi, 475 Mass. 1013, 1020-1021 (2016), and cases cited. 

Here, the respondent made multiple false statements or misrepresentations, of both fact and law, in multiple courts and in three different cases. Additionally, he had engaged previously in similar such behavior. These violations alone would warrant a two-year suspension, but of course, these are not the only violations. The respondent also violated several other rules, and in arguing that a three-year suspension is disparate, the respondent fails to account for the variety and number of violations. We need not — and we do not — consider each of the violations individually. “[I]t is well established that disciplinary violations are not viewed in isolation. We consider instead the ‘cumulative effect of the several violations committed by the respondent.'” Matter of Zak, 476 Mass. 1034, 1039 (2017), quoting Matter of Palmer, 413 Mass. at 38. See Matter of Saab, 406 Mass. 315, 326 (1989) (“The simultaneous consideration of separate violations . . . is an established part of the disciplinary system of this Commonwealth”). Even where some of the violations would warrant only an admonition or public reprimand, others, particularly the violations of Mass. R. Prof. C. 3.3 (a) (1), 8.4 (d), and 8.4 (h) explained above, warrant a term suspension. And even the minor violations cumulatively could warrant a more substantial sanction than each would warrant on its own. Taken together, the respondent’s multiple violations of multiple rules of professional conduct warrant the three-year suspension imposed here.

To the extent that the respondent suggests that the sanctions imposed by the bankruptcy court in connection with both counts one and two should lessen the sanction imposed here, the bankruptcy court sanctions do not govern the respondent’s ethical violations.

Recusal of prosecutor

[Respondent]  argues that the assistant bar counsel who has represented bar counsel throughout these proceedings had a conflict of interest and should therefore have been recused. The respondent raised the issue at the outset of the proceedings, and bar counsel denied the respondent’s recusal request. The respondent did not raise the issue with the hearing committee or before the board but did raise it before the single justice. On the basis that the respondent had not raised the issue with the hearing committee or before the board, the single justice deemed it waived. There was no error. See Matter of Foster, 492 Mass. 724, 760 n.16 (2023), citing Matter of Gannett, 489 Mass. 1007, 1009 (2022) (issues not raised before the hearing committee or board are deemed waived). The respondent’s suggestion that if he had raised the issue before the hearing committee or the board, he “would be criticized (if not chastised) for raising it again,” after he had raised it with bar counsel, does not excuse his failure to raise it at the appropriate time, before the hearing committee.

(Mike Frisch)