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Getting In Trouble: The Severe Sanctions; 2008-2010, Part One

Introduction

Every year quite a few of our fellow Massachusetts attorneys got themselves in serious trouble with the bar.  We’ve already examined the minor disciplinary matters – those resulting in Massachusetts BBO admonitions in our Massachusetts BBO Admonitions Study 2008-2010.  Now it’s time to look at the more serious BBO cases.  More than 100 lawyers received public reprimands, term suspensions, indefinite suspensions, or even disbarment due to professional misconduct.  What did our fellow lawyers do to deserve the severe penalties?

We examined all 116 severe Massachusetts BBO discipline cases from 2010, analyzing the data by years in practice, fields of practice, severity of punishment, type of violation, severity of punishment, aggravating and mitigating factors, and many more.  The results are interesting.  Even more interesting are the individual stories – the varied ways that our fellow practitioners ran afoul of the rules.  Some were mind-bogglingly egregious.  Others were head-scratchers, where it’s not clear exactly why the sanction was so severe. There were even some celebrity disbarments.
To learn from their errors, we need to examine the individual cases and the data. So we’ve divided our discussion into six articles:

Part One: Getting Disbarred looks at the many ways attorneys ended their careers last year.
Part Two: You’re Suspended! examines the various lengths of suspensions, the ramifications of suspension, and some interesting case studies.
Part Three: Learning from Experience reviews disciplinary cases involving veteran lawyers with ten to more than forty years of practice under their belts.
Part Four: The Punishment Fits the Crime? discusses cases where the resulting sanction seems either too harsh or too lenient for the underlying facts.
Part Five: Private or Public Consequences tries to illuminate the important distinction between private sanctions (such as reprimands and admonitions) and public sanctions (such as public reprimands).
Part Six: Data Mining is an analysis of the raw data, with an eye toward spotting trends in bar discipline.

Part One: Getting Disbarred

We’ll begin with the juiciest cases – the salacious, the notorious, the dramatic. In 2010 we saw 29 cases of lawyerly misconduct egregious enough to incur the ultimate punishment: professional death by disbarment.  In short: don’t do what these lawyers did.

Crime Doesn’t Pay

You are probably not shocked to hear that a conviction will cause you problems with the bar.

That’s especially true of “serious crimes.”  Serious crimes include any felony, as well as any non-felony crime that includes “interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy, or solicitation of another, to commit a ‘serious crime.’ Mass. S.J.C. Rule 4:01 s.12(3).
In other words, the bar will look with extra scrutiny at crimes committed in the course of your law practice – even a misdemeanor might be “serious” if you do it in the line of lawyerly duty.

“Serious crimes” have serious consequences.  The presumption, following a conviction for a serious crime, is that the lawyer should at least receive a suspension. Disbarment is common:

•    One attorney, a criminal lawyer in both senses of the phrase, was disbarred after being convicted of committing more than twenty felonies.  This one-man crime wave included forging judges’ names on court documents, intimidating witnesses, and altering docket entries.
•    Another lawyer was disbarred following his conviction for rape.
•    A third was disbarred following multiple drug and alcohol convictions.

Disbarments in the News

A few of the convicts disbarred last year made the nightly news:

•    Thomas Finneran, former Speaker of the Massachusetts House of Representative, was convicted of lying under oath in a voting rights lawsuit.
•    Francis X. Morrissey was convicted of helping Brooke Astor’s son defraud Ms. Astor by forging a will codicil.
•    State Senator Diane Wilkerson was convicted of eight counts of attempted extortion.

Extreme Misconduct

There was one disciplinary matter arising from criminal behavior that, though not involving anyone who’d make the front page (or even Page Six), was simply too shocking to omit.  She was a litigator.  She engaged in a string of misdeeds that included defying court orders, stealing client funds, and attempting to cover everything up by presenting false testimony.  Most remarkable:  she tried prevent her own eviction by fabricating a bankruptcy order from a retired judge.  She was disbarred.

Hands off the IOLTA!

Your client’s money is not yours.  Full stop, no exceptions.  Not even if the client deposits the money in a trust or escrow account that you can control.  This is one of the core elements of lawyer-as-fiduciary, and the BBO rightly takes it seriously.  Touch the IOLTA or client escrow without justification, and you’re asking for trouble – possibly disbarment.  In fact, the SJC has ruled that the presumptive penalty for intentionally misusing a client’s funds, whether with the intent to deprive the client or with the result of actually depriving the client, is indefinite suspension or disbarment.

•    A real estate lawyer was disbarred for stealing $670,000 from her clients’ IOLTA accounts.
•    A family lawyer was disbarred for stealing $800,000 from an elderly client and for forging documents to cover it up.
•    A criminal defense lawyer was disbarred for stealing more than $70,000 from his client’s escrow account – to buy drugs.  He pled that he had a “disability” – addiction – but the court discounted this mitigating factor because the lawyer didn’t pay the client back at all, even after getting treatment for addiction.

Many Straws Break the Camel’s Back

Some lawyers are disbarred for engaging in multiple and varied bad acts – serial misconduct.

•    A lawyer practicing personal injury law and estate law was disbarred for: being convicted of “numerous crimes” involving DUI, drugs, weapons possession, disorderly conduct, and bail violations; failing to report convictions to the bar; collecting fees on cases for which he did no work; blowing a statute of limitations; violating an administrative suspension; and refusing to cooperate with the bar counsel’s investigation.  Disbarment could not have been much of a surprise.
•    Perhaps a lawyer wouldn’t be disbarred for not notifying the bar of a DUI conviction.  Maybe filing a frivolous 93A claim wouldn’t lead to disbarment.  You might get away with a lesser penalty for being found in contempt of court order.  But if you do all three?  In 2010, that was enough for disbarment.

One wonders at the psychological tension involved in cases like these. Certainly no attorney joins the bar intending to go down the dark path.  Does one bad act require others to cover them up? Do rule violations become less shocking after a while?
In other words: What were these attorneys thinking?