Allen, Matter of

• Decision Date: 09 July 1987
• Citation: 509 N.E.2d 1158,400 Mass. 417
• Parties: In the Matter of Max J. ALLEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1158

509 N.E.2d 1158

400 Mass. 417

In the Matter of Max J. ALLEN.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 5, 1987.

Decided July 9, 1987.

Ronald F. Kehoe, Boston, for petitioner.

Bonnie H. MacLeod-Griffin, Asst. Bar Counsel (Daniel J. Klubock, Bar Counsel, Boston, with her).

Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

This case is here on the reservation and report, without decision, of a single justice of this court. The issue presented is whether Max J. Allen (petitioner) should be reinstated as a member of the bar of the Commonwealth, having been indefinitely suspended from the practice of law on November 9, 1978. S.J.C. RULE 4:01, §§ 4¹, 12, 365 Mass. 697, 704 (1974). The petitioner filed for reinstatement, after a lapse of five years, on September 4, 1984, pursuant to S.J.C. Rule 4:01, § 18 (1). ² After hearing, a panel of the Board of Bar Overseers (panel) recommended that the petitioner not be reinstated, and the Board of Bar Overseers (Board) adopted the panel's recommendation, both by divided votes. These votes were filed with the court on May 15, 1985. On February 28, 1986, after hearing, the single justice indicated that she would order the petitioner's reinstatement on September 5, 1986, unless the Board objected. The Board, again by a divided vote (five-to-two), objected to petitioner's reinstatement at this time. In this posture, the matter was reported.

The facts underlying the petition may be described briefly. In October, 1977, the petitioner, Michael R. Cappiello (also an attorney), Martin Koplow, and George Lincoln were indicted for conspiracy to commit arson and for conspiracy to cause a building (50 Symphony Road in Boston) to be burned with intent to defraud the insurer of the building. Lincoln testified for the prosecution. Allen, Koplow, and Cappiello were tried together and convicted. ³

On this record, it appears that Allen, unlike the other attorneys, was indefinitely suspended and was not disbarred because of strong mitigating evidence presented to the board and to the single justice at the time. ⁴ 2 Mass. Att'y Disc. R., supra at 4. The Board (and bar counsel) now feel, however, that reinstatement of the petitioner still is not warranted. On March 1, 1985, a three-member panel of the Board gave careful consideration to the requirements of S.J.C. Rule 4:01, § 18(5), as appearing in --- Mass. --- (1985), which states, in part: "On any petition the Board, the hearing committee or panel shall promptly hear the respondent-attorney who shall have the burden of demonstrating that he has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth, and that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest...."

The panel considered also our precedents and the factors pertaining to the petitioner and concluded, by a two-to-one vote, ⁵ that "Allen should not be readmitted at this time because of the seriousness of the crime for which he stands convicted and the fact that only six years have passed since he was suspended " (emphasis supplied).

The only issue which divided the panel in 1985 was "whether readmission of Allen to the Bar at this time would be 'detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest" (emphasis in original). The majority then concluded: "[T]he public approbation [sic] associated with the crime Allen committed requires that more time pass before reinstatement. His was a crime of intent, of careful forethought, which might have had the most grievous of consequences for the people who lived in the apartments Allen owned or to others. The crime was not motivated by anger, or passion, but by a desire for profit. It was not a matter of negligence, or disorganization. The moral consequences of what Allen was doing could not have escaped him and there was no evidence that Allen was under any disability at the time. The majority believes that public confidence in the integrity of the Bar requires a longer period of suspension."

Bar counsel, at a hearing before the single justice on August 7, 1985, conceded that the panel's single ground for opposition was "that the nature of the crime for which he was convicted was such that it might undermine the public's confidence and integrity of the Bar and the administration of justice." The petitioner's competence and moral fitness were conceded. Thus, the single justice, having waited a period of time, concluded on February 28, 1986, that: "Bar counsel and the Board agree that the petitioner has the necessary moral character, competency and learning for readmission. The more difficult issue concerns the second requirement, the public interest. This interest includes two elements relating to the public: its protection and its perception.... There is no serious issue raised here concerning the protection of the public. The concern of Bar Counsel and the majority of the Board is with the element of public perception. The majority of the Board concluded that the public opprobrium associated with the crime for which respondent was convicted requires that more time pass before reinstatement."

Further, the single justice ruled: "I think that some more time should elapse before the reinstatement petition should be allowed. I conclude that I shall allow the reinstatement petition on September 5, 1986, unless the Board files an objection" (footnote omitted). Subsequently, the Board responded on September 12, 1986, ⁶ that, by a vote of five-to-two (the minority being for reinstatement), the petitioner's reinstatement should be denied for the same reasons stated by the panel in March, 1985. ⁷

We turn now to consider briefly the standard of our review. "[I]n deciding a case of this kind considerations of public welfare are wholly dominant. The question is not whether the respondent has been 'punished' enough. To make that the test would be to give undue weight to his private interests, whereas the true test must always be the public welfare." Matter of Keenan, 314 Mass. 544, 547, 50 N.E.2d 785 (1943).

Ordinarily, this court gives deference to the recommendations of the Board, but "the ultimate duty of decision rests with this court." Matter of Gordon, 385 Mass. 48, 58, 429 N.E.2d 1150 (1982). See Centracchio, petitioner, 345 Mass. 342, 346-347, 348, 187 N.E.2d 383 (1963). ⁸ Although we have suggested that certain offenses are so serious that an "attorney committing them can never again satisfy the court that he has become trustworthy," Matter of Keenan, supra 314 Mass. at 548-549, 50 N.E.2d 785, we later recognized that no offense "is so grave that a disbarred attorney is automatically precluded from attempting to demonstrate through ample and adequate proofs, drawn from conduct and social interactions, that he has achieved a 'present fitness' (In re Kone, 90 Conn. 440, 442, 97 A. 307 [1916] ) to serve as an attorney and has led a sufficiently exemplary life to inspire public confidence once again, in spite of his previous actions." Matter of Hiss, 368 Mass. 447, 452, 333 N.E.2d 429 (1975).

Consistent with this view, other attorneys who have been indefinitely suspended have been reinstated to practice on appropriate proof. See Matter of Frederick A. Latour, S.J.C. No. 77-33 BD (Oct. 2, 1984) (attorney convicted of bribery reinstated after seven years [1 Mass. Att'y Disc. R. 176 (1977) ] ); Matter of Fred Masuck, 3 Mass. Att'y Disc. R. 135 (1982) (attorney convicted of mail fraud and gaming offenses reinstated after seven years [1 Mass. Att'y Disc. R. 212 (1979) ] ). See also Matter of Warren J. O'Brien, 2 Mass. Att'y Disc. R. 166 (1980), 168 (1981) (attorney convicted of conspiracy to destroy a dwelling house reinstated after one-year suspension).

As to the standards of reinstatement, we have stated the factors to be considered as follows: "In judging whether a petitioner ... has demonstrated the requisite rehabilitation since disbarment, it is necessary to look to (1) the nature of the original offense for which the petitioner was disbarred, (2) the petitioner's character, maturity, and experience at the time of his disbarment, (3) the petitioner's occupations and conduct in the time since his disbarment, (4) the time elapsed since the disbarment, and (5) the petitioner's present competence in legal skills" (footnote omitted). Matter of Hiss, supra 368 Mass. at 460, 333 N.E.2d 429. ⁹

We turn now to the evidence pertaining to this petitioner. His personal history, as stated by the panel of the board recommending his suspension, is as follows: "He was graduated from the University of Texas in 1941 and the Harvard Law School in 1949 and received a Master of Laws degree from Boston University in 1951. He was commissioned an ensign in the United States Naval Reserve in 1944 and remained in the United States Naval Reserve until 1971 when he retired as a commander. From 1949 until his suspension in 1978 Respondent pursued an active legal career as a sole practitioner, with increasing specialization in estate planning. Respondent has served since 1977 as honorary consul for India and has been active in professional and community affairs. He is married and has two sons, one of whom is a lawyer.... During Respondent's twelve month incarceration in the House of Correction, Respondent became active in counseling and teaching inmates and volunteered for work as a farm laborer. He wrote a pamphlet advising new inmates as to their conduct and attitude while incarcerated.... Since his release from prison Respondent has continued to work with and counsel prisoners at the House of Correction. Respondent's present activities consist of managing his real estate and performing his duties as Indian consul."

The panel, considering the petition for...