Concemi, Matter of

• Decision Date: 28 March 1996
• Citation: 422 Mass. 326,662 N.E.2d 1030
• Parties: In the Matter of Samuel J. CONCEMI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1030

662 N.E.2d 1030

422 Mass. 326

In the Matter of Samuel J. CONCEMI.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Dec. 6, 1995.

Decided March 28, 1996.

Terence M. Troyer, Assistant Bar Counsel.

John A. Mizhir, Winchendon, for the respondent.

Robert J. Hoffman and Henry H. Thayer, Boston, for the Massachusetts Conveyancers Association, Inc., amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, GREANEY and FRIED, JJ.

ABRAMS, Justice.

Samuel J. Concemi was convicted, after a jury trial in the United States District Court for the District of Massachusetts, of thirty-five felonies including one count of conspiracy to defraud ComFed Savings Bank (ComFed), a federally insured bank, in violation of 18 U.S.C. § 371 (1988), seventeen counts of bank fraud in violation of 18 U.S.C. § 1344 (1988 & Supp.1993), and seventeen counts of making false statements to a federally insured bank in violation of 18 U.S.C. § 1014 (1988 & Supp.1993). Following these convictions, bar counsel filed a petition for discipline with the Board of Bar Overseers (board) recommending that Concemi be disbarred from the practice of law. The board recommended a three-year suspension. After hearing, a single justice of this court imposed a three-year suspension retroactive to May 3, 1991, the date of Concemi's temporary suspension. Bar counsel appeals. We conclude that Concemi should be disbarred.

1. Facts. A jury found that Concemi, with co-conspirators Patricia A. Hajjar (a ComFed employee) and Walter Ribeck (a real estate broker and seller in some of the transactions), executed and concealed secondary financing agreements from ComFed in seventeen independent real estate closings in violation of ComFed's underwriting policies. Concemi was sentenced to thirty-six months of incarceration followed by two years of supervised release and ordered to pay restitution in the amount of $16,460 ¹ and a fine in the amount of $6,000. The United States Court of Appeals for the First Circuit affirmed these convictions. United States v. Concemi, 957 F.2d 942 (1st Cir.1992), denial of habeas corpus aff'd, 14 F.3d 44 (1st Cir.1994).

In December, 1993, and January, 1994, a hearing panel of the board conducted hearings on the issue of bar discipline following the convictions. ² Bar counsel alleged that Concemi had committed a serious crime as defined in Supreme Judicial Court Rule 4:01, § 12(2), 365 Mass. 696 (1974), and had violated Canon 1, DR 1-102(A)(4), (5), and (6). ³ At the discipline hearing, Concemi testified, contrary to the certificate of conviction that ComFed was aware of and encouraged the secondary financing and that, indeed, it was the bank's policy to give loans to borrowers regardless of their ability to meet normal underwriting requirements. The hearing panel and board found this testimony convincing and determined that, in each transaction, a deviation agreement and a memo of sale were forwarded to ComFed along with the United States Department of Housing and Urban Development (HUD-1) statement, albeit without a cover letter. The hearing panel, citing ComFed's pressure on Concemi to commit the crimes, recommended suspension for a period of two years from the date of temporary suspension. The full board, while adopting the hearing panel's findings of fact and conclusions of law, rejected the recommendation and instead recommended that Concemi be suspended for three years, retroactive to the date of his temporary suspension. A single justice accepted that recommendation.

2. Discussion. We accord substantial weight to the determination of that hearing committee as "the sole judge of the credibility of the testimony presented at the hearing," S.J.C. Rule 4:01, § 8(3), as amended, 415 Mass. 1304 (1993). See also Matter of Saab, 406 Mass. 315, 328, 547 N.E.2d 919 (1989). However, in this case there are valid criminal convictions. For the jury to have convicted Concemi of bank fraud in violation of 18 U.S.C. § 1344, the jury had to conclude that Concemi knowingly executed or attempted to execute a scheme or artifice to defraud a federally chartered or insured financial institution. To convict him of making false statements, the jury had to conclude that the government proved beyond a reasonable doubt that (1) Concemi made or caused to be made a false statement or report to a bank upon an application, commitment or loan, and that the false statement concerned a material fact; (2) Concemi acted knowingly; (3) the false statement or report was made for the purpose of influencing in any way the bank's action on the loan; and (4) the false statement or report was made to a bank whose deposits were then insured by the Federal Savings and Loan Insurance Corporation. Williams v. United States, 458 U.S. 279, 284, 102 S.Ct. 3088, 3091, 73 L.Ed.2d 767 (1982). The facts underlying the convictions show that ComFed did not receive copies of the accurate deviation agreements and memos of sale. Thus, Concemi's convictions conclusively establish that Concemi defrauded his client, ComFed, in violation of 18 U.S.C. § 1344 and that Concemi made or caused to be made false statements in violation of 18 U.S.C. § 1014.

The board erred in taking evidence on the facts underlying Concemi's criminal convictions and in making factual findings inconsistent with those convictions. "A certificate of a conviction (which has not been reversed) of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against him based upon that conviction...." S.J.C. Rule 4:01, § 12(3), 365 Mass. 696 (1974). Our rule conclusively determines that the issue of guilt or innocence is not to be relitigated in a bar discipline proceeding. "Basic respect for the integrity and finality of a prior unreversed criminal judgment demands that it be conclusive on the issue of guilt and that an attorney not be permitted to retry the result at a much later date...." Matter of Hiss, 368 Mass. 447, 450, 333 N.E.2d 429 (1975). We therefore reject Concemi's argument that the hearing panel, as a finder of fact, is entitled deference as to the facts it found concerning his criminal convictions. Accord Matter of Welansky, 319 Mass. 205, 208-209, 65 N.E.2d 202 (1946) ("The average citizen would find it incongruous for the Commonwealth on the one hand to adjudicate [a respondent] guilty and deserving of punishment, and then, on the other hand, while his conviction and liability to punishment still stand, to adjudicate him innocent and entitled to retain his membership in the bar").

Having concluded that the certificate of conviction is conclusive as to the conduct alleged therein, we turn to the question of the appropriate disciplinary sanction. We must decide "whether the sanction imposed by the single justice on the respondent is markedly disparate from the sanctions imposed in similar cases." Matter of Hurley, 418 Mass. 649, 653, 639 N.E.2d 705 (1994), cert. denied, --- U.S. ----, 115 S.Ct. 1401, 131 L.Ed.2d 288 (1995), citing Matter of Palmer, 413 Mass. 33, 37-38, 594 N.E.2d 861 (1992), and Matter of Neitlich, 413 Mass. 416, 421, 597 N.E.2d 425 (1992). See Matter of Alter, 389 Mass. 153, 156, 448 N.E.2d 1262 (1983). The primary factor for our consideration is "the effect upon, and perception of, the public and the bar." Matter of McInerney 389 Mass. 528, 535, 451 N.E.2d 401 (1983), citing Matter of Alter, supra. We must consider what measure of discipline is necessary to protect the public and deter other attorneys from the same behavior. Matter of Saab, supra at 328, 547 N.E.2d 919.

We start with the premise that disbarment or indefinite suspension is the usual sanction imposed for a felony conviction. See Matter of Knox, 412 Mass. 569, 590 N.E.2d 1157 (1992); Matter of Paris, 9 Mass. Att'y Discipline Rep. 257 (1993). "Felony convictions generally require disbarment." Paris, supra at 257. Accord ABA Standards on Imposing Lawyer Sanctions § 5.11(a) (1986) (Disbarment appropriate when "a lawyer engages in serious criminal conduct, a necessary element of which includes intentional ... misrepresentation [or] fraud ... or an attempt or conspiracy or solicitation of another to commit any of these offenses"). ⁴

Concemi has shown no special mitigating circumstance that would justify deviation from the usual and presumptive sanction of disbarment following conviction of a serious crime. See Matter of Alter, supra at 157, 448 N.E.2d 1262 ("We emphasize the term 'special,' since it is apparent that 'typical' mitigating circumstances have not diverted the Justices from the imposition of disbarment or suspension"). Contrary to Concemi's assertions, neither court-ordered restitution nor the severity of his criminal sentence are special mitigating circumstances. Nor is his reputation in the community justification for a less substantial sanction. See Matter of Saab, supra at 327, 547 N.E.2d 919 ("The fact that the respondent appears to have an excellent reputation in his community and among certain judges and attorneys is not the sort of 'special' mitigating factor to which we have accorded weight").

This case is analogous to Matter of Norton, 5 Mass. Att'y Discipline Rep. 272 (1987), in which the single justice determined that the crimes of conspiracy to defraud the United States, falsely testifying before a grand jury, and obstruction of justice "involve misconduct by the attorney in connection with his practice of law. They are serious crimes concerned with lack of truthfulness. Disbarment is the only discipline that is appropriate in this case...." Id. at 273. Like Norton, Concemi committed his felonious acts in connection with his practice of law, a factor we consider in aggravation. ⁵ Additionally, Concemi's felonious activity directly harmed his client. He may have contributed to harming the public welfare in a way which resulted in ComFed being taken over by the Federal Deposit Insurance...