Fordham, Matter of
| Decision Date | 09 August 1996 |
| Citation | 423 Mass. 481,668 N.E.2d 816 |
| Parties | In the Matter of Laurence S. FORDHAM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Arnold R. Rosenfeld, Bar Counsel.
Laurence M. Johnson, Boston, for respondent.
Before LIACOS, C.J., and O'CONNOR, GREANEY and FRIED, JJ.
This is an appeal from the Board of Bar Overseers' (board's) dismissal of a petition for discipline filed by bar counsel against attorney Laurence S. Fordham. On March 11, 1992, bar counsel served Fordham with a petition for discipline alleging that Fordham had charged a clearly excessive fee in violation of S.J.C. Rule 3:07, DR 2-106, as appearing in 382 Mass. 772 (1981), for defending Timothy Clark (Timothy) in the District Court against a charge that he operated a motor vehicle while under the influence of intoxicating liquor (OUI) and against other related charges. Fordham moved that the board dismiss the petition and the board chair recommended that that be done. Bar counsel appealed from the chair's decision to the full board, and the board referred the matter to a hearing committee.
After five days of hearings, and with "serious reservations," the hearing committee concluded that Fordham's fee was not substantially in excess of a reasonable fee and that, therefore, the committee recommended against bar discipline. Bar counsel appealed from that determination to the board. By a vote of six to five, with one abstention, the board accepted the recommendation of the hearing committee and dismissed the petition for discipline. Bar counsel then filed in the Supreme Judicial Court for Suffolk County (county court) a claim of appeal from the board's action.
Fordham moved in the county court for a dismissal of bar counsel's appeal. A single justice denied Fordham's motion and reported the case to the full court. We conclude that the single justice correctly denied Fordham's motion to dismiss bar counsel's appeal. We conclude, also, that the board erred in dismissing bar counsel's petition for discipline. We direct a judgment ordering public censure be entered in the county court.
We summarize the hearing committee's findings. On March 4, 1989, the Acton police department arrested Timothy, then twenty-one years old, and charged him with OUI, operating a motor vehicle after suspension, speeding, and operating an unregistered motor vehicle. At the time of the arrest, the police discovered a partially full quart of vodka in the vehicle. After failing a field sobriety test, Timothy was taken to the Acton police station where he submitted to two breathalyzer tests which registered .10 and .12 respectively.
Subsequent to Timothy's arraignment, he and his father, Laurence Clark (Clark) consulted with three lawyers, who offered to represent Timothy for fees between $3,000 and $10,000. Shortly after the arrest, Clark went to Fordham's home to service an alarm system which he had installed several years before. While there, Clark discussed Timothy's arrest with Fordham's wife who invited Clark to discuss the case with Fordham. Fordham then met with Clark and Timothy.
At this meeting, Timothy described the incidents leading to his arrest and the charges against him. Fordham, whom the hearing committee described as a "very experienced senior trial attorney with impressive credentials," told Clark and Timothy that he had never represented a client in a driving while under the influence case or in any criminal matter, and he had never tried a case in the District Court. The hearing committee found that "Fordham explained that although he lacked experience in this area, he was a knowledgeable and hard-working attorney and that he believed he could competently represent Timothy. Fordham described himself as 'efficient and economic in the use of [his] time.' ...
After the meeting, Clark hired Fordham to represent Timothy.
According to the hearing committee's findings, Fordham filed four pretrial motions on Timothy's behalf, two of which were allowed. One motion, entitled "Motion in Limine to Suppress Results of Breathalyzer Tests," was based on the theory that, although two breathalyzer tests were exactly .02 apart, they were not "within" .02 of one another as the regulations require. See 501 Code Mass.Regs. § 2.56(2) (1994). The hearing committee characterized the motion and its rationale as "a creative, if not novel, approach to suppression of breathalyzer results." Although the original trial date was June 20, 1989, the trial, which was before a judge without jury, was held on October 10 and October 19, 1989. The judge found Timothy not guilty of driving while under the influence.
Fordham sent the following bills to Clark:
The bills totaled $50,022.25, reflecting 227 hours of billed time, 153 hours of which were expended by Fordham and seventy-four of which were his associates' time. Clark did not pay the first two bills when they became due and expressed to Fordham his concern about their amount. Clark paid Fordham $10,000 on June 20, 1989. At that time, Fordham assured Clark that most of the work had been completed "other than taking [the case] to trial." Clark did not make any subsequent payments. Fordham requested Clark to sign a promissory note evidencing his debt to Fordham and, on October 7, 1989, Clark did so. In the October 13, 1989, bill, Fordham added a charge of $5,000 as a "retroactive increase" in fees. On November 7, 1989, after the case was completed, Fordham sent Clark a bill for $15,000.
Bar counsel and Fordham have stipulated that all the work billed by Fordham was actually done and that Fordham and his associates spent the time they claim to have spent. They also have stipulated that Fordham acted conscientiously, diligently, and in good faith in representing Timothy and in his billing in this case.
We consider first Fordham's contentions that bar counsel has no right to appeal from the board's decision to dismiss a petition for bar discipline and that the court lacked jurisdiction to entertain the appeal. Supreme Judicial Court Rule 4:01, § 1(1), as amended, 368 Mass. 900 (1976), provides: "Any attorney admitted to, or engaging in, the practice of law in this Commonwealth shall be subject to [the Supreme Judicial Court's] exclusive disciplinary jurisdiction and the provisions of these rules...." This court's right of exclusive jurisdiction over attorney disciplinary matters necessarily includes jurisdiction to review decisions of the board not to recommend discipline. If, as in the present case, there is an assertion that the board, in deciding to dismiss a petition for discipline, has misinterpreted or misapplied the disciplinary rules, which were promulgated by the court, there can be no legitimate doubt that the court has jurisdiction to review the board's interpretation and application of those rules. Furthermore, nothing in our rules or in reason suggests that the exercise of our disciplinary powers may not be invoked by bar counsel by appealing from a decision of the board to dismiss a petition for discipline. Indeed, who, other than bar counsel, who is independent of the board and is a party to all disciplinary proceedings, S.J.C. Rule 4:01, § 7(3), 365 Mass. 696 (1974) and § 8(3), as amended, 415 Mass. 1304 (1993), would be entitled to challenge the board's dismissal of a petition for discipline? A complainant does not have standing to do so. Callahan v. Board of Bar Overseers, 417 Mass. 516, 518, 631 N.E.2d 43 (1994). We conclude that, because this court has responsibility to review matters involving attorney discipline, bar counsel necessarily has a right to appeal to the court from the board's dismissal of petitions therefor and the court has jurisdiction to decide the matter.
The board dismissed bar counsel's petition for discipline against Fordham because it determined, relying in large part on the findings and recommendations of the hearing committee, that Fordham's fee was not clearly excessive. Pursuant to S.J.C. Rule 3:07, DR 2-106(B), "a fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence, experienced in the area of the law involved, would be left with a definite and firm conviction that the fee is substantially in excess of a reasonable fee." The rule proceeds to list eight factors to be considered in ascertaining the reasonableness of the fee:
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