In re Cobb

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 838 N.E.2d 1197,445 Mass. 452
• Parties: In the Matter of Matthew COBB.
• Decision Date: 08 December 2005

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838 N.E.2d 1197 445 Mass. 452 In the Matter of Matthew COBB. Supreme Judicial Court of Massachusetts, Suffolk. Argued September 9, 2005. Decided December 8, 2005.

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The case was submitted on briefs.

Matthew Cobb, Boston, pro se.

Daniel C. Crane, Bar Counsel, & Jane R. Rabe, Assistant Bar Counsel, Boston.

Present: MARSHALL, C.J., IRELAND, SPINA, & CORDY, JJ.

SPINA, J.

The respondent, Matthew Cobb, appeals from the judgment of a single justice disbarring him from the practice of law for multiple violations of the Massachusetts Rules of Professional Conduct and the former Canons of Ethics and Disciplinary Rules in three cases consolidated for hearing by the Board of Bar Overseers (board).¹ In the first case, the respondent was found to have filed a motion containing improbable and false allegations that he failed to corroborate, thereby exposing his client to sanctions. He also made groundless representations to the judge. In the second case, the respondent filed a complaint against the attorneys for the adversaries of his clients alleging claims that he knew or should have known were groundless. He also misrepresented to his clients that they had been sanctioned, persisted in a frivolous appeal, converted his clients' settlement proceeds to pay sanctions assessed against him personally, and without good ground or support alleged in papers filed in the Appeals Court that the Superior Court judge who had sanctioned him had been improperly influenced and was biased. In the third case, the respondent settled a client's case without her authority. Additionally, he continued to represent her when their interests were in conflict, purportedly disclosed privileged client communications without authorization, and made misrepresentations to a judge and to bar counsel.

On appeal the respondent claims that the single justice abused his discretion or committed a clear error of law (1) by adopting unsupported findings of the board that he converted client funds; (2)

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by failing to rule that statements made by the respondent, even if unfounded, were protected by the First Amendment to the United States Constitution; and (3) by failing to find that the respondent's due process rights under the Fourteenth Amendment to the United States Constitution were violated where, he alleges, (a) the cases were improperly consolidated, (b) he was prejudiced by assistant bar counsel's intentional delay in bringing charges, (c) the evidence did not establish conversion as pleaded, (d) the conduct for which the respondent was prosecuted is reasonably susceptible of different interpretations, (e) assistant bar counsel prosecuted the respondent unethically and with malice, (f) the punishment sought by assistant bar counsel was motivated by vindictiveness for the respondent's defense of the charge of conversion and for his criticism of public officials, and (g) bar discipline proceedings on their face, and statistically, invariably produce an arbitrary result. We affirm the judgment of disbarment.

1. Facts. We summarize the findings of fact and conclusions of law of the hearing committee that were adopted by an appeal panel of the board, and eventually by the full board itself. The single justice determined that the evidence supported these findings of fact. He also determined that the factual findings and inferences therefrom supported the board's conclusions of law, and he adopted the conclusions of law.

a. Count one. The respondent, who has been a member of the bar of the Commonwealth since December 20, 1990, was retained by Dr. Omar Jaraki to represent him in his claim for damages arising from his termination as an emergency room physician at Melrose-Wakefield Hospital. The respondent filed suit on Dr. Jaraki's behalf on June 11, 1993. In answers to interrogatories propounded by James Anderson of the firm Taylor, Anderson & Travers, attorney for the defendants, the respondent listed "Dr. Leo Rozenbaum" as one of Jaraki's witnesses. Anderson recognized Dr. Rozenbaum as a client of one of his partners, Attorney Ellen Epstein Cohen. By letter dated January 19, 1995, Cohen notified Dr. Rozenbaum and asked him to contact her so the firm could determine whether it was in a conflict of interest by virtue of its representations of the defendants in the Jaraki suit.

On March 3, 1995, the respondent filed an ex parte motion seeking to restrain "Attorney Diane Taylor" of the firm Taylor, Anderson & Travers, as well as another attorney who is currently a judge in the United States District Court for the District of Massachusetts and who formerly had been Dr. Rozenbaum's attorney, from "communicating by any means with Leo Rozenbaum, M.D., a witness in [this] action." The motion also sought a short order of notice and contained a prayer for preliminary injunctive relief preventing the defendants, their officers, agents, and attorneys from contacting Dr. Rozenbaum. Although the judge did not consider the motion ex parte, he issued a short order of notice to Dr. Rozenbaum, to Dr. Rozenbaum's former attorney, and to the parties. The judge also ordered the documents impounded.

The respondent's ex parte motion falsely asserted that Attorney Taylor and Dr. Rozenbaum's former attorney were urging Dr. Rozenbaum not to testify or were attempting to influence and alter his testimony in the Jaraki matter. The respondent drafted and filed an affidavit of Dr. Jaraki in support of the motion that also contained several false allegations. He had relied entirely on the representations of his client with no attempt at corroboration. He had no good grounds to support them.

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On March 4, 1995, the respondent caused a subpoena duces tecum to be served on Dr. Rozenbaum at his place of employment, requiring production of a "letter from Attorney Diane Taylor." On March 7, Attorney Cohen filed a motion to quash the subpoena on behalf of Dr. Rozenbaum. In a supporting affidavit Dr. Rozenbaum denied the allegations in the respondent's motion and stated that he had no information about the Jaraki case, that he never discussed the Jaraki case with his former attorney or with Attorney Cohen (his personal attorney), and that he did not have a letter from an "Attorney Diane Taylor," whom he did not know. Dr. Rozenbaum sought costs, attorney's fees, and other sanctions. On March 16, the defendants in the Jaraki matter filed an opposition to the respondent's motion for injunctive relief, together with a motion for sanctions. The motions were supported by the affidavit of Attorney Anderson, which stated, in part, that there was no attorney at his firm by the name of Diane Taylor. In fact, there was no Attorney Diane Taylor at the firm, a matter that was easily ascertainable.

On March 17, 1995, a hearing was held on the respondent's motion, at which Drs. Jaraki and Rozenbaum testified. At the hearing the respondent asserted that Dr. Rozenbaum, Dr. Rozenbaum's former attorney, and Attorney Diane Taylor were engaged in a criminal enterprise to prevent Dr. Rozenbaum from testifying. The judge denied the respondent's motion and found that the respondent filed the motions for injunctive relief "in bad faith and without any reasonable inquiry," in violation of Mass. R. Civ. P. 11, 365 Mass. 753 (1974). The judge ordered both the respondent and Dr. Jaraki jointly to pay sanctions in the amount of $8,367 to the Jaraki defendants, $3,167.49 to counsel for Dr. Rozenbaum, and $1,050 to Dr. Rozenbaum.

The board adopted the conclusions of law of the hearing committee and found that the respondent's conduct in filing pleadings with the court that contained scandalous or improbable allegations without conducting an investigation into those allegations violated S.J.C. Rule 3:07, Canon 1, DR 1-102(A)(5), as appearing in 382 Mass. 769 (1981) (conduct prejudicial to administration of justice); S.J.C. Rule 3:07, Canon 1, DR 1-102(A)(6), as appearing in 382 Mass. 769 (1981) (conduct adversely reflecting on fitness to practice); S.J.C. Rule 3:07, Canon 6, DR 6-101(A)(2), as appearing in 382 Mass. 783 (1981) (inadequate preparation); and S.J.C. Rule 3:07, Canon 6, DR 6-101(A)(3), as appearing in 382 Mass. 783 (1981) (neglect). His continued pursuit of the claims after he received evidence that they could not be true also violated these rules.

The board determined that the respondent's conduct in asserting that Dr. Rozenbaum, Dr. Rozenbaum's former attorney, and "Attorney Diane Taylor" were engaged in a criminal conspiracy when he had no grounds to support that claim violated DR 1-102(A)(5), DR 1-102(A)(6), and S.J.C. Rule 3:07, Canon 7, DR 7-106(C)(1), as appearing in 382 Mass. 787 (1981) (before tribunal, attorney shall not state or allude to any matter he had no reasonable basis to believe relevant or will not be supported by admissible evidence).

The board further found that the respondent's conduct in exposing and subjecting his client to sanctions for violation of rule 11 was a violation of S.J.C. Rule 3:07, Canon 7, DR 7-101(A)(3), as appearing in 382 Mass. 784 (1981) (prejudice or damage to client during professional relationship).

b. Count two. On February 26, 1992, the respondent sent a demand letter under G.L. c. 93A on behalf of John and Jane

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Doe (pseudonyms) to Dr. Michael Hayes and South Shore Neurology Associates, Inc. (South Shore), alleging that Dr. Hayes had sexually assaulted Mrs. Doe during a physical examination at South Shore in December, 1990. Attorney Alan Rose, then a partner at Nutter, McClennen & Fish (Nutter), responded on behalf of Dr. Hayes and South Shore. In his letter, Attorney Rose denied that an assault had occurred, and also wrote that the respondent's demand letter was "defamatory[, that his clients] have excellent reputations and both fully believe that your client's conduct in accusing...