In re Discipline of An Attorney.
| Decision Date | 09 May 2022 |
| Docket Number | SJC-13183 |
| Citation | 489 Mass. 1018,186 N.E.3d 200 |
| Parties | In the MATTER OF the DISCIPLINE OF AN ATTORNEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The case was submitted on the record, accompanied by a memorandum of law.
Christine A. Helsel, Assistant Bar Counsel.
Bar counsel appeals from an order of a single justice of this court, acting on an information filed by the Board of Bar Overseers (board), ordering that the respondent attorney be privately admonished for violation of multiple rules of professional conduct. We affirm.1
1. Background. Bar counsel filed a two-count petition for discipline against the respondent, alleging multiple acts of misconduct arising out the respondent's several roles as special personal representative for the estate of an elderly client (grandmother), guardian and coguardian for her disabled grandson (ward), and cotrustee of a special needs trust established for the ward's benefit. A hearing committee of the board conducted an evidentiary hearing and thereafter issued a report of its findings, concluding that bar counsel had established some of the misconduct -- primarily a lack of diligence -- alleged in count one, but none of the violations alleged in count two. It recommended that the respondent be admonished. One member filed a substantial dissent; that member would have found additional misconduct and recommended that the respondent be suspended from the practice of law for six months and a day.
Both the respondent and bar counsel appealed to the board. After a nonevidentiary hearing, the board adopted the hearing committee's report "in part," and "correct[ed]" certain findings "as indicated," essentially accepting many of the dissenting committee member's findings and making additional findings of its own, including that the respondent acted without competence and charged and collected an excessive fee. Considering matters in aggravation and the cumulative effect of the misconduct, the board voted to recommend to the court that the respondent be suspended from the practice of law for three months.
When the matter came before a single justice of this court, she reviewed the information and record of proceedings and concluded, as the hearing committee had previously, that bar counsel established violations of some of the allegations contained in count one but none of the violations in count two, and that the misconduct warranted a private admonition. She concluded that the differences between the hearing committee and the board as to misconduct largely revolved around disputes of fact, which in turn rested substantially on witness credibility. She also reasoned that the differences in the recommended sanctions rested principally on the weight given to certain aggravating factors and the extent to which the individual violations were treated as part of the same misconduct. We agree that the substantial evidence supports the single justice's findings and that an admonition is the appropriate sanction.
2. Sufficiency of the evidence of misconduct. The single justice reviewed the record and concluded that, in amending the hearing committee's findings and making certain additional findings of misconduct, the board failed to accept the hearing committee's role as the "sole judge of the credibility of the testimony presented at the hearing," as S.J.C. Rule 4:01, § 8 (5) (a), as appearing in 453 Mass. 1310 (2009), requires. See Matter of Dasent, 446 Mass. 1010, 1012, 845 N.E.2d 1133 (2006) ; Matter of Tobin, 417 Mass. 81, 85-86, 628 N.E.2d 1268 (1994) ; Matter of Saab, 406 Mass. 315, 328, 547 N.E.2d 919 (1989). She agreed with the board, however, that there was substantial evidence to support the misconduct that the hearing committee did find. See Matter of Abbott, 437 Mass. 384, 393-394, 772 N.E.2d 543 (2002), and cases cited. See also Matter of Segal, 430 Mass. 359, 364, 719 N.E.2d 480 (1999) (). On appeal, "[w]e review the single justice's decision (on issues other than the initial choice of a sanction at the disciplinary stage) to determine whether there has been an abuse of discretion or clear error of law." Matter of Weiss, 474 Mass. 1001, 1002, 46 N.E.3d 1024 (2016).
We agree with the single justice that the hearing committee's findings of misconduct are supported by the record and the evidence the hearing committee found credible.
a. Count one. Count one concerned the respondent's role as a coguardian and guardian for the ward and trustee of the ward's special needs trust. It alleged that the respondent handled a matter when he was not competent to do so, failed to familiarize himself with procedures and law applicable to his role as coguardian, engaged in a conflict of interest, and failed to represent the ward's interests competently and diligently and to seek the client's objectives in violation of Mass. R. Prof. C. 1.1, as appearing in 471 Mass. 1311 (2005); Mass. R. Prof. C. 1.2 (a), as appearing in 471 Mass. 1313 (2015); Mass. R. Prof. C. 1.3, as appearing in 471 Mass. 1318 (2015); and Mass. R. Prof. C. 1.7, as appearing in 471 Mass. 1335 (2015); that he paid himself his legal fees as guardian without obtaining approval from the Probate and Family Court, in violation of Mass. R. Prof. C. 1.5 (a), as amended, 480 Mass. 1315 (2018); and that he failed promptly to release retirement funds that he was holding in his Interest on Lawyers’ Trust Account (IOLTA account) on the ward's behalf after a conservator had been appointed, in violation of Mass. R. Prof. C. 1.15 (c), as appearing in 471 Mass. 1380 (2015).
The hearing committee determined that bar counsel proved a subset of the charged misconduct, conduct that it found manifested a lack of diligence but not incompetence. In particular, the hearing committee found, and the board agreed, that the respondent failed to act diligently as guardian and coguardian for the ward, in violation of Mass R. Prof. C. 1.3 (diligence), in two respects: by failing to file annual care plans, see G. L. c. 190B, § 5-309 (b ) ; and failing to secure a home for the ward that was not "unclean, littered with clutter, and had dog and rodent feces in it."2 In addition, the respondent deposited the ward's income and benefits into his IOLTA account rather than a special needs trust or other individual interest bearing account, in violation of Mass. R. Prof. C. 1.15 (e) (5), as appearing in 440 Mass. 1338 (2004) (prior to July 1, 2015), and Mass. R. Prof. C. 1.15 (e) (6) (after July 1, 2015). Finally, after conservators were appointed for the ward, the respondent delayed remitting to the conservators funds that the respondent held on the ward's behalf, in violation of Mass. R. Prof. C. 1.2 (a), and Mass. R. Prof. C. 1.15 (c).3 ,4
The board, however, disagreed with the hearing committee's findings in several respects, concluding in particular that the respondent's conduct also reflected a lack of competence. As the single justice correctly observed, however, factual findings predicated on the credibility of witnesses are the province of the hearing committee. See S.J.C. Rule 4:01, § 8 (5) (a); Matter of Saab, 406 Mass. at 328, 547 N.E.2d 919, quoting Salem v. Massachusetts Comm'n Against Discrimination, 404 Mass. 170, 174, 534 N.E.2d 283 (1989) (). See also Matter of Barrett, 447 Mass. 453, 460, 852 N.E.2d 660 (2006).
They "will not be rejected unless it can be ‘said with certainty’ that [a] finding was ‘wholly inconsistent with another implicit finding.’ " Matter of Murray, 455 Mass. 872, 880, 920 N.E.2d 862 (2010), quoting Matter of Barrett, supra. Although the board may have accorded weight to certain testimony that the committee did not, that "does not render the evidence supporting the committee's findings ‘not substantial,’ " Matter of Dasent, 446 Mass. at 1012, 845 N.E.2d 1133, or inconsistent.
We acknowledge that, pursuant to S.J.C. Rule 4:01, § 8 (5), the board "may revise[ ] the findings of fact, conclusions of law, and recommendation of the hearing committee." That said, the single justice determined that the board's "corrections" in this case failed to "accord the committee's findings appropriate deference." Matter of Dasent, 446 Mass. at 1012, 845 N.E.2d 1133. The board was not free, for example, to reject the hearing committee's findings concerning the credibility of witnesses who testified about the condition of the grandmother's home, the respondent's testimony concerning the relationship between the ward and a relative who provided care for the ward, or the respondent's explanation as to why he did not join the petition to partition the grandmother's home or act with respect to the mortgage on it. The board similarly was not free to reject the respondent's explanation for retaining certain funds in his IOLTA account. Although the hearing committee did find that the respondent "concealed" from (by failing to disclose to) the conservator that he withheld funds from which he planned to take his legal fees, it credited his testimony that he reasonably believed that, had he sought payment from the conservator, she would not have paid the bill. See Mass. R. Prof. C. 1.15. Because the hearing committee credited the respondent's testimony concerning the remaining funds in his IOLTA account, the single justice's determination that the length of the delay was "minimal" is not clearly wrong.
With respect to the respondent's failure to file an annual "care plan" for the ward, pursuant to G. L. c. 190B, § 5-309 (b ), the hearing committee credited the respondent's testimony in support of its finding that the respondent's failure constituted a lack of diligence, in violation of Mass. R. Prof. C. 1.3, but not a lack of competence, in violation...
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