In re Diviacchi

• Citation: 491 Mass. 1003,198 N.E.3d 458
• Decision Date: 05 December 2022
• Docket Number: SJC-13241
• Parties: In the MATTER OF Valeriano DIVIACCHI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

491 Mass. 1003

198 N.E.3d 458

In the MATTER OF Valeriano DIVIACCHI.

SJC-13241

Supreme Judicial Court of Massachusetts.

December 5, 2022.

Valeriano Diviacchi, pro se.

RESCRIPT

The petitioner, Valeriano Diviacchi, appeals from an order of a single justice of this court denying his second petition for reinstatement to the practice of law, as recommended by the Board of Bar Overseers (board). We affirm.

Background. Diviacchi was suspended from the practice of law for a period of twenty-seven months, effective January 2, 2016, after he was found to have violated several of the Massachusetts rules of professional conduct. See Matter of Diviacchi, 475 Mass. 1013, 1021, 62 N.E.3d 38 (2016) ( Diviacchi I ). A hearing committee of the board concluded, and the board agreed, that Diviacchi, in connection with his representation of a client in a Federal action filed against her by a lender,

"(1) violated Mass. R. Prof. C. 1.5 (f) [, as appearing in 459 Mass. 1301 (2011),] by entering into a contingent fee agreement that included provisions not contained in Form A or B without explaining these provisions to the client and without obtaining her informed consent, confirmed in writing;

"(2) violated Mass. R. Prof. C. 1.1, [426 Mass. 1308 (1998);] 1.2 (a), [426 Mass. 1310 (1998);] and 1.3[, 426 Mass. 1313 (1998),] by refusing to further the client's lawful objective of attempting to halt the foreclosure, a goal that he knew was important to the client, because doing so would risk harm to the predatory lending counterclaim which he hoped would be the source of his fee, by refusing to meet and talk with the client despite her begging, by refusing to participate in settlement discussions, and by unilaterally limiting his representation despite describing himself as ‘counsel of record for all purposes’ in his Federal court appearance;

"(3) violated Mass. R. Prof. C. 3.3 (a) (1) [, 426 Mass. 1383 (1998),] and 8.4 (c)[, 426 Mass. 1429 (1998),] by knowingly making false statements of material fact to both the Federal court and the [Boston Municipal Court (BMC)]^[1] ...; and

"(4) violated Mass. R. Prof. C. 1.5 (a) [, as appearing in 459 Mass. 1301 (2011),] by claiming in the Federal court and the BMC that the client owed him approximately $96,000 in attorney's fees, where no contingency on which to ground such recovery had occurred and where the attorney-client relationship had effectively ended well before the sale of the house, a transaction in which Diviacchi did not participate in any event."²

Diviacchi I, 475 Mass. at 1018, 62 N.E.3d 38. We affirmed the order of a single justice of this court imposing a term suspension. Id. at 1021, 62 N.E.3d 38.

In 2018, Diviacchi filed his first petition for reinstatement, which was transmitted to the board. See Matter of Diviacchi, 480 Mass. 1016, 103 N.E.3d 1225 (2018) ( Diviacchi II ). In connection therewith, he filed a motion in the county court requesting that the board be compelled to hold a hearing despite his objections to providing certain information required by the reinstatement questionnaire.³ Id. at 1016, 103 N.E.3d 1225. A second single justice denied the motion to compel and declined to review Diviacchi's objections. Id. Diviacchi's appeal from that interlocutory ruling was dismissed. Id. Thereafter, a hearing committee of the board held a hearing on the petition and recommended that reinstatement be denied on the ground that Diviacchi had not carried his "burden of demonstrating that he ... ha[d] the moral qualifications, competency and learning in the law required for admission to practice law in this Commonwealth, and that his .. resumption of the practice of law [would] not be detrimental to the integrity of the bar, the administration of justice or the public interest." See S.J.C. Rule 4:01, § 18 (5), as appearing in 453 Mass. 1315 (2019). The board adopted that recommendation, and a single justice of this court denied reinstatement. Diviacchi did not appeal from the single justice's judgment.

Diviacchi thereafter filed his second petition for reinstatement, which also was transmitted to the board. A hearing committee held a hearing and issued a report recommending that reinstatement be denied, in part because the committee was "not persuaded that anything of consequence ha[d] changed since the petitioner's suspension and since the denial of his first petition for reinstatement." The board adopted the hearing committee's findings and recommendation and filed an information in the county court, recommending that the second petition be denied. The second single justice of this court concluded that the hearing committee's findings were supported by substantial evidence and denied reinstatement.

Discussion. The case is now before us on Diviacchi's preliminary memorandum, pursuant to S.J.C. Rule 2:23 (b), 471 Mass. 1303 (2015). That rule requires

"the appellant to demonstrate ... that there has been an error of law or abuse of discretion by the single justice; that the decision is not supported by substantial evidence; that the sanction is markedly disparate from the sanctions imposed in other cases involving similar circumstances; or that for other reasons the decision will result in a substantial injustice."

Diviacchi has not carried his burden under the rule.

"A petitioner for reinstatement must demonstrate that he or she ‘has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth, and that his or her 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.’ " Matter of Leo, 484 Mass. 1050, 1051, 144 N.E.3d 294 (2020), quoting Matter of Weiss, 474 Mass. 1001, 1002, 46 N.E.3d 1024 (2016). See S.J.C. Rule 4.01, § 18 (5). The hearing committee found that Diviacchi had demonstrated none of these requirements. The single justice agreed, and so do we.

1. Moral qualifications. The conduct giving rise to Diviacchi's term suspension is "conclusive evidence that he was, at the time, morally unfit to practice law, and it continued to be evidence of his lack of moral character ... when he petitioned for reinstatement." Matter of Leo, 484 Mass. at 1051, 144 N.E.3d 294, quoting Matter of Dawkins, 432 Mass. 1009, 1010, 731 N.E.2d 534 (2000). See Matter of Fletcher, 466 Mass. 1018, 1020, 997 N.E.2d 1196 (2013). We emphasize that this is not a proceeding to review the validity of the underlying discipline. See Matter of Leo, supra at 1051 n.4, 144 N.E.3d 294. See also Matter of Hiss, 368 Mass. 447, 450, 333 N.E.2d 429 (1975). Both the facts of Diviacchi's misconduct and the professional consequences thereof were established in those proceedings, and Diviacchi had ample opportunity at that time to be heard by the board, the single justice, and this court. See Diviacchi I, 475 Mass. at 1018-1020, 62 N.E.3d 38. Although Diviacchi continues to insist that the findings underlying his suspension are factually false and he disputes them at length, we consider them to be conclusively established. We will not permit him to relitigate those findings.

Having been disciplined for conduct evincing unfitness to practice, Diviacchi "therefore bears the burden of demonstrating that, during the period of suspension, he has ‘redeemed himself and become "a person proper to be held out by the court to the public as trustworthy." ’ " Matter of Leo, 484 Mass. at 1051, 144 N.E.3d 294, quoting Matter of Dawkins, 432 Mass. at 1010-1011, 731 N.E.2d 534. That said, we do not require a petitioner for reinstatement to admit his or her wrongdoing and to repent of it in order to be reinstated. We recognized in Matter of Hiss, 368 Mass. at 457-458, 333 N.E.2d 429, that "[t]he continued assertion of innocence in the face of prior conviction^{[4 ]} does not, as might be argued, constitute conclusive proof of lack of the necessary moral character to merit reinstatement. ... [A] convicted person may on sincere reasoning believe himself to be innocent. We also take cognizance ... that miscarriages of justice are possible." Accordingly, we do not "disqualify a petitioner for reinstatement solely because he continues to protest his innocence .... Repentance or lack of repentance is evidence, like any other, to be considered in the evaluation of a petitioner's character and of the likely repercussions of his requested reinstatement." Id. at 459, 333 N.E.2d 429. In this case, despite his argument to the contrary, Diviacchi's refusal to acknowledge the "nature, effects, or implications of [his] misconduct" properly was considered by the hearing committee. Matter of Zankowski, 487 Mass. 140, 153, 164 N.E.3d 898 (2021).

In the end, Diviacchi failed to carry his heavy burden to establish that "he has redeemed himself and become ‘a person proper to be held out by the court to the public as trustworthy.’ " Matter of Leo, 484 Mass. at 1051, 144 N.E.3d 294, quoting Matter of Dawkins, 432 Mass. at 1010-1011, 731 N.E.2d 534. We need not belabor the evidence before the hearing committee. Suffice it to say that after considering the misconduct underlying the suspension, Diviacchi's own testimony, character references, and other evidence of Diviacchi's activities since his suspension, the hearing committee found that nothing of consequence had changed since Diviacchi's suspension or since the denial of his first petition for reinstatement. Before this court, Diviacchi makes virtually no effort to show that the single justice erred in determining that the hearing committee's findings were supported by substantial evidence, or that the hearing committee's conclusion, adopted by the board, and accepted by the single justice, that he is currently unfit to practice law was error. Bare assertion is no substitute for evidence.⁵

Rather than focusing on the substantial evidence supporting the hearing committee's findings, Diviacchi complains about being made to prove his moral qualifications to a hearing...