In re Grayer

• Decision Date: 02 December 2019
• Docket Number: SJC-12642
• Citation: In re Grayer, 483 Mass. 1013, 134 N.E.3d 1133 (Mass. 2019)
• Parties: In the MATTER OF Claude David GRAYER.
• Court: Supreme Judicial Court of Massachusetts

483 Mass. 1013

134 N.E.3d 1133

In the MATTER OF Claude David GRAYER.

SJC-12642

Supreme Judicial Court of Massachusetts.

December 2, 2019

The case was submitted on the record, accompanied by a memorandum of law.

Claude David Grayer, pro se.

Bruce T. Eisenhut, Assistant Bar Counsel.

RESCRIPT

The respondent, Claude David Grayer, appeals from an order of a single justice of this court, acting on an information filed by the Board of Bar Overseers (board), suspending him from the practice of law for one year and a day. We affirm.¹

1. Background. Bar counsel filed a five-count petition for discipline with the board, alleging the respondent's misconduct in connection with his representation of four clients. That misconduct included failure of competence and diligence; negligence resulting in harm to clients; intentional disobedience of a subpoena and an order of the court; and failure to communicate the scope and basis of his fees, to provide an accounting on request, and to account for or return unearned fees when the representation concluded. The petition also charged that the respondent failed to cooperate with bar counsel's investigation of these matters. After requesting and receiving several extensions of time to answer, the respondent filed an answer on his own behalf.

A hearing committee of the board conducted a two-day evidentiary hearing, at which five witnesses testified and twenty-four exhibits were received in evidence. The hearing committee determined that bar counsel proved the petition's allegations and issued a report recommending that the respondent be suspended for one year and one day. The respondent appealed to the board. The board adopted the hearing committee's findings and its recommendation, and voted to file an information to that effect in the county court.

After a hearing, a single justice accepted the hearing committee's findings, as adopted by the board, and entered an order suspending the respondent from the practice of law for one year and one day. The respondent appeals.

2. Disciplinary violations. The single justice reviewed the record establishing the respondent's misconduct, accepted the hearing committee's role as the "sole judge of the credibility of the testimony presented at the hearing," S.J.C. Rule 4:01, § 8 (5) (a), as appearing in 453 Mass. 1310 (2009), and determined that the board's findings of misconduct were supported by substantial evidence. See Matter of Moran, 479 Mass. 1016, 1017, 95 N.E.3d 226 (2018). On review, we summarize the hearing committee's subsidiary findings of facts concerning each count of the petition, which were adopted by the board.² See S.J.C. Rule 4:01, § 8 (6). The hearing committee's ultimate "findings ..., as adopted by the board, are entitled to deference, although they are not binding on this court." Matter of Ellis, 457 Mass. 413, 415, 930 N.E.2d 724 (2010). We conclude that the respondent's claim that the hearing committee's findings are flawed is without merit. There was no error in the single justice's determination that the respondent violated multiple rules of professional conduct. See Matter of Weiss, 474 Mass. 1001, 1002, 46 N.E.3d 1024 (2016).

a. Count one. In 2014, the respondent agreed to represent a client charged with criminal violation of a restraining order. The client paid the respondent a total of $3,000 in connection with the representation. The respondent neither provided the client with a written fee agreement nor explained the basis for his fee in writing.

The client informed the respondent that he was not a citizen of the United States, and expressed his concern that the disposition of the charge could adversely affect his immigration status. The respondent understood the client's concern. The respondent nonetheless advised the client to admit to sufficient facts to establish violation of the restraining order, and to accept disposition of the case with a continuance without a finding. In the plea colloquy, the judge informed the client of the possible immigration consequences of the plea. When asked, the respondent assured the client that it was "okay," and explained that the judge was using terminology read to everyone. The respondent did not fully explain to the client the potential immigration consequences of the plea that the respondent advised the client to accept. An admission to sufficient facts is considered a conviction under Federal law. See 8 U.S.C. § 1101(a )(48)(A).

In July 2015, the Immigration and Customs Enforcement (ICE) arrested the client due to his admission to sufficient facts for violating the restraining order. The client retained postconviction counsel to vacate the admission to sufficient facts on the ground of ineffective assistance of counsel. See Commonwealth v. Lavrinenko, 473 Mass. 42, 53, 38 N.E.3d 278 (2015). The respondent failed to cooperate with the client and the client's successor counsel, and gave inconsistent descriptions of his communications with and advice to the client. The client's motion initially was denied on the ground that the "defendant has not provided an affidavit from his plea counsel addressing counsel's alleged strikingly deficient advice."

The client's second postconviction attorney subpoenaed the respondent to testify at a hearing to reconsider the denial of the client's motion to vacate the plea. Although the respondent first was served with a subpoena containing an incorrect date, a corrected subpoena was served on the respondent by a constable, in hand, directing him to appear in court on December 14, 2015. Despite service of the corrected subpoena, and despite a telephone call from counsel confirming the hearing date, the respondent did not move to quash the subpoena, and failed to appear in court. Instead, the respondent appeared the following day, purporting to comply with the misdated subpoena. The hearing committee found that the respondent did not want to appear at the December 14 hearing, and that his failure to do so was intentional. The judge allowed the client's motion to vacate the plea, crediting the client's testimony, "bolstered by the failure of plea counsel to cooperate." The judge found that "[i]t has been clearly demonstrated that plea counsel is uncooperative. Plea counsel failed to attend the hearing. The court credits the detailed affidavit of efforts made to obtain cooperation and of plea counsel's failure to cooperate." The client spent six months in ICE detention before he was released.

On appeal, the respondent contends that he adequately communicated with the client concerning the immigration consequences associated with his admission to sufficient facts. The respondent argues that, in light of his own substantial experience in immigration matters, and the judge's plea colloquy, the hearing committee ought to have credited his testimony rather than that of the client.³ He also challenges the hearing committee's rejection of his assertion that he informed successor plea counsel that he was unable to attend the hearing on December 14. The hearing committee, however, is the "sole judge of credibility, and arguments hinging on such determinations generally fall outside the proper scope of our review." Matter of McBride, 449 Mass. 154, 161-162, 865 N.E.2d 1110 (2007). S.J.C. Rule 4:01, § 8 (5) (a). The hearing committee's credibility determinations "will not be rejected unless it can be said with certainty that the finding was wholly inconsistent with another implicit finding" (quotations and alteration omitted). Matter of Murray, 455 Mass. 872, 880, 920 N.E.2d 862 (2010). See Matter of Finneran, 455 Mass. 722, 730, 919 N.E.2d 698 (2010) ; S.J.C. Rule 4:01, § 8 (4). We therefore decline to consider those credibility determinations further.

The respondent's failure to determine, understand, and advise the client of the immigration consequences of an admission to sufficient facts, despite knowing the client's immigration status, violated Mass. R. Prof. C. 1.1, as appearing in 471 Mass. 1311 (2015) (competence); Mass. R. Prof. C. 1.2 (a), as appearing in 471 Mass. 1313 (2015) (seeking lawful objectives); and Mass. R. Prof. C. 1.4 (a), as appearing in 471 Mass. 1319 (2015) (communication with client). The respondent also violated Mass. R. Prof. C. 8.4 (d), as appearing in 471 Mass. 1483 (2015) (conduct prejudicial to administration of justice), and Mass. R. Prof. C. 8.4 (h) (conduct adversely reflecting on fitness to practice), by failing to comply with the subpoena served on him; and Mass. R. Prof. C. 1.5 (b) (1), as appearing in 463 Mass. 1302 (2012), by failing to describe to the client the basis of his fee in writing.

b. Count two. In October 2016, a second client obtained a default judgment against the respondent in the amount of $7,150 for costs associated with the respondent's failure to properly conclude a divorce settlement. On October 4, 2016, the court ordered the respondent either to pay that amount by November 3, 2016, or to appear for a payment review on November 4, 2016. The respondent did neither, and a capias issued against him. Between December 2016 and January 2017, bar counsel notified the respondent four times about the capias. Represented by counsel, on January 17, 2017, the respondent moved for relief from the default judgment, but he neglected to state any grounds. After a hearing, the judge denied the motion, observing that no grounds were stated and that there was a "lack of any credible testimony at the hearing from [the respondent]" regarding his failure to appear.⁴

On appeal, the respondent contends that he was not served with proper notice of the October 4, 2016, order. The hearing committee's contrary finding is supported by substantial evidence. While the court's docket does not contain a separate docket entry with respect to notice, the board's investigator testified that a copy of the notice sent to the parties was in the court's file, and that there was no indication that any mail had been returned to the court. In...