In re Grella

• Decision Date: 30 October 2002
• Citation: 438 Mass. 47,777 N.E.2d 167
• Parties: In The Matter of Paul J. GRELLA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

777 N.E.2d 167

438 Mass. 47

In The Matter of Paul J. GRELLA.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued September 4, 2002.

Decided October 30, 2002.

Nancy E. Kaufman, Assistant Bar Counsel.

Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, & SOSMAN, JJ.

MARSHALL, C.J.

At issue in this case is the appropriate disciplinary sanction for a member of the bar convicted of a misdemeanor arising from his violent assault on his estranged wife. The matter commenced on May 16, 2000, when bar counsel notified the county court that the respondent, Paul J. Grella, had been convicted of assault and battery.¹ A single justice remanded the matter to the Board of Bar Overseers (board) for further proceedings, whereupon bar counsel filed a petition for discipline alleging that the respondent had violated Mass. R. Prof. C. 8.4(b) and (h), 426 Mass. 1429 (1998).²

Hearings were conducted in November, 2000, at the conclusion of which the hearing committee of the board recommended that the respondent be suspended from the practice of law for two months. In May, 2001, the board adopted the hearing committee's findings and recommendations, and filed an information to that effect. The single justice did not accept the board's recommendation and ordered that the respondent be suspended from the practice of law for six months and suspended the execution of the discipline for three years provided that the respondent abstain from alcohol and abide by the rules of the profession. Bar counsel appealed.

We give the matter de novo review, Matter of Kennedy, 428 Mass. 156, 156, 697 N.E.2d 538 (1998), and conclude that the appropriate sanction in this case is, as the board recommended, suspension of the respondent from the practice of law for two months.

1. Facts. The relevant facts found by the hearing committee and adopted by the board may be succinctly stated as follows. The respondent received his bachelor's degree from the University of Massachusetts in 1978, and a law degree from City University of New York Law School in 1987. The respondent married the victim while attending law school; after his graduation the couple moved to Massachusetts. After working as a law clerk for a Bankruptcy Court judge in Rhode Island, the respondent was admitted to the Massachusetts bar in 1989. Since that time he has practiced law in Massachusetts, predominantly as a sole practitioner.

In 1997, the respondent and his wife sought marital counselling, during the course of which she made certain allegations concerning the respondent's conduct toward his then ten year old daughter, one of their four children. The counsellor reported the allegation to the Department of Social Services, which later dismissed the claim, finding no reasonable cause to support it. The marital counselling proved unsuccessful, and the respondent and his wife separated in May, 1998. They were divorced in 1999.

The events that gave rise to the respondent's criminal conviction occurred on July 29, 1998. Beginning at 12:50 A.M., the respondent repeatedly telephoned his estranged wife, leaving messages on her answering machine to the effect that he wanted to come over to see her.³ His wife, who had just returned home from work, did not answer the telephone, but she heard the recorded messages. She eventually turned off the telephone ringers in her home and fell asleep, but was awakened when she heard the respondent calling her name. He was in her bedroom. She asked the respondent to leave. He refused, pushed her on the bed, lay on top of her, and put his hand over her mouth. The victim, feeling that she was unable to breathe, finally pushed him away, and she fell to the floor. The respondent fell on top of her, screaming at her while slapping her and pulling her hair. The respondent pulled at the victim's clothes, ripping off two buttons. He pushed her back down on the bed. The victim begged him to stop. Fearing for her life, she scratched the respondent's cheek in the hope that someone would notice if something happened to her. She told the defendant "not to do anything because of the children." The assault continued for approximately four hours, with the respondent refusing to let the victim leave her bedroom. At 5:45 A.M., the respondent finally left the house. The victim immediately dialed 911 and reported that her husband had attacked her and had just left the house. She told the police that the respondent had pulled her hair and slapped her, that her lip was bloody, and that the respondent had threatened to harm her if she telephoned the police. The police later observed and photographed the wife's injuries.

2. The decision of the board. The hearing committee concluded that the respondent's guilty plea constituted a conviction within the meaning of S.J.C. Rule 4:01, § 12(1), as appearing in 425 Mass. 1313 (1997),⁴ and that the conviction was conclusive evidence that the respondent had committed an assault and battery in violation of G.L. c. 265, § 13A. See S.J.C. Rule 4:01, § 12(2), as appearing in 425 Mass. 1313 (1997).⁵ The hearing committee noted that the respondent's conviction was not defined as a "serious crime" within the meaning of S.J.C. Rule 4:01, § 12(3), as appearing in 425 Mass. 1313 (1997),⁶ but concluded that S.J.C. Rule 4:01, § 12(5), as appearing in 425 Mass. 1313 (1997), specifically allows the court to refer a matter involving a crime "not constituting a serious crime" to the board for appropriate action.

The hearing committee concluded that the respondent's commission of assault and battery on his estranged wife constituted a violation of Mass. R. Prof. C. 8.4(b) and

(h). See note 2, supra. It determined that, when an attorney commits an act of domestic violence, a discipline of suspension is generally warranted regardless of whether the attorney is later convicted of a felony or a misdemeanor. It recommended that the respondent in this case be suspended from the practice of law for two months. In making its recommendation, the hearing committee considered several facts offered by the respondent in mitigation, as well as those offered by bar counsel in aggravation. The hearing committee rejected each of the respondent's claims.⁷ Of the three claims made by bar counsel, the hearing committee agreed that the respondent's failure to show remorse for his conduct constituted a factor in aggravation.⁸

The board adopted the hearing committee's conclusion and recommendations.

3. Appropriate discipline. Bar counsel argues that the sanction imposed by the single justice is "an inadequate sanction for the respondent's assault on his wife." We agree. Our standard for reviewing a sanction imposed by the single justice is whether it is markedly disparate from judgments in comparable cases. See Matter of Finn, 433 Mass. 418, 422-423, 742 N.E.2d 1075 (2001); Matter of Alter, 389 Mass. 153, 156, 448 N.E.2d 1262 (1983). We are also mindful that the board's recommendation is entitled to substantial deference, Matter of Tobin, 417 Mass. 81, 88, 628 N.E.2d 1268 (1994), and that, in determining the appropriate sanction, the "primary factor" for our consideration is "the effect upon, and perception of, the public and the bar." Matter of Concemi, 422 Mass. 326, 329, 662 N.E.2d 1030 (1996), quoting Matter of McInerney, 389 Mass. 528, 535, 451 N.E.2d 401 (1983). Matter of Alter, supra. Applying these principles, we conclude that a two-month suspension from the practice of law is the appropriate sanction.

We have little doubt that the respondent's sustained and violent attack on his estranged wife adversely reflects on his fitness as a lawyer. See Bar Counsel v. Doe, 16 Mass. Att'y Discipline Rep. 441, 445 (2000) (attorney's misdemeanor assault and battery constituted violation of rule 8.4[b] and [h]).⁹ Comment [1] to Mass. R. Prof. C. 8.4, 426 Mass. 1430 (1998), provides, in pertinent part: "Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence ... are in that category."¹⁰ See S.J.C. Rule 4:01, § 3, as amended, 430 Mass. 1314 (1999) ("Each act ... by a lawyer ... which violates any of the Massachusetts Rules of Professional Conduct ... shall be grounds for appropriate discipline even if the act or omission did not occur in the course of a lawyer-client relationship or in connection with proceedings in a court"). The essence of the conduct of a lawyer is to facilitate the resolution of conflicts without recourse to violence, for law is the alternative to violence. Engaging in violent conduct is antithetical to the privilege of practicing law, and such conduct generally will warrant suspension from the practice of law.

Had the respondent in this case broken into a stranger's home and committed the same acts of violence as he perpetrated on his wife, suspension would almost certainly have been warranted. See, e.g., Matter of Goldberg, 434 Mass. 1022, 1023, 750 N.E.2d 1015 (2001) (recognizing that, in absence of unusual circumstances in matigation presumptive sanction for commission of felony assault and battery is suspension or disbarment); Matter of Valeria, 10 Mass. Att'y Discipline Rep. 281 (1994) (imposing one-year suspension for attorney convicted of threatening to commit crime and assault by means of dangerous weapon). Where the victim of violence is a family member, the violence "is not less but more of a threat" to the victim's basic sense of security. Custody of Vaughn, 422 Mass. 590, 596, 664 N.E.2d 434 (1996).

The "usual and presumptive" sanction for an attorney convicted of a felony is suspension or disbarment from the practice of law. See Matter of Concemi, supra at 329-330, 662 N.E.2d 1030. Because suspension is appropriate in this case, we need not consider whether, as the single justice suggested, there should be a presumptive sanction of suspension following a...