In re Grossman

• Decision Date: 02 January 2007
• Citation: 859 N.E.2d 423,448 Mass. 151
• Parties: In the Matter of Jodie GROSSMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

859 N.E.2d 423

448 Mass. 151

In the Matter of Jodie GROSSMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 9, 2006.

Decided January 2, 2007.

Joseph S. Berman, Boston, for the respondent.

Susan A. Strauss Weisberg, Assistant Bar Counsel.

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

MARSHALL, C.J.

This bar discipline matter is here on appeal from an order of a single justice indefinitely suspending the respondent attorney, Jodie Grossman, from the practice of law. At issue is whether bar counsel's delay in the prosecution of the matter— some eight years—should be considered as a mitigating factor in the sanction imposed for the respondent's misconduct, misappropriation of client funds with actual deprivation or intent to deprive, and submission of fabricated evidence to bar counsel.

The respondent asks that we not impose the presumptive sanction for her misconduct, an indefinite suspension from the practice of law, Matter of Schoepfer, 426 Mass. 183, 187, 687 N.E.2d 391 (1997), in light of bar counsel's substantial delay in the prosecution of her case. To do so, however, would treat more leniently her otherwise serious ethical misconduct for reasons entirely divorced from the gravity of the offenses. Bar counsel, in turn, asks us to impose the presumptive sanction even as he acknowledges that his investigation "took far too long" and he does not "excuse or justify the delay in bringing this matter to a conclusion." That resolution might suggest an indifference to the timely disposition of cases concerning bar discipline.

In Matter of Gross, 435 Mass. 445, 450-452, 759 N.E.2d 288 (2001), we determined that delay in the prosecution of attorney misconduct does not constitute a mitigating factor absent proof that the delay has substantially prejudiced the defense, or evidence of resulting public opprobrium. In this case, the respondent established neither. We therefore affirm the decision of the single justice, and impose the presumptive sanction of an indefinite suspension from the practice of law. We caution, however, that our decision today should not be read by bar counsel, members of the bar, or the public to condone in any respect the inordinate delay by bar counsel in this case.

1. Background. On May 6, 2002, bar counsel filed a petition for discipline against the respondent relating to conduct that had occurred some ten to twelve years earlier. A hearing committee of the Board of Bar Overseers (board) found commingling of funds, misuse of client funds, and conversion, and that the respondent had fabricated some of the evidence she provided to bar counsel during the investigation. In mitigation, the committee found that there had been "prejudicial delay" in the prosecution of the grievance by bar counsel, and recommended a sanction of suspension of one year and one day from the practice of law.

On appeal from the hearing committee's decision, the board agreed that the delay in prosecution should be considered in mitigation, but it recommended a four-year period of suspension—a term it considered to be a slight reduction from the presumptive sanction for the respondent's misconduct. After an information was filed in the county court, the single justice imposed a sanction of indefinite suspension from the practice of law, concluding that delay without a showing of substantial prejudice, which the respondent had not demonstrated, does not mitigate the presumptive sanction. This appeal followed.

2. Facts. The single justice concluded that the hearing committee's findings, subsequently adopted by the board, were supported by substantial evidence. See Matter of Segal, 430 Mass. 359, 364, 719 N.E.2d 480 (1999). On appeal the respondent does not challenge his conclusion, except as otherwise noted. We summarize those findings.

The respondent was admitted to the Massachusetts bar on December 18, 1980. Between early 1985 and the fall of 1989, she worked as a salaried employee of a multi-State law firm, Akman & Associates, whose principal was Bryan Akman. Although the firm closed its Massachusetts office in late 1989, the respondent remained on retainer until November, 1998. The facts giving rise to this appeal concern a matter referred to the respondent by Akman.

Manuel Raposa died on February 23, 1988, survived by his wife, Hortence Raposa (from whom he had been legally separated since about 1954), and three adult children, Kenneth Raposa, Sheila Botelho, and Madeline Escobar. Manuel¹ had had a long-standing relationship with Hortence's sister, Mary Gonsalves, apparently in whose name much of Manuel's property was jointly held. There was evidence that, before Manuel's death, he and Mary had become estranged, and Kenneth and Sheila believed he had made a will, that he was the sole owner of an apartment building, and that he had money in various bank accounts.

In February, 1988, Kenneth, the president and business manager of a union from which the Akman firm hoped to obtain legal work, and his sister Sheila contacted the firm regarding their father's estate. Because Manuel had resided in Massachusetts, Akman referred the matter to the respondent, and informed her that the estate matter would be handled without charge. The hearing committee credited Akman's testimony that he told the respondent not to charge for her services.² In late February or March, 1988, the respondent communicated with both Kenneth and Sheila, who gave her three uncashed checks made payable to either Manuel or Kenneth, and the respondent told them that she would hold the funds in escrow.

In March, 1989, the respondent opened an interest-bearing passbook savings account for the estate, on which the respondent was the sole signatory, and deposited the three checks. One week later one of the checks (for $243) was returned due to a stop payment order, leaving a balance of $1,528. That spring, the respondent recommended that Akman hire a Massachusetts attorney, Andrew Levenson, to advise them about the estate issues, and Akman agreed to do so. In July, 1989, Levenson forwarded a report to the respondent, opining that, of the money held in escrow, $328 belonged to the estate, and the remainder belonged to the heirs. His report also opined that it would be difficult to proceed against Mary Gonsalves. The hearing committee credited the respondent's testimony that Kenneth and Sheila did not want the respondent to file voluntary or formal administration, and did not want the escrowed funds distributed, but wanted to continue to try to find the will and contest any efforts to distribute Manuel's assets to Mary.

In the fall of 1989, Kenneth and Sheila terminated the respondent's representation, and Akman instructed her to transfer the Raposa file to J. Drew Segadelli, which she did. Segadelli responded that he would take no action on the matter without a retainer. From October, 1989, to June, 1990, the matter was relatively inactive. In the spring of 1990, the respondent directed that a lost will notice be published in the Patriot Ledger newspaper. In June, 1990, Akman paid Segadelli's retainer, and thereafter, Segadelli represented Kenneth, Sheila, and Hortence.

In December, 1990, the respondent, "as trustee of the Estate of Manuel Raposa," withdrew $248.88 from the Raposa account by a bank check payable to the Patriot Ledger. The hearing committee credited the respondent's testimony that she mistakenly used the funds from the Raposa account to pay another client's bill, thinking that the bill was for the lost will notice. On or about December 19, 1990, however, the respondent withdrew $500 in cash from the Raposa account. The hearing committee did not credit her testimony that she "believed" she used the funds to pay Levenson's July, 1989, bill. The hearing committee found that Akman told the respondent that the firm would pay the bill, that the respondent gave Akman the bill, that Akman paid the bill in July, 1989, and that he told the respondent it had been paid.

On or about March 9, 1992, the respondent withdrew an additional $500 from the Raposa account, by bank check payable to Bradley C. Pinta, an attorney. The hearing committee found that this was payment to Pinta for personal legal services for the respondent, unrelated to the Raposa estate. The hearing committee did not credit the respondent's testimony that she was entitled to the funds as her "fee" in the Raposa matter.

3. The bar discipline grievance. From early 1993 through early 1994, Segadelli repeatedly requested that the respondent forward to him the Raposa funds she was holding, ultimately communicating to her his intent to file a complaint with the board should she fail to do so. In January, 1994, Kenneth sent a letter to the respondent confirming that she had been discharged as his attorney in 1989, and directing her to forward the escrow funds to Segadelli. The respondent failed to do so. In February, 1994, Segadelli filed a grievance with the board.

In March, 1994, bar counsel sent the respondent a copy of Segadelli's grievance, and requested both a response and copies of all statements and deposit slips pertaining to the escrow account. The respondent replied in May, 1994, enclosing what she represented was a photocopy of the Raposa account passbook. The photocopy of the passbook did not indicate that any funds had been withdrawn. The hearing committee found that the respondent had "intentionally altered" the copy of the passbook and submitted it to bar counsel "knowing that it was false with the intent to conceal her intentional misappropriation of funds in the Raposa account for her own personal use."

Approximately four years later, in July, 1998, bar counsel contacted Segadelli and was advised that Segadelli had received no funds from the respondent. That same day, bar counsel requested from the respondent an accounting of all funds held on behalf of the Raposa estate, as well as further documentation...