In the Matter of Stephen HRONES.

• Citation: 457 Mass. 844,933 N.E.2d 622
• Decision Date: 10 September 2010
• Docket Number: SJC-10613.
• Parties: In the Matter of Stephen HRONES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

457 Mass. 844

933 N.E.2d 622

In the Matter of Stephen HRONES.

SJC-10613.

Supreme Judicial Court of Massachusetts,Suffolk.

Argued May 6, 2010.

Decided Sept. 10, 2010.

COPYRIGHT MATERIAL OMITTED.

Elizabeth N. Mulvey, Boston, for the respondent.

Susan Strauss Weisberg, Assistant Bar Counsel.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

SPINA, J.

This bar discipline matter is before us on a reservation and report, without decision, from a single justice of this court. The respondent, Stephen Hrones, is an attorney who practices law and maintains a law firm in Boston. The Board of Bar Overseers (board) has recommended that he be suspended for one year and one day, for, among other violations, forming a business arrangement with a nonlawyer and assisting a nonlawyer in the unauthorized practice of law. The respondent argues (1) that his actions did not amount to assisting a nonlawyer in the unauthorized practice of law, and (2) that a three-month suspension is the appropriate sanction. For the reasons that follow, we conclude that the respondent did assist a nonlawyer in the unauthorized practice of law, and a suspension from the practice of law for one year and one day is the appropriate sanction for this and his other violations.

1. Background. The following facts are drawn from the findings of a hearing committee, which were adopted unanimously by the full board. See Matter of Brauer, 452 Mass. 56, 57, 890 N.E.2d 847 (2008). We have supplemented the hearing committee's findings with undisputed facts contained in the record on appeal. See id.

The respondent was admitted to the practice of law in this Commonwealth on December 14, 1972. At the time of the misconduct, the respondent operated a law firm in Boston, employing an associate, a secretary, and an intern. The respondent's legal practice was concentrated in the areas of criminal defense and civil rights cases.

Around September, 2001, the respondent was introduced to Lionel Porter, a law school graduate who had not passed the bar examination. Porter was knowledgeable in employment discrimination law and had appeared before ¹ the Massachusetts Commission Against Discrimination (MCAD) on behalf of the National Association for the Advancement of Colored People. Porter was looking for work, and the respondent agreed that Porter would share office space with respondent's law firm and utilize the firm's support staff. Relying on the law firm's name and the respondent's license to practice law, the respondent and Porter agreed that Porter, working as a paralegal, would develop a practice in employment discrimination cases before the MCAD and the United States Equal Employment Opportunity Commission (EEOC). They agreed that the firm would enter into contingent fee arrangements with Porter's clients, and all fees and retainers would be paid to the firm. The respondent would then give Porter two-thirds of any fees collected and retain one-third. The respondent listed Porter on the firm's letterhead as a paralegal, and he permitted Porter to use a firm business card that identified him as a paralegal.

The respondent's firm generally did not handle employment or other discrimination cases, and the respondent himself had little or no experience in discrimination cases. The respondent intended that Porter would operate a virtually independent discrimination law practice, without substantial supervision by the respondent or any other attorney at the firm. No one in the office was assigned to, or did, supervise Porter's work.

Prior to his employment, Porter told the respondent that he was not required to be a member of the Massachusetts bar to practice before the MCAD. The respondent and Porter reviewed an unidentified statute or regulation that the respondent believed confirmed Porter's representation regarding nonlawyer practice at the MCAD. However, the respondent also understood that Porter could represent clients at the MCAD only pursuant to an appearance of an attorney of record; therefore, the respondent gave Porter authorization to sign his name to appearance forms, administrative complaints, and other filings before the MCAD and the EEOC, without requiring that the respondent review them before filing.

Porter identified prospective clients by reviewing the MCAD's list of pro se complainants and sent each a letter on firm letterhead. The letter stated that “[p]ersons at [respondent's] firm have had several years handling discrimination complaints and the firm is generally known for its civil rights advocacy.” Porter marketed his practice and exercised sole discretion in deciding to accept discrimination cases. He determined fee arrangements, executed fee agreements, and collected fees. In conducting the cases, Porter filed complaints, drafted pleadings, conducted discovery, counselled clients as to their legal rights, settled cases, and performed all other legal work on the cases. Porter carried out these functions and operated the firm's discrimination practice with virtually no supervision by the respondent or another lawyer in the firm.

The respondent left to Porter's discretion whether and when a case should be removed from the MCAD or EEOC to State or Federal court. The respondent and Porter did not make any arrangements to handle such a contingency, and the respondent did not make any arrangements requiring Porter to seek his authorization before removing a case-in the respondent's name-to State or Federal court. In at least two instances, Porter actually removed cases to State or Federal court, without the respondent's knowledge. The record does not show whether Porter ever appeared at an oral argument or before any State or Federal court.

In June, 2003, the MCAD assessed sanctions against the respondent, as attorney of record, in connection with misconduct by Porter. The respondent learned of the sanctions in June, but took no action. Porter subsequently concealed a September, 2003, warning that the respondent's failure to pay sanctions would result in his suspension from practice before the MCAD. In November, 2003, the respondent received a notice from the MCAD suspending the respondent, his firm, and Porter from practice before the MCAD for one year for failure to pay the sanctions. The order required the respondent to withdraw as counsel or remove all cases to a court within twenty-one days. The respondent did not investigate the charges, review Porter's case files, withdraw his appearances in any cases, or notify Porter's clients that the firm had been suspended from practice before the MCAD. ² Approximately forty cases were pending at the time of the suspension, and the respondent did not instruct Porter to take any action in response to the order. The respondent did not do anything at this time to protect the rights of the firm's discrimination clients.

Despite the sanctions, the respondent did not terminate his relationship with Porter. Around the same time, the respondent learned that Porter had removed a case from the MCAD to Federal court, under the respondent's name. The respondent reprimanded Porter, but did not terminate the relationship or investigate whether other suits were filed in court under his name. In early October, 2004, the respondent learned that Porter had filed an untimely complaint in Federal court under the respondent's name, without the respondent's authority. In addition, between February and October, 2004, the respondent received multiple complaints of neglect, lack of communication, misrepresentation, and other misconduct by Porter, including complaints filed by clients with the office of Bar Counsel (bar counsel).

In October, 2004, the respondent learned from bar counsel that Porter had not remitted a client's fee payment and he fired Porter in response, for violating their agreement that Porter would run all fees through the respondent's accounts. At this point, the respondent notified Porter's clients of the termination, refunded retainer fees to some of them, and acknowledged that in a number of cases, the firm had missed key deadlines and otherwise mismanaged the cases. He directed an associate to review the files to determine which claims were viable, and contacted outside attorneys to see if they would be interested in taking some of the cases.

2. Procedural history. Bar counsel's third amended petition for discipline brought eight counts against the respondent. Count I set out general charges arising from the respondent's alleged misconduct. Counts II through VI alleged misconduct specific to five clients, all as a result of Porter's mismanagement of their cases. In each of those cases, Porter failed to meet mandatory filing deadlines, which resulted in dismissal of the clients' underlying claims. Counts VII and VIII concerned unrelated violations of the rules regarding IOLTA accounts and the provision of financial assistance to clients.

The case was heard by a hearing committee in April, 2008, and the hearing committee recommended that the respondent be suspended for six months and one day. The hearing committee determined that the respondent improperly split fees with Porter, failed to supervise Porter, failed to communicate adequately with the discrimination clients, failed to provide competent and diligent representation to those clients, failed to keep adequate trust records, advanced financial assistance to clients, and entered into a business transaction with one client.

On appeal, the board adopted the hearing committee's subsidiary findings, but modified the report by adding conclusions that the respondent had assisted in unauthorized practice, formed a business entity with Porter, made false, deceptive, or misleading communications, and made unauthorized disclosure of confidential client information. The board recommended that the respondent be suspended for one year and one day.

3. Standard of review. “In bar discipline cases that have been reserved...