In the Matter of Moore

• Decision Date: 09 April 2004
• Citation: 442 Mass. 285,812 NE 2d 1197
• Parties: IN THE MATTER OF MICHAEL G. MOORE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

442 Mass. 285

812 NE 2d 1197

IN THE MATTER OF MICHAEL G. MOORE.

Supreme Court of Massachusetts, Suffolk.

April 9, 2004.

August 9, 2004.

Present: Marshall, C.J., Greaney, Ireland, Spina, Sosman, & Cordy, JJ.

S. Thomas Martinelli for the respondent.

Terence M. Troyer, Assistant Bar Counsel.

IRELAND, J.

A single justice of this court ordered that Michael G. Moore (respondent) be disbarred from the practice of law for lying on his bar application. The respondent appeals from the sanction imposed as being too harsh and "markedly disparate" from sanctions imposed in similar cases. Because we conclude that, in light of our disposition of similar cases, the respondent's conduct warrants suspension, not disbarment, we order that the respondent be suspended from the practice of law for two years.

Background.

Bar counsel initiated this matter by a petition for discipline alleging that, by making misrepresentations on his Massachusetts bar application and certifying that the answers were truthful, the respondent violated S.J.C. Rule 3:07, Canon 1, DR 1-101 (A), and DR 1-102 (A) (4), (5), and (6), as appearing in 382 Mass. 769 (1981).¹ The respondent denied that he intended to deceive, and asserted that the answers he gave on his application were, literally speaking, correct. The hearing committee found that the respondent violated each of the cited disciplinary rules and recommended that the respondent be disbarred. The respondent appealed to the Board of Bar Overseers (board).

An appeal panel of the board adopted the hearing committee's findings of fact and conclusions of law, but modified the suggested disposition, recommending instead an eighteen-month suspension. Both bar counsel and the respondent filed objections to the appeal panel's report. A majority of the board adopted the appeal panel's report and its recommendation of an eighteen-month suspension. Two board members preferred greater, but unspecified, discipline. The respondent requested that the single justice revise the findings of the hearing committee to exonerate him or, alternatively, that she impose a one-month or two-month suspension. Bar counsel recommended disbarment.² The single justice entered a judgment of disbarment. This appeal followed.

Facts.

We summarize the findings of fact made by the hearing committee after an evidentiary hearing at which the respondent and several others testified and numerous exhibits were received in evidence. After the respondent was admitted to the Connecticut bar in 1975, he was employed by an attorney in Tolland, Connecticut, who operated a collection agency. Within six months, that attorney filed formal charges of misconduct against the respondent. A grievance committee heard evidence that would have supported a finding that the respondent had forged a clerk's name on an execution of a nonexistent judgment, held himself out as a court clerk by signing two other executions, and failed to remit funds to clients. Criminal charges (forgery, larceny, and criminal impersonation) were also filed. The respondent ultimately agreed to resign from the bar. As a result, the grievance committee terminated its investigation and the prosecutor dropped the criminal charges.

The respondent sought reinstatement in 1981, but failed to sustain his burden of proving good moral character.³ In particular, the three-judge panel of the Connecticut Superior Court found that the respondent's testimony in support of his application for readmission "seem[ed] to indicate that he lacks a full appreciation of the fact that the profession of law is a high calling, and of the serious obligations assumed thereby as an officer of the court and as the confidential manager of the affairs and business of others entrusted to his care." In 1982, despite the fact that he had not been readmitted, the respondent entered an appearance in a Connecticut court on behalf of a corporation in which he had an interest. In response, the Connecticut Superior Court entered an injunction "prohibiting [the respondent] from engaging in the unauthorized practice of law in the state of Connecticut" and fined him $750 for the unauthorized practice of law. The respondent has never been readmitted to the bar of Connecticut.

In January, 1994, the respondent sought admission to the bar of Massachusetts. He passed the Massachusetts bar examination on his second attempt and was admitted to practice law in Massachusetts in December, 1994. His original application and his supplementary application (filed in June, 1994) required the respondent to answer certain questions. He indicated that he had been admitted to practice in Connecticut and to the United States District Court for the District of Connecticut. Because the respondent's answers to certain questions form the basis of the present disciplinary proceeding, we discuss them in some detail. Both the original and the supplementary applications required the respondent to certify that each of the answers he provided "is true, complete, and candid."⁴

Question 10 (a) asked, "Have you ever been disbarred, suspended, reprimanded, censured, or otherwise disciplined or disqualified as an attorney, or as a member of any other profession, or as a holder of any public office?" Despite his resignation during disciplinary proceedings, the denial of readmission, and the injunction (all orders or actions by which the respondent was "otherwise disciplined or disqualified as an attorney"), the respondent answered, "No." The hearing committee found that the respondent's answer to this question was deliberately false, made with the intent to deceive.

Question 11 asked if the respondent, within the past seven years, had been convicted of conduct deemed to be a felony in the jurisdiction where judgment was rendered. The respondent (truthfully) answered, "No." Question 12 asked, "Have you ever been a party in any non-criminal legal proceeding not covered by Question 11 other than divorce or separate maintenance?" The respondent again answered, "No." The hearing committee found that this answer was false and made with intent to deceive. In 1993, the respondent had filed a civil action in the United States District Court for the District of Connecticut against a community college where he had been an adjunct professor, alleging wrongful termination based on age discrimination. The college's defense was that the respondent's contract was not renewed due to problems with his teaching and two complaints of sexual harassment against him.

The respondent's position before the hearing committee (and before the board) was that his answers to the questions were responsive to the precise language of the questions and, read literally, accurate.⁵ The hearing committee rejected the respondent's explanation for his answers as "lacking in candor and unworthy of belief," basing this finding on its evaluation of the respondent's testimony and demeanor, as well as its belief that the respondent's answers "demonstrate a consistent pattern of omitting any information which might reveal his resignation from the Connecticut bar, which might otherwise prove embarrassing to him, or which might induce the [Board of Bar Examiners] to begin an investigation." It also found that he had omitted reference to the discrimination suit to prevent the Board of Bar Examiners from learning that charges of sexual harassment had been filed against him.

In addition, the bar application required the respondent to list all employment and any business or profession in which he had engaged since his eighteenth birthday. The respondent listed three periods of employment that appeared to be a complete and continuous list of employment since 1973. However, he did not list (1) his employment as a lawyer at the collection agency in 1975, (2) his service as a lawyer in the Judge Advocate General's Corps of the United States Army in 1976, a position from which he resigned when the Army learned that there was an outstanding warrant for the respondent's arrest in Connecticut (on the charges arising from his employment with the collection agency), (3) his operation of a restaurant in Waterbury, Connecticut, in connection with which he was fined for the unauthorized practice of law (and charged with, but acquitted of, arson), or (4) his employment at the community college he sued. The hearing committee found that the respondent's answers regarding his employment were "incomplete, deceptive, and adapted to prevent the [Board of Bar Examiners] from obtaining information embarrassing to the respondent or which might interfere with his admission to the Massachusetts Bar."⁶

In sum, the hearing committee determined that the respondent was simply not credible in denying that he had an intent to deceive. The committee determined that "[t]he respondent's efforts to reinterpret and recharacterize the questions of the bar application in order to justify his withholding clearly relevant and specifically requested information only demonstrate[d] his penchant for mendacity. The respondent acted deliberately and intentionally in constructing his answers to the questions. . . ." The hearing committee concluded that the respondent's answers to Questions 10 (a) and 12, and his false certification that the answers were truthful, complete, and candid, violated DR 1-101 (A) and DR 1-102 (A) (4), (5), and (6).⁷ In aggravation of the respondent's misconduct, the hearing committee found that the respondent "displayed duplicity and lack of candor before [it]." The hearing committee went on to note: "It is our distinct impression that the respondent has failed to recognize the gravity of his misconduct and take responsibility for it and lied to the [c]ommittee." It recommended that the respondent be disbarred.

Discussion.

1. Standard of review. The standard of review when disciplinary sanction imposed by a single justice is challenged is whether the sanction "is markedly disparate from judgments in...