Kenney, Matter of

• Decision Date: 12 March 1987
• Citation: 504 N.E.2d 652,399 Mass. 431
• Parties: , 55 USLW 2597 In the Matter of Lawrence J. KENNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 652

504 N.E.2d 652

399 Mass. 431, 55 USLW 2597

In the Matter of Lawrence J. KENNEY.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 6, 1986.

Decided March 12, 1987.

Lawrence J. Kenney, Springfield, pro se.

Daniel J. Klubock, Boston, Bar Counsel.

Before HENNESSEY, C.J., and NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

Mr. Lawrence J. Kenney appeals from the May 16, 1986, order of a single justice that he be "immediately temporarily suspended from the practice of law in the Commonwealth of Massachusetts pending further disciplinary proceedings before the Board of Bar Overseers." S.J.C. Rule 4:01, § 12A, 394 Mass. 1105 (1985). ¹ He also appeals from the August 1, 1986, order of the single justice to comply with a subpoena to produce certain records relevant to the investigation of the allegations of professional misconduct. S.J.C. Rule 4:01, § 22, as amended, 394 Mass. 1106 (1985). ²

On May 5, 1986, a single justice of this court issued an order to show cause why Mr. Kenney should not be immediately temporarily suspended from the practice of law. A hearing was held before the single justice on May 15, 1986. The petition for temporary suspension was accompanied by affidavits of four different attorneys, as well as other supporting documents.

Mr. Kenney declined to answer to the charges except to deny that the documents evidenced that anyone lost any property. He asserted his privilege against compelled self-incrimination under the Fifth Amendment to the United States Constitution, and declined to comment on the facts of the matter. The single justice suggested that Mr. Kenney consider obtaining counsel and gave him until the next day to notify the court that he wished to have counsel. ³ The clerk's office received no notification from Mr. Kenney.

On May 16, 1986, the single justice ordered Mr. Kenney "immediately temporarily suspended from the practice of law in the Commonwealth of Massachusetts pending further disciplinary proceedings." Mr. Kenney filed a timely appeal to the full court. On June 27, 1986, the single justice denied Mr. Kenney's application to terminate the suspension order of May 16, 1986, and declined to stay the order pending a possible request to the full bench for a stay pending appeal.

Mr. Kenney received a subpoena ordering him to appear before the Board of Bar Overseers (board) on June 10, 1986, and directing him to bring certain documents. Mr. Kenney appeared before the board but declined to testify or produce the requested records, claiming his privilege under the Fifth Amendment. Bar counsel filed a petition for contempt to enforce the subpoena and on July 16, 1986, a hearing was held before a single justice of this court. On August 1, 1986, the single justice ordered Mr. Kenney to produce certain records. Mr. Kenney filed a timely appeal to the full court. On August 14, 1986, the single justice stayed the order of production to allow Mr. Kenney to seek a stay from the full court pending appeal. The full court granted a stay pending the appeal of the order of August 1, 1986.

We review the decisions of the single justice to determine whether they are supported by sufficient evidence, free from errors of law, and free from any abuse of discretion. See Matter of McInerney, 389 Mass. 528, 530, 451 N.E.2d 401 (1983).

1. Temporary suspension. Mr. Kenney contends that the temporary suspension ordered by the single justice of this court violated his Fifth Amendment right against compelled self-incrimination and his right to due process of law.

a. Fifth Amendment. Mr. Kenney claims that he was temporarily suspended because he exercised his constitutional privilege against self-incrimination. We disagree.

There is no doubt that a lawyer may not be sanctioned as a penalty for asserting the privilege against self-incrimination. Spevack v. Klein, 385 U.S. 511, 514, 87 S.Ct. 625, 627, 17 L.Ed.2d 574 (1967) (plurality opinion). Mr. Kenney, however, was not suspended from the practice of law as a penalty for asserting that privilege. He was suspended because bar counsel fulfilled the requirements of S.J.C. Rule 4:01, § 12A, and made a showing that there were reasonable grounds to believe that Mr. Kenney posed "a threat of substantial harm to his clients or prospective clients." The single justice found that "based on affidavits presented by bar counsel, after hearing ... there existed sufficient evidence of the attorney's misconduct that he posed a threat to current and prospective clients."

The petition for temporary suspension consisted of more than mere allegations. It was accompanied by affidavits of four members of the Massachusetts Bar, together with supporting documents. These evidenced that Mr. Kenney had converted to his own use, funds from various accounts in which he acted as a fiduciary and that he had failed to make distribution of funds as requested. Such activity is violative of S.J.C. Rule 3:07 DR 1-102(A)(4), (5), (6), as amended, 382 Mass. 769 (1981), DR 9-102(A), (B)(3), (4), as amended, 382 Mass. 795 (1981). ⁴ There was sufficient evidence therefore, from which the single justice could have concluded that Mr. Kenney posed a threat to present and potential clients. Mr. Kenney admitted at the hearing that he had two or three estates in which he was acting in a fiduciary capacity. In order to protect present and future clients, the single justice was well within his discretion to temporarily suspend Mr. Kenney pending further disciplinary proceedings. Thus, the order was not based upon error of law, abuse of discretion, or insufficient evidence.

b. Due process. Mr. Kenney claims that he was denied due process of law as he was not afforded a hearing "in the traditional sense," prior to his suspension. He claims that he had no witnesses and no opportunity for cross-examination. Bar counsel claims that Mr. Kenney had the opportunity to present evidence, to object to the affidavits and other documents presented by bar counsel, and to request that the affiants be made available for cross-examination. Mr. Kenney was also given an opportunity to obtain counsel to represent him in the matter. We agree with bar counsel that Mr. Kenney was afforded procedural due process prior to his suspension.

There is no doubt that Mr. Kenney has a constitutionally protected interest in his license to practice law and that he must be afforded due process of law before he can be deprived of that interest. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976); In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1225, 20 L.Ed.2d 117 (1968). The fundamental requisite of due process is an opportunity to be heard at a meaningful time and in a meaningful manner. Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970), and cases cited.

In order to determine what process is due, we must balance three factors: the private interest affected, the governmental interest, and an evaluation of the procedure used. Mathews v. Eldridge, supra, 424 U.S. at 335, 96 S.Ct. at 903. In a disbarment proceeding an attorney is entitled to procedural due process which includes fair notice of the charges and an opportunity for explanation and defense. In re Ruffalo, supra. In accordance with rule 4:01, § 12A, Mr. Kenney received notice of the charges and was afforded a hearing before a single justice of this court prior to his suspension. Mr. Kenney was also afforded a postsuspension review under his application to terminate.

Upon weighing the various factors we do not find the rule constitutionally infirm. The attorney has a substantial property right in his license to practice law. The State, on the other hand, has a significant interest in protecting the public from attorneys who engage in serious misconduct, particularly when the misconduct involves misuse of clients' funds or a compromising of the fiduciary relationship. There is also a strong interest in maintaining the integrity of the bar. It should be noted that the rule provides the attorney an opportunity to be heard prior to any action by the court. Furthermore, the proceedings do not finally adjudicate the matter, but merely provide a setting from which a single justice can determine whether there are reasonable grounds to believe that the allegations are true. The Supreme Court has upheld the process used to terminate protected interests where the complainants were afforded similar or lesser procedural safeguards. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985). ⁵ See also Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (nonadversary, informal evidentiary hearing sufficient to determine grounds for continued administrative segregation of prisoner). See Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) (suspension of horse trainer's license valid without pretermination hearing where probable cause existed and prompt postsuspension hearing was afforded).

Rule 4:01, § 12A, does not provide any guidelines or time limits for a postsuspension hearing. An immediate postsuspension hearing is imperative where there has been no presuspension hearing. Barry v. Barchi, supra at 66, 99 S.Ct. at 2650. Gershenfeld v. Supreme Court of Pa., 641 F.Supp. 1419, 1424 (E.D.Pa.1986). While rule 4:01, § 12A, does provide for notice and a meaningful opportunity to respond prior to suspension, there must be a final resolution of the charges at some point. See Cleveland Bd. of Educ. v. Loudermill, supra 105 S.Ct. at 1496. As rule 4:01, § 12, is written, it appears to contemplate that disciplinary proceedings would have been commenced by bar counsel, or, at least, are forthcoming. ⁶ Once disciplinary proceedings are begun, the rules of the Supreme Judicial Court provide guidelines and timetables for the adjudication of the matter. S.J.C. Rule 4:01, § 8, as amended, 394 Mass. 1105 (1985). This procedural...