In the Matter of Moran, Robert C. (Lawyers Weekly No. 10-068-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12356 IN THE MATTER OF ROBERT C. MORAN. April 20, 2018. Attorney at Law, Disciplinary proceeding, Suspension, Deceit, Drafting of will. The respondent, Robert C. Moran, appeals from an order of a single justice of this court, acting on an information filed by the Board of Bar Overseers (board), suspending him from the practice of law for nine months. We vacate the order and remand the case for the entry of an order suspending the respondent from the practice of law for fifteen months.[1] Background. Bar counsel filed an amended five-count petition for discipline with the board alleging multiple acts of misconduct in connection with the respondent’s handling of the affairs of two elderly clients, both of whom are now deceased. Two counts alleged that the respondent charged excessive fees;[2] that he failed to inform his clients of fees for services rendered and fee withdrawals;[3] that he held the clients’ funds in nontrust accounts;[4] and that he drafted testamentary instruments for both clients that included substantial testamentary gifts to himself.[5] Two other counts concerned the respondent’s conduct as executor for the same clients’ estates. They alleged that the respondent failed to render diligent and competent services;[6] that he charged and collected excessive fees;[7] that he failed to hold estate funds in segregated interest-bearing accounts;[8] that he negotiated and withdrew estate funds before his appointment as executor;[9] and that he intentionally misrepresented, under oath, the amount of estate assets in a probate court filing for one estate.[10] The fifth count charged misconduct in connection with trust accounts and trust funds.[11] The respondent answered and asserted certain facts in mitigation. See S.J.C. Rule 4:01, § 8 (3), as appearing in 453 Mass. 1310 (2009) (“[a]verments in the petition are admitted when not denied in the answer”). A hearing committee of the board conducted an evidentiary hearing and determined that bar counsel had proved, with limited exceptions, the petition’s allegations. A majority of the committee recommended that the respondent be publicly reprimanded; a dissenting member found additional facts supporting violation of Mass. R. Prof. C. 1.8 (c), 426 Mass. 1338 (1998) (substantial testamentary gifts), and recommended a greater sanction. Both the respondent and bar counsel appealed to the board. The board adopted the dissenting hearing committee member’s factual findings concerning the additional misconduct, and the hearing […]
In the Matter of Strauss, Ariel J. (Lawyers Weekly No. 10-056-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12148 IN THE MATTER OF ARIEL J. STRAUSS. Suffolk. January 24, 2018. – April 12, 2018. Present: Gants, C.J., Lowy, Cypher, & Kafker, JJ. Attorney at Law, Disciplinary proceeding, Misuse of client funds, Suspension. Information filed in the Supreme Judicial Court for the county of Suffolk on January 20, 2016. The case was heard by Duffly, J. Terrence D. Pricher, Assistant Bar Counsel. Jeffrey D. Woolf for Board of Bar Overseers. Thomas F. Maffei for the respondent. LOWY, J. We consider in this case the information filed by the Board of Bar Overseers (board) that an attorney intentionally misused a client’s funds with temporary deprivation resulting, and its recommendation as to the appropriate level of discipline to be imposed. A single justice of this court suspended Ariel J. Strauss (respondent) from the practice of law for six months, and the board and bar counsel appealed.[1] For the reasons that follow, we reverse the order of term suspension and, accepting the board’s recommendation, order an indefinite suspension.[2] Background. On August 25, 2014, bar counsel filed a two-count petition for discipline against the respondent. Count one alleged that between June 1, 2012, and September 30, 2013, the respondent failed to properly maintain a check register for his client trust account, and failed to perform a reconciliation of the account periodically. The respondent did not dispute the underlying facts as to count one, and a hearing committee of the board (committee) agreed that the conduct violated Mass. R. Prof. C. 1.15 (f) (1) (B) and (E), as appearing in 440 Mass. 1338 (2004). The second count involved the respondent’s conduct in connection with the settlement of a client’s personal injury claim. The committee found that the respondent (1) failed to safeguard the client’s funds in a trust account, in violation of Mass. R. Prof. C. 1.15 (b) (1), as appearing in 440 Mass. 1338 (2004); (2) failed to pay the client the proceeds of her settlement promptly, in violation of Mass. R. Prof. C. 1.15 (c), as appearing in 440 Mass. 1338 (2004); (3) failed to provide the client with notice of withdrawal of his fee, the amount of the fee, an itemized bill for services rendered, and a balance of the client’s funds left in the account, in […]
In the Matter of Children
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12386 IN THE MATTER OF CHILDREN. April 2, 2018. Supreme Judicial Court, Superintendence of inferior courts. Frank LaMonde appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. As best we can tell from the record before us, LaMonde’s two minor children are in the temporary custody of the Department of Children and Families and have been since February, 2016. Since that time, LaMonde has filed several emergency motions for custody. In the most recent motion, filed in April, 2017, LaMonde not only seeks custody but also alleges that the children’s mother, from whom LaMonde is divorced, is a danger to the children and has “kidnapped” them two or three times.[1],[2] The motion was denied. LaMonde then filed a petition with a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, first par., seeking custody of the children. He also alleged, in the petition, that the children’s mother kidnapped the children and took them out of Massachusetts; that he reported the alleged kidnapping to both the Probate and Family Court Department and the local police; and that no one has pursued the matter. The single justice denied the petition. LaMonde’s subsequent notice of appeal was struck (by a different justice) on the basis that there is no right to appeal from the denial of a petition filed pursuant to G. L. c. 231, § 118, first par. LaMonde then filed his G. L. c. 211, § 3, petition, which appears to be the same document that he filed in the Appeals Court (i.e., the petition pursuant to G. L. c. 211, § 3, is the exact same as the petition pursuant to G. L. c. 231, § 118, first par.). A single justice of this court denied the petition without a hearing. The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a showing that “review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” S.J.C. Rule 2:21 (2). LaMonde has not made, and cannot make, such a showing. He has already sought interlocutory review of the trial judge’s rulings under G. L. c. 231, § 118, first par., and has been denied relief by […]
In the Matter of E.C. (Lawyers Weekly No. 10-039-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us SJC-12230 IN THE MATTER OF E.C. Plymouth. November 9, 2017. – March 15, 2018. Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ. Incompetent Person, Commitment. Practice, Civil, Civil commitment. Petition for civil commitment filed in the Brockton Division of the District Court Department on March 4, 2013. The case was heard by Beverly J. Cannone, J., and a motion for reconsideration was also heard by her. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Beth L. Eisenberg for E.C. Edward J. O’Donnell for Bridgewater State Hospital. Lester D. Blumberg, for Department of Mental Health, amicus curiae, submitted a brief. GAZIANO, J. In this appeal, we consider whether the dismissal of the criminal charge pending against the respondent, E.C., required his release from commitment to Bridgewater State Hospital (Bridgewater), where the charge was dismissed after the period of commitment had expired, and a petition to extend the commitment had yet to be decided. E.C. was charged in the Boston Municipal Court Department with malicious destruction of property. Following a hearing pursuant to G. L. c. 123, § 16 (b), a judge of that court found E.C. not competent to stand trial and ordered him committed to Bridgewater for a period of six months. After that period had expired, Bridgewater filed a petition in the District Court Department to extend the commitment for an additional period of one year, pursuant to G. L. c. 123, § 16 (c). While the petition for an extension was pending, the criminal charge against E.C. was dismissed. Bridgewater moved to file an amended petition to modify its pending G. L. c. 123, § 16 (c), petition to a petition for civil commitment pursuant to G. L. c. 123, §§ 7 and 8. E.C. opposed the motion and argued that Bridgewater was required to release him because the criminal charge had been dismissed. A District Court judge concluded that Bridgewater had no authority to hold E.C. pursuant to G. L. c. 123, § 16 (c), after the criminal charge had been dismissed and his original commitment had expired; denied Bridgewater’s petition to amend; and ordered E.C. discharged.[1] The Appellate Division of the District Court affirmed that judgment, and the Appeals Court reversed. See Matter of E.C., 89 Mass. App. Ct. 813 (2016). We allowed E.C.’s application for further appellate review. We conclude […]
In the Matter of a Grand Jury Investigation (Lawyers Weekly No. 11-152-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-215 Appeals Court IN THE MATTER OF A GRAND JURY INVESTIGATION. No. 16-P-215. Middlesex. October 5, 2017. – December 11, 2017. Present: Sullivan, Blake, & Singh, JJ. Witness, Compelling giving of evidence, Self-incrimination. Constitutional Law, Self-incrimination. Cellular Telephone. Grand Jury. Privacy. Public Records. Practice, Criminal, Assistance of counsel. Contempt. Motion filed in the Superior Court Department on January 22, 2016. The proceeding was heard by Kimberly S. Budd, J., and entry of a judgment of contempt was ordered by her. Joanne M. Daley, Committee for Public Counsel Services, for the petitioner. Kevin J. Curtin, Assistant District Attorney, for the Commonwealth. BLAKE, J. The petitioner appeals from an order directing him to enter his personal identifying number (PIN) access code (hereinafter PIN code) into his Apple iPhone (a “smart” cellular telephone, hereinafter iPhone), and a subsequent judgment of contempt for refusing to comply. We affirm. Background. A Middlesex County grand jury requested that an assistant district attorney seek an order from a Superior Court judge as part of an ongoing investigation of an assault and battery on two children. The Commonwealth thus moved for an order that the petitioner produce the PIN code and any other electronic key or password required for the iPhone. A search warrant previously issued in the Lowell Division of the District Court Department had authorized a search of the contents of the iPhone. The motion, the proposed order, and two additional documents were filed in court under seal. The motion and the proposed order were served on counsel for the petitioner; the additional documents were not. One of the additional documents was a statement showing the petitioner’s ownership and control of the iPhone and the Commonwealth’s knowledge thereof. The other document was an affidavit of the assistant district attorney, which summarized the evidence before the grand jury; appended to the affidavit was a transcript of the grand jury proceedings. The petitioner filed a reply. After a hearing, in which petitioner’s counsel participated, the Commonwealth’s motion was allowed, and an order entered detailing the protocol by which the petitioner would enter the PIN code so that the search warrant could be executed. The order also prohibited the Commonwealth from introducing evidence of the petitioner’s act of production in any prosecution of him. When the […]
In the Matter of Corbett (Lawyers Weekly No. 10-170-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12305 IN THE MATTER OF WILLIAM P. CORBETT, JR. October 25, 2017. Attorney at Law, Disciplinary proceeding, Disbarment, Commingling of funds. Conversion. A single justice of this court ordered that the respondent, William P. Corbett, Jr., be disbarred from the practice of law for conduct including intentional conversion of funds belonging to two clients, causing deprivation for both. The respondent concedes that his conduct violated the rules of professional conduct applicable to attorneys; he appeals only the sanction imposed as being too harsh.[1] We affirm. Background. Bar counsel filed a five-count petition for discipline with the Board of Bar Overseers (board). Three counts concerned the most serious allegations, charging that the respondent intentionally misused client funds, with deprivation resulting, and that he made various misrepresentations to the clients. One count alleged that the respondent failed to comply with the rules of professional conduct regarding client trust accounts. The final count charged that the respondent failed to cooperate and made misrepresentations during bar counsel’s investigation of the respondent’s conduct, and that he violated the terms of the resulting suspension from the practice of law. The respondent answered the petition, and the matter was referred to a hearing committee of the board. After a hearing, the hearing committee issued its report and recommended that the respondent be disbarred. The board voted to accept the report and recommendation. Pursuant to S.J.C. Rule 4:01, § 8 (6), as appearing in 453 Mass. 1310 (2009), bar counsel filed an information in the county court. After a hearing, the single justice concluded that the hearing committee’s factual findings, all of which were adopted by the board, were supported by substantial evidence, accepted the recommended sanction, and entered a judgment of disbarment. Discussion. The respondent has acknowledged the most serious allegations of misconduct, i.e., those involving misappropriation of client funds, and it is unnecessary to our decision to consider other evidence of misconduct. Instead, we focus on the question of sanction. While each case is unique, and every offending attorney must receive the sanction most appropriate in the circumstances, the common, overarching factor for our consideration in all cases “is the effect upon, and perception of, the public and the bar.” Matter of Alter, 389 Mass. 153, 156 (1983). That factor is promoted by “even-handed results […]
In the Matter of a Grand Jury Investigation (Lawyers Weekly No. 10-086-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12249 IN THE MATTER OF A GRAND JURY INVESTIGATION. May 25, 2017. Supreme Judicial Court, Superintendence of inferior courts. Moot Question. The petitioner, R.C., appealed from a judgment of the county court denying his petition for relief under G. L. c. 211, § 3. R.C. has been indicted for possessing and distributing child pornography. In his petition, he sought relief from an order of a Superior Court judge authorizing computers and digital storage devices (digital material) seized from his home to be searched for child pornography. R.C., who is an attorney, argued that the digital material may contain privileged data provided to him by his clients and that the Superior Court judge’s order did not adequately protect any such privileged data because it does not conform to the protocol set forth in Preventive Med. Assocs. v. Commonwealth, 465 Mass. 810 (2013). After the single justice denied relief, R.C. moved to stay the Superior Court order pending this appeal. We denied that motion, thereby allowing the search to proceed. The Commonwealth has moved to dismiss this appeal as moot. It represents that the search has taken place pursuant to the protocol set forth in the Superior Court order, that files allegedly containing child pornography were transmitted to R.C.’s counsel, and that R.C. does not claim that any of those files are protected by the attorney-client privilege. R.C. has not disputed these representations or filed any response to the motion within the time set forth in Mass. R. A. P. 15 (a), 365 Mass. 859 (1974). R.C.’s challenge to the Superior Court order has become moot, as that order has been fully carried out. See Lenardis v. Commonwealth, 452 Mass. 1001, 1001 (2008). No effective relief can be provided. Moreover, we see no reason to believe that the issue is capable of repetition, yet evading review, and R.C. has offered none. Appeal dismissed. The case was submitted on the papers filed, accompanied by a memorandum of law. Andrew W. Piltser Cowan for the petitioner. Varsha Kukafka & Anne S. Yas, Assistant District Attorneys, for the Commonwealth. Full-text Opinions
In the Matter of an Application for a Criminal Complaint (Lawyers Weekly No. 10-088-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us SJC-12062 IN THE MATTER OF AN APPLICATION FOR A CRIMINAL COMPLAINT. May 25, 2017. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Complaint, Standing. Police Officer. The petitioner appeals from a judgment of the county court denying her petition for relief under G. L. c. 211, § 3. We affirm the judgment. The petitioner, who was a Boston police officer, filed an application for a criminal complaint in the West Roxbury Division of the Boston Municipal Court (BMC), alleging that the respondent, her supervisor, committed an assault and battery against her. The respondent was the commander of the police station falling within that court’s jurisdiction. After a hearing, a clerk-magistrate denied the application for lack of probable cause. G. L. c. 218, § 35A. The petitioner moved for reconsideration and change of venue. The application was transferred to the Charlestown Division of the BMC for rehearing by a clerk-magistrate, although it appears that the application was not docketed until almost one year later. The petitioner requested that the matter be transferred out of Suffolk County to Bristol County. That request was denied. The respondent also requested a new hearing and change of venue on the ground that he had a business relationship with all the divisions of the BMC. As a result, the application was transferred to the Dedham Division of the District Court Department, nearly three years after the application was transferred to the Charlestown Division of the BMC.[1] A clerk-magistrate of that court denied the application, finding no probable cause. The petitioner then filed her G. L. c. 211, § 3, petition, seeking both a rehearing on her application and a broader ruling requiring that applications for criminal complaints made against police officers be automatically transferred to a judge outside the police officer’s jurisdiction, rather than being heard by a clerk-magistrate in the first instance. The single justice denied relief without a hearing. We review the single justice’s denial of relief only to determine whether there was an abuse of discretion or an error of law. Marides v. Rossi, 446 Mass. 1007, 1007 (2006), citing Restucci v. Appeals Court, 442 Mass. 1031, 1032 (2004). The petitioner has not demonstrated any error or abuse of discretion as to either of her claims. First, the single justice properly denied the petitioner’s request for a rehearing of her application […]
In the Matter of Zak, David (Lawyers Weekly No. 10-055-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12073 IN THE MATTER OF DAVID ZAK. April 10, 2017. Attorney at Law, Disciplinary proceeding, Commingling of funds, Fee-sharing agreement, Advertising, Disbarment. The respondent attorney, David Zak, appeals from a judgment of a single justice of this court disbarring him from the practice of law.[1] We affirm. Background. Bar counsel filed a seven-count petition for discipline with the Board of Bar Overseers (board) against the respondent arising out of the respondent’s solicitation and handling of a substantial number of mortgage loan modification cases over more than a four-year period. See note 10, infra. Count one alleged that the respondent made payments to others to recommend his services and to solicit professional employment for the respondent from prospective clients;[2] shared fees with nonlawyers;[3] failed to instruct and supervise his employees and agents adequately;[4] and engaged in the practice of law with a person who was not a lawyer.[5] Count two charged that the respondent made false and misleading advertisements about himself, his law firm, and his loan modification services, in Massachusetts and other jurisdictions.[6] Count three alleged that the respondent charged and collected advance fees for loan modification services, in violation of Federal and State statutes and regulations, and that the fees he charged were either excessive or illegal, or both.[7] Count four alleged that the respondent provided or caused to be provided to clients false, deceptive or misleading information about his loan modification services.[8] Counts five, six, and seven alleged misconduct during the respondent’s handling of three specific loan modification matters, and in connection with bar counsel’s investigation of complaints filed by those clients. The petition was referred to a special hearing officer. After a hearing, at which the respondent was represented by counsel, the hearing officer made detailed findings of fact and conclusions of law against the respondent on all counts, and recommended that the respondent be disbarred. The hearing officer also recommended that the respondent be required to make restitution. The respondent appealed to the board, focusing primarily on the disciplinary recommendation. The board adopted the hearing officer’s findings of fact and conclusions of law, and voted to recommend that the respondent be disbarred. Although it declined to recommend that restitution be ordered, the board observed that failure to make restitution reflects poorly on an attorney’s moral fitness to […]
In the Matter of N.L. (Lawyers Weekly No. 10-044-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12183 IN THE MATTER OF N.L. Middlesex. December 5, 2016. – March 14, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Mental Health. Practice, Civil, Commitment of mentally ill person, Continuance, Moot case. Moot Question. Petitions for civil commitment and to authorize medical treatment filed in the Cambridge Division of the District Court Department on November 3, 2014. A motion for a continuance was heard by Roanne Sragow, J., and the petitions were also heard by her. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Karen Owen Talley for the respondent. Diane M. Geraghty Hall for the petitioner. Anna Krieger, Robert D. Fleischner, Jennifer Honig, & Phillip Kassel, for Center for Public Representation & another, amici curiae, submitted a brief. LOWY, J. N.L. appeals from the order for his civil commitment to a mental health facility (hospital), pursuant to G. L. c. 123, §§ 7 and 8, and the order authorizing his treatment with antipsychotic medications pursuant to G. L. c. 123, § 8B. He argues that the District Court judge improperly denied his prehearing request for a continuance to allow time for his counsel to prepare an adequate defense and an independent medical examiner to complete a psychiatric evaluation. We transferred the case from the Appeals Court to this court on our own motion. We dismiss the appeal as moot but exercise our discretion to address the issue before us, which is whether a judge may deny a person’s (or the person’s counsel’s) first request for a continuance of a hearing pursuant to G. L. c. 123, § 7 (c) or 8B. We hold that where a person or his or her counsel requests such a continuance, the grant of the continuance is mandatory where a denial thereof is reasonably likely to prejudice a person’s ability to prepare a meaningful defense.[1] Background. 1. Facts. N.L. was admitted to the hospital on October 30, 2014, under the emergency hospitalization provisions of G. L. c. 123, § 12. On November 3, the hospital filed a petition for commitment pursuant to G. L. c. 123, §§ 7 and 8, and a petition for determination of incompetency and for authorization for medical treatment for mental illness pursuant to G. L. c. 123, § 8B. Counsel was appointed for N.L. […]