Thursday, August 21, 2008

Grave Injustice

An attorney who had been suspended for two years in Oregon received a lighter six-month suspension in Massachusetts. One of the misconduct findings related to theft charges where the attorney had taken a Hewlett-Packard personal digital assistant from an electronics store. Two other findings of misconduct in Oregon were not a basis for imposed identical reciprocal discipline in Massachusetts:

The other two matters for which the respondent was disciplined in Oregon - making false representations about the location of his principal law office in order to qualify for an exemption from the Oregon State Bar's professional liability insurance requirement, and practicing law during a time when he was administratively suspended for noncompliance with the State Bar's continuing legal education requirements - are not matters that would themselves result in discipline in the Commonwealth. This is so because there is no requirement that attorneys licensed in the Commonwealth to practice law carry professional liability insurance, and also no requirement that attorneys complete any continuing legal education programs as a condition of continued licensure. Accordingly, on its face, these acts of misconduct by the respondent appear to fall directly under S.J.C. Rule 4:01, ยง 16 (3) (b). Bar counsel contends, however, that the matter relating to false representations about the respondent's law office location involves allegations of conduct involving dishonesty or misrepresentations, which would violate, inter alia, Mass. R. Prof. C. 8.4 (c), 426 Mass. 1429 (1998), and thus would be subject to discipline here. The point is well taken, but bar counsel does not argue or cite any Massachusetts disciplinary cases in which an attorney has been suspended for two years on facts that are comparable to the facts of this case.

The single justice who entered the order concluded that a two-year suspension in Massachusetts would constitute a "grave injustice." The rule that permits departure from identical discipline has a provision that permits the court to adjust the sanction where the "misconduct established does not justify the same discipline in the Commonwealth." I am not sufficiently expert in Massachusetts sanction law to have an opinion whether the Oregon misconduct "justifies" a lesser sanction in the Commonwealth.  I do not think that the imposition of two year would be anything close to a grave injustice.

Note that the Massachusetts reciprocal discipline rule significantly differs from the ABA Model Rule of Disciplinary Enforcement. Mike Frisch)

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