Friday, January 16, 2009

Presumptive Sanction Imposed

The full Massachusetts Supreme Judicial Court affirmed the conclusion of a single justice that an attorney should be suspended indefinitely for intentional misuse of client funds. The court rejected a claim of discrimination based on national origin:

We turn now to the second issue raised by Osagiede--that the hearing committee and the board improperly considered his national origin against him. We find no merit to this assertion. At Osagiede's hearing, bar counsel questioned Osagiede about his involvement in Nigerian politics, his absences from the United States while he was a candidate in a primary election in Nigeria, and the maintenance of his legal practice while he was away. Osagiede's counsel objected to the line of questioning, arguing that bar counsel's references to Nigeria as Osagiede's home was meant to imply that Osagiede was "less than an American than any other American citizen in this country" and that the questions "clearly point[ed] towards unfair prejudice against [his] client ... in terms of race and in terms of his citizenship." The hearing committee overruled the objection, after indicating that the implications raised by Osagiede's counsel had not occurred to them, but also asked bar counsel to try to ask any further questions in such a way as to obviate the concerns raised by Osagiede's counsel. Bar counsel did not ask any further questions.

Osagiede asserts that bar counsel was trying to suggest that because Osagiede is from Nigeria he would suffer less from a harsh sanction than would an attorney from the United States, and that the hearing committee then improperly considered his national origin in determining the sanction to be imposed. In its consideration of any aggravating or mitigating factors, the hearing committee determined that given Osagiede's education, accomplishments as an educator and a journalist, and involvement in Nigerian politics for which Osagiede was prepared to move back to Nigeria if necessary, he had not carried the burden of showing that a suspension would cause severe hardship. See Matter of Johnson, 23 Mass. Att'y Discipline Rep. 327, 335 (2007), S. C., 452 Mass. 1010 (2008) (respondent has burden of proving matters in mitigation). We agree with the board that the committee was simply indicating that suspending Osagiede would not work any special hardship because he had skills and experience in other areas. That assessment had nothing to do with Osagiede's national origin.

The presumptive sanction for the intentional misuse of client funds, with an intent to deprive and actual deprivation of the funds, is an indefinite suspension or disbarment, Matter of Schoepfer, 426 Mass. 183, 187 (1997), citing Matter of the Discipline of an Attorney, 392 Mass. 827, 836 (1984), and the record reflects no reason that this sanction should not be imposed in this case.

Conclusion. We find no error in the hearing committee's and the board's consideration of the evidence or reference to Osagiede's national origin.

The case is Matter of Osagiede, decided January 15, 2008. (Mike Frisch)

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