Wednesday, May 27, 2009

No Second Bite

The full Massachusetts Supreme Judicial Court affirmed the determination of a single justice imposing reciprocal disbarment of an attorney based on his disbarment in the District of Columbia. The court declined the invitation to revisit the facts found to establish the ethical violations:

Mitrano [the attorney]  has not established either that the District of Columbia proceedings deprived him of notice and an opportunity to be heard or that there was a significant infirmity of proof. As to the notice he received, Mitrano argues that he was charged with forging the indorsement on the check, and that he was thus not put on notice that he would be disciplined for securing an indorsement by an unauthorized person. The District of Columbia Court of Appeals found this argument to be "utterly without merit," In re Mitrano, supra at 906, and we agree. While the District of Columbia's specification of charges contains one sentence alleging that Mitrano himself indorsed the check in the name of Michael J. Byorick, an allegation that the D.C. board found to be unproven, this was but one part of the charges against Mitrano. It is clear that Mitrano was being charged with theft of the proceeds of the check and that forgery was merely an alleged method by which he accomplished the theft. Mitrano had ample notice and opportunity to defend himself against the charges.

As to the sufficiency of the evidence, Mitrano essentially challenges the credibility determinations made by the [District of Columbia] hearing committee. The hearing committee was in a far better position to make those determinations than we are, and we defer to their views. Mitrano also points to evidence that, according to him, shows that Byorick in fact had authority to indorse the check, or at least that Mitrano could have reasonably believed that he had such authority. On the contrary, the evidence on which Mitrano relies shows at most that Byorick was an officer of Mitrano's corporate client several years before the check was indorsed. There was evidence before the D.C. board that Byorick no longer held that position at the critical time, but had retired to Florida, and that Mitrano had no basis to believe at that time that Byorick had authority to indorse a check on behalf of the corporation. Moreover, even if the evidence before the hearing committee might have supported inferences more favorable to Mitrano, this does not establish a significant infirmity of proof for the inferences that it did draw. Because Mitrano received a fair hearing in the District of Columbia and the findings are supported by sufficient evidence, the District of Columbia's judgment of disbarment constitutes conclusive evidence of Mitrano's misconduct. S.J.C. Rule 4:01, ยง 16(3).

The case is Matter of Mitrano, decided on May 22, 2009.  (Mike Frisch)

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