Wednesday, January 13, 2010
The Massachusetts Supreme Judicial Court has imposed indefinite suspension rather than disbarment in a case involving misappropriation. Bar Counsel had sought disbarment. The court recounted the facts:
Before [the attorney] was admitted to the Massachusetts bar in 1992, he had abused cocaine and other illegal drugs on and off for many years. Despite his addiction, he was a "high-functioning" cocaine user throughout the 1990's and early 2000's. In 2001, [he] acted as escrow agent for the proceeds from the sale of a marital home, in connection with a divorce matter in which he represented the husband. The client's (husband's) share of those proceeds, approximately $50,000, were intended to cover his living expenses and to guarantee his child support obligations. In April, 2002, [he] loaned $7,000 from the account to a friend of his without the client's knowledge or authorization. The following month, the friend repaid [him] the $7,000, but [he] deposited it in his own business account rather than in the escrow account. [He] spent most of the $7,000 for his own personal and business purposes. Accountings of the escrow funds that [he] prepared in 2003 and 2004 failed to disclose the loans he had made, and falsely indicated that the account included $6,600 that was actually missing.
By the summer of 2004, [his] drug abuse had increased to the point where he was using cocaine daily. In early 2005, [he] ended his representation of the client and his role as escrow agent. Beginning in January, 2005, and over the course of the following six months, he participated in, and successfully completed, residential and other programs for treatment of his addiction. In February, 2005, [he], on his own accord, repaid the client $3,000 of the outstanding $6,600 he took from the escrow account. Later the same month, [he] self-reported his misappropriations to bar counsel; he assumed inactive status, and completed or referred his outstanding cases. No longer practicing law, [he] earned a master's degree in education and now teaches history and law in the Boston public school system, coaches hockey and baseball teams, and runs a mock trial program. As part of his coaching, he warns students about the dangers of illegal drug use.
The full court affirmed the order of a single justice, modified to include a repayment condition:
In ordering [the attorney] indefinitely suspended--a somewhat lesser sanction than disbarment, see S.J.C. Rule 4:01, § 18(2)(a) & (b), as appearing in 430 Mass. 1329 (2000) (period before which disbarred attorney may generally petition for reinstatement is eight years while for indefinitely suspended attorney it is five years)--the single justice did not impose a sanction markedly disparate from those imposed in comparable circumstances. Setting aside the question whether [his] cocaine addiction caused or otherwise contributed to his misappropriations (or whether, even if it had, his addiction to an illegal drug should be considered a mitigating factor) the other circumstances of this case support the single justice's choice of an indefinite suspension over disbarment. The sanction is justified in light of [his] taking responsibility for his actions by self-reporting his misdeeds; voluntarily repaying a substantial portion of the money he took and acknowledging his obligation to repay the remainder; successfully completing substance abuse treatment programs; and devoting his energies to the worthy endeavors of teaching in the Boston public schools, coaching sports teams, and using his experiences to teach young people about the dangers of illegal drug use.
The case is Matter of Collins, decided January 12, 2010. (Mike Frisch)