Wednesday, October 20, 2010

Disclose, Disclose, Disclose

The Massachusetts Board of Bar Overseers has recommended a one-year suspension of an attorney based on findings that she made three false statements in her application for bar admission. The attorney also must be certified as fit to practice by the Board of Bar Examiners. Prior to attending law school, the attorney had been a licensed physical therapist.

The attorney had been admitted notwithstanding the (disclosed) fact that she had been suspended from law school for plagiarism. The Board summarized the hearing committee's findings:

In July 2007, the respondent sent a letter to the BBE reporting that her answers were inaccurate in the petition for admission. The BBE reported the matter to the Massachusetts Office of Bar Counsel.

The hearing committee concluded that the respondent’s conduct violated Mass. R. Prof. C. 8.1(a) (knowingly make false statement of material fact in connection with bar admission application) by providing false answers to three questions on her petition for admission to the Massachusetts bar. The three questions were:

Question 10(b): “Have any charges or complaints been made concerning your conduct as an attorney, or as a member of any other profession, or as a holder of any public office?

Question 12(b): “Have you ever been a party on either side in a civil action or proceeding involving a claim of fraud, conversion, breach of fiduciary duty, professional malpractice or other wrongful conduct?”

Question 12 (c): “Have you been a party in any other legal or administrative proceedings?”

The respondent answered “No” to each of these questions. The hearing committee found that these answers were knowingly false.

 With regard to Question 10(b), the Board of Registration in Allied Health Professions (the Board of Registration) had received two complaints against the respondent that she failed to disclose in her petition for admission. In approximately 1999, the Board of Registration dismissed a complaint filed by an insurer alleging that the respondent had engaged in over-utilization of services. Ex. 9; Ex. 11. In 2005, the Board of Registration dismissed without prejudice a complaint against the respondent regarding her supervision of a physical therapist, and it issued a non-disciplinary letter advising the respondent to review the pertinent regulations. Ex. 8.

With regard to Question 12(b), the respondent was a defendant in two lawsuits charging fraud. On June 10, 2004, a complaint in Kotlyar v. Zelyony, Essex Superior Court No. 2004-01115, was filed alleging that the respondent and her husband had committed fraud and deceit in connection with their work as business managers of a doctor’s medical practice. Ex. 2. In October 2009, the claims were dismissed. Ex. 3. On December 30, 2005, a complaint in Sivokozov v. Discount Corp. of America, Miami-Dade Co. Superior Court No. 2005-25547-CA-01, was filed alleging that the respondent and a corporation that she had controlled committed common law fraud in the inducement and violated the Florida Deceptive and Unfair Trade Practices Act. Ex. 4.

With regard to Question 12(c), on January 16, 2001, the respondent failed to disclose that she had filed a complaint, Resnick v. White, Essex Superior Court No. 2001-00070. Ex. 6. The matter was dismissed on September 12, 2003, for failure to prosecute after the respondent won a related arbitration award. Tr. 99-100. On January 9, 2006, the respondent filed a complaint, Resnick v. Global Assets, Inc., Miami-Dade Co. Superior Court No. 2006-366-CA-01. Ex. 7. This matter settled shortly afterwards, and was dismissed for lack of prosecution in December 2007. Ex. 7; Tr. 103.

The hearing committee did not credit the respondent’s testimony that she failed to disclose, when answering Question 10 (b), the complaints filed with the Board of Registration because (1) she had not been found to have committed any wrongdoing and (2) she had not been disciplined. In addition to disbelieving her explanations in her July 2007 letter to the BBE, the hearing committee did not credit her testimony during the hearing. It did not believe her claim that she had misinterpreted Question 10(b) as asking for disclosure only when formal proceedings had been commenced against her. The hearing committee did not believe the respondent when she testified that she did not think of the last complaint filed with the Board of Registration as having been filed “against” her. The hearing committee found that Question 10(b) was clear and unambiguous, and that the respondent’s interpretations of Question 10(b) were not only wrong, but also not credible.

With regard to Questions 12(b) and 12(c), the hearing committee did not credit the respondent’s testimony that she did not recall that she was a party in a total of four different lawsuits. The two lawsuits charging her with fraud were each filed before she submitted her petition for admission and both were still pending at the time the bar counsel filed the petition for discipline. The hearing committee did not credit the respondent’s explanation that she did not disclose that she had been named a defendant in Kotlyar because the lawsuit concerned her business dealings, and therefore did not think that it was a matter of concern to the BBE. The hearing committee also concluded that the respondent’s intentionally false answers were material.

The attorney practices immigation law in Florida. Two board members would recommend a shorter period of suspension. (Mike Frisch)

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