Tuesday, September 27, 2011

Res Judicata No Bar To Bar Prosecution

The Massachusetts Supreme Judicial Court has affirmed the order of a single justice that imposed a suspension of a year and a day in a matter that arose from a probate proceeding.

The court rejected the attorney's claim that the disciplinary proceeding was barred as a result of the action of the probate court:

While the conduct described in bar counsel's petition for discipline may have come to light and been examined by the judge in the context of the guardianship proceeding, and while there were evident adverse consequences for the respondent in that proceeding, the separate question whether the respondent's conduct as an attorney warranted professional discipline was not for the guardian ad litem to prosecute or for the probate judge to adjudicate. Further, it is irrelevant that the guardian ad litem, the judge, or both, may have had a basis to report the respondent's conduct to the bar counsel (as to which we express no opinion) yet did not do so. It was bar counsel's prerogative to initiate a disciplinary case against the respondent, and the board's prerogative to adjudicate the same, regardless whether the matter was reported to them by the guardian ad litem or by the board. Principles of res judicata simply do not preclude bar counsel in circumstances like this from investigating an attorney's conduct in the underlying trial court case and from pursuing professional discipline against the attorney's license on the basis of misconduct that is found there. Cf. S.J.C. Rule 4:01, ยง 11, as amended, 453 Mass. 1306 (2009) ("a verdict, judgment, or ruling in the lawyer's favor in civil ... proceedings shall not require abatement of a disciplinary investigation predicated upon the same or substantially similar material allegations"). The duties and prerogatives of bar counsel and the board--and this court's power to superintend the bar and impose discipline when appropriate--are not preempted or compromised in any way by the decisions of other counsel (here, the guardian ad litem) or the judge in the underlying litigation.

(Mike Frisch)

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