Wednesday, April 10, 2013

Complainant Immunity In Massachusetts

An attorney who also has a real estate broker's license was the subject of a bar complaint that he had made misrepresentations to secure a split of a $13,000 real estate commission.

Bar Counsel filed charges that led to a public reprimand. The attorney then sued the complainant.

The Massachusetts Supreme Judicial Court broadly interpreted the complainant immunity provisions in ordering the case dismissed:

The pertinent underlying facts are essentially undisputed. Damon is a licensed real estate broker who works on Cape Cod. In the fall of 2008, he filed identical complaints with bar counsel and the division of professional licensure, claiming that Farber, an attorney admitted to the Massachusetts bar and a real estate broker, made misrepresentations to induce Damon to split a $13,000 real estate commission with him. The gist of Damon's complaint was that Farber fraudulently misrepresented certain facts to Damon in connection with a real estate purchase in which Farber was involved on behalf of the actual purchasers, leading Damon to give Farber one-half of the real estate commission he received from the sellers in connection with the sale. On November 25, 2009, bar counsel filed a petition for discipline against Farber; one of the counts was based on Damon's complaint and concerned Farber's conduct in connection with Damon. A hearing committee of the board heard the matter in May, 2010, and Damon testified as a witness called by bar counsel. The hearing committee made findings consistent with the allegations in the petition for discipline, including those relating to Damon, and recommended that Farber be suspended from the practice of law for one year and one day. The board adopted the hearing committee's factual findings but recommended that Farber receive a public reprimand, concluding that while Farber had made misrepresentations and thereby violated Mass. R. Prof. C. 8.4(c), 426 Mass. 1429 (1998), he had done so while acting as a real estate broker, not as an attorney. In August, 2011, a single justice of this court agreed with the board and issued a decision and order of public reprimand. It appears that as a matter of routine policy, the board released the decision to local newspapers, which subsequently printed stories about it.

Approximately six weeks later, on October 11, 2011, Farber filed the civil action against Damon. All three claims that Farber included in his Superior Court complaint were based on statements made by Damon in (1) Damon's complaint filed with bar counsel, (2) a follow-up communication Damon later sent to bar counsel, and (3) Damon's testimony before the hearing committee. Farber later notified bar counsel that he was intending to add her as a party in this suit.

Based on § 9, bar counsel requested that Farber dismiss his civil action against Damon on the grounds that Damon was immune from the civil liability sought by Farber. Farber refused to do so, stating that § 9 did not apply to the case. Bar counsel commenced a disciplinary proceeding against Farber on or about November 21, 2011, and then filed the present action for declaratory judgment and injunctive relief in the county court to resolve the controversy between the parties relating to the proper interpretation or construction of § 9...

This history of the 1993 amendments strongly supports the conclusion that the public disclosure provisos in § 9 were intended to clarify that the absolute immunity provided by § 9 applies only to complaints, testimony, and other communications provided in the course of a bar disciplinary proceeding, and not generally to the substantive contents of any such communications in whatever separate forum they might be published or disclosed. Nothing in the history supports the view advanced by Farber that the public disclosure provisos were intended to condition the availability of immunity on whether the complaint, testimony, or other communication provided in a disciplinary proceeding is kept confidential.

The interpretation of the public disclosure provisos advanced by Farber would undermine the basic purpose of providing immunity to complainants and witnesses. The board modeled the absolute immunity provision in § 9 on Rule 12 of the American Bar Association's Model Rules for Lawyer Disciplinary Enforcement (2007 ed.) (Model Rules) and the commentary. See note 5, supra. The commentary to rule 12 makes clear that absolute immunity for complainants and witnesses is intended to encourage those who believe a lawyer has acted improperly or inappropriately to engage in the bar disciplinary system by filing a complaint. See Model Rules, supra at 32 ("A policy of conferring absolute immunity on the complainant encourages those who have some doubt about a lawyer's conduct to submit the matter to the proper agency, where it may be examined and determined. Without immunity, some valid complaints will not be filed"). [FN6] If, as Farber suggests, a complainant's immunity from civil liability is lost when he is called on to testify at a public hearing before a hearing committee, [FN7] the complainant may well decide that the personal risks associated with filing a complaint are too great to do so. We will not adopt an interpretation of § 9 that would discourage, rather than encourage, clients and others with knowledge of possible attorney misconduct from engaging and cooperating in the bar discipline process. See Champigny v. Commonwealth, 422 Mass. 249, 251 (1996) (court construes statute in accord with Legislature's intent, taking into account "main object to be accomplished ... and to avoid imputing a '[b]arrenness of accomplishment' "). It is more consistent with the plain language of § 9 and the history of the public disclosure provisos (see note 5, supra ), to interpret the rule as providing a complainant with immunity in relation to his actual communications or testimony provided in a bar discipline proceeding, but rendering immunity unavailable with respect to the information contained in those communications or testimony if the complainant publicly discloses such information in a forum outside the bar discipline system.

The case is Bar Counsel v. Peter Farber, decided April 9, 2013. (Mike Frisch)

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