Monday, October 21, 2013

Tears Do Not Prevent Disbarment

The full Massachusetts Supreme Judicial Court has vacated the order of indefinite suspension and disbarred an attorney for his felony harassment conviction.

The single justice had been moved by the attorney's tears

"There is no reason to depart from the presumptive sanction in this case.  However, I had an opportunity to observe the respondent for about forty-five minutes, including about thirty minutes for his own oral argument, and I could not help but think that he has unresolved emotional issues that in all likelihood contributed to his difficulties.  He was reduced to tears twice during the hearing before me.  Although he did not present any evidence of mitigation to the hearing panel, I honestly believe it exists and I am not inclined to order disbarment for this reason.  I also note that, although not determinative, the misconduct in this case did not occur in the course of the practice of law." 

The court did not find that the mitigation was established

Contrary to Rules of the Board of Bar Overseers ยง 3.15(f), Patch did not state facts in his answer to the petition for discipline supporting a claim that his misconduct was caused by psychological issues.  Under the rule, a "respondent shall include in the answer any facts in mitigation....  Failure to include facts in mitigation constitutes a waiver of the right to present evidence of those facts " (emphasis added).  While the respondent's counsel stated before the hearing panel that the respondent had serious psychological issues, he did not present any evidence at all, expert or otherwise, to support a claim that his misconduct was caused by such issues.  As the single justice observed, "[t]he respondent presented the hearing panel with no evidence of mitigation." And indeed, even at the hearing before the single justice, the respondent did not claim mitigation based on psychological issues.

The case is In re Thomas Patch, decided today. (Mike Frisch)

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