The Caller ID Showed Santos (No, Not George)

A public reprimand has been imposed on an attorney by the Massachusetts Board of Bar Overseers for violation of Rule 4.2.

The appended Hearing Report (citations omitted throughout) tells the story.

The attorney had been appointed to a criminal matter at the outset of the COVID shutdown. Both his client and co-defendant Robinson were in custody.

On April 9, 2020, the respondent received a telephone call that appeared, based on the caller ID, to be coming from Paul Santos, a name the respondent did not recognize. After the respondent answered, the caller identified himself as Charles Robinson, co-defendant of Juan Lopez. 

Robinson stated that he wanted to come to Massachusetts and file a statement with the Court, indicating that Lopez had never had possession of the firearm, which was Robinson’s, that Lopez was innocent of the charges and should not be in jail, and that Robinson was solely responsible for the gun. 

Robinson spoke non-stop in a torrent of words; there was not a break in his speech where the respondent could interrupt.

The respondent advised Robinson that the courts in Massachusetts were closed due to Covid-19, and that in any event they would not accept a statement directly from the respondent or directly from Robinson because, as the respondent proceeded to confirm, Robinson was still represented by Panas and had not spoken to Panas about making a statement. The respondent told Robinson that Panas would probably advise against signing the type of statement Robinson envisioned. 

The call lasted at most two or three minutes. 

We credit that the respondent had done nothing to solicit Robinson’s statement, and that he believed that what Robinson told him constituted potentially exculpatory evidence as to his client Lopez. 

Robinson called again and left a message; Respondent did not return the call but he did speak to Robinson's girlfriend about an affidavit based on his discussions with her

The respondent proceeded to draft an affidavit for Robinson’s signature under the pains and penalties of perjury, stating in pertinent part: Robinson was the registered owner of the black Ruger 380 handgun recovered by the police on Friday, March 20, 2020; Robinson’s handgun was never in the possession, custody or control of Lopez, either before the motor vehicle accident or after the accident; and Robinson had possession of the handgun at all times until he discarded it immediately prior to his arrest.

He faxed the draft affidavit to the girlfriend without advising Robinson's attorney.

On April 28, 2020, the respondent e-mailed ADA Del Rio Gazzo and asked her to call him. Ans. ¶ 27; Ex. 6. When they spoke later that day, the respondent told her that he had obtained an affidavit from Robinson in which Robinson accepted responsibility for the firearm. The respondent asked her to review the affidavit and consider reducing Lopez’s bail. As an experienced criminal attorney, Parlow know that the Robinson affidavit was likely to persuade Del Rio Gazzo to agree to a significant bail reduction, a motivating factor in obtaining such an affidavit.

The prosecutor agreed to a bail reduction but (unlike Respondent) contacted Robinson's attorney

Panas had not previously known about the affidavit. He was “surprised” and “a little upset.” Id. In a conversation later that day, he asked Del Rio Gazzo where and how she had gotten the affidavit, and whether she had spoken to the respondent. 

Lopez was released as a result.

The statements in the affidavit were suppressed and Respondent withdrew from the case

In his March 3, 2021 Statement under Oath to bar counsel, the respondent stated that he had exhibited a “lapse in judgment” in sending Robinson the fax, and that if he could do it over again, he would not have sent the affidavit to Robinson but, instead, would have sent it to Panas with an explanation.

Respondent acknowledged the misconduct; COVID-related stress was no justification

We credit that the respondent cared deeply for his clients and wanted them released from jail if at all possible. However, we find that none of this is enough to mitigate the respondent’s misconduct. While we credit that there was much confusion and uncertainty in March and April of 2020, the respondent has not proved that it was pandemic-related stress that caused his misconduct. The absence of causation is fatal.

And

We find that there was harm as the result of the respondent’s conduct. The integrity of the legal system and the administration of justice suffered; additional legal proceedings were necessary, among them the motion and hearing regarding contact with witnesses; the motion to suppress Robinson’s affidavit; the respondent’s motion to withdraw, and the appointment of new counsel for Lopez.

Further

We agree with bar counsel that the respondent did not display true remorse. While we recognize that he admitted the rule violation promptly and repeatedly, the regrets he described to us did not concern Robinson, but instead focused on the impact of the misconduct on the respondent himself and his own career—the embarrassment and blow to his reputation as the result of public disciplinary proceedings; the disclosures he has had to make to his malpractice carrier, CPCS and the Bar Advocate Program; and the “huge amount of time that this has taken out of my personal life and my professional life.”. Lack of remorse is a factor in aggravation.

He also had not been "entirely candid" about the situation.

Sanction

Although we have not found a case precisely on point, we conclude that the respondent’s misconduct is more in line with the public reprimand cases we have summarized above.

(Mike Frisch)