Tuesday, May 28, 2024

Out On A Limb

A Hearing Report in a Massachusetts bar discipline matter involves allegations against a prominent bankruptcy attorney finds misconduct in multiple matters and proposes a three-year suspension.

The respondent called to our attention that he was twice selected by Boston Magazine as one of Boston’s top bankruptcy lawyers, in 2021 (Ex. 56 (543)) and 2022 (Ex. 57 (545)). He has represented a client before the United States Supreme Court. Tr. 1:122 (Respondent). He claims to have had “ a number of cases in the [F]irst [C]ircuit and in the trial courts . . . that have had favorable results and made a substantial change in bankruptcy practice.” Id. He described his “underlying approach” as “to ask why are things the way they are,” and told us that he believes that “sometimes we have to . . . go out on a limb representing our clients to effect a necessary change in the law . . . .” Tr. 1:122-123 (Respondent).

Findings

We agree that the claim in the Motion for Sanctions was frivolous. As detailed at length above, the respondent’s argument as to the Bank’s alleged misconduct was not supported by authority and, as phrased, cannot be construed to be a request for a change in existing law. It was a stark misrepresentation to elide the fact that there was no authority for the respondent’s position, and it was, therefore, frivolous.

False statement

In addition to finding the respondent’s explanation not credible, we rely on the following. First is the misleading nature of the respondent’s pleadings – citing, respectively, a statute and case law allegedly in support of his position when, in fact, neither supported his point.

As noted, the cases cited in support of the Motion for Sanctions did not support the respondent’s argument, and in fact undermined it. In his cash collateral argument, we find that he eviscerated the statute, deliberately removing from it the section that did not help him.

We note additionally the absence, in the respondent’s motion papers or argument before Judge Hoffman, of language recognizing the force of authority, but advocating for a change to existing law. This was not an example of the respondent “go[ing] out on a limb representing [a client] to effect a necessary change in the law . . . .” See Tr. 1:123 (Respondent). Instead, the respondent simply and intentionally mischaracterized the law and argued, disingenuously, that his claims were supported.

Our conclusion that this was an intentional strategy and not an innocent mistake is underscored by our reference above...to the respondent’s earlier conduct in the bankruptcy court for strikingly similar behavior. Manifestly, as described by the First Circuit, the respondent “marshalled artifice” in apparent support of unsound and unsupported arguments.

The hearing report also found he had violated the court order.

In another bankruptcy matterc, he denied making a knowing false statement

We disagree. We do not credit the respondent’s claim that he had simply made a mistake. The exchange quoted above in full...shows the respondent actively misrepresenting his activities to the Court, and intentionally sowing confusion about interrogatories that were not at issue. This approach is uncomfortably similar to the shenanigans we described above in Count One, although we find that this lie was sharper and more explicit...

We are particularly troubled by the respondent’s breathtakingly audacious claim that if he did make a misrepresentation, he corrected it and therefore was not in violation of Rule 3.3(a)(1). See Respondent’s PTB, p. 9. We conclude that the respondent corrected nothing. Rather, when cornered, he finally stopped lying and admitted defeat, as he had to do. The First Circuit described this well: “After some prying by the court, and obfuscation by Baker, he ultimately conceded that he had failed to serve a response compliant with the order.” Ex. 29, n.14 (373).12 The First Circuit’s finding underscores the words of the BAP, which had found that the respondent’s misconduct “was deliberate and lack[ed] a legitimate excuse.” Ex. 28 (359). We agree and, in light of this and our own analysis, conclude that the respondent violated Rule 3.3(a)(1).

In a third matter, the report would find he charged an excessive fee but that was not alleged

We conclude that bar counsel has proved a technical violation of Rule 1.7(b). However, we will not increase our recommended sanction as the result of this particular misconduct. (In our Recommended Disposition discussion, we note the sanction range for this misconduct should our decision not to include it be rejected).

But

We find that the respondent intentionally misrepresented himself to the Probate Court as both the attorney for Sonya and the estate’s fiduciary. He did this knowingly and with a single purpose in mind: to get paid from the excess proceeds.

As indicated, we make no finding as to what if anything the respondent’s services to Sonya were worth. In this regard, we note that there were other avenues available to him to seek compensation that would not have involved lying and misrepresenting his status.

We find deeply troubling the respondent’s brazen misrepresentations to the tribunal in the service of his own financial interests. He was not Sonya’s attorney in any matter when he filed the Unauthorized Pleadings, and had never represented her in the Probate Court. He was never the estate fiduciary. We are especially struck by the fact of the respondent’s timing: he seems to have timed his filings to follow the withdrawal of the probate estate’s attorney, who could have explained to Sonya and Jewel what he was doing.

Sanction

Bar counsel recommends a two-year suspension. The respondent recommends that the petition be “denied,” or that we impose only “de minimus” discipline. We recommend a threeyear suspension...

On balance, considering the serious, intentional misconduct and the numerous aggravating factors we have found, we recollllllend a three-year suspension. We are mindful of the fact that this is indeed a heavy sanction, but it is justified in our view by the gravity of the respondent's misconduct, including without limitation, serial violations over several years; multiple attempts to mislead several Comts; flouting of the Bankrnptcy Comt's order to take an in-person ethics class; disservice to clients; lack of self-awareness of the consequences of his actions; and an anogant, steadfast refusal to admit the wrongdoing which resulted in the pending matter. We take seriously our duty to protect the public from dishonest lawyers, and conclude that a three-year suspension is the appropriate sanction here. In the event that the respondent's suspension is reduced to a suspension of less than a year-and-a-day, we strnngly recollllllend that he be ordered to undergo a reinstatement hearing before he is readmitted to practice.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2024/05/a-hearing-report-in-a-massachusetts-bar-discipline-matter-involves-allegations-against-a-prominent-bankruptcy-attorney-the-r.html

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