In the Matter of James M. Pool
No. S-4494
Supreme Judicial Court of Massachusetts
401 Mass. 460;
517 N.E.2d 444;
1988 Mass. LEXIS 4
October 9, 1987, Argued
January 7, 1988, Decided
PRIOR HISTORY:
Suffolk.
[***1] Petition filed in the Supreme Judicial Court for the county of Suffolk on
January 8, 1985.
The case was reported by
Wilkins, J.
DISPOSITION:
So ordered.
HEADNOTES:
Attorney at Law, Disciplinary proceeding,
Disbarment,
Supreme Judicial Court, Membership in the bar.
Practice, Civil, Membership in the bar.
SYLLABUS: An attorney, disbarred eleven years after the occurrence of an isolated
incident of serious professional misconduct, demonstrated by his conduct both
before and after disbarment the degree of trustworthiness that would entitle
him to resume the practice of law nearly fifteen years after the incident
[464-467], and further, he demonstrated that his reinstatement would not be
detrimental to the public welfare nor compromise the integrity of the bar
[467-469].
COUNSEL:
John P. White, Jr., for the petitioner.
Daniel Klubock, Bar Counsel.
JUDGES: Hennessey, C.J., Liacos, Abrams, Nolan, Lynch,
& O'Connor, JJ.
OPINIONBY: LYNCH
OPINION:
[*460]
[**445] In this case, we are asked to decide whether James M. Pool (petitioner) should
be reinstated as a member of the bar of the Commonwealth. The question is
before us on the reservation and report, without decision, of a single justice
of this court. A hearing panel (panel) of the
[***2] Board of Bar Overseers (Board) recommended
reinstatement, concluding that the offenses for which the petitioner was
disbarred were an
isolated instance occurring eleven years
[**446] prior to
disbarment, when the petitioner was relatively young and inexperienced. The Board
concurred in the
recommendation of the panel with no votes to the contrary. We accept the
recommendation of the Board.
The petitioner was
disbarred on January 17, 1984, for a serious breach of client confidentiality, coupled
with failure
[*461] to disclose to his client significant facts which had a bearing on the amount
of the fee the petitioner received. We relate in some detail the unusual
nature of the conduct which led to the petitioner's
disbarment.
In March, 1973, the petitioner undertook representation of a client who had
been
arrested here on a Federal warrant from the Eastern District of Virginia,
charging him with the
kidnapping of a Mexican national. The petitioner and his client agreed to a fee of $
1,500 for representation in the removal hearing.
To establish the client's defense that the alleged kidnap victim had not been
kidnapped, but was instead a fugitive from justice, the petitioner engaged the
[***3] services of a private investigator. As a part of the investigation, it was
necessary for the investigator to travel to Mexico in an attempt to procure
evidence which would substantiate this defense. When the petitioner expressed
his concern that the cost of this investigation was exceeding the $ 800 he had
received from the client for expenses, the client revealed that he had rented
under a pseudonym two
safe deposit
boxes and that the
boxes contained a substantial amount of cash as well as a handgun and false
identifications. According to the client, these materials were unconnected
with the alleged
kidnapping; nonetheless, the client wished the materials removed. The keys to the
safe deposit
boxes were among the client's belongings then in the possession of the Federal
Bureau of Investigation (F.B.I.). The petitioner believed, and mistakenly
informed his client, that the F.B.I. would be able to locate the
safe deposit
boxes from the keys.
The petitioner requested the keys from the Assistant United States Attorney
assigned to the case, under an order for the return of seized evidence in so
far as the material was
"not likely to be used as evidence." The petitioner then told
[***4] the Assistant United States Attorney that he needed the keys to the
safe deposit
boxes in order to obtain money for his client's defense and that there was nothing
incriminating in the
boxes. However, he also said that the
boxes contained a gun which was not connected to the alleged
kidnapping, and, that if he could obtain the keys, he would open the
boxes alone, remove
[*462] only the money, and disclose the location of the
boxes and the alias under which they were listed. The Assistant United States
Attorney accepted the offer.
By this time, the client's
sister, an
attorney practicing in California, was in Boston to help her brother. Under
the impression that the petitioner had obtained the keys pursuant to a court
order, she was with the petitioner when he removed from the
boxes an envelope which contained $ 48,600. Except for the amount designated for
expenses, this money was turned over to the
sister. Nothing else was removed from the
safe deposit
boxes, although it was determined that they contained numerous sets of false
identification, including a fictitious passport and the handgun.
The Assistant United States Attorney then obtained a warrant to search the
safe deposit
[***5]
boxes. At the petitioner's request, the warrant application stated merely that
"further investigation" had revealed the existence, location, and identity of the holder of the
boxes. The petitioner never disclosed to his client what he had told to the Assistant
United States Attorney.
On April 11, 1973, the day before the client was to be removed to Virginia, the
petitioner again visited him in jail. An additional retainer
agreement for $ 7,500 was executed; at the same time, the petitioner agreed to
his client's request that he remove the remaining contents from the
safe deposit
boxes. The next day, he told his client's
sister that he would go to the bank alone. Upon his return thirty minutes later,
without having entered the
boxes, he announced to the
sister that the F.B.I. had seized the material from the
[**447]
boxes. His client subsequently learned about the petitioner's role in these events
from successor counsel.
As a result of this conduct the petitioner was found to be in violation of
S.J.C. Rule 3:07, Canon 1, DR 1-102, as appearing in
382 Mass. 769 (1981) (deceit, misrepresentation); Canon 4, DR 4-101(B)(1) (revealing
confidence or secret of a client); and
[***6] DR 4-101(B)(3), as appearing in
382 Mass. 778 (1981) (using a
confidence or secret of a client
for his own advantage, without the client's informed consent), and he was
disbarred on January 17, 1984. Because the events leading to
disbarment
[*463] occurred in 1973, n1 and in view of the petitioner's inexperience and
otherwise good record, the petitioner was granted the right to seek
reinstatement after the passage of one year from the date of
disbarment.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Hearings before the hearing committee of the Board of Bar Overseers did not
commence until 1981 due to the unwillingness of the United States government to
permit interviews of the Federal agents and attorney involved in the case.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
On January 8, 1985, n2 the petitioner filed a petition for
reinstatement, pursuant to
S.J.C. Rule 4:01,
§ 18, as amended through
394 Mass. 1106 (1985), and a hearing before a panel of the Board of Bar Overseers (panel) was held on
September 23, 1985. By
memorandum dated January 13, 1986, the panel requested
[***7] additional relevant evidence, which was submitted by August 20, 1986. On
October 27, 1986, the panel recommended that the petitioner be reinstated and
the Board of Bar Overseers voted to adopt the
recommendation of the panel on November 10, 1986, subject to a requirement, which has since
been met, that the petitioner pass the multistate professional responsibility
examination.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 On December 19, 1984, the single justice amended his order to permit
immediate application for
reinstatement.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Under
S.J.C. Rule 4:01,
§ 18(5), as amended,
394 Mass. 1106 (1985), the burden is on the petitioner to demonstrate
"that he has the moral
qualifications, competency and learning in law required for admission to practice law in this
Commonwealth, and that his
resumption of the
practice of law will not be detrimental to the integrity and standing of the bar, the
administration of justice, or to the
public interest." This
rule is considered to have two distinct requirements. The first addresses the
personal
qualifications
[***8] of the petitioner with regard to both
competence and learning in law and his moral
qualifications. The second requirement concerns the effect of the petitioner's
resumption of practice on the integrity of the bar, the administration of justice and the
public interest.
Matter of Gordon, 385 Mass. 48, 51-52 (1982).
[*464] 1.
Personal
qualifications. Bar counsel questions the petitioner's present moral
fitness and achievement of
rehabilitation. The petitioner's
disbarment
"is conclusive evidence of his lack of
moral character at the time of his removal from office. And it continues to be evidence
against him with respect to lack of
moral character at later times."
Matter of Keenan, 313 Mass. 186, 219 (1943). The petitioner, therefore, has the burden to
"establish affirmatively that since his
disbarment he has become 'a person proper to be held out by the court to the public as
trustworthy.'"
Id., quoting
Boston Bar Ass'n v. Greenhood, 168 Mass. 169, 183 (1897). Although it has been noted that
rehabilitation is a
"state of mind,"
Matter of Allen, 400 Mass. 417, 425 (1987),
"[i]n judging
[***9] whether a petitioner . . . has demonstrated the requisite
rehabilitation since
disbarment, it is necessary to look to (1) the nature of the original offense for which
the petitioner was
disbarred, (2) the petitioner's character, maturity, and experience at the time of his
disbarment, (3) the petitioner's
occupations and conduct in the time since his
disbarment, (4) the time elapsed since the
disbarment, and (5) the petitioner's present
competence in legal skills" (footnote omitted).
Matter of Hiss, 368 Mass. 447, 460 (1975).
[**448] The offenses for which the petitioner was
disbarred were ones which strike at the heart of the fiduciary nature of the
attorney-client relationship. See
Berman v. Coakley, 243 Mass. 348 (1923). Moreover, the petitioner's continuing lack of disclosure of the breach of
confidence and his
agreement with the Assistant United States Attorney evince more than a mere
error of judgment. The panel found, however, that the
misconduct was an
isolated instance which, it should be further noted, arose in highly unusual
circumstances. Substantial evidence before the panel of a good record of
practice as an attorney in the years
[***10] intervening between 1973 and the petitioner's
disbarment, as well as the fact that the petitioner's
misconduct occurred when he had been in sole practice for less than a year, support this
finding. See
S.J.C. Rule 4:01,
§ 18 (5).
In 1982, the petitioner moved with his family to West Virginia. His
occupation subsequent to
disbarment has been as
[*465] director of the bicentennial celebrations of Harrison County and the city of
Clarksburg, West Virginia. During the course of this employment, the
petitioner wrote a book for children and edited an album on the history of the
county. The panel found impressive the support of public officials and others
who have known the
petitioner and his work in West Virginia, some of whom explictly noted their
awareness of his
disbarment. Letters in support of the petitioner were unanimous in their praise of and
respect for the petitioner. We therefore concur with the panel that the
petitioner's
occupation and conduct since
disbarment reflect positively on his present moral
fitness.
Bar Counsel, however, argues that certain conduct and statements made by the
petitioner raise serious questions whether he has sustained his
burden of demonstrating
[***11] present moral
fitness. At the core of this argument is the contention that the petitioner has failed
to appreciate the serious nature of the offenses leading to
disbarment and has instead blamed others for his own deficiencies. We have examined the
complete record of the various proceedings and do not adopt Bar Counsel's
interpretation of the petitioner's conduct.
Of Bar Counsel's contentions, two bear most closely on questions of
rehabilitation. The first concerns the significance of the petitioner's statement before the
single justice to the effect that he did nothing dishonest, a statement which
he
later explained in the
reinstatement proceeding to have been in response to having been called a thief by Bar
Counsel. The second concerns the petitioner's failure to make
restitution of the $ 7,500 additional fee, combined with his statement in the
reinstatement proceeding that he was unaware that
restitution was an issue.
Although the record before the single justice reveals no such statement by Bar
Counsel, he did make legal arguments regarding the petitioner's
"bad
moral character," as evidenced by adjudication of
disbarment. We view the petitioner's misapprehension of Bar Cousel's
[***12] argument as understandable in view of the allegation and prosecution of a
claim before the panel that the petitioner had stolen $ 25,000 from his
client's
safe deposit
box, a charge which was ultimately withdrawn.
[*466] Moreover, contrary to Bar Counsel's argument, the petitioner did acknowledge
in the
reinstatement hearing that his conduct involved dishonesty. Perhaps most importantly, the
subjective aspects of questions dealing with
state of
mind, like matters of credibility, are most appropriately determined by the panel,
which has the opportunity to observe and listen to the petitioner directly.
Matter of Gordon, supra at 55. We see nothing in the record to indicate that the panel's assessment that the
petitioner has been rehabilitated was in error.
We now turn to the question of
restitution. Although not a controlling consideration, whether
restitution has been made is relevant to the determination of the
disbarred attorney's
rehabilitation. See Annot.,
70 A.L.R. 2d 268,
§ 18 (1960), and cases collected therein. Where an attorney's
disbarment is based on
misappropriation of clients' or others' funds, failure to make
restitution without
[***13] justification is a
[**449] strong indication of lack of
rehabilitation. See, e.g.,
In re Kuta, 86 Ill. 2d 154 (1981). This was not a case of
misappropriation by the petitioner, although the circumstances surrounding the negotiation of
the additional fee were material elements in his
disbarment. The petitioner's failure
spontaneously to return the $ 7,500 to his
former client and his subsequent explanation do not lead us to conclude that he lacks
rehabilitation. We reach this conclusion because, first of all,
restitution was not required under
S.J.C. Rule 4:01,
§ 24, inserted by
394 Mass. 1106 (1985). Furthermore, neither the findings and conclusions of the panel
recommending discipline nor the memorandum of the single justice disbarring the petitioner
found the $ 7,500 fee to be excessive but instead questioned the circumstances
under which the agreement was executed. We, therefore, cannot say that it
should have been evident to the petitioner that
restitution was in order. Moreover, in
recommending
reinstatement at this time, the panel notes that the petitioner and his
former client have entered into an agreement pursuant to which the petitioner
[***14] has undertaken to make
restitution. n3 Under the circumstances of this case, we think this to be sufficient with
regard to
restitution.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 By way of a letter to the single justice, the
former client has sought to characterize this agreement as having been procured by the
petitioner through extortionary means. In view of the fact that this agreement
is part of the settlement of a civil law suit, a settlement which the client
has apparently not sought to revoke in the appropriate forum, we give no weight
to the client's allegations.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*467] In sum, we agree with the board that the petitioner has sustained his
burden of demonstrating the degree of trustworthiness which would entitle him to resume the
practice of law. As serious as his offenses were, they were committed at a time when he was an
inexperienced practitioner confronting an unusual and complex criminal case.
Such situational pressures cannot be ignored when assessing the likelihood that
such
misconduct will recur. See Rhode,
Moral Character as Professional
[***15] Credential,
94 Yale L.J. 491, 555-562 (1985). We recognize that the passage of fewer than five years since
disbarment would ordinarily be insufficient for a
disbarred attorney to rehabilitate himself.
"[A] long time span between
disbarment and
petition for
reinstatement, during which the petitioner's conduct was exemplary, reinforces his claim to
rehabilitation."
Matter of Hiss 368 Mass. 447, 460 n.19 (1975). We note, however, as did the panel, that the petitioner's
misconduct occurred eleven years prior to the date of
disbarment and the order of the single justice permitted him to apply for
reinstatement after one year. In any case, the question remains whether he is presently
trustworthy.
Id. at 456. By his conduct both prior to and subsequent to
disbarment, as is attested to by ample evidence in the record, and as found by the panel,
the petitioner has demonstrated that whatever weaknesses of character led to
his serious
misconduct, they no longer implicate his present
fitness.
2.
Effect of
reinstatement on the integrity of the bar. Since we are satisfied that the petitioner is presently
trustworthy, we also agree
[***16] that he has met his
burden of demonstrating that
"his
reinstatement would not be detrimental to the
public welfare."
Id. at 460 n.19. There remains, however, the question of
public perception of
reinstatement of an individual
disbarred for the sort of offenses involved in this matter. The primary considerations
here involve the impact of
reinstatement on the
[*468] deterrence function served by the disciplinary process,
Matter of Gordon, 385 Mass. 48, 55 (1982), and the reputation of the bar for integrity,
id. at 58.
Previous decisions of this court have weighed the position and experience of
the petitioner at the time of
disbarment, the degree of notoriety of the offenses, and the effect of the passage of time
on public perception, as well as the nature of the offense. See
Matter of Allen, 400 Mass. 417 (1987);
Matter of
[**450]
Gordon, supra;
Matter of Centracchio, 345 Mass. 342 (1963).
"The nub of the question is whether his
resumption of practice will have an actual effect upon the integrity of the bar and
thereby on the administration of justice and the
public interest."
[***17]
Matter of Gordon, supra at 52.
The perception of the public of the petitioner's
reinstatement and the effect on public
confidence in the bar is not easily
susceptible of proof, especially where, as here, the offenses occurred in the
private sphere of the
attorney-client relationship and did not result in public scandal. It is significant,
however, that, with the exception of the petitioner's
former client, there is no recorded opposition to the petitioner's
reinstatement. n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 The standing committee on legal ethics of the Massachusetts Association of
Criminal Defense Lawyers submitted a letter but took no position on the
question of
reinstatement.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Instead, the record reveals letters from approximately thirty-two Massachusetts
attorneys and two judges who attest to the
competence, diligence, and integrity of the petitioner as a practicing attorney up until
1982. Those who addressed the
misconduct leading to
disbarment viewed it as an
isolated incident which should not now prevent
reinstatement.
[***18] Significant also, in so far as issues of public perception are concerned, are
the views of those nonattorneys in West Virginia who wrote in support of the
petitioner's
reinstatement despite
familiarity with the circumstances leading to his
disbarment.
We are satisfied that the board was correct in concluding that the petitioner
has proved himself
trustworthy, that his
resumption of practice poses no threat to the
public welfare, and that the integrity of the bar will not be compromised by the
reinstatement
[*469] of an individual who, despite serious professional
misconduct nearly fifteen years ago, has experienced the
"chastening effect of a severe sanction."
Matter of Hiss, supra at 454. We therefore remand the case to the Supreme Judicial Court for the county of
Suffolk for entry of an order reinstating the petitioner as a member of the bar
of the Commonwealth of Massachusetts.
So ordered.
