at Law, Disciplinary proceeding, Suspension, Contingent fee
agreement, Attorney-client relationship. Supreme Judicial
Court, Superintendence of inferior courts. Administrative
Law, Substantial evidence. Board of Bar Overseers.
Valeriano Diviacchi, pro se.
respondent, Valeriano Diviacchi, appeals from an order of a
single justice of this court suspending him from the practice
of law for twenty-seven months, as recommended by the Board
of Bar Overseers (board). We affirm.
counsel filed a petition for discipline with the board,
alleging that Diviacchi committed the following violations of
the Massachusetts Rules of Professional Conduct:
(a) failure to explain to the client contingent fee agreement
provisions not contained in Forms A or B of Mass. R. Prof. C.
1.5 (f), as appearing in 459 Mass. 1301 (2011), and to obtain
the client's informed consent to these provisions, in
violation of Mass. R. Prof. C. 1.5 (f);
(b) limitation of representation of the client, failure to
seek the client's lawful objectives, and failure to
represent the client competently and diligently, in violation
of Mass. R. Prof. C. 1.1, 426 Mass. 1308 (1998); Mass. R.
Prof. C. 1.2 (a), 426 Mass. 1310 (1998); and Mass. R. Prof.
C. 1.3, 426 Mass. 1313 (1998);
(c) false statements of material fact to the United States
District Court and the Boston Municipal Court, in violation
of Mass. R. Prof. C. 3.3 (a) (1), 426 Mass. 1383 (1998); and
Mass. R. Prof. C. 8.4 (c), 426 Mass. 1429 (1998); and
(d) attempting to charge and collect a clearly excessive fee,
in violation of Mass. R. Prof. C. 1.5 (a), as appearing in
459 Mass. 1301 (2011) .
denied any violation of the disciplinary rules. After an
evidentiary hearing, a hearing committee found all the
violations charged by bar counsel, found no mitigating
factors and several aggravating factors, and recommended that
Diviacchi be suspended from the practice of law for fifteen
months. The respondent appealed to the board, which adopted
the hearing committee's findings and made some additional
findings. The board filed an information in the county court
recommending that Diviacchi be suspended for twenty-seven
months. After a hearing, the single justice adopted the
board's recommendation and entered an order of term
single justice summarized the following relevant findings
made by the hearing committee and the board, which we
supplement with certain additional findings of the hearing
committee. On the recommendation of a mutual acquaintance, a
client contacted Diviacchi seeking representation in a
Federal action filed against her by a lender. The lender
alleged that the client had defaulted on a construction loan
and on a line of credit and owed approximately $2.8 million.
The client asserted a counterclaim against the lender.
Although the client had retained other counsel to represent
her in this action, rising legal fees motivated her to seek
new representation on a contingent fee basis.
client consulted with Diviacchi, who agreed to represent her
on a contingent fee basis with an upfront payment in the
amount of $25, 000. Because the client could not pay that
amount in a lump sum, Diviacchi agreed to accept $15, 000 up
front. Diviacchi presented the client with a contingent fee
agreement providing that "[t]he claim, controversy, and
other matters with reference to which the services are to be
performed are SOVEREIGN BANK v. [CLIENT] &
COUNTERCLAIM." It further provided that "[t]he
contingency upon which compensation is to be paid is:
recovery by judgment or settlement or otherwise."
the language provided in the forms appearing in Mass. R.
Prof. C. 1.5 (f), the contingent-fee agreement stated the
following: "Client is responsible for any amount owed to
prior or other counsel not associated with the undersigned.
CLIENT IS TO RECEIVE A CREDIT FOR A NON-REFUNDABLE FLAT RATE
PAYMENT OF $15, 000 PAID NOW AND $10, 000 STILL DUE."
Diviacchi made additional modifications to the contingent fee
agreement which, according to the board, "favor[ed]
[Diviacchi] in any attempt to collect fees and expenses from
the client if the relationship [was] terminated or if the
client obtain[ed] a nonmonetary compensation or no
money." The client "looked the agreement over
quickly; [Diviacchi] did not review the agreement with her
paragraph by paragraph; he did not explain to the client the
provisions and wording he had added; and he did not obtain
her informed consent in writing to the modifications he had
entered his appearance in the Federal litigation on May 8,
2012 and filed an amended counterclaim and an emergency
motion for a thirty-day stay in view of his plans to be out
of State for approximately two weeks. The board found the
amended counterclaim to be "only marginally different
from the one filed by the client's prior counsel."
The amended counterclaim asserted claims under G. L. c. 93A,
§ 9, and State common law, and it included, among other
things, a request for an injunction preventing the lender
from foreclosing on the client's property. Nonetheless,
although the client requested, on multiple occasions, that
Diviacchi try to stop the scheduled foreclosure of her
property because she wanted to end the matter with a short
sale, Diviacchi refused to do so. Consequently, the client
hired another attorney, Harold Jacobi, who filed a limited
appearance to enjoin the foreclosure. The court denied the
client's emergency motion for injunctive relief, and,
with Jacobi representing her as her principal counsel on that
matter, the client appealed to the United States Court of
Appeals for the First Circuit.
23, 2012, the client contacted Diviacchi with an inquiry
about filing for bankruptcy. In response, Diviacchi strongly
advised the client against this, indicating that such action
would not be beneficial. He specifically told the client to
"[t]alk to whatever idiot attorney told [her] to file
for bankruptcy." Nevertheless, the client filed for
bankruptcy, which stayed the impending foreclosure for
approximately two months.
on May 29, 2012, the First Circuit notified counsel of
record, including Diviacchi, of a "Mandatory
Pre-Argument Settlement Conference" scheduled for July
12, 2012. Diviacchi informed Jacobi that he expected him to
"handle the First Circuit matters." Diviacchi did
not attend the July 12 mediation and did not provide any
input to Jacobi.
June, 2012, Diviacchi filed an opposition to the lender's
motion to dismiss the counterclaim. The board found that
"[t]hereafter, [Diviacchi] did no work of substance on
the client's case and filed nothing further on her behalf
in [F]ederal court."
refusing to meet with the client between May 29 and July 12,
Diviacchi sent an electronic mail (e-mail) message to her
asking that she make "'the remaining flat rate
payment' by the end of July" and threatening to file
an attorney's lien if she did not do so. The client wrote
in response: "I was not aware there was a deadline on
that payment, especially since I thought it was related to
costs." Diviacchi then informed the client, for the
first time, that this payment "ha[d] been past due for
months." The client begged Diviacchi not to file for the
lien as she awaited a sale and settlement. She also indicated
that she needed to discuss with him what had happened at the
mediation. Nonetheless, Diviacchi filed a notice of lien on
July 17, 2012, and agreed to meet with the client the next
day. At this meeting, the client revealed
"disturbing" information from the mediation, the
nature of which the record does not disclose. In response,
Diviacchi ordered the client to leave his office and
threatened to telephone the police if she did not do so
immediately. At the hearing before the hearing ...