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In re Greene

Supreme Judicial Court of Massachusetts

December 2, 2016

MATTER OF EVAN A. GREENE.

          Evan A. Greene, pro se.

         Attorney at Law, Disciplinary proceeding, Suspension.

         The respondent attorney, Evan A. Greene, appeals from the order of a single justice of this court indefinitely suspending him from the practice of law.[1] We affirm.

         Background.

         Bar counsel filed an amended three-count petition for discipline with the Board of Bar Overseers (board) against the respondent arising out of his participation in certain residential mortgage foreclosure "rescue transactions" during 2005 and 2006. At the time, the respondent worked with his father, Attorney Barry D. Greene, at a law firm specializing in real estate transactions.[2] Count one of the petition described seven similar transactions. In each instance, a mortgage broker referred to the Greenes a homeowner who had either defaulted on a mortgage or was facing foreclosure, or both, but who had substantial equity in the property. The broker was paid a referral fee. The respondent (or his father) arranged for financing to purchase the property, and then entered into a purchase and sale agreement with the homeowner. The respondent (or his father) also entered into a lease with the former owner, whereby he or she could remain in the property, and a one-year option-to-repurchase agreement. In most cases, the lease payments exceeded the amount of the monthly mortgage payments. In addition, each option agreement required the homeowner to pay a nonrefundable fee ranging from $27, 000 to $50, 000. All of the homeowners defaulted on their monthly payments; only one homeowner exercised the option to repurchase.

         According to the petition for discipline, the respondent personally or through an associate made various misrepresentations on mortgage applications; misrepresented the terms of the transactions on HUD-1 settlement statements; executed and delivered false documents to the lender; and failed to notify the lender of the existence of the lease and option agreements. The petition additionally alleged that, by directing or permitting on more than one occasion an associate attorney of his firm to represent the lender in a transaction in which one of the Greenes was a borrower, without the lender's consent, the respondent engaged in conflicts of interest.

         Count two of the petition alleged that the respondent had been convicted in the United States District Court for the District of Massachusetts on twelve counts of violation of 12 U.S.C. § 2607(a) (real estate kickbacks and unearned fees) arising from some of the same transactions.[3] The twelve convictions involved five of the seven transactions that were the subject of count one. Count three of the petition for discipline involved falsification of a HUD-1 statement to include a fictitious fee.

         After a hearing at which the respondent was represented by counsel, a hearing committee of the board recommended that the respondent be indefinitely suspended from the practice of law. It also recommended that he be permitted to apply for reinstatement nineteen months early, recognizing that he had been temporarily suspended for just over nineteen months following his criminal convictions.[4] The respondent appealed to the board, and bar counsel cross-appealed. The board adopted the hearing committee's report and recommendation, and filed a corresponding information in the county court pursuant to S.J.C. Rule 4:01, § 8 (6), as appearing in 453 Mass. 1310 (2009). After hearing, the single justice concluded that the board's findings were supported by substantial evidence. See J_d. He ordered that the respondent be suspended from the practice of law indefinitely, and that the respondent could "petition for reinstatement nineteen months before he would otherwise be entitled to apply for reinstatement under S.J.C. Rule 4:01, § 18 (2) (b), " as appearing in 453 Mass. 1315 (2009). The respondent appeals to the full court, arguing that the sanction is too harsh. [5]

         Discussion.

         We review the disciplinary sanction imposed by the single justice de novo, to determine whether it "is markedly disparate from those ordinarily entered by the various single justices in similar cases." Matter of Alter, 389 Mass. 153, 156 (1983). See Matter of Daniels, 442 Mass. 1037, 1038 (2004). We consider the "cumulative effect of the several violations committed by the respondent, " Matter of Palmer, 413 Mass. 33, 38 (1992), and, like the single justice, we give "substantial deference to the board's recommendation." Matter of Foley, 439 Mass. 324, 333 (2003). See Matter of Ellis, 457 Mass. 413, 415 (2010); Matter of Doyle, 429 Mass. 1013, 1013 (1999). In this case, the board's recommendation of an indefinite suspension is predicated primarily on the respondent's twelve criminal convictions and his dishonesty with respect to four HUD-1 forms, as well as on substantial aggravating factors that the board took into account.

         a. Criminal convictions.

         The respondent pleaded guilty to twelve counts of violating 12 U.S.C. § 2607(a) by giving real estate kickbacks to brokers and by giving and receiving fees to or from individuals employed with mortgage broker entities. For those convictions, he was sentenced to twelve months and a day in prison, and fined $10, 000. The board accepted the committee's conclusions that the guilty pleas constituted convictions under S.J.C. Rule 4:01, § 12 (1), as appearing in 425 Mass. 1313 (1997), and that the criminal acts "reflect[ed] adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Mass. R. Prof. C. 8.4 (b), 426 Mass. 1429 (1998). It recommended a two-year suspension for the criminal conduct alone. The recommendation is warranted. The respondent's criminal conduct occurred over the course of at least ten months, involved twelve different transactions, and resulted in twelve separate convictions, a prison sentence, and a substantial fine. It is more egregious than the conduct in Matter of Hochberg, 9 Mass. Att'y Discipline Rep. 165 (1993), a case substantially relied on by the respondent. In Hochberg, the respondent was convicted of a single count of accepting an unearned fee, in violation of 12 U.S.C. § 2607(b), and was sentenced to three years' probation. He was also required to disgorge the $148, 043.77 in kickbacks that he had received over the course of several years. Pursuant to a stipulation, the respondent was suspended for one year. In this case, there was no stipulation as to sanction, and although there are certain similarities with Hochberg, the respondent's multiple criminal convictions, his incarceration, and the imposition of a fine support the board's conclusion that the criminal conduct established by the respondent's convictions was more egregious than Hochberg's and, therefore, that a greater sanction is appropriate.

         Had the respondent's criminal misconduct been the only basis for discipline (although, as set forth below, it was not), we would be satisfied that a two-year suspension would be comparable to other cases involving similar criminal convictions. In Matter of Rendle, 5 Mass. Att'y Discipline Rep. 310 (1987), for example, the respondent was suspended for two years following his conviction of aiding and abetting the unlawful receipt of a gratuity, in circumstances wholly unrelated to the practice of law. See Matter of Concemi, 422 Mass. 326, 330 (1996) (commission of criminal acts in connection with practice of law considered in aggravation). In Matter of Grew, 23 Mass. Att'y Discipline Rep. 232 (2007), the respondent was suspended for one year following conviction on a single count of misdemeanor insurance fraud, but the fraud was not consummated and it occurred outside the practice of law. See also Matter of Andrews, 21 Mass. Att'y Discipline Rep. 11 (2005) (eighteen-month suspension, by stipulation, for two misdemeanor convictions of conversion of public money); Matter of Tatel, 4 Mass. Att'y Discipline Rep. 138, 140 (1984) (imposing indefinite suspension on attorney who pleaded guilty to three violations of G. L. c. 268A, § 3 [a.], prohibiting giving thing of value to public official in exchange for official act).

         b. HUD- ...


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