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In re Moran

Supreme Judicial Court of Massachusetts

April 20, 2018


         Attorney at Law, Disciplinary proceeding, Suspension, Deceit, Drafting of will.

          Robert C. Moran, pro se.

          Susan A. Strauss Weisberg, Assistant Bar Counsel.

         The respondent, Robert C. Moran, appeals from an order of a single justice of this court, acting on an information filed by the Board of Bar Overseers (board), suspending him from the practice of law for nine months. We vacate the order and remand the case for the entry of an order suspending the respondent from the practice of law for fifteen months.[1]

         1. Background.

         Bar counsel filed an amended five-count petition for discipline with the board alleging multiple acts of misconduct in connection with the respondent's handling of the affairs of two elderly clients, both of whom are now deceased. Two counts alleged that the respondent charged excessive fees;[2]that he failed to inform his clients of fees for services rendered and fee withdrawals;[3] that he held the clients' funds in nontrust accounts;[4] and that he drafted testamentary instruments for both clients that included substantial testamentary gifts to himself.[5] Two other counts concerned the respondent's conduct as executor for the same clients' estates. They alleged that the respondent failed to render diligent and competent services;[6]that he charged and collected excessive fees;[7] that he failed to hold estate funds in segregated interest-bearing accounts;[8] that he negotiated and withdrew estate funds before his appointment as executor;[9] and that he intentionally misrepresented, under oath, the amount of estate assets in a probate court filing for one estate.[10] The fifth count charged misconduct in connection with trust accounts and trust funds.[11] The respondent answered and asserted certain facts in mitigation. See S.J.C. Rule 4:01, § 8 (3), as appearing in 453 Mass. 1310 (2009) ("[a]verments in the petition are admitted when not denied in the answer").

         A hearing committee of the board conducted an evidentiary hearing and determined that bar counsel had proved, with limited exceptions, the petition's allegations. A majority of the committee recommended that the respondent be publicly reprimanded; a dissenting member found additional facts supporting violation of Mass. R. Prof. C. 1.8 (c), 426 Mass. 1338 (1998) (substantial testamentary gifts), and recommended a greater sanction. Both the respondent and bar counsel appealed to the board. The board adopted the dissenting hearing committee member's factual findings concerning the additional misconduct, and the hearing committee's findings as to remaining misconduct and the factors in aggravation. It voted to recommend that the respondent be suspended from the practice of law for nine months, as well as that a reinstatement hearing be required on any petition for reinstatement. It also recommended that the respondent be permitted to apply for reinstatement after six months of suspension. The board filed a corresponding information in the county court. After a hearing, a single justice considered and discussed at length each of the respondent's contentions. She ordered that the respondent be suspended for a period of nine months, with the additional requirement of a reinstatement hearing. The respondent appeals.

         2. Sufficiency of the evidence of misconduct.

         The single justice reviewed the record establishing the misconduct charged in the petition, accepted the hearing committee's role as the "sole judge of the credibility of the testimony presented at the hearing, " S.J.C. Rule 4:01, § 8 (5) (a), as appearing in 453 Mass. 1310 (2009), and determined that the board's findings concerning the respondent's misconduct were supported by substantial evidence. See Matter of Johnson, 452 Mass. 1010, 1011 (2008) . On appeal, "[w]e review the single justice's decision (on issues other than the initial choice of a sanction at the disciplinary stage) to determine whether there has been an abuse of discretion or clear error of law." Matter of Weiss, 474 Mass. 1001, 1002 (2016) . There was no error.

         a. General claims of error.

         The respondent does not mount a substantial challenge on appeal to the weight of the evidence supporting the most serious charges of misconduct found by the board. He contends generally that the hearing committee and the board improperly relied on the Massachusetts Rules of Professional Conduct, S.J.C. Rule 3:07, 426 Mass. 1303 (1998), because the rules themselves were not offered in evidence at the hearing, and the hearing committee did not notify the parties that it would take notice of them, pursuant to G. L. c. 30A, § 11 (5). As the single justice recognized, however, § 11 (5) pertains to judicially noticed facts, not rules of court concerning attorney discipline. The board and its hearing committee may take notice of the disciplinary rules as a matter of course. Cf. Cohen v. Assessors of Boston, 344 Mass. 268, 269 (1962) (in Appellate Tax Board proceedings, "[t]he rules of the board are necessarily before it in all the cases which it hears"); Mass. G. Evid. § 202 (2018) (judicial notice of law, including Massachusetts statutes, common law, rules of court, and codified regulations); M.S. Brodin & M. Avery, Handbook of Massachusetts Evidence § 2.8.1, at 54 (2018), and cases cited (general or public law of Commonwealth judicially noticed without request).

         There was likewise no error in the hearing committee's and the board's reliance on the respondent's answer to the amended petition for discipline. Under applicable rules, admissions contained in a pleading are considered established, and there is no additional requirement that the pleading itself be introduced in evidence. See S.J.C. Rule 4:01, § 8 (3) (a), as appearing in 453 Mass. 1310 (2009) (averments in petition for discipline are deemed admitted if not denied in answer); Rule 3.15(d) of the Rules of the Board of Bar Overseers (2009) (same). Cf. Mass. G. Evid. § 611 note on binding admissions, at 134 (2018), and cases cited (statement of fact or declaration in pleading is binding admission and relieves opposing party of need to present evidence on issue); Mass. R. App. P. 8 (a), as amended, 378 Mass. 932 (1979) (record on appeal includes pleadings); 801 Code Mass. Regs. § 1.01(10)(k) (1998) (record of adjudicatory proceedings includes pleadings).

         The respondent's remaining arguments primarily focus on three issues related to the board's determination that he charged or collected clearly excessive fees. See Mass. R. Prof. C. 1.5, as appearing in 459 Mass. 1301 (2011) (lawyer shall not "charge, or collect an illegal or clearly excessive fee"). As we discuss below, none of those claims has merit. Moreover, from a disciplinary perspective, they are also largely beside the point because of the other very serious misconduct charged and found by the board, the consequences of which are more severe than those associated with charging a clearly excessive fee. We therefore address the more serious allegations of misconduct first.

         b. False statement.

         In connection with his representation of one client, the respondent filed an estate inventory with the probate court, which he signed under oath, that knowingly misrepresented estate assets. Matter of Neitlich, 413 Mass. 416, 422-423 (1992) (knowing misrepresentation to court concerning terms of pending transaction warranted one-year suspension). As the board observed, the respondent's misrepresentation effectively obscured from the probate court's review certain payments that he either had made or expected to make, including payments to himself. This conduct violated Mass. R. Prof. C. 3.3 (a) (1), and 8.4 (c), (d), and (h), 426 Mass. 1383 (1998) .

         c. Testamentary gifts.

         Over the course of years, the respondent prepared a series of wills and durable powers of attorney for these clients, neither of whom he was related to by blood or marriage. The final durable power of attorney for each client appointed the respondent as attorney-in-fact, and each will nominated him as the executor. Each will bequeathed all of the client's tangible personal property to the respondent, and included a request that the respondent distribute the items as the client might subsequently indicate. One will also made specific bequests to individuals and charities. By preparing testamentary instruments for two clients providing for substantial testamentary gifts to himself, the respondent violated Mass. R. Prof. C. 1.8 (c) .[12] See Matter of ...

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