IN THE MATTER OF ROBERT C. MORAN.
at Law, Disciplinary proceeding, Suspension, Deceit, Drafting
C. Moran, pro se.
A. Strauss Weisberg, Assistant Bar Counsel.
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
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;that he failed to inform his clients of
fees for services rendered and fee withdrawals; that he held the
clients' funds in nontrust accounts; and that he
drafted testamentary instruments for both clients that
included substantial testamentary gifts to
himself. 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;that he charged
and collected excessive fees; that he failed to hold estate
funds in segregated interest-bearing accounts; that he
negotiated and withdrew estate funds before his appointment
as executor; and that he intentionally misrepresented,
under oath, the amount of estate assets in a probate court
filing for one estate. The fifth count charged misconduct in
connection with trust accounts and trust funds. 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").
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
Sufficiency of the evidence of misconduct.
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.
General claims of error.
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).
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).
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.
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) .
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) . See Matter of