In the Matter of Desmond Patrick Thomas More Fitzgerald

MEMORANDUM OF DECISION

This matter came before me on an Infonnation and record of proceedings filed by the Board of Bar Overseers, pursuant to S.J.C. Rule 4:01, § 8 (6), as appearing in 453 Mass. 1310 (2009). The board recommended that the respondent, Desmond Patrick Thomas More FitzGerald, be suspended from the practice of law for four months, with two of those months conditionally stayed for one year. I have reviewed the record and pertinent papers in this case (including legal memoranda), and heard and considered the arguments of counsel. The subsidiary facts concerning the respondent's conduct found by the committee and adopted by the board are supported by substantial evidence; they generally are not in dispute. See S.J.C. Rule 4:01, § 8 (6), as appearing in 453 Mass. 1310 (2009). The hearing committee's ultimate findings and conclusions, as adopted by the board, that the respondent's conduct violated multiple rules of professional conduct, are warranted. See Matter of Weiss, 4 7 4 Mass. 1001, 1001 n. 1 (2016) ('hearing committee's ultimate 'findings and recommendations, as adopted by the board, are entitled to deference111), quoting Matter of Ellis, 457 Mass. 413,415 (2010); Matter of Fordham, 423 Mass. 481 (1996). The board's recommendation as to sanction is reasonable and consistent with the sanctions imposed by single justices in comparable cases. I accept the recommendation, with some modification of the conditional stay.[1]

A. Background. The respondent was admitted to the Massachusetts bar on December 18, 1996. In 2016, bar counsel filed a three-count petition for discipline with the Board of Bar Overseers (board) against the respondent arising out of his representation of one client, John Villegas, over the course of more than seven years. After a hearing at which the respondent testified and was represented by counsel, a three-member hearing committee of the board made detailed factual findings and legal conclusions. A majority of its members recommended that the respondent be suspended for four months, two months stayed for one year on the condition that he: (a) remain in treatment with his psychiatrist, with the psychiatrist to provide bar counsel with quarterly reports; (b) upon resuming practice, obtain evaluations from Lawyers Concerned for Lawyers (LCL) and the Law Office Management Program (LO MAP), comply with their recommendations, and provide bar counsel with quarterly reports showing compliance; and (c) upon resuming practice, enter into a two-year mentoring agreement, satisfactory to bar counsel, calling for general supervision of his practice and the performance of his office systems.[2] The respondent appealed to the board, and bar counsel cross-appealed. With few exceptions, the board adopted the hearing committee's findings of fact, conclusions of law, and recommendations, adding the additional requirement that: (d) if he continues to represent clients on appeal, he take at least one continuing legal education class acceptable to bar counsel on the topic of appellate practice. It filed an Information in the county court pursuant to S.J.C. Rule 4:01, § 8 (6), as appearing in 453 Mass. 1310 (2009). The respondent appears to seek dismissal of the petition for discipline, or either an admonition or reprimand. Bar counsel requests an order suspending the respondent from the practice of law for one year, with eight months to be served and four months stayed for one year on the conditions recommended by the board.

B. Disciplinary violations. I have reviewed the record. Accepting 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), I conclude that the hearing committee's subsidiary findings, as adopted by the board, are supported by substantial evidence.[3] See S.J.C. Rule 4:01, § 8 (6). The hearing committee's ultimate “findings ... , as adopted by the board, are entitled to deference, although they are not binding on this court.” Matter of Weiss, 474 Mass. at 1001 n.l, quoting Matter of Ellis, 457 Mass. at 415. I summarize the findings concerning each count, reserving other facts for later discussion, and conclude the respondent violated multiple rules of professional conduct.

1. Count one: Superior Court proceedings. While he was represented by a different attorney, on October 26, 2006, John Villegas was convicted on multiple criminal charges and sentenced to a term of nineteen to twenty-two years in State prison. See Commonwealth vs. Villegas, Appeals Court, No. 12-P-1718 (Apr. 25, 2014). The respondent filed a notice of appeal on Villegas's behalf on November 22, 2006, as well as a motion to vacate the convictions pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001) (first new trial motion). The respondent filed the motion before he reviewed the trial transcript or exhibits, before he reviewed records concerning Villegas's case (other than the docket), and before he consulted with the client or trial counsel. As the hearing committee aptly described, the motion was "unfocused and vague and failed to allege any claim with particularity." Its legal basis consisted of two sentences claiming that "justice may not have been done," because "important materials were not presented." Neither the motion, nor the respondent's accompanying affidavit, identified the "important materials." There was no reason to file the motion so quickly, and the claims raised in the motion could have been raised on direct appeal. By filing an incomplete or inadequately supported motion, the respondent violated Mass. R. Prof. C. 1.1, 426 Mass. 1308 (1998) (competence);[4] and Mass. R. Prof. C. 1.3, 426 Mass. 1313 (1998) (diligence).[5]

Nearly a year later, the respondent filed a memorandum in support of the first new trial motion. The memorandum did not specify what “materials” had not been presented at trial or by whom, nor did it articulate why the failure to present those materials warranted a new trial. Instead, the memorandum argued that the protocol for obtaining privileged documents established by Commonwealth v. Dwyer, 448 Mass. 122, 124, 145-147 (2006) ("apply[ing] the new protocol to cases tried after the issuance of the rescript in this opinion"), a case that was decided months after Villegas had been tried, had been violated. In addition, the respondent alleged in the memorandum that the judge denied defense counsel's request to review the victim's psychological records prior to trial, and that the records were not made available, although the docket indicated otherwise. It was not until October 15, 2014, almost six months after the Appeals Court had affirmed Villegas's convictions on direct appeal, and eight years after the motion had been filed, that the judge denied the first motion for a new trial. Over the course of more than a year, the respondent spent inadequate time to research and prepare the memorandum, and his conduct violated Mass. R. Prof. C. 1.3 (diligence). By failing to ascertain the date of Dwyer, and arguing that its protocol applied and had been violated (rather than, for example, arguing that it should apply), the respondent violated Mass. R. Prof. C. 1.1 (competence).[6] The delay in filing the memorandum, together with its poor preparation, constituted conduct prejudicial to the administration of justice, in violation of Mass. R. Prof. C. 8.4 (d), 426 Mass. 1429 (1998) (prejudice to administration of justice).[7]

While the first new trial motion was pending, on October 1, 2010, the respondent filed a second motion for a new trial arguing that trial counsel had rendered ineffective assistance by failing to explain to Villegas his testimonial rights and failing to meet with him prior to trial. The respondent represented that, aside from a few brief discussions at the courthouse, trial counsel never met with the client and filed an unsigned affidavit from Villegas to support the argument. The motion was denied without a hearing on April 21, 2011. Several months later, the respondent filed a motion for reconsideration, essentially reproducing the argument made in . the original motion. That motion also was denied. Despite the client's request, the respondent did not file a notice of appeal from the denial of the second motion for a new trial or from the motion for reconsideration. By failing to preserve his client's appellate rights by filing a notice of appeal from the denial of the motion, and/or from the denial of the motion for reconsideration, the respondent violated Mass. R. Prof. C. 1.1 (competence); Mass. R. Prof. C. 1.2 (a), 426 Mass. 1310 (1998) (seeking client's lawful objectives);[8] and Mass. R. Prof. C. 1.3 (diligence).

2. Count two: Appeals Court proceedings. After Villegas's direct appeal was entered in the Appeals Court, the respondent filed a record appendix that omitted copies of Villegas's.criminal indictments and included materials that were outside the trial record, some of which were damaging to the client and not linked to legal arguments made in the brief. In addition, to a perfunctory argument concerning a jury instruction, the central argument raised in the brief filed by the respondent (a point also raised in the second new trial motion) -- that trial counsel had failed to meet with the client prior to trial -- was supported by the (false) statement that the defendant had been incarcerated for the entire pretrial period, and the absence of any record of trial counsel having visited Villegas at the correctional facility.[9] Villegas was not, however, incarcerated during the entire pretrial period. Even after the Commonwealth pointed out in its brief that Villegas had been released on bail and been a fugitive for months, the respondent filed a reply brief that continued to press the claim that trial counsel did not meet with the client outside the courthouse. In its decision, the Appeals Court characterized some of the respondent's argument as speculative and unsupported, and identified as false the respondent's assertion that the client had been incarcerated at all times prior to trial. The Appeals Court also ruled that the respondent's failure to appeal the denial of the second motion for a new trial effectively waived the issues raised, and that the submission of the unsigned affidavit had no evidentiary weight.

By failing to include the client's criminal indictments in the record appendix, intentionally including materials outside the trial record in the record appendix, repeatedly referencing those materials in his Appeals Court brief, failing to include citations to the record appendix where required in the brief, and deliberately certifying to the Appeals Court that he had followed applicable appellate rules, the respondent's conduct violated Mass. R. Prof. C. 1.1 (competence); Mass. R. Prof. C. 1.3 (diligence); Mass. R. Prof. C. 3.4 (c),426 Mass. 1389 (1998) (rules of tribunal);[10] and Mass. R. Prof. C. 8.4 (d) (prejudice to administration of justice). While the jury instruction claim was not frivolous, the respondent was not diligent in his approach to the issue, review of the record, or his written materials. His conduct violated Mass. R. Prof. C. 1.1 (competence); and Mass. R. Prof. C. 1.3 (diligence). With respect to the crux of the appellate argument, trial counsel's supposed failure to meet with the client, tp.e respondent falsely stated that the client had been incarcerated from February 2002 to 2006, and used the absence of any correctional facility record of counsel having visited the client to support the argument. The committee found, and I accept, that the false statement was negligent, not intentional, and that the inclusion of false statements in the brief constituted a lack of diligence, in violation of Mass. R. Prof. C. 1.3,[11] rather than a lack of candor. Nonetheless, inclusion of the statements prejudiced the administration of justice, in violation of Mass. R. Prof. C. 8.4 (d).

3. Count three: Excessive fees. The respondent represented Villegas for more than seven years, and billed approximately 149 hours for his work in the Superior Court and the Appeals Court. A fee agreement signed at the commencement of the representation provided for 11 a minimum legal fee of $25,000.00 for representation in connection with [Villegas's Superior Court case] and $275.00 per hour for any additional time or other legal services thereafter." The respondent collected $25,000 at the outset of the representation, which primarily was for postconviction work in the Superior Court. Although the respondent billed an additional $15,953, essentially for work in connection with the direct appeal, he did not seek to collect the additional payment. As described above, in light of the respondent's lack of competence and diligence during the course of the representation, failure to preserve appellate rights, and misrepresentations to the Appeals Court, the fees charged by the respondent to the client were clearly excessive in light of the value received by the client, in violation of Mass. R. Prof. C. 1.5 (a) (excessive fees).[12]

C. Sanction. The board's findings amply support the conclusion that the respondent repeatedly violated multiple rules of professional conduct. See Matter of Fordham, 423 Mass. at 487 ("although not binding on this court the findings and recommendations of the board are entitled to great weight"). His conduct in connection with both motions for a new trial reflects a lack of diligence and competence, some of which adversely affected the administration of justice and failed to meet the client's lawful objectives. See Matter of Buckley, 2 Mass Att'y Discipline Rep. 24, 25 (1980). With respect to the appellate proceedings, the content of the record appendix filed by the respondent similarly demonstrated a lack of competence and diligence, violated the rules of the tribunal, and adversely affected the administration of justice. The content of the appellate brief likewise reflected a lack of competence and diligence, and the false statement supporting the primary argument prejudiced the administration of justice. In light of the value of the services received by the client, the fees charged by the respondent were clearly excessive. Considering the cumulative effect of these multiple violations, see Matter of Palmer, 413 Mass. 33, 38 (1992), weighing the presence of aggravating factors, and giving substantial deference to the board's recommendation, see Matter of Foley, 439 Mass. 324, 333 (2003), I conclude that a four-month suspension, with two months stayed for one year on conditions directed at safeguarding against the type of misconduct involved, is appropriate.

1. Factors in Mitigation and Aggravation. The respondent offered in mitigation evidence concerning two medical conditions.[13] The hearing committee considered the evidence and concluded that the respondent did not establish that either condition, alone or in combination, caused his misconduct. See Matter of Haese, 468 Mass. 202 (2013) (respondent's burden to demonstrate causal connection); Matter of Luongo, 416 Mass. 308 (1993). The misconduct was not, as the board observed, "simply missed deadlines, a need for more time, or making careless mistakes. Rather, the misconduct involved a persistent lack of care, failure to follow court rules, failure to understanding the law, and a lack of careful, accurate and persuasive legal arguments, issues that are not attributable" to the medical conditions described. I agree that there are no special mitigating factors that ought to be weighed in mitigation of sanction.

There are, however, factors that properly should be weighed in aggravation of the sanction.[14] The respondent has a history of prior discipline. See Matter of Fitzgerald, 23 Mass. Att'y Discipline Rep. 153 (2007) (public reprimanded for conduct including failure to file timely appeals, failure to disclose conduct that could support a claim for ineffective assistance of counsel, and failure to disclose a potential conflict of interest). He committed multiple violations of the rules of professional conduct over an extended period. See Matter of Saab, 406 Mass. 315, 326 (1989). In addition, three instances of uncharged misconduct are apparent: (1) in the first motion for a new trial, the respondent argued without supporting evidence that the trial judge had denied trial counsel the opp01tunity to review records, and the docket reflects otherwise; (2) in the second motion for a new trial, the respondent stated that trial counsel " did not ever meet" with the client aside from a few brief discussions prior to a hearing, a claim flatly contradicted by trial counsel's notes; and (3) with respect to the Appeals Court reply brief, the committee considered that the respondent's decision twice to wait until the time to file a reply brief had run to request additional time "risky to the point of heedlessness," and that he made a "knowingly false" statement in the reply concerning trial counsel's failure to meet with the client.[15] See Matter of the Discipline of an Attorney, 448 Mass. 819,825 n.6 (2007) (uncharged misconduct may be weighed in aggravation of sanction).

2. Disposition. While other violations of the disciplinary rules were established, the respondent's multiple acts of misconduct in this case primarily reflect a repeated lack of diligence with respect to his representation of his client, and a lack of competence in preparing ( or failing to prepare) materials that were filed in court. Absent aggravating or mitigating factors, a '[p]ublic reprimand is generally appropriate where a lawyer has failed to act with reasonable diligence in representing a client or otherwise has neglected a legal matter and the lawyer's misconducted causes serious injury or potentially serious injury to a client or others." Matter of Kane, 13 Mass. Att'y Discipline Rep. 321 (1997). In this case, the respondent previously was publicly reprimanded for conduct that included misconduct similar to that present here. A greater sanction is warranted. See Matter of Chambers, 421 Mass. 256 (1995) ("in the absence of mitigating factors, discipline should proceed in increments of escalating severity"); Matter of Alter, 389 Mass. 153, 156 (1983); Petition of Centracchio, 345 Mass. 342 (1963).

In my view, a suspension is called for by the facts of this case and the established rule that "[t]he primary factor for consideration is the effect upon, and perception of, the public and the bar." Matter of Concemi, 422 Mass. 326, 329 (1996). Considering the multiple acts· of misconduct cumulatively, taking into account the presence of aggravating factors, and giving substantial deference to the board's recommendation, I conclude that a four-month suspension is appropriate. See Matter of Kane, 13 Mass. Att'y Discipline Rep. at 328 ("[s]uspension is generally appropriate for misconduct involving repeated failures to act with reasonable diligence, or when a lawyer has engaged in a pattern of neglect, and the lawyer's misconduct causes serious injury or potentially serious injury to a client or others"). See also Matter of Bayless, 26 Mass. Att'y Discipline Rep. 30 (2010) (stayed six-month suspension for failure to pursue client's personal injury matter and misrepresenting status of case, with aggravating factor of prior admonition and mitigating factor); Matter of White, 25 Mass. Att'y Discipline Rep. 622 (2009) (six-month suspension for failure to file an appeal and failure to inform client of potential grounds for appeal, aggravated by disciplinary history for lack of diligence and poor client communications; stayed where attorney obtained audit of his office management practices); Matter of Roberts, 25 Mass. Att'y Discipline Rep. 534 (2009) (stipulated six-month suspension for failure to pursue appeal, failure to carry out his client's lawful directives, misrepresentations to client, and failure to cooperate with bar counsel, aggravated by prior admonition); Matter of Bernard, 25 Mass. Att'y Discipline Rep. 65 (2000) (six-month suspension for inadequate preparation of criminal cases and failure of diligence, with aggravating factors); Matter of Curcio, 23 Mass. Att'y Discipline Rep. 92 (2007) (stipulation to six-month suspension for neglect and misrepresentations to clients aggravated by prior admonition for similar conduct); Matter of Abelow, 18 Mass. Att'y Discipline Rep. 17 (2002) (stipulated three-month suspension, with aggravating factors).

3. Conditional stay. Turning to the question whether any part of the suspension period should be stayed and, if so, under what conditions, I accept the board's recommendation that two months of the suspension should be stayed for one year. See Matter of O’Neill, 30 Mass. Att’y Discipline Rep. 289,295 (2014) (stay reserved “for matters in which the stay itself functions as an incentive or a deterrent, as the case may be, to encourage or discourage certain conduct, whether for the sake of safeguarding the public or assisting the lawyer to take certain remedial steps, or both”). Staying a portion of the sanction, subject to the respondent obtaining an evaluation from the Law Office Management Program and entering into a two-year mentoring agreement, satisfactory to bar counsel, providing for general supervision of his practice and the performance of his office systems, will encourage the respondent to take remedial steps to avoid future misconduct of the type established in the disciplinary proceeding. I decline to impose additional conditions on the stay, however, because I am not persuaded that the proposed conditions are related to the respondent's misconduct. I credit the hearing committee's conclusion that the medical issues proffered by the respondent do not weigh in mitigation of sanction; a requirement that the respondent continue treatment, let alone provide medical reports to bar counsel, is not warranted. Contrast Matter of Sharif, 459 Mass. 558 (2011) (imposing probationary conditions of continued treatment for depression, where depression mitigating factor in certain misconduct). Likewise, I decline to impose as a probationary requirement that the respondent seek and obtain an evaluation from LOL. With a mentoring agreement in place, it is not apparent that those conditions are appropriate.

D. Other claims. The respondent has raised a variety of other claims, all of which I have considered, and none of which affect the conclusion that the respondent must be disciplined for his misconduct. I address two points briefly. First, the respondent asserts that attorneys who represent criminal defendants are charged with misconduct more frequently than prosecuting attorneys.[16] He argues that this violates public policy considerations and may rise to the level of an equal protection violation. Even assuming such a "selective prosecution" claim "has validity in the context of a bar disciplinary proceeding, a matter [I] do not decide," Matter of Crossen, 450 Mass. 533, 572 (2008), I discern no merit to the equal protection argument in the instant case. The argument is not based on any recognized suspect classifications such as race, religion, national origin or sex. Commonwealth v. Franklin, 376 Mass. 885, 894 (1978). Nor has respondent provided an adequate statistical or other evidentiary support based on the publicly available records of bar disciplinary proceedings to provide a basis for this claim or to justify further discovery in this regard.[17] Among other things, he has not done the type of analysis necessary to determine whether prosecutors and defense counsel are similarly situated. For example, the excessive fee violation at issue here has no applicability to prosecutors. In these circumstances, as the court has said before, “[w]hether bar counsel pursues discipline of others is irrelevant ... to the respondent's current disciplinary action.” Matter of Johnson, 450 Mass. 165, 169 (2007). Second, the respondent contends that bar counsel should be required to prove misconduct by clear and convincing evidence, rather than a preponderance of the evidence. Rule 3.28 of the Rules of the Board of Bar Overseers, promulgated pursuant to S.J.C. Rule 4:01, § 5 (3) (h), specifies that preponderance of the evidence is the applicable standard in bar disciplinary proceedings. There is no reason to apply a different standard here. See Matter of Budnitz, 425 Mass. 1018, 1018 n.1 (1997), citing Matter of Mayberry, 295 Mass. 155, 167 (1936).

E. Conclusion. Although not every mistake rises to the level of a disciplinary violation, the mistakes in this case were not isolated but, instead, demonstrated a pattern of inattention, carelessness and failure to follow the rules. An order shall enter suspending the respondent from the practice of law for four months, with two of those months stayed for one year on the following conditions: (1) the respondent must obtain an evaluation from the Law Office Management Program (LOMAP) with respect to the respondent's law office practices; (2) enter into a two year mentoring agreement, satisfactory to bar counsel, calling for general supervision of his practice and the performance of his office systems, including implementation of any recommendations made by LOMAP; and (3) ifhe continues to practice in the appellate couiis, he must take a continuing legal education class acceptable to bar counsel on the topic of appellate practice. The respondent's request for a stay of any period of suspension, pending an appeal to the full court, is denied.

By the Court,

Scott L. Kafker

Associate Justice

Entered: January 30, 2019

Related to No. BD-2018-038

• S.J.C. Judgment Reinstatement entered by Justice Kafker on June 13, 2019., 06/13/2019