In the Matter of Robert K. Rainer

Based on misconduct in his own divorce case and after defaulting in the bar discipline case, the respondent received a suspension of his law license for a period of one year and one day. The misconduct included the failure to make alimony payments in the approximate amount of $281,000; failure to comply with court orders; and misrepresentations to the court and its officers. The misconduct was aggravated by the respondent’s failure to cooperate with bar counsel’s investigation, including the failure to comply with a subpoena, as well as prior discipline.

SUMMARY

The respondent was admitted to the Massachusetts bar in 1987. On May 21, 2019, the respondent was suspended for a year and a day for misconduct in the context of his own post-divorce proceedings, including violation of court orders, failure to make reasonably diligent efforts to comply with proper discovery requests, and avoiding arrest by making misrepresentations.

This matter came before the Board of Bar Overseers on facts and findings resulting from the respondent’s default and a recommended suspension of one year and one day, based on two counts of misconduct:

Count I. On November 23, 2004, the respondent filed for divorce in Essex Probate Court. On November 4, 2005, a Judgment of Divorce Nisi issued and the parties entered into a divorce agreement which included alimony payments by the respondent. The respondent continuously failed to meet his alimony obligations and as of March 16, 2016, the respondent was in arrears in the amount of $281,612.03.

Between July 2008 and May 2016, the respondent’s former spouse filed fourteen contempt complaints against the respondent. The respondent failed to appear for contempt hearings on April 27, 2009, January 29, 2013 and December 20, 2016. In each instance, the court found the respondent in contempt and issued a capias. On several occasions, the sheriff went to the respondent’s home to arrest the respondent on the capias, but the respondent refused to open the door.

On May 31, 2016, the respondent’s former spouse filed a Motion to Compel Production of Documents. On or about August 12, 2016, prompted by the respondent’s failure to produce documents, the court appointed a Discovery Master. On December 20, 2016, the Discovery Master filed a Final Report and ordered the respondent to produce requested documents. To date, the respondent has failed to comply with the Discovery Master’s order.

On January 10, 2017, the court allowed the former spouse’s Motion for Attorney Fees and Costs, based on the former spouse having incurred fees for defending the respondent’s complaint for modification, specifically his “evasive conduct” concerning the ongoing discovery dispute. To date, the respondent has failed to comply with the court’s order to pay fees and costs.

On December 6, 2017, the sheriff encountered the respondent in his driveway and told him he was arresting him on an outstanding capias. The respondent represented he had a medical issue that posed a danger should he be detained and said he would appear on his own and surrender on December 8, 2017. The sheriff thus departed without arresting the respondent, but the respondent failed to appear on December 8, 2017.

The respondent’s conduct in knowingly disobeying court orders and obligations under the rules of a tribunal violated Mass. R. Prof. C. 3.4(c). The respondent’s failure to make reasonably diligent efforts to comply with discovery requests violated Mass. R. Prof. C. 3.4(d). The respondent’s conduct in avoiding arrest by misrepresentation violated Mass. R. Prof. C. 8.4(c) and (d). The respondent’s delay and failure to comply with discovery requests and court orders was prejudicial to the administration of justice, in violation of Mass. R. Prof. C. 8.4(d), and adversely reflected on his fitness to practice law, in violation of Mass. R. Prof. C. 8.4(h).

Count II. On March 20, 2017, bar counsel opened an investigation in the above matter. Bar counsel requested that the respondent testify under oath on December 5, 2017. The respondent requested a four-week extension and health-related accommodations, including limiting the length of the meeting. Bar counsel and the respondent agreed to December 28, 2017 and certain accommodations. On December 13, 2017, the respondent requested a second extension and additional health-related accommodations, including relocating the meeting to his home in New Hampshire. Bar counsel agreed to postpone the meeting to March 2018 and requested the respondent provide medical documents and information supporting the accommodations. The respondent thereafter failed to comply and raised further conflicts to meeting, effectively delaying rescheduling the meeting for several months.

Following the multiple postponements, bar counsel requested, and the Board of Bar Overseers issued, a subpoena requiring the respondent’s presence on May 30, 2018 to testify. The subpoena advised that failure to comply could result in the entry of an order of administrative suspension of his license to practice law. By e-mail dated May 5, 2018, the respondent acknowledged receipt of the subpoena; however, on May 30, 2018, the respondent failed to comply with the subpoena by failing to appear at the Office of Bar Counsel.

On June 4, 2018, the Supreme Judicial Court administratively suspended the respondent. He was not reinstated within 30 days of the Order of Administrative Suspension and became subject to the provisions of S.J.C. Rule 4:01, §17. He failed without good cause to comply with the Order of Administrative Suspension and S.J.C. Rule 4:01, §17. The respondent’s failure to cooperate with bar counsel and the subpoena issued by the Board of Bar Overseers violated Mass. R. Prof. C. 8.4(g). The respondent’s failure to comply with the Court’s Order of Administrative Suspension violated Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h).

In aggravation, the respondent committed multiple rule violations, failed to cooperate with bar counsel’s investigation, and failed to file an answer to the petition for which he was defaulted. Additionally, the respondent has a record of prior discipline in the form of a 2013 stipulated six-month suspension stayed for two years with conditions. See Robert K. Rainer, 29 Mass. Att’y Disc. R. 546 (2013).

On December 10, 2018, the Board voted to accept bar counsel’s recommendation for discipline. The Supreme Judicial Court for Suffolk County entered an order for a term of suspension of one year and one day, effective May 21, 2019.