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SJC-12356
IN THE MATTER OF ROBERT C. MORAN.
April 20, 2018.
Attorney at Law, Disciplinary proceeding, Suspension, Deceit,
Drafting of will.
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
1 This bar discipline appeal is subject to the court's rule
governing such appeals. See S.J.C. Rule 2:23, 471 Mass. 1303
(2015). We have reviewed the materials filed. Pursuant to the
rule, we dispense with further briefing and oral argument.
2 See Mass. R. Prof. C. 1.5 (a), as appearing in 459 Mass.
1301 (2011).
3 See Mass. R. Prof. C. 1.15 (d) (2), as appearing in 440
Mass. 1338 (2004).
2
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.
4 See Mass. R. Prof. C. 1.15 (b) (1), as appearing in 440
Mass. 1338 (2004).
5 See Mass. R. Prof. C. 1.8 (c), 426 Mass. 1338 (1998).
6 See Mass. R. Prof. C. 1.1, 426 Mass. 1308 (1998); Mass. R.
Prof. C. 1.2 (a), 426 Mass. 1310 (1998); Mass. R. Prof. C. 1.3,
426 Mass. 1313 (1998); Mass. R. Prof. C. 1.15 (c), (d) (1), as
appearing in 440 Mass. 1338 (2004); Mass. R. Prof. C. 3.4 (c),
426 Mass. 1389 (1998); Mass. R. Prof. 8.4 (d), 426 Mass. 1429
(1998).
7 See Mass. R. Prof. C. 1.5 (a).
8 See Mass. R. Prof. C. 1.15 (b) (1), (e) (5), as appearing
in 440 Mass. 1338 (2004).
9 See Mass. R. Prof. C. 1.1, 3.4 (c), 8.4 (d).
10See Mass. R. Prof. C. 3.3 (a) (1), 8.4 (c), (d), (h), 426
Mass. 1383 (1998).
11 See Mass. R. Prof. C. 1.15.
3
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
4
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
5
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 Wainwright,
28 Mass. Att'y Discipline Rep. 883, 883 (2012) (public
reprimand). The rule strictly proscribes such gifts, even in
the absence of undue influence, overreaching, fraud, or
misrepresentation. Id.
d. Lack of diligence. The hearing committee's findings
amply support its conclusion that the respondent engaged in
lengthy delays in settling both estates. By failing to marshal
and liquidate estate assets promptly, resulting in unnecessary
expense and escheat of some assets, failing to file timely
estate inventories, and delaying distribution of estate assets
for years, while simultaneously failing to complete probate of
the estates, the respondent's conduct violated Mass. R. Prof. C.
1.2 (a), 426 Mass. 1310 (1998) (failure to seek client's lawful
objectives); Mass. R. Prof. C. 1.3, 426 Mass. 1313 (1998) (lack
of diligence); and Mass. R. Prof. C. 1.15 (c), as appearing in
440 Mass. 1338 (2004) (failure promptly to deliver funds to
12 The board correctly concluded that the testamentary gifts
were "substantial," where they had a collective value from one
estate of at least $7,500 (more than five per cent of the gross
estate), and more than $8,000 from the other. See Matter of
Moran, 27 Mass. Att'y Discipline Rep. 612, 612-613 (2011) (two-
month suspension for drafting instrument providing $15,000
bequest to attorney where client's assets were in excess of
$380,000, exclusive of home, about four per cent of assets);
Matter of Field, 20 Mass. Att'y Discipline Rep. 140, 142 (2004)
(public reprimand for preparing will containing $25,000 bequest
to lawyer's wife, where bequest represented less than two per
cent of client's estate).
6
third parties). See Matter of Bottomly, 2 Mass. Att'y
Discipline Rep. 19, 22 (1980) (beneficiaries harmed by lawyer's
delay in making restitution; six month suspension warranted).
See also Matter of Munroe, 26 Mass. Att'y Discipline Rep. 385
(2010); Matter of Reardon, 22 Mass. Att'y Discipline Rep. 640,
646 (2006).
e. Trust account violations. The amended petition for
discipline charged the respondent with numerous client trust
account and accounting violations. The respondent failed to
hold personal funds of his clients, and funds belonging to their
estates, in trust accounts, in violation of Mass. R. Prof. C.
1.15 (b) (1) , as appearing in 440 Mass. 1338 (2004).
Admonition No. 05-20, 21 Mass. Att'y Discipline Rep. 712 (2005).
He failed to disclose to his clients the payments he made to
himself, in violation of Mass. R. Prof. 1.15 (d), as appearing
in 440 Mass. 1338 (2004), and failed to keep required trust
account records. The respondent did not dispute the majority of
these charges, and the hearing committee found the respondent
had violated the applicable rules. Together, these violations
would ordinarily support a public reprimand. See Matter of
Beatrice, 23 Mass. Att'y Discipline Rep. 31 (2007); Matter of
Soforenko, 22 Mass. Att'y Discipline Rep. 732 (2006).
f. Excessive fees. As stated, the respondent's primary
focus is on three issues related to the board's determination
that he charged or collected clearly excessive fees. See Mass.
R. Prof. C. 1.5. The single justice correctly concluded that
there was no error.
i. Spreadsheets. First, the respondent contends that the
hearing committee erred in permitting the use of certain
spreadsheets that had been prepared as "chalks" by bar counsel
at the hearing. The spreadsheets summarized approximately 750
pages of the respondent's handwritten notes describing the
services he performed for both clients over the course of many
years, and classified the services into various categories.
Although the respondent contends that the choice to classify
certain tasks as either legal or nonlegal impermissibly
interjected bar counsel's opinion into the chalk, the
handwritten notes themselves were admitted in evidence and the
hearing committee conducted its own review of them. In these
circumstances, the single justice concluded that the hearing
committee did not abuse its discretion in permitting the use of
the spreadsheets as chalks, and the respondent failed to
demonstrate prejudicial error in that regard. See Commonwealth
v. Greenberg, 339 Mass. 557, 581-582 (1959) ("judge could
7
properly find that concise schedules demonstrating the
transactions would be helpful to the jury). See also Mass. G.
Evid. § 1006 (2018) ("proponent may use a summary, chart, or the
like to prove the content of voluminous writings or records that
cannot be conveniently examined in court").13
ii. Expert witness. Second, the respondent contends that
the hearing committee erred in qualifying a witness as an expert
at the hearing, and that there was an inadequate factual basis
for his opinion. The hearing committee's findings establish,
however, that the witness has many years of experience in
numerous aspects of probate law, and previously has been
qualified and testified as an expert in bar discipline cases.
The respondent has not demonstrated that the committee abused
its discretion in qualifying the witness as an expert or in
crediting his testimony. See Commonwealth v. Mahoney, 406 Mass.
843, 852 (1990) (tribunal has broad discretion to qualify an
expert witness, and its determination "will not be upset on
appeal if any reasonable basis appears for it"). Likewise, the
respondent failed to demonstrate that there was an inadequate
factual basis for the expert's opinion as to the
unreasonableness of the respondent's fees. While the expert did
not review all 750 pages of the respondent's handwritten notes,
he testified that he verified and cross-checked a sufficient
portion of the materials to satisfy himself as to the accuracy
of the spreadsheets. Moreover, the hearing committee conducted
its own review of the respondent's records and notes. The
committee was therefore within its discretion in admitting the
expert's testimony in this regard.
iii. Due process. Third, the respondent complains that
the hearing committee failed to give him a full and fair hearing
because, he contends, it unfairly limited his testimony and
prohibited him from relying on the approximately 750 pages of
13 We recognize that the board and its hearing committee
need not strictly apply the rules of evidence in bar discipline
proceedings. See Rule 3.39 of the Rules of the Board of Bar
Overseers (admissibility of evidence governed by rules
applicable to adjudicatory proceedings under G. L. c. 30A);
Matter of Abbott, 437 Mass. 384, 393 (2002). See also G. L.
c. 30A, § 11 (2) ("agencies need not observe the rules of
evidence observed by courts . . . . Evidence may be admitted
and given probative effect only if it is the kind of evidence on
which reasonable persons are accustomed to rely in the conduct
of serious affairs"); Mass. G. Evid. § 1101(c)(3) (2018).
8
handwritten notes during his testimony. The single justice
correctly rejected both points. Although nine days initially
were allocated for the hearing, the hearing committee indicated
that more would be scheduled if necessary. The respondent
concedes that he did not exhaust the initial time allotment, and
he does not suggest anything he would have done differently if
additional time had been scheduled. With respect to reliance on
the notes, the committee specifically instructed that it would
permit the respondent to refer to them "for a particular point
to be made," which he in fact did. "The respondent was afforded
notice and the opportunity to be heard, to present evidence, and
to challenge evidence against him. He has had the opportunity
to appeal to a panel of the board, the board, a single justice,
and the full court." Matter of Eisenhauer, 426 Mass. 448, 454,
cert. denied, 524 U.S. 919 (1998). The single justice did not
err in concluding that the respondent was not denied a full and
fair hearing.
A final observation: even if the board's characterization
of some of the particular services rendered by the respondent as
legal or nonlegal may be debatable, much of it is not. There
can be no denying, for example, that services such as snow
shoveling, moving and house cleaning, shopping, and making
funeral arrangements are not legal services. See Matter of
Eisenhauer, 426 Mass. at 452 (expert testimony not required to
prove ethical violation of rule proscribing charging excessive
fees). The evidence established that the respondent charged for
these and other nonlegal services as if they were legal
services, in violation of Mass. R. Prof. C. 1.5 (lawyer shall
not "charge, or collect an illegal or clearly excessive fee").
A "lawyer may not bill nonlawyer services at lawyer rates, no
matter who performs them." E.J. Bennett, E.J. Cohen, & H.W.
Gunnarsson, Annotated Model Rules of Professional Conduct 81
(8th ed. 2015). See Matter of Moore, 29 Mass. Att'y Discipline
Rep. 461 (2013); Matter of Chignola, 25 Mass. Att'y Discipline
Rep. 112, 112-113 (2009) (public reprimand for charging and
collecting fees for nonlegal services and trust account
violations); Matter of Harbeck, 23 Mass. Att'y Discipline Rep.
262, 262-263 (2007) (charging for nonlegal work at legal rates
constitutes excessive fee); Matter of Kliger, 18 Mass. Att'y
Discipline Rep. 350 (2002).
3. Appropriate sanction. The findings adopted by the
board amply support the conclusion that the respondent
repeatedly violated multiple rules of professional conduct. We
therefore turn to the question of sanction. In reviewing the
single justice's choice of sanction, we inquire whether it is
9
"markedly disparate from those ordinarily entered by the various
single justices in similar cases."14 Matter of Alter, 389 Mass.
153, 156 (1983). In this case, considering the "cumulative
effect of the several violations committed by the respondent,"
Matter of Palmer, 413 Mass. 33, 38 (1992), we conclude that a
fifteen-month suspension is appropriate. See Matter of Gordon,
385 Mass. 48, 58 (1982) (while the board's recommendation as to
sanction is entitled to substantial deference, "ultimate duty of
decision rests with this court"). Although we give substantial
deference to the board's recommendation, see Matter of
Eisenhauer, 426 Mass. at 455, we ultimately "decide every case
'on its own merits [such that] every offending attorney . . .
receive[s] the disposition most appropriate in the
circumstances." Matter of Lupo, 447 Mass. 345, 356 (2006).
The respondent here knowingly misrepresented estate assets
on an inventory he filed, under oath, in the probate court, the
effect of which was to obscure from the probate court's
consideration payments the respondent had made or intended to
make to himself and others. An intentional misrepresentation to
a court typically warrants a suspension of at least one year.
See Matter of an Application for Admission to the Bar, 431 Mass.
678, 682 n.6 (2000); Matter of McCarthy, 416 Mass. 423, 431-432
(1993); Matter of Neitlich, 413 Mass. at 422-423. Where the
misrepresentation is made under oath, a longer suspension is
warranted. See Matter of Diviacchi, 475 Mass. 1013, 1020 (2016)
(twenty-seven month suspension for misconduct including charging
clearly excessive fee and false statements to tribunal); Matter
of Finneran, 455 Mass. 722, 731 n.13 (2010) (two-year suspension
for false testimony under oath); Matter of Shaw, 427 Mass. 764,
769-770 (1998) (two-year suspension for multiple false
statements under oath). Cf. Matter of Smoot, 26 Mass. Att'y
Discipline R. 637, 643 (2010) (six-month suspension where
misrepresentation did not bear on substantive merits of client's
case).
In addition, the respondent engaged in other serious
misconduct. He charged and collected clearly excessive fees
from two clients and, after their deaths, from their estates.
He did so both as a lawyer and an attorney-in-fact acting under
a durable power of attorney during the lifetimes of his clients,
and as an attorney and executor after their deaths. Considered
individually, any one of those actions would warrant a public
reprimand. See Matter of Fordham, 423 Mass. 481 (1996), cert.
14 In the county court, bar counsel requested that the
single justice impose a suspension of eighteen months or more.
10
denied sub nom. Fordham v. Massachusetts Bar Counsel, 519 U.S.
1149 (1997). See also Grimes v. Perkins School for the Blind,
22 Mass. App. Ct. 439 (1986). Additionally, although no undue
influence, overreaching, fraud, or misrepresentation was found,
the respondent prepared testamentary instruments for both
clients, which provided for substantial testamentary gifts to
himself. Conduct of this nature also warrants a public
reprimand. Matter of Wainwright, 28 Mass. Att'y Discipline Rep.
at 883. Considered individually, any of the remaining
categories of misconduct discussed above also would warrant at
least a public reprimand. See Matter of Fordham, supra.
a. Factors in mitigation. The hearing committee
considered in mitigation that the respondent's "actions were not
engineered to deprive [clients] of their property or to take
advantage of them but rather to provide for them and give them a
sense of peace in their last days, which they would not have
received anywhere else or from anyone else." The committee
therefore recommended "a downward departure of the appropriate
sanction based on his providing personal services to these two
elderly women." It also considered the extensive and detailed
client notes the respondent maintained, as well as that he did
not conceal his actions. While we acknowledge these
considerations, they are not the type of "special" factors that
we consider in mitigation of misconduct. Although the
respondent evidently provided necessary personal services for
his clients, he also charged and collected excessive fees for
performing them and did not provide appropriate notice to them.
In addition, keeping detailed client records and cooperating
with bar counsel in an investigation are actions that are to be
expected of attorneys, not factors to be weighed in mitigation
of sanction. Finally, although the respondent corrected the
misrepresentation to the probate court after bar counsel raised
the issue, the fact remains that the misrepresentation was
intentional. "As an officer of the court, an attorney . . . is
bound to uphold the integrity of that system by being truthful
to the court." Matter of Neitlich, 413 Mass. at 423. In the
circumstances, the correction does not mitigate the misconduct.
b. Factors in aggravation. Although we find no special
mitigating factors, there are factors to be weighed in
aggravation. The respondent was admitted to the practice of law
in 1977, and since 1999 has been engaged in a solo law practice
focusing primarily on probate and estate matters. His
substantial experience in the practice of law, including in the
practice area in which the misconduct occurred, properly was
considered an aggravating factor. See Matter of Luongo, 416
11
Mass. 308, 311-312 (1993). In addition, he engaged in multiple
acts of misconduct over the course of years. Matter of
Kerlinsky, 428 Mass. 656, 666, cert. denied, 526 U.S. 1160
(1999). Both clients were particularly vulnerable, given their
ages, infirmity, and needs, and the lack of relatives to monitor
their affairs. See Matter of Lupo, 447 Mass. at 354; Matter of
Cobb, 445 Mass. 452, 480 (2005); Matter of Palmer, 423 Mass.
647, 651 n.1 (1996). Finally, as the board observed, the
respondent has not demonstrated an understanding about the
wrongful nature of the misconduct. See Matter of Bailey, 439
Mass. 134, 152 (2003); Matter of Eisenhauer, 426 Mass. at 457;
Matter of Clooney, 403 Mass. 654, 657 (1988) (attorney's
"persistent assertions that he did nothing wrong . . .
demonstrated that he 'continue[d] to be unmindful of certain
basic ethical precepts of the legal profession'"). Lastly, at
least as of the time of the board's decision, the respondent had
not refunded or repaid excessive fees received from the clients
or their estates. Matter of Eisenhauer, supra.
4. Disposition. The court system depends on the integrity
of attorneys who appear before it. Considering the substantial
misconduct in this case, including intentional misrepresentation
to the probate court, charging and collecting clearly excessive
fees, lack of diligence in the probate of two estates, as well
as the other substantial violations of the rules of professional
conduct, together with the aggravating factors discussed above,
we conclude that a term suspension of fifteen months is
appropriate.
So ordered.
The case was submitted on the papers filed, accompanied by
a memorandum of law.
Robert C. Moran, pro se.
Susan A. Strauss Weisberg, Assistant Bar Counsel.