Massachusetts Cases on Reciprocal Discipline – the “grave injustice” standard.

34 Mass. Att’y Disc. R. 7 (2018)-In the Matter of Sybil Helena Barrett

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fact"; and d) whether imposing reciprocal discipline in Massachusetts would result in a grave injustice. ~ The order also

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impose the identical discipline unless . . imposition of the same discipline would result in grave injustice . . ‘.’). S .J.C. Rule 4:01, § 16(3). See Matter of Bailey, 439 Mass. 134, 136

19 Mass. Att’y Disc. R. 12 (2003), 439 Mass. 134 (2003)-In the Matter of F. Lee Bailey

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purposes of a disciplinary proceeding in the Commonwealth." S.J.C. Rule 4:01, § 16 (5), as appearing in 425 Mass. 1319 (1997). In reviewing reciprocal discipline, "[t]he judgment of suspension or disbarment shall be conclusive evidence of the misconduct unless bar counsel orthe respondent-lawyer establishes, or the court concludes, that the procedure in the otherjurisdiction did not provide reasonable notice or opportunity to be heard or there was significant infirmity of proof establishing the misconduct." S.J.C. Rule 4:01, § 16 (3), as appearing in 425 Mass. 1319 (1997). In deference to the procedures of other States, "we generally give effect to the disciplinary decisions of another jurisdiction without undertaking the often difficult and protracted task of redoing the inquiry which has already been concluded there." Matter of Lebbos, 423 Mass. 753, 755 (1996), cert. denied, 520 U.S. 1275(1997). However, the imposition of reciprocal discipline is not automatic. Id. at 755-756, citing Matter of McCabe, 411 Mass. 436 (1991). Rather, "Rule 4:01, § 16, implicitly adopts a modified rule of res judicata whereby the disciplinary action taken by a foreign jurisdiction will be adopted unless: ‘(a) the procedure in the other jurisdiction did not provide notice or opportunity to be heard; (b) there was significant infirmity of proof establishing the misconduct; (c) imposition of the same discipline would result in grave injustice; or (d) the misconduct established does not justify the same discipline in this Commonwealth.’" Matter of Lebbos, supra at 756, quoting S.J.C. Rule 4:01, § 16 (3). Accordingly, our inquiry "is generally limited to determining whether the attorney received a fair hearing at which sufficientevidence was presented to justify our taking reciprocal disciplinary action." Matter of Lebos,supra. 2. Fairness of the Florida proceedings. The Florida proceedings provided Bailey a fair hearing.

35 Mass. Att’y Disc. R. 97 (2019)-In the Matter of Olayemi Isaac Falusi

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appropriate sanction to be imposed in a petition for reciprocal discipline, I "may impose the identical discipline unless (a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in this Commonwealth; or ( c)

901 NE 2d 113, 453 Mass. 233 (2009)-In the Matter of Ngobeni

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the third sentence, which in substance limits that discretion by conditioning any order of reciprocal discipline on a determination that entering such an order would not result in grave injustice, or set a level of discipline that is substantially different from established standards of discipline in the Commonwealth for the type of At page 5
provides in its final sentence that identical reciprocal discipline will not be imposed if "(a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in this Commonwealth; or (c) the misconduct established is not adequately sanctioned by the

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not deciding that an attorney who has resigned in another jurisdiction while disciplinary charges were pending may never challenge the imposition of reciprocal discipline on the ground that such discipline would result in grave injustice. In this case, however , as bar counsel points out, the respondent’s allegations of fraud and abuse by disciplinary counsel in Connecticut are unsupported by any affidavit or

21 Mass. Att’y Disc. R. 369 (2005), 444 Mass. 65 (2005)-In the Matter of George E. Kersey

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In deference to the procedures of other States, "we generally give effect to the disciplinary decisions of another jurisdiction without undertaking the often difficult and protracted task of redoing the inquiry which has already been concluded there." Matter of Lebbos, 423 Mass.753, 755 (1996), cert. denied, 520 U.S. 1275 (1997). However, the imposition of reciprocal discipline is not automatic. Id. at 755-756, citing Matter of McCabe, 411 Mass. 436 (1991).Rather, S.J.C. Rule 4:01, § 16 (3), implicitly adopts a modified rule of res judicata whereby the disciplinary action taken by a foreign jurisdiction may be adopted unless: "(a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does notjustify the same discipline in this Commonwealth; or (c) the misconduct established is not adequately sanctioned by the same discipline in this Commonwealth." 3. Grave injustice. The New Hampshire proceedings provided the respondent a fair hearing.

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The imposition of the same sanction for the conduct established in the New Hampshire Supreme Court would not represent a grave injustice. 4. Appropriate sanction. The purpose underlying procedures under the reciprocal discipline is

19 Mass. Att’y Disc. R. 127 (2003)-In the Matter of Steven E. Fel

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The Supreme Court of New Hampshire suspended the respondent, Steven E. Feld, from the practice of law in New Hampshire for one year. Feld’s Case, 815 A. 2d. 383 (2002)(Feld II),cert. denied, New Hampshire Professional Conduct Committee v. Feld, 021666 (deniedOctober 6, 2003). Bar counsel filed a petition for reciprocal discipline pursuant to Supreme Judicial Court Rule 4:01, § 16, in which he seeks a one year suspension from the practice oflaw. The respondent has opposed the petition, contending that imposition of the samediscipline would result in a grave injustice, there was infirmity of proof establishing the misconduct, and that the established misconduct does not justify the same discipline in theCommonwealth of Massachusetts. Background.Emile Bussiere sold a 76-unit apartment building in Manchester, New Hampshire to Stephen

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Discussion. A bar discipline judgment in another jurisdiction is considered conclusive evidence in reciprocal discipline cases. See Matter of F. Lee Bailey, 439 Mass. 134, 136 (2003). A single justice may afford deference to the sanction imposed by another jurisdiction unless: ‘(a) ‘the procedure in the other jurisdiction did not provide notice or opportunity to be heard; (b) there was significant infirmity of proof establishing the misconduct; (c) imposition of the same discipline would result in grave injustice; or (d) the misconduct established does not justify the same discipline in this Commonwealth.’ Id.

  1. Unfairness of New Hampshire Proceeding. The respondent asserts that his case before the

At page 3 Supreme Court of New Hampshire was irrevocably tainted by judicial misconduct and that the charges against the respondent should be dismissed to preserve the integrity of the judicial process. The respondent also argues that he was denied due process of law because the Supreme Court of New Hampshire declined to grant him a new hearing to determine whether judicial impropriety prejudiced his case. The court rejected the respondent’s unfairness claim both when the respondent made his motion to vacate the earlier decision and again in the second case which was based upon the referee’s findings. As the court stated, the second case was heard by none of the justices involved in the first case and was based on the referee’s findings, not those of the panel tainted by misconduct. The United States Supreme Court has denied certiorari in the case. New Hampshire Professional Conduct Committee v. Feld, 021666(denied October 6, 2003). Dismissal is not required because the respondent has not shown thathe has suffered grave injustice. 2. Comparable Discipline. In reciprocal discipline cases a single justice is charged with

906 NE 2d 340, 453 Mass. 1026 (2009)-IN THE MATTER OF MITRANO

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the misconduct established is not adequately sanctioned by the same discipline in this Commonwealth." Id. There is no grave injustice here. Disbarment or indefinite suspension is the presumptive sanction in this Commonwealth for Mitrano’s misconduct, the intentional misuse of client funds resulting in actual

439 Mass. 134, 786 NE 2d 337 (2003)-IN THE MATTER OF BAILEY

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was significant infirmity of proof establishing the misconduct; (c) imposition of the same discipline would result in grave injustice; or (d) the misconduct established does not justify the same discipline in this Commonwealth.’" Matter of Lebbos, supra at 756 , quoting S.J.C. Rule 4:01, § 16 (3). Accordingly , our

29 Mass. Att’y Disc. R. 196 (2013)-In the Matter of Brian G. Doherty

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proof establishing the misconduct. The court may impose the identical discipline unless (a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in this Commonwealth; or (c) the

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§ 16(3) remains to be answered- that is, whether "(a) imposition of the same discipline [as the Florida Supreme Court imposed] would result in grave injustice; [or] (b) the misconduct established does not justify the same discipline in this Commonwealth." With respect to (b), I

33 Mass. Att’y Disc. R. 537 (2017)-In the Matter of Anthony V. Zeolla

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identical discipline unless (a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in this Commonwealth; or (c)

36 Mass. Att’y Disc. R. 145 (2020)-In the Matter of Jennifer Anne Elcock

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the identical discipline unless (a) imposition of the same discipline would result in grave injustice; (b) the misconduct

35 Mass. Att’y Disc. R. 343 (2019)-In the Matter of Steven Lang

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appropriate sanction to be imposed in a petition for reciprocal discipline, I "may impose the identical discipline unless (a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in this Commonwealth; or ( c)

35 Mass. Att’y Disc. R. 75 (2019)-In the Matter of John Patrick Contini

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11may impose the identical discipline unless (a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in the Commonwealth; or ( c) the misconduct established is not adequately sanctioned by the same

25 Mass. Att’y Disc. R. 384 (2009), 453 Mass. 1026 (2009)-In the Matter of Peter Paul Mitrano

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We turn briefly to the sanction of disbarment imposed by the single justice. Under our rules, "[t]he court may impose the identical discipline unless (a) imposition of the same disciplinewould result in grave injustice; (b) the misconduct established does not justify the samediscipline in this Commonwealth; or (c) the misconduct established is not adequatelysanctioned by the same discipline in this Commonwealth." Id . There is no grave injustice here.

470 Mass. 582, 24 NE 3d 566 (2015)-IN THE MATTER OF DWYER-JONES

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is appropriate in this Commonwealth, we consider independently whether applying the same restriction would "result in grave injustice," and whether the disability established elsewhere would warrant the identical restrictions here. Matter of Lebbos, 423 Mass. 753, 756, cert. denied, 520 U.S. 1275 (1997)

17 Mass. Att’y Disc. R. 399 (2001)-In the Matter of Thomas M. Mangan

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The judgment of suspension or disbarment in another jurisdiction shall be conclusive evidence of misconduct unless the procedure in the other jurisdiction fails to provide reasonable noticeor opportunity to be heard, or there was significant infirmity of proof establishing themisconduct. See S.J.C. Rule 4:01, § 16, as appearing in 425 Mass. 1319 (1997). Absent such a showing, the court may impose the identical discipline unless (a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in this Commonwealth; or (c) the misconduct established is not adequately sanctioned by the same discipline in this Commonwealth. See id. The exercise of discretion in reciprocity is informed, however, by our "deference to the lawful procedures [and decisions]of our sister States." See Matter of Watt, 430 Mass. 232, 236 (1999) (quotation and citationomitted). The respondent does not seriously contend that he did not receive reasonable notice or

859 NE 2d 423, 448 Mass. 151 (2007)-IN THE MATTER OF GROSSMAN

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demonstrated); Matter of Dvorak, 580 N.W .2d 586, 592 (N.D. 1998) (refusing to dismiss or reduce sanction unless respondent demonstrated that delay resulted in "grave injustice or that the purpose of protecting the public would not be served" by imposing discipline).

23 Mass. Att’y Disc. R. 232 (2007) -In the Matter of James T. Grew

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"[W]e generally give effect to the disciplinary decisions of another jurisdiction without undertaking the often difficult and protracted task of redoing the inquirywhich has already been concluded there. But because the consequences for the attorney are grave and the responsibility of judgment is still ours, such deference does not automatically lead to reciprocity. See Matter of McCabe, 411 Mass. 436(1991). We consider whether the proceedings accord with our notions of fairness and whether the grounds for the discipline correspond to our own criteria of attorney probity. Rule 4:01, § 16, implicitly adopts a modified rule of res judicata whereby the disciplinary action taken by a foreign jurisdiction will be adopted here unless ‘ [(a) imposition of the same discipline would result in grave injustice;(b) the misconduct established does not justify the same discipline inthis Commonwealth; or (c) the misconduct established is not adequatelysanctioned by the same discipline in this Commonwealth.]’ SJ.C. Rule 4:01, §16(3)."

24 Mass. Att’y Disc. R. 236 (2008)-In the Matter of Brian J. Dobie

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Lebbos , 423 Mass. 753, 755-756 (1996), cert. denied, 520 U.S. 1275 (1997). Our rule provides that "[t]he court may impose the identical discipline unless (a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify thesame discipline in this Commonwealth; or (c) the misconduct established is not adequatelysanctioned by the same discipline in the Commonwealth." S.J.C. Rule 4:01 § 16 (3), asappearing in 425 Mass. 1319 (1997). See generally Matter of Watt . 430 Mass. 232, 234 (2000)

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In the circumstances, and pursuant to Rule 4:01, § 16 (3), I conclude that the respondent’s conduct in Oregon does not warrant in the Commonwealth the two year period of suspension imposed in Oregon, and such a level of discipline would result in grave injustice. I furtherconclude that in light of the three matters at issue, a suspension of six months would be appropriate, effective on the date an order of suspension enters in this court. ORDER

444 Mass. 65, 825 NE 2d 994 (2005)-IN THE MATTER OF KERSEY

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judicata whereby the disciplinary action taken by a foreign jurisdiction may be adopted unless "(a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in this Commonwealth; or (c) the misconduct established is not adequately

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The imposition of the same sanction for the conduct established in the New Hampshire Supreme Court would not represent a grave injustice. 4. Appropriate sanction. The purpose underlying procedures under the reciprocal discipline is set out clearly

20 Mass. Att’y Disc. R. 143 (2004)-In the Matter of S. Edward Firestone

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Bar counsel contends that the reciprocal discipline of disbarment is appropriate in this case, citing S.J.C. Rule 4:1, § 16, as appearing in 425 Mass. 1319 (1997), which provides in these circumstances that the court may impose: "identical discipline unless (a) the imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in this Commonwealth; or (c) the misconduct established is not adequately sanctioned by the same discipline in this Commonwealth." There is little question that disbarment in Massachusetts is routinely imposed for felony

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25 Mass. Att’y Disc. R. 415 (2009), 453 Mass. 233 (2009)-In the Matter of Paul Mpande Ngobeni

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the identical discipline unless (a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in this Commonwealth; or (c) the misconduct

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, 423 Mass. 753, 755-756 (1996). Section 16 (3) provides in its final sentence that identical reciprocal discipline will not beimposed if "(a) imposition of the same discipline would result in grave injustice; (b)the misconduct established does not justify the same discipline in this Commonwealth; or (c) the misconduct established is not adequately sanctioned by the same discipline in this Commonwealth." The respondent argues strenuously that in the particular circumstances of his case — where he claims the allegations contained in the presentment against him are fraudulent or otherwise unsupported,and challenges the right of the disciplinary counsel in Connecticut to proceed against him at all because the presentment was not heard within sixty days of its filing — imposition of reciprocal discipline would be gravely unjust. We disagree. The respondent voluntarily chose to resign in Connecticut in exchange

423 Mass. 753, 672 NE 2d 517 (1996)-In the Matter of Lebbos

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absence of proof establishing her misconduct, the misconduct does not warrant similar discipline here, and, finally , disbarment would work a grave injustice. II

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evidence was presented supporting the charges, the remaining questions are whether the misconduct justifies the same discipline here as in California and whether grave injustice would result by its imposition. The respondent mounts a vigorous argument that not only are the grounds for her California disbarment not

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or opportunity to be heard; (b) there was significant infirmity of proof establishing the misconduct; (c) imposition of the same discipline would result in grave injustice; or (d) the misconduct established does not justify the same discipline in this Commonwealth."

30 Mass. Att’y Disc. R. 389 (2014)-In the Matter of Noah Starkey

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established, as he [was] required to do pursuant to§ 16(3), that ‘• there would b~ a. grave injustice if the.Pennsylvania discipline were imposed in Massachusetts"). In light of the respondent’s

15 Mass. Att’y Disc. R. 279 (1999)-In the Matter of David A. Jones

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discipline. The current version of the rule has no such provision. The respondent also cites S.J.C. Rule 4:01, Sect. 16 (c), which prevents reciprocal discipline where grave injustice would result. That provision still exists. The respondent does not set forth anyargument specific to that subsection, but his argument with respect to subsection (a) applies. The respondent had a mail drop at "The Mail Annex" at that time and a partner, owner and operator of

31 Mass. Att’y Disc. R. 53 (2015)-In the Matter of Paulus H. Chan

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"The court may impose the identical discipline unless (a) imposition of the same · discipline would result in grave injustice; (b) the misconduct established does not .justify the same discipline in this Commonwealth; or (c) the misconduct

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20 15] He contends that reciprocal discipline in this case for a single incident that occuned nearly three years ago "would result in grave injustice" under rule 4:01, § 16 (a). Bar counsel responds that the respondent had three pt:ior reprimands, in 2008, 2009, and-

22 Mass. Att’y Disc. R. 691 (2006)-In the Matter of William C. Sheridan

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special fitness in intellectual attainment and in moral character." Matter of Keenan. 314 Mass. 544, 546 (1943). Attorney discipline, and indeed reciprocal discipline, is intended not only topreserve the integrity of the bar, but also to protect the public. Matter of Kersey, 444 Mass.65, 69 (2005). Under S.J.C. Rule 4:01, § 16 (3), "[t]he court may impose the identicaldiscipline [that had been imposed in the other jurisdiction] unless (a) imposition of the samediscipline would result in grave injustice; (b) the misconduct established does not justify thesame discipline in this Commonwealth; or (c) the misconduct established is not adequatelysanctioned by the same discipline in this Commonwealth." Ultimately, the discipline shouldnot be "markedly disparate from that ordered in comparable cases." Matter of Kersey, supra at70. The respondent requests a three to six month suspension, or "certainly no more than [a one]

28 Mass. Att’y Disc. R. 80 (2012)-In the Matter of Michael W. Burnbaum

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discipline unless (a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does