In the Matter of Allen
In the Matter of Allen
Opinion of the Court
This case is here on the reservation and report, without decision, of a single justice of this court. The issue presented is whether Max J. Allen (petitioner) should be reinstated as a member of the bar of the Commonwealth, having been indefinitely suspended from the practice of law on November 9, 1978.
The facts underlying the petition may be described briefly. In October, 1977, the petitioner, Michael R. Cappiello (also an attorney), Martin Koplow, and George Lincoln were indicted for conspiracy to commit arson and for conspiracy to cause a building (50 Symphony Road in Boston) to be burned with intent to defraud the insurer of the building. Lincoln testified for the prosecution. Allen, Koplow, and Cappiello were tried together and convicted.
The panel considered also our precedents and the factors pertaining to the petitioner and concluded, by a two-to-one vote,
Bar counsel, at a hearing before the single justice on August 7, 1985, conceded that the panel’s single ground for opposition was “that the nature of the crime for which he was convicted was such that it might undermine the public’s confidence and integrity of the Bar and the administration of justice.” The petitioner’s competence and moral fitness were conceded. Thus, the single justice, having waited a period of time, concluded on February 28, 1986, that: “Bar counsel and the Board agree that the petitioner has the necessary moral character, competency and learning for readmission. The more difficult issue concerns the second requirement, the public interest. This interest includes two elements relating to the public: its protection and its perception. . . . There is no serious issue raised here concerning the protection of the public. The concern of Bar Counsel and the majority of the Board is with the element of public perception. The majority of the Board concluded that the public opprobrium associated with the crime for which respondent was convicted requires that more time pass before reinstatement.”
Further, the single justice ruled: “I think that some more time should elapse before the reinstatement petition should be allowed. I conclude that I shall allow the reinstatement petition
We turn now to consider briefly the standard of our review. “[I]n deciding a case of this kind considerations of public welfare are wholly dominant. The question is not whether the respondent has been ‘punished’ enough. To make that the test would be to give undue weight to his private interests, whereas the true test must always be the public welfare.” Matter of Keenan, 314 Mass. 544, 547 (1943).
Ordinarily, this court gives deference to the recommendations of the Board, but “the ultimate duty of decision rests with this court.” Matter of Gordon, 385 Mass. 48, 58 (1982). See Centracchio, petitioner, 345 Mass. 342, 346-347, 348 (1963).
Consistent with this view, other attorneys who have been indefinitely suspended have been reinstated to practice on appropriate proof. See Matter of Latour, S.J.C. No. 77-33 BD (Oct. 2, 1984) (attorney convicted of bribery reinstated after seven years [1 Mass. Att’y Discipline Rep. 176 (1977)]); Matter of Masuck, 3 Mass. Att’y Discipline Rep. 135 (1982) (attorney convicted of mail fraud and gaming offenses reinstated after seven years [1 Mass. Att’y Disc. R. 212 (1979)]). See also Matter of O’Brien, 2 Mass. Att’y Discipline Rep. 166 (1980), 168 (1981) (attorney convicted of conspiracy to destroy a dwelling house reinstated after one-year suspension).
As to the standards of reinstatement, we have stated the factors to be considered as follows: “In judging whether a petitioner . . . has demonstrated the requisite rehabilitation since disbarment, it is necessary to look to (1) the nature of the original offense for which the petitioner was disbarred, (2) the petitioner’s character, maturity, and experience at the time of his disbarment, (3) the petitioner’s occupations and conduct in the time since his disbarment, (4) the time elapsed since the disbarment, and (5) the petitioner’s present competence in legal skills” (footnote omitted). Matter of Hiss, supra at 460.
The panel, considering the petition for reinstatment, added, as to his character since conviction and suspension: “Allen presented a large number of character witnesses, many of them persons eminent in the law and in business. They uniformly testified as to their belief in Allen’s high moral character and their confidence that, should he be reinstated, he would be an upstanding member of the Bar. Among the witnesses were a former Chief Justice of our Superior Court with numerous close family members heavily invested in the bar, the Dean of a well recognized nationally known law school, a lawyer-president of a large local financial institution, a Register of Deeds, a former legislator and a former Assistant attorney general. The Assistant Deputy Superintendent of the Plymouth House of Correction also submitted a letter describing Allen’s service as an instructor in the facility’s educational program
No opposition to reinstatement was voiced by the office of the Attorney General, which prosecuted the criminal cases, nor by any other witness.
Thus, we are faced with the picture of a man who, as a member of the bar since 1949, had an unblemished record as an attorney and a member of the community. He committed serious crimes, but crimes not directly related to the practice of law. He has served his sentence, paid his fine, and has set about to reconstruct his life. He is now in his sixties, and almost ten years have elapsed since his suspension. He has regained the respect of those who know him and have dealt with him. He poses no threat of recidivism or to the integrity of the bar. He has expressed his sorrow and regret for his misconduct.
We recognize that a few members of the public may be perturbed if petitioner is reinstated. We cannot, however, accept the position that, so long as any member of the public objects, a petition for reinstatement ought be denied. “A fundamental precept of our system (particularly our correctional system) is that men can be rehabilitated. ‘Rehabilitation . . . is a “state of mind” and the law looks with favor upon rewarding with the opportunity to serve, one who has achieved “reformation and regeneration.” ’ March v. Committee of Bar Examiners, 67 Cal. 2d 718, 732 (1967). Time and experience may mend flaws of character which allowed the immature man to err. The chastening effect of a severe sanction such as [indefinite suspension] may redirect the energies and reform the values of even the mature miscreant. There is always the potentiality for reform, and fundamental fairness demands that the disbarred attorney have opportunity to adduce proofs.” Matter of Hiss, 368 Mass. 447, 454 (1975).
We conclude the “proof’ to have been made. The case is remanded to the Supreme Judicial Court for the county of
So ordered.
The suspension was vacated on April 10, 1979, pending appeal of the criminal conviction which led to these disciplinary proceedings. Matter of
Rule 4:01, § 18 (1), of the Rules of the Supreme Judicial Court, as appearing in 381 Mass. 791 (1980), provides, in relevant part: “[A]n attorney who has been disbarred or suspended for an indefinite period . . . may not be reinstated otherwise than upon his petition filed in this court after the expiration of at least five years from the effective date of the order of disbarment [or] suspension.” The single justice had ruled that the period of time between April 10, 1979, and January 31, 1980 (when the petitioner was not under suspension), was not to be included in the five-year computation, 2 Mass. Att’y Discipline Rep., supra at 5 & n. 1; the filing of petition for reinstatement in September, 1984, was timely in light of this method of computation.
The convictions were affirmed. The facts and rulings are set forth in Commonwealth v. Allen, 379 Mass. 564 (1980). Cappiello was disbarred. Matter of Cappiello, 3 Mass. Att’y Discipline Rep. 35 (1982). There was no fire set in this instance, but other conspirators, including two attorneys, in another conspiracy, did cause fires in what became known as the “arson for profit” conspiracies affecting the Symphony Road area. See Common
Allen was sentenced to two years in a house of correction and a fine of $10,000; Cappiello, two and one-half years and $10,000; and Koplow, eighteen months and $5,000. Allen served one year and has paid the fine imposed.
This action by the single justice was consistent with the recommendations of the panel of the Board, the Board, and of bar counsel. The Board’s recommendation included the further recommendation that petitioner have “the right to apply for reinstatement” five years from the date of his initial temporary suspension.
One member of the panel felt that petitioner had met the criteria for reinstatement. All members agreed that the case “is a close one.” All members of the panel concluded also that the petitioner “has the competence and learning in the law required for admission.”
On August 1, 1986, the Board filed a motion to extend the time for filing its objection from September 5, to September 12. The motion was allowed.
The Board and bar counsel, in their brief, do not contest petitioner’s moral qualifications, competency, and learning, but continue to oppose reinstatement solely on public perception grounds.
Both Gordon and Centracchio, supra, involved petitions for reinstatement of judges who had been disbarred. The court, despite favorable recommendations for reinstatement, declined to reinstate them, relying primarily on the impact on the public perception of the bar, if disbarred judges were reinstated. “It is also of special significance that Gordon committed his crimes while serving as a judge. . . . The public interest in the integrity of the bar and the administration of justice requires there be a higher standard for reinstatement where disbarment was prompted by misconduct while a judge.” Gordon, supra at 57. See Centracchio, supra at 348. The petitioner in this case was not a judge, nor was he disbarred. Thus, neither Gordon nor Centracchio is controlling. We note also that in Keenan, supra, the attorney was disbarred for bribery of three members of a jury, a crime that, unlike this case, went directly to the essence of the integrity of the judicial system. See Keenan, supra at 548-549.
The cases to which we refer have, on the whole, dealt with the issue of reinstatement of a disbarred attorney. We have not considered whether the standard for an attorney indefinitely suspended, as was. this petitioner, ought be less severe. Rule 4:01, § 18 (5), of the Supreme Judicial Court, appears to draw no distinction. Therefore, we assume, without deciding, the burden on a petitioner who has been indefinitely suspended to be the same when he seeks reinstatement.
Subsequent to oral argument, the court has received seven letters pertaining to this matter. Five were opposed to petitioner’s reinstatement, one in favor. One letter expressed no opinion. These letters are not part of the record, but we have given them their due weight.
While we have not made repentence a prerequisite of reinstatement, see Matter of Hiss, supra at 457, 459, we believe that repentence is a relevant factor in determining the rehabilitation of a petitioner.
Dissenting Opinion
(dissenting). I dissent. I agree with the panel of the Board of Bar Overseers which (in a split vote opposing reinstatement of the petitioner) characterized the case as “a close one.” The court has analyzed the petitioner’s request for reinstatement in accordance with criteria we have established in prior cases. In so doing, the court has placed emphasis on the strong evidence of the petitioner’s rehabilitation. Despite this evidence, I would deny reinstatement because of the extremely serious nature of the crimes for which the petitioner stands convicted.
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