In re Collins
In re Collins
Opinion of the Court
Background. We recount the relevant findings of the committee, which the board adopted. See Matter of Schoepfer, 426 Mass. 183, 184 (1997). Before Collins was admitted to the Massachusetts bar in 1992, he had abused cocaine and other illegal drugs on and off for many years. Despite his addiction, he was a “high-functioning” cocaine user throughout the 1990’s and early 2000’s. In 2001, Collins acted as escrow agent for the proceeds from the sale of a marital home, in connection with a divorce matter in which he represented the husband. The client’s (husband’s) share of those proceeds, approximately $50,000, were intended to cover his living expenses and to guarantee his child support obligations. In April, 2002, Collins loaned $7,000 from the account to a friend of his without the client’s knowledge or authorization. The following month, the friend repaid Collins the $7,000, but Collins deposited it in his own business account rather than in the escrow account. Collins then spent most of the $7,000 for his own personal and business purposes.
Discussion. The presumptive sanction for the intentional misuse of client funds that results in a deprivation for the client is disbarment or indefinite suspension. See Matter of Schoepfer, supra at 186-187. See also note 1, supra. Where, in addition, the attorney fails to repay the client in full, disbarment is indicated. See Matter of Dasent, 446 Mass. 1010, 1012-1013 (2006). See also Matter of Bryan, 411 Mass. 288, 292 (1991). In reviewing the single justice’s indefinite suspension of Collins, we consider whether that sanction “is markedly disparate from those ordinarily entered by the various single justices in similar cases,” Matter of Alter, 389 Mass. 153, 156 (1983), recognizing that “[ejach case must be decided on its own merits and every offending attorney must receive the disposition most appropriate in the circumstances.” Matter of Crossen, 450 Mass. 533, 574 (2008), quoting Matter of the Discipline of an Attorney, 392 Mass. 827, 837 (1984). Our review is de nova “in the sense that no special deference is given to the single justice’s determination,” Matter of Doyle, 429 Mass. 1013, 1013 (1999), but it is “tempered with substantial deference to the board’s recommendation.” Matter of Foley, 439 Mass. 324, 333 (2003).
In ordering Collins indefinitely suspended — a somewhat lesser sanction than disbarment, see S.J.C. Rule 4:01, § 18 (2) (a) & (b), as appearing in 430 Mass. 1329 (2000) (period before which disbarred attorney may generally petition for reinstatement is eight years while for indefinitely suspended attorney it is five years) — the single justice did not impose a sanction markedly disparate from those imposed in comparable circumstances.
The cases that bar counsel relies on to argue for disbarment present significantly more egregious attorney misconduct than does this case. See, e.g., Matter of Dasent, supra at 1012-1013; Matter of Goldstone, 445 Mass. 551, 566 (2005). Moreover, the mitigating factors discussed above, in addition to Collins’s having made substantial restitution, further distinguish this case from those others. Partial restitution, however, even if substantial, is not a substitute for full restitution, as Collins recognizes. Accordingly, we modify the order of indefinite suspension to include the condition that Collins make full restitution. We remand the matter to the single justice, who, with input from the parties, shall establish a specific repayment schedule that takes into account Collins’s ability to pay, and shall also determine and impose a suitable rate of interest on the balance presently due. See Piemonte v. New Boston Garden Corp., 377 Mass. 719, 735 (1979) (setting interest rate according to “prudent investor” rule). See also Matter of Palmer, 413 Mass. 33, 37, 40-41 (1992) (affirming so much of single justice’s order that required attorney to pay restitution with interest). In the event Collins fails to comply with the repayment schedule, bar counsel may seek appropriate relief from the single justice. The single justice would have the discretion in that event to fashion a suitable remedy, up to and including disbarment.
Conclusion. The order of indefinite suspension is modified to include the repayment condition described above, and as modified it is affirmed. The matter is remanded to the single justice, as outlined above, to establish a repayment schedule and suitable rate of interest.
So ordered.
In September, 2002, Collins loaned the same friend $10,000 from the escrow account. The following month, the friend repaid the money and Collins deposited the repayment in the escrow account. The committee found that the $10,000 loan constituted an intentional misuse of escrow funds, but that the client was not actually deprived of the money and that Collins did not intend any such deprivation. See Matter of Schoepfer, 426 Mass. 183, 187 (1997), quoting Matter of the Discipline of an Attorney, 392 Mass. 827, 836 (1984) (intentional misuse of client’s funds “normally calls for ‘a term suspension of appropriate length’ if attorney additionally intended to deprive client of funds, permanently or temporarily, or client was actually deprived of funds, regardless of attorney’s intent, “the standard discipline is disbarment or indefinite suspension”).
The record is unclear on the reason he has not paid the balance but shows that at times he has been unable financially to do so. He has, however, acknowledged his obligation to repay in full and expressed an intent eventually to do so. As we discuss below, Collins must pursue full repayment in instalments, to the extent he is able.
Before the committee, Collins sought a suspension of two years, but before the board he conceded that an indefinite suspension would be appropriate.
Reference
- Full Case Name
- In the Matter of Barry F. Collins, Jr.
- Cited By
- 1 case
- Status
- Published