United States Court of Appeals For the First Circuit

No. 23-8019

In RE: JAMES HAYES,

Respondent.

ON ORDER TO SHOW CAUSE WHY RECIPROCAL DISCIPLINE SHOULD NOT BE IMPOSED

Before

Barron, Chief Judge, Thompson and Gelpí, Circuit Judges.

Edward R. Wiest for respondent.

August 13, 2024 Per Curiam. On June 30, 2020, Massachusetts Bar Counsel

filed a four-count petition for discipline with the Massachusetts

Board of Bar Overseers (the "Board") against attorney James Hayes.

The petition accused Hayes of "fraud," "violation of court orders,"

"mishandling and misusing client funds," and "additional dishonest

conduct," in connection with his representation of a former client

who, to avoid paying child support, had concealed funds that he

obtained by purchasing a winning lottery ticket.

The petition was referred to a hearing committee of the

Board. The hearing committee found that each count had merit and

recommended that Hayes be disbarred from the practice of law before

Massachusetts state courts. Hayes appealed that ruling to the

Board, which affirmed the hearing committee's conclusions. A

single justice of the Massachusetts Supreme Judicial Court ("SJC")

issued a decision agreeing with the Board and disbarring Hayes.

Hayes thereafter appealed the single justice's decision. The SJC

affirmed. In re Hayes,

, 582 (Mass. 2023).1

Upon receiving the judgment of disbarment from the SJC,

this Court ordered Hayes to show cause why we should not order his

disbarment in our Court as reciprocal discipline. Hayes responded

and requested a hearing, which we granted. Hayes appeared through

counsel. Cf. In re Williams,

(1st Cir. 2005)

1 Hayes then filed a motion for reconsideration, which was denied. In turn, the matter at the state level was closed.

- 2 - (per curiam) ("In addition to considering the state court record,

this court will ordinarily afford the respondent attorney a

hearing, if requested."); see also Fed. R. App. P. 46(b)(3) ("The

court must enter an appropriate order after the member responds

and a hearing is held, if requested.").

Hayes contends that less serious discipline than the SJC

imposed in state court is warranted in our Court. He contends

that, at most, a term suspension is warranted.

In assessing Hayes's position, we must "undertake an

'intrinsic consideration of the state record,'" although the

"state court's substantive findings ordinarily are entitled to a

high degree of respect." In re Williams,

-19

(quoting Selling v. Radford,

(1917)). "[T]he

ultimate decision of the state court as to the type and kind of

discipline meted out is 'not conclusively binding' on this court."

at 118 (quoting In re Ruffalo,

(1968)). But,

"[a]s a general rule, discipline similar to that imposed in the

state court will be imposed in a reciprocal proceeding." In re

Oliveras López de Victoria,

(1st Cir. 2009) (per

curiam) (quoting In re Williams,

). That is not

the case, however, if we are persuaded:

1. that the procedure used by the other court was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

- 3 - 2. that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that this Court could not, consistent with its duty, accept as final the conclusion on that subject; or

3. that the imposition of substantially similar discipline by this Court would result in grave injustice; or

4. that the misconduct established is deemed by the Court to warrant different discipline.

In re Williams,

(quoting 1st Cir. R. Att'y

Disciplinary Enf't ("Disciplinary R.") II.C). Hayes bears the

burden of proof to show, by clear and convincing evidence, that

one of these "conditions which would warrant our imposing no

discipline or different discipline" is present here. In re

Oliveras López de Victoria,

.

Hayes first argues that our Court should impose, at most,

a term suspension because "the SJC's decision was so tainted by

errors of law and fact coloring its assessment of the credibility

of the principal witness against Mr. Hayes that 'this Court

[cannot], consistent with its duty, accept as final the conclusion

[of the SJC] on' Mr. Hayes' disbarment," (alterations in original)

(quoting Disciplinary R. II.C(2)).2 The "principal witness" is

2 Hayes first filed a pro se response to the order to show cause, but then supplemented his response with a memorandum filed through counsel. We look primarily to Hayes's counseled memorandum as the source of Hayes's arguments in this matter, though, favorably to Hayes, we also consider the separate arguments regarding procedural irregularities contained only in his pro se filing.

- 4 - Hayes's former client, who testified to the hearing committee that

Hayes "was the creator of a scheme by which [the former client]

sought to 'fraudulently' evade the application of $455,000 of

lottery winnings to pre-existing child support obligations by

transferring 50% of the payment to [the former client's] half-

brother."

Hayes asserts that the SJC erred by accepting the hearing

committee's decision to credit the former client's testimony.

Hayes contends that is so because the testimony is inconsistent

with other "testimony and substantial documentary evidence which

contradicted [the former client's] implied chronology of events

and disproved Mr. Hayes's role as a facilitator of . . . efforts

to hide assets in pending child support cases." In other

statements, Hayes contends, the former client stated that he and

his half-brother jointly owned the winning lottery ticket and

suggested that the transfer of funds from the former client to his

half-brother was initiated prior to Hayes's involvement in the

matter.

The relevant Board rules make the hearing committee the

"sole judge of the credibility of the testimony presented at the

hearing," S.J.C. Rule 4:01 § 8(5)(a); accord In re Saab,

(Mass. 1989). Thus, the SJC will not reject a credibility

determination by the hearing committee "unless it can be said with

certainty that the finding was wholly inconsistent with another

- 5 - implicit finding." In re Haese,

, 332 (Mass. 2014)

(cleaned up). We see no basis for departing from the SJC's

determination that the hearing committee did not err in crediting

the former client's testimony as it did.

The record reveals that the hearing committee reasonably

could have credited the former client's testimony that Hayes was

the architect of a fraudulent scheme to transfer funds to the

former client's half-brother without also crediting the former

client's unsworn statement in his initial complaint against Hayes

to the Bar Counsel that the former client and his half-brother won

the lottery together. Hayes also fails to point to any evidence

that gives rise to "the clear conviction that this Court could not

. . . accept as final the conclusion" that Hayes devised the scheme

to hide the winnings with the former client's half-brother. In re

Oliveras López de Victoria,

(quoting Disciplinary R.

II.C(2)).

Moreover, insofar as Hayes means to argue that the

hearing committee erred simply because it credited only some parts

of the former client's testimony, he is wrong to do so. As the

SJC noted, "the hearing committee was not required to take an all-

or-nothing approach in assessing witness credibility." In re

Hayes, 220 N.E.3d at 578.

Shifting gears, Hayes contends that the SJC legally

erred by characterizing his conduct as "fraudulent," because

- 6 - Massachusetts law does "not permit the conduct of an attorney to

be characterized as 'fraud' on the basis of a client's efforts to

achieve fraudulent goals" (emphasis added). But the SJC did not

impute to Hayes his former client's fraudulent intent. Instead,

the SJC, based on the hearing committee's findings, concluded that

Hayes himself "pursu[ed] a series of activities that [he] knew to

be fraudulent . . . includ[ing] setting up trust accounts for the

sole purpose of secreting the lottery funds[,] . . . periodically

disbursing portions of those funds to himself[,] . . . making

intentional misrepresentations about the [former] client's assets

in court proceedings," and filing frivolous petitions "in

furtherance of" the scheme "to conceal the lottery winnings." In

re Hayes, 220 N.E.3d at 578-79.

Hayes is also incorrect that his filing of the

"petitions" -- namely a bankruptcy petition and a petition for

single-justice relief that he filed on behalf of the former

client -- could not support a finding of his fraudulent intent.

The hearing committee determined that Hayes filed each of the

petitions in furtherance of his own "improper purpose of evading

the [former] client's child support obligations and preventing the

[former] client's ex-girlfriend and a court-appointed receiver

from discovering and obtaining the [former] client's assets," and

Hayes himself admitted that the petitions were filed without any

"adequate legal basis." Id. at 579.

- 7 - Hayes does also argue that, even accepting the SJC's

factual and legal conclusions, less serious discipline than

disbarment is warranted in our Court because "[a]ll that is

'warranted' . . . [by the misconduct he was found to have engaged

in] is, at most, the term suspension consistent with discipline

ordinarily applied in Massachusetts courts i[n] similar cases"

(quoting Disciplinary R. II.C(4)). Specifically, Hayes contends

that the SJC failed to quantify "what portion of the fees he

collected were in fact earned," acknowledged that Hayes had done

a "modicum of legal work," and failed to find any harm to his

former client "beyond excessive fees." Furthermore, Hayes points

to mitigating factors such as his years of good standing in the

Massachusetts bar. Finally, he contends that the SJC typically

imposes only term suspensions for conduct such as his. We are not

persuaded.

We see no basis for questioning the SJC's decision to

credit the hearing committee's findings that the underlying

fraudulent scheme was cooked up by Hayes himself. Ample evidence

in the record also supports the hearing committee's findings as to

fees, including the findings that he charged "clearly excessive

fees, . . . fees to which [he] was not entitled, as well as double

bill[ed] for the same legal work," In re Hayes, 220 N.E.3d at 580.

Those findings in turn lend support to the SJC's conclusions that

there are "multiple factors to be weighed in aggravation" and that

- 8 - "the cumulative effect of [Hayes's] fraudulent scheme warrants"

disbarment. Id. at 581-82.

We also do not agree with Hayes that his case is

analogous to the cases that he highlights in which the SJC imposed

only term suspensions or public censures. None of those cases

involved equivalent misconduct as none involved a finding that the

attorney facing the discipline had been the creator of a scheme by

which his client could defraud others, let alone with the

consequence of enabling the client to avoid paying child support.

See In re Zankowski,

(Mass. 2021); In re Diviacchi,

(Mass. 2016); In re Fordham,

(Mass.

1996).

Finally, Hayes suggests, primarily in his pro se

filings, that certain procedures adopted by the hearing committee

"violated standards of fairness and due process by denying [him]

the ability to present evidence that [his former client's]

testimony was not credible." Most concretely, Hayes alleges that

during his counsel's cross-examination of the former client, the

former client made the implausible statement that Hayes himself

had drafted the bar complaint his former client had filed against

him but that the hearing committee then allowed the Bar Counsel to

have a breakout session with the former client. Hayes goes on to

contend that, by doing so, the Bar Counsel caused the former

client, on redirect-examination, to "change[] all of his original

- 9 - answers on cross concerning authorship of the 2014 bar complaint."

Thus, according to Hayes, the breakout session "eliminated"

Hayes's "ability to present meaningful evidence" because it caused

the hearing committee to find the witness credible and Hayes not

credible, which in turn made Hayes's evidence "dead on arrival."3

This argument also fails. "It suffices to satisfy due

process if a state adopts procedures that collectively ensure the

fundamental fairness of the disciplinary proceedings." In re

Barach,

(1st Cir. 2008); see also In re Williams,

("In this context . . . due process concerns are

limited to 'want of notice or opportunity to be heard.'" (quoting

Selling,

)). Hayes has shown no more than that the

former client gave certain testimony prior to the break and other

testimony after it. He has not shown that the Bar Counsel -- rather

than the witness himself -- "caused" the testimony to be different

after the break. Thus, we do not see how we could conclude based

on the break-out itself that the process followed by the hearing

3 Hayes briefly argues, in a footnote of his counseled memorandum, that a comment made by a hearing committee member suggests that "[o]n at least one occasion during the hearing, the panel may have inverted th[e] burden of proof" from the Bar Counsel onto Hayes. Hayes makes no developed argument, however, as to how this comment shows the committee followed a procedure that was "so lacking in notice or opportunity to be heard as to constitute a deprivation of due process." Disciplinary R. II.C(1); cf. United States v. Zannino,

(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").

- 10 - committee was "so lacking in" either one "as to constitute a

deprivation of due process." Disciplinary R. II.C(1). And Hayes

identifies no other asserted procedural defects that would permit

such a conclusion.

For these reasons, we conclude that Hayes has not shown

cause to impose a punishment different from the one that the SJC

imposed. Attorney James Hayes is hereby disbarred from the

practice of law before this Court. The Clerk of Court shall

forward to the SJC a copy of this opinion.

So Ordered.

- 11 -