In the Matter of Dwyer-Jones , 470 Mass. 582 ( 2015 )

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SJC-11516
IN THE MATTER OF SUZANNE T. DWYER-JONES.
Suffolk. October 6, 2014. - February 5, 2015.
Present: Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
Attorney at Law, Reciprocal discipline, Suspension, Disability,
Inactive status.
Information filed in the Supreme Judicial Court for the
county of Suffolk on May 16, 2012.
A petition to transfer to disability inactive status was
heard by Gants, J.
Thomas R. Kiley for the respondent.
John W. Marshall, Assistant Bar Counsel.
SPINA, J. We consider in this case whether an attorney who
has been suspended from the practice of law in another
jurisdiction based on mental health conditions or substance
abuse is subject to reciprocal transfer to disability inactive
status in Massachusetts without a separate hearing in
Massachusetts to determine her incapacity. See S.J.C. Rule
2
4:01, § 13 (1), as amended, 435 Mass. 1302 (2002). We conclude
that she is.
1. Background. The respondent, Suzanne T. Dwyer-Jones,
has been admitted to practice in both Maine and Massachusetts.
On March 25, 2013, a final hearing was held before a single
justice of the Maine Supreme Judicial Court on a petition filed
by the Maine board of overseers of the bar for suspension of the
respondent pursuant to Me. Bar R. 7.3(e)(2)(B). That rule
permits the board to file a petition directly with the court
where it is alleged that "the continued practice of [an]
attorney poses a substantial threat of irreparable harm to the
public," id., because the attorney is "incapacitated from
continuing practice by reason of mental infirmity or addiction
to drugs or intoxicants." Me. Bar R. 7.3(e)(2)(A). After the
hearing, at which the respondent was both present and
represented by counsel, the Maine single justice found that the
respondent "is afflicted with a substantial proclivity for
substance abuse and a very serious mental health condition." He
stated:
"[T]he combined effects of these conditions clearly
produced a substantial incapacity that adversely impacted
[the respondent's] ability to practice law and resulted in
a substantial threat of irreparable harm to the public.
Indeed, . . . she was essentially unable to manage her own
affairs, let alone the complex matters involved in the
representation of others. The court finds that the
incapacitating symptoms of these conditions remain
essentially as florid today as they were during the last
two years. Accordingly, the court hereby orders that [the
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respondent] be suspended from the practice of law in the
State of Maine."
Considering that the "issues of the duration and conditions of
the suspension are conjoined with [the respondent's] insight
into her medical conditions and the progress she has made to
manage them," the Maine single justice imposed a one-year
suspension with conditions, and ordered that:
"[a]ny petition for [reinstatement] must show insight into
the serious problems that resulted in this suspension, her
plan to address them, and a showing of substantial progress
toward the goal of being able to undertake the affairs of
others without being distracted or incapacitated by her
underlying conditions."
After entry of the Maine order, on June 20, 2013, bar
counsel in Massachusetts notified this court of the respondent's
suspension in Maine "as a result of a substantial incapacity
that adversely impacted her ability to practice law and resulted
in a substantial threat of irreparable harm to the public." Bar
counsel provided a certified copy of the Maine order, and
petitioned for an order transferring the respondent to
disability inactive status in Massachusetts, pursuant to the
reciprocal provisions of S.J.C. Rule 4:01, § 13 (1). That rule
provides:
"(1) Involuntary Commitment, Adjudication of Incompetence,
or Transfer to Disability Inactive Status. Where a lawyer
has been judicially declared incompetent or committed to a
mental hospital after a judicial hearing, or where a lawyer
has been placed by court order under guardianship or
conservatorship, or where a lawyer has been transferred to
disability inactive status in another jurisdiction, the
court, upon proper proof of the fact, shall enter an order
4
transferring the lawyer to disability inactive status. A
copy of such order shall be served, in the manner the court
may direct, upon the lawyer, his or her guardian or
conservator, and the director of the institution to which
the lawyer is committed" (emphasis added).
Id.1 The respondent opposed the petition. After a hearing, a
single justice of this court placed the respondent on disability
inactive status in Massachusetts for a period of one year,
effective as of August 18, 2013. The respondent appeals.2
2. Standard of review. Neither Supreme Judicial Court
Rule 4:01 nor prior decisions of this court address the standard
of review for a single justice's order -- reciprocal or not --
transferring an attorney to disability inactive status.
Although "[d]isability proceedings are not disciplinary
1
Supreme Judicial Court Rule 4:01, § 13 (1), 435 Mass. 1302
(2002), was amended in 2001 to provide for reciprocal transfer
to disability inactive status based on actions taken in another
jurisdiction. Although the rule, as amended, appears in the
Massachusetts Reports, id., it may not have been included in
certain publications of the annotated laws of court for some
period. See Mass. Ann. Laws Court Rules, Supreme Judicial Court
Rule 4:01, § 13 (1), at 656 (LexisNexis 2012). Before the
single justice, however, bar counsel quoted the amended rule,
and respondent's counsel argued in part that, because the
respondent was suspended in Maine but not transferred to
disability inactive status, the reciprocal provisions of § 13
(1) did not apply.
2
On May 16, 2012, bar counsel filed a notice of conviction,
pursuant to S.J.C. Rule 4:01, § 12 (9), as appearing in 425
Mass. 1313 (1997), notifying the court that the respondent had
been convicted in Maine of two charges of operating under the
influence, and one charge of refusing to submit to arrest and
detention. Neither crime is defined as a "serious crime" for
purposes of S.J.C. Rule 4:01, § 12 (3), as appearing in 425
Mass. 1313 (1997), and the matter was remanded to the board for
further proceedings. That alleged misconduct is not the subject
of these proceedings.
5
proceedings," Matter of Disability Proceeding Against
Diamondstone, 153 Wash.2d 430, 437, cert. denied, 546 U.S. 845
(2005), we recognize that they have procedural similarities.
See S.J.C. Rule 4:01, § 13 (4) (a), as appearing in 425 Mass.
1315 (1997) (proceedings to determine incapacity "conducted in
same manner as disciplinary hearings") and § 13 (6), as amended,
435 Mass. 1302 (2002) (with some exceptions, petitions for
reinstatement following suspension or disbarment apply to
reinstatement from disability inactive status). We generally
will apply the same principles applicable to disciplinary cases
to disability cases.
Where reciprocal proceedings are involved, the disability
rules provide that "upon proper proof of the fact [that a lawyer
has been transferred to disability inactive status in another
jurisdiction, the court] shall enter an order transferring the
lawyer to disability inactive status" in the Commonwealth.
S.J.C. Rule 4:01, § 13 (1). Compare S.J.C. Rule 4:01, § 16 (5),
as appearing in 425 Mass. 1319 (1997) ("A final adjudication in
another jurisdiction that a lawyer has been guilty of misconduct
. . . may be treated as establishing the misconduct for purposes
of a disciplinary proceeding in the Commonwealth"). Rule 4:01,
§ 13 (1), treats the foreign judgment or order restricting the
attorney's practice as conclusive of the underlying disability
or incapacity to practice law. As we do in the reciprocal
6
discipline context, we will limit our review to considering
whether the procedures followed in the other jurisdiction lacked
reasonable notice or opportunity to be heard, and whether there
was a significant infirmity of proof as to the disability. See
S.J.C. Rule 4:01, § 16 (3), as appearing in 425 Mass. 1319
(1997). Finally, if we conclude that a practice restriction 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)
(Lebbos II).
3. Applicability of § 13 (1). Whether in the context of
attorney disability or discipline, "considerations of public
welfare are wholly dominant." Matter of Keenan, 314 Mass. 544,
547 (1943). The reciprocal disability and disciplinary rules
accordingly acknowledge that an "attorney is not suddenly
rehabilitated when she crosses a State line," Lebbos II, supra
at 755, and provide that the lawful disability and disciplinary
decisions of our sister States should have reciprocal effect
here. S.J.C. Rule 4:01, §§ 13 (1), 16. This reflects
appropriate deference to the proceedings of other jurisdictions,
and gives effect to the decisions made "without undertaking the
often difficult and protracted task of redoing the inquiry which
7
has already been concluded there." Lebbos II, supra at 755.
See Bar Counsel v. Board of Bar Overseers, 420 Mass. 6, 9-11
(1995) ("offensive use of collateral estoppel is appropriate in
bar disciplinary proceedings").
We recognize that the rules and procedures of other
jurisdictions may not align perfectly with ours, but if they are
"equivalent" in practical application and effect, orders and
judgments entered elsewhere serve as the basis for reciprocal
treatment here. Matter of Lebbos, 407 Mass. 1010, 1011 (1990),
cert. denied, 498 U.S. 1040 (1991) (Lebbos I) (involuntary
transfer to inactive status in California based on alleged
misconduct equivalent to temporary suspension in Massachusetts).
See Matter of Ngobeni, 453 Mass. 233 (2009) (reciprocal
discipline permissible where lawyer permitted to resign without
admission or finding of misconduct in other jurisdiction). See
also, e.g., Matter of Marquez, 63 A.3d 1059 (D.C. 2013)
(disability suspension in District of Columbia functional
equivalent of impairment suspension in Virginia); Matter of
Carter, 395 S.C. 128 (2011) (transfer to incapacity inactive
status in South Carolina based on disability inactive status in
Tennessee); Matter of McDonough, 6 A.3d 1283 (D.C. 2010)
(disability suspension in District of Columbia based on
disability inactive status in Connecticut).
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In Maine, when an attorney is "incapacitated from
continuing practice by reason of mental infirmity or addiction
to drugs or intoxicants," Me. Bar R. 7.3(e)(2)(A), the rules
provide for suspension or voluntary resignation, rather than
transfer to "disability inactive status." Me. Bar R. 7.3(e)(1).
The Maine rules do not recognize a "disability inactive" status
per se. The Maine single justice accordingly suspended the
respondent -- after a hearing -- because he concluded that she
suffered from "a substantial incapacity that adversely affected
[her] ability to practice law and resulted in a substantial
threat of irreparable harm to the public." In Massachusetts,
that conclusion would support "an order transferring the
respondent to disability inactive status until further order of
the court." S.J.C. Rule 4:01, § 13 (4) (e), as amended, 453
Mass. 1307 (2009). In the circumstances, the single justice of
this court correctly concluded that the Maine suspension order
was the practical equivalent of what our rules consider to be a
"transfer to 'disability inactive status.'"
4. Fairness of Maine proceeding. We next turn to the
question whether the respondent "received a fair hearing [in
Maine] at which sufficient evidence was presented to justify our
taking reciprocal . . . action." Lebbos II, supra at 756.
There is nothing in the record before us to suggest that she did
not. In accordance with the rules of that State, a single
9
justice of the Maine Supreme Judicial Court conducted a hearing
at which the respondent was present and was represented by
counsel, and at which she testified. The Maine single justice's
thorough memorandum of decision reflects that counsel
participated in prehearing conferences and exchanged materials,
and that the hearing was continued for several months at the
respondent's request. In short, the respondent has not
established that she lacked notice or an opportunity to be
heard. See Matter of Mitrano, 453 Mass. 1026, 1027 (2009);
Matter of Steinberg, 448 Mass. 1024, 1025 (2007). While the
procedures followed in Maine are not identical to those of
Massachusetts, the differences do not establish a due process
violation.
5. Sufficiency of evidence. Nor are we persuaded that
there was any significant infirmity of proof in Maine. The
Maine single justice's decision reflects thoughtful
consideration of the evidence before him, concluding that the
respondent attorney "is afflicted with a substantial proclivity
for substance abuse and a very serious mental health
condition . . . that adversely impacted [her] ability to
practice law and resulted in a substantial threat of irreparable
harm to the public." He also found that "the incapacitating
symptoms of these conditions remain essentially as florid today
as they were during the last two years," and concluded that
10
"[t]he issues of the duration and conditions of the suspension
are conjoined with [her] insight into her medical conditions and
the progress she has made to manage them." See Matter of
Mitrano, supra at 1027. The respondent has not demonstrated
that proof of incapacity was lacking. Indeed, apart from the
Maine single justice's decision itself, no transcript or other
record of the underlying proceeding in Maine has been provided
to this court. As the single justice of this court reasoned,
"[t]here is nothing in the record to suggest that this factual
issue [of capacity] was not fully and fairly litigated in Maine,
and no reason why the mandate in § 13 (1) providing essentially
for a reciprocal transfer to 'disability inactive status' should
not be triggered."
6. Appropriate reciprocal response. As we do in the
context of reciprocal discipline, we consider what level of
restriction on practice in Massachusetts "is warranted by the
facts even if that [restriction] exceeds, equals, or falls short
of the [restriction] imposed in another jurisdiction." Matter
of Watt, 430 Mass. 232, 234 (1999). We are not bound by the
single justice's determination, and consider de novo the single
justice's order. Matter of Goldberg, 434 Mass. 1022, 1023
(2001).
Neither due process considerations nor the applicable rules
require that a separate hearing on disability be conducted in
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Massachusetts pursuant to S.J.C. Rule 4:01, § 13 (4), to
evaluate an attorney's incapacity to practice law where it fully
and fairly has been adjudicated elsewhere.3 S.J.C. Rule 4:01,
§ 13 (1). Because the respondent has not established that the
proceedings in Maine were procedurally deficient, or that there
was a significant infirmity of proof, the single justice of this
court properly declined to provide the respondent an opportunity
to litigate her physical or mental status during the term of the
Maine order. See Lebbos II, supra at 756-757 (noting reluctance
to examine claimed defects in disciplinary proceeding "where an
appellate forum exists in that jurisdiction which may and did
address these particular concerns"). Prior to giving reciprocal
effect to the Maine order, the respondent was given adequate
notice and an opportunity to be heard on bar counsel's petition
for transfer to disability inactive status, and she availed
herself of them. Among other things, she replied to bar
counsel's petition and supplemented her reply, and a telephonic
hearing was held.
We emphasize that a transfer to disability inactive status
is not a disciplinary measure. See S.J.C. Rule 4:01, § 4, as
appearing in 425 Mass. 1304 (1997). Ordinarily, that status
does not have a defined duration, and an attorney is permitted
3
Supreme Judicial Court Rule 4:01, § 13 (4), as amended,
453 Mass. 1307 (2009), applies to "[p]roceedings to adjudicate
contested allegations of disability" that have not been
established under the provisions of § 13 (1).
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to petition to transfer to active status once each year or "at
such intervals as this court may direct." S.J.C. Rule 4:01,
§ 13 (6) (b). When a respondent who has been reciprocally
placed on disability inactive status has been
"returned to active status by the other jurisdiction, this
court, after hearing, may dispense with referring the
matter to the Board pursuant to [S.J.C. Rule 4:01, § 18
(5), as appearing in 453 Mass. 1315 (2009),] for the taking
of further evidence that his or her disability has been
removed and may immediately direct the lawyer's
reinstatement to active status upon such terms as are
deemed proper and advisable."
S.J.C. Rule 4:01, § 13 (6) (d). Therefore, where, as here, an
attorney's inactive status is founded on proceedings in another
jurisdiction, if she is returned to active status in that
jurisdiction, she may petition a single justice of this court to
"immediately direct" her reinstatement to active status, without
the necessity of petitioning for reinstatement pursuant to
S.J.C. Rule 4:01, § 18.4 We do not consider the single justice's
order to have foreclosed her from filing a petition for
reinstatement at the time the suspension in Maine is lifted.
8. Conclusion. The respondent's suspension in Maine based
on a finding of incapacity was the practical equivalent of a
transfer to "disability inactive status," for purposes of the
reciprocal disability provision of S.J.C. Rule 4:01, § 13 (1).
4
The respondent has represented that the Maine single
justice's order is or was the subject of review by the Maine
Supreme Judicial Court. The status of that review is not before
us.
13
The single justice correctly concluded that the respondent was
not entitled to a separate hearing in Massachusetts to evaluate
her incapacity, and properly transferred her to disability
inactive status in Massachusetts.
Order affirmed.