In the Matter of Alexander Zeno

MEMORANDUM AND ORDER

Bar counsel has filed a petition for reciprocal discipline of the respondent, Alexander Zeno, pursuant to S.J.C. Rule 4:01, § 16, as appearing in 425 Mass. 1319 (1997). For reasons summarized below, the petition is allowed, and the requested reciprocal discipline will be imposed.

The background of the petition is the following. On June 4, 2007, the respondent was suspended by the United States District Court for the District of Puerto Rico (District Court) for three months.² The respondent appealed the order of suspension to the United States Court of Appeals for the First Circuit (Court of Appeals), which affirmed the decision of the District Court on September 27, 2007, but did not suspend the respondent from practice before the Court of Appeals.³ The judgment of the First Circuit was dated September 27,2007. The respondent notified the Board of Bar Overseers of his suspension in a letter received on September 4, 2007.

The District Court ordered the suspension of the respondent in response to two disciplinary complaints made by two different judges of that court. One of the complaints concerned what the district judge took to be a veiled threat to file a complaint about her with the Court of Appeals as a way of pressuring her to approve his petition for payment that he had filed in relation to his representation of an indigent defendant under the Criminal Justice Act, 18 U.S.C. § 3006 (CJA). The second related to the respondent's representation of a different client in a separate case under the CJA; the referring judge found the respondent's statements and conduct in that case to be intemperate and insulting. A five-judge panel of the District Court heard the two complaints.⁴While the court found merit in the complaint about the respondent's conduct relating to the request for payment, ultimately the court concluded that sanctions were appropriate under Rule 3.5(d) of the ABA Model Rules of Professional Conduct because of "the [respondent's] disrespectful conduct disruptive of the judicial process [in both cases]...." (Opinion and Order, p. 8.) The court ordered that the respondent be suspended from practice before the District Court for three months, and that he be removed from further participation in the District Court's CJA panel for the fifteen months remaining in his term. In affirming the District Court's order, the Court of Appeals concluded that there was no abuse of discretion on the part of the lower court in concluding that the respondent's intemperate remarks and unfounded accusations warranted the sanction that it imposed. (See Opinion, pp. 5-7.) The Court of Appeals also rejected the respondent's arguments that the District Court's decision was procedurally flawed because (1) the five judges on the panel should have recused themselves, (2) he was denied discovery, and (3) the matter lacked publicity. (See Opinion, pp. 7-8.) However, the Court of Appeals decided not to suspend the respondent from practice before that court. This determination was based on the court's conclusion that for independent reasons, the respondent would not be reappointed for another term to the Court of Appeals' CJA panel, and that he had nine pending CJA appeals before that court which required attention. In the court's view, "what little purpose would be served by a further suspension would be outweighed by the resulting inconvenience to his clients and this court." (Opinion, p. 10.)

Under the rules of the Supreme Judicial Court, a judgment of suspension entered against an attorney in another jurisdiction "shall be conclusive evidence of the misconduct unless the bar counsel or the respondent-lawyer establishes, or the court concludes, that the procedure in the other jurisdiction 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). See Matter of Steinberg. 448 Mass. 1024,1024-1025 (2007). This court generally gives deference '"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 Sheridan. 449 Mass. 1005 (2007), quoting Matter of Lebbos. 423 Mass. 753, 755 (1996), cert, denied, 520 U.S. 1275 (1997). See S.J.C. Rule 4:01, §16 (5).

I have reviewed the opinions of both the District Court and the Court of Appeals, and have reviewed as well the respondent's brief and appendix that he filed in his appeal from the District Court's order of sanctions. I agree with the two Federal courts' characterization of the respondent's statements and conduct that are described in their opinions as intemperate, insulting, and disrespectful, and agree also that such conduct can be seen as disruptive to the judicial process. See Matter of Cobb. 445 Mass. 452, 468 (2005). The respondent argues that his statements are protected by the First Amendment, that the "actual malice" standard of New York Times v. Sullivan. 376 U.S. 254 (1964), applies under Rule 8.2 of the Model Rules of Professional Conduct, and such statements should not be the subject of discipline. The Court of Appeals' opinion carefully considered and ultimately rejected this claim. (Opinion, pp. 5-7.) Moreover, as bar counsel points out, this court has recently concluded that the New York Times v. Sullivan standard does not apply, and that instead, the standard under Mass. R. Prof. C. 8.2, as appearing in 426 Mass. 1428 (1997), is "whether the attorney had an objectively reasonable basis for making the statements" at issue. Matter of Cobb. supra. 445 Mass, at 469. See id. at 470-472. The respondent makes conclusory arguments to the effect that his challenged statements were "objectively reasonable," but has presented no evidence to suggest that the opposite conclusion reached by the District Court and the Court of Appeals was incorrect. Nor does he present more than bald conclusions that he was denied a fair hearing before either the District Court or Court of Appeals.

A suspension of the respondent for three months is not "markedly disparate from that ordered in comparable cases" in the Commonwealth. Matter of Kersey. 444 Mass. 65, 70 (2005). See Matter of Lebos. supra. 423 Mass, at 754-755. The order of suspension will not be retroactive to the date of his suspension by the District Court, because the respondent did not report the order of suspension within ten days of that order, in violation of S.J.C. Rule 4:01, § 16(6). Rather, the suspension will run for a period of ninety days prospectively from the date of the order. See Matter of Sheridan, supra. 449 Mass, at 1005.

ORDER

For the foregoing reasons, it is ORDERED that the respondent, Alexander Zeno, is suspended from the practice of law in the Commonwealth for three months subject to the terms of the Order of Term Suspension entered this day in accordance with this Memorandum and Order.

FOOTNOTES:

¹ The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

² In Re: Alexander Zeno. Misc. No. 07-23 (JAF) (United States District Court, District of Puerto Rico, Opinion and Order, June 4, 2007).

³ In Re: Alexander Zeno. Nos. 07-8017, 07-2065 (United States Court of Appeals for the First Circuit, Opinion per curiam and Judgment, September 27, 2007).

⁴ The panel did not include either of the complaining judges.

Related to No. BD-2007-080

• S.J.C. Judgment of Reinstatement entered by Justice Botsford, 05/08/2008