In the Matter of Edward L. Ryan

HEARING PANEL REPORT

A petition for discipline was filed by Bar Counsel on January 25, 2008 against the respondent, Edward L. Ryan, charging that the respondent had been convicted of a number of crimes in a number of courts, that he had violated probationary terms imposed by some of those courts, and that he had failed to report those convictions to Bar Counsel as required by S.J.C. Rule 4:01.

On February 21, 2008, the respondent answered the petition with a letter containing a general admission of the charges, and stating in mitigation that the respondent suffered from chemical and alcohol dependency for which he was receiving in-patient treatment. The hearing, scheduled for April 30, 2008, was continued at the respondent’s request.

On June 26, 2008, we granted Bar Counsel leave to amend the petition to include additional convictions discovered after the original petition had been filed. The respondent failed to answer the amended petition, and its allegations are deemed admitted. S.J.C. Rule 4:01, §8(3); Rules of the Board of Bar Overseers, § 3.15(e).

On July 17, 2008, Bar Counsel moved for an order precluding evidence in mitigation. We allowed the motion without formal opposition on July 31, 2008, subject to reconsideration for good cause shown.²

On August 4, 2008, the respondent sent an e-mail to the Assistant Bar Counsel assigned to this matter. The e-mail stated:

I, Edward L. Ryan, Now Resign as an Attorney in Massachusetts. Please do not communicate with me any further. [sic]

Bar Counsel notified the respondent that this was not an effective resignation, and directed the respondent’s attention to S.J.C. Rule 4:01, § 15, concerning resignation while under disciplinary investigation. The respondent declined to comply with that Rule.³

The hearing was held on August 26, 2008. The respondent did not attend. No witnesses testified; eighteen exhibits were admitted into evidence; and Bar Counsel presented an oral recommendation for discipline. Post-hearing submissions were waived.

I. Findings of Fact and Conclusions of Law⁴

Findings of Fact

1. The respondent, Edward L. Ryan, was admitted to the Massachusetts bar on December 18, 1985. Pet. ¶ 2.
2. From November 4, 1999 through May 27, 2004, the respondent was convicted of several crimes in several different courts. In addition, he violated the terms of probation in several of those matters, and he failed to report his convictions to Bar Counsel. Combining our findings under Counts One and Two,5 we set forth details of the convictions and related probation violations in paragraphs three through twenty, below.

Northampton District Court Convictions, November 1999

3. On November 4, 1999, in the Northampton District Court, the respondent admitted to sufficient facts for a finding of guilty on charges of operating an uninsured motor vehicle in violation of G.L. c. 90, § 34J (Pet. ¶ 3; Ex. 1), committing a number plate violation to conceal identification in violation of G.L. c. 90, § 23 (Pet. ¶ 3; Ex. 1), and operating a motor vehicle with registration suspended, in violation of G.L. c. 90, § 2 (Ex. 1). The court continued these charges without a finding until November 2, 2000. Bar Counsel did not present evidence of the circumstances of these crimes.

Holyoke District Court Convictions, July 2002

4. On July 11, 2002, in the Holyoke District Court, the respondent pleaded guilty to charges of failing to stop for the police in violation of G.L. c. 90, §25, and disorderly conduct in violation of G.L. c. 272, § 53. Pet. ¶ 4; Ex. 2. The court accepted the plea and found the respondent guilty of both charges. Id. The court filed the charge of failing to stop, and on the charge of disorderly conduct it imposed a sentence of ten days in the house of correction suspended until February 12, 2003, with unsupervised probation. Id.
5. The crimes that resulted in these convictions and dispositions arose from the following: On July 10, 2002, while observing a public park known to be used for drug transactions, members of the narcotics division of the Holyoke Police Department observed the respondent pull up in his automobile, hand someone money, and receive a package in exchange. Ex. 3. Officers were dispatched to stop the respondent. He refused to stop and was observed swallowing something. Id. The respondent then stopped, but when a police officer approached he drove away, striking the officer’s arm. Id. The respondent was stopped again, and he was arrested. Id. The police later arrested one of the people with whom the respondent was seen, who was carrying packets of heroin. Id.
6. On January 3, 2003, the respondent admitted that he had violated the terms of his probation under these charges, and the court sentenced the respondent to serve 10 days in the house of correction. Ex. 2. Bar Counsel did not present evidence of the respondent’s probation violation.

Northampton District Court Convictions, December 2002

7. On December 19, 2002, the Northampton District Court convicted the respondent under three unrelated sets of charges. Those charges, and the related probation violations, are as follows.
8. The court found the respondent guilty6 of threatening to commit a crime, in violation of G.L. c. 275, § 2, placed the respondent on probation until December 18, 2003, and ordered him to stay away from, and have no contact with, the victim. Pet. ¶ 7; Ex. 6.
9. The crime that resulted in this conviction and sentence arose from the following: On October 26, 2002, the respondent’s ex-girlfriend reported that he had been following her, had demanded money from her, and had told her that he was going to harm her physically. Ex. 7.
10. On May 3, 2004, the court found the respondent in violation of probation under the conviction for threatening to commit a crime. Pet. ¶ 8; Ex. 6. The court terminated the respondent’s probation on these charges while sentencing the respondent on others. Id.; Ex. 8; and see ¶ 16, below. Bar Counsel presented no evidence of the respondent’s probation violation.
11. Also on December 19, 2002, the respondent pleaded guilty to a charge of trespassing, in violation of G.L. c. 266, § 120. Pet. ¶ 6; Ex. 4. The court accepted the plea, found the respondent guilty, and filed the charges with the defendant’s consent. Id.
12. The crime that resulted in this conviction and disposition arose from the following: On November 7, 2002, the respondent was arrested in an apartment where he had been forbidden to enter. Ex. 5. The resident of the apartment was not present. Id. The respondent told the arresting officer that he was in the apartment to retrieve his clothes. Id.
13. Finally, on December 19, 2002, the court found the respondent guilty7 of assault and battery with a dangerous weapon, in violation of G.L. c. 265, § 15A, malicious destruction of property worth more than $250, in violation of G.L. c. 266, § 127, negligent operation of a motor vehicle, in violation of G.L. c. 90, § 24(2)(a), and leaving the scene of a personal injury, in violation of G.L. c. 90, § 24(2)(a1/2)(1). Pet. ¶ 9; Ex. 8. Under the count charging assault and battery with a dangerous weapon, the court sentenced the respondent to one year in the house of correction, with six months to be served and the remaining six months suspended until June 19, 2004, on the probationary conditions, among others, that the respondent enter a halfway house for six months after release from custody, use no drugs or alcohol, and submit to screens. Id. Under the other three counts, the court placed the respondent on probation until December 18, 2003. Id.
14. The crimes that resulted in these convictions and sentences arose from the following: On November 12, 2002, during a chase through a populated area, the respondent intentionally drove a stolen vehicle into the side of an occupied police cruiser, injuring the police officer driving it, and then used the stolen vehicle to physically push past the cruiser. Ex. 9. The injury to the officer and the damage to the cruiser did not prevent the officer from continuing the chase. Id. The respondent was arrested when he attempted to hide in a restaurant parking lot. Id.
15. On August 4, 2003, the court found that the respondent had violated the terms of his probation under the charges described in paragraph 14, above, and issued additional probationary orders. Pet. ¶ 10; Ex. 8. On January 26, 2004, the court withdrew the violation of probation. Ex. 8. On May 3, 2004, the court again found that the respondent had violated the terms of his probation and sentenced the respondent to serve the six months of the original sentence for assault and battery with a dangerous weapon that had been suspended, while terminating probation under the remaining charges. Pet. ¶ 10; Ex. 8. Bar Counsel presented no evidence of these probation violations.

Holyoke District Court Convictions, January 2003

16. On January 3, 2003, the Holyoke District Court convicted the respondent of receiving a stolen motor vehicle in violation of G.L. c. 266, § 28(a), negligent operation of a motor vehicle in violation of G.L. c. 90, § 24E, and failing to stop for a police officer in violation of G.L. c. 90, § 25. Pet. ¶ 17. The court sentenced the respondent to serve six months in the house of correction and to pay $300 in restitution. Id. Bar Counsel presented no evidence of the facts underlying these convictions.

Greenfield District Court Convictions, April 2004

17. On April 20, 2004, the Greenfield District Court found the respondent guilty8 of assault and battery in violation of G.L. c. 265, §13A. Pet. ¶ 11; Ex. 10. The court placed the respondent on probation until October 20, 2004, subject to the conditions, among others, that the respondent obey all state and federal laws, use no drugs or alcohol, submit to random testing, and have no contact with the victim. Id.
18. The crime that resulted in this conviction and sentence arose from the following: While highly intoxicated, the respondent went to the house of an ex-girlfriend to ask for a ride to an alcohol treatment center in Worcester. After the victim refused, the respondent attempted to push his way into her home, hitting her on the wrist with the door. The respondent fled when the victim called 9-1-1. Ex. 11.
19. On May 27, 2004, based on the respondent’s admission, the court found that the respondent had violated the terms of probation under the charge and sentence described in paragraph 18 by committing the additional crime of trespass; his probation was revoked; and he was sentenced to serve thirty days in the house of correction. Pet. ¶ 12; Ex. 10, Ex. 12, Ex. 13, Ex. 14.

Eastern Hampshire District Court Conviction, May, 2004

20. On May 24, 2004, the Eastern Hampshire District Court convicted the respondent of trespass in violation of G.L. c. 266, § 127. Pet. ¶ 18. The court sentenced the respondent to ten days in the house of correction. Id. Bar Counsel presented no evidence of the facts underlying these convictions.
21. The respondent did not notify Bar Counsel of any of the convictions described above before December 2007, in violation of S.J.C. Rule 4:01, § 12(8) (duty to report conviction within ten days). Pet. ¶¶ 13, 19.

Conclusions of Law

22. S.J.C. Rule 4:01, § 12(1), provides that “[t]he term ‘conviction’ shall include any guilty verdict or finding of guilt and any admission to or finding of sufficient facts and any plea of guilty or nolo contendere which has been accepted by the court, whether or not sentence is imposed.”
23. Under S.J.C. Rule 4:01, § 12(2), and Matter of Concemi, 422 Mass. 326, 328, 12 Mass. Att’y Disc. R. 63 (1996), the conviction of a crime conclusively establishes each element of the crime for purposes of a bar discipline proceeding.
24. Assault and battery with a dangerous weapon and malicious destruction of property are felonies. Pet. ¶ 14. Because the respondent was convicted of felony crimes, he was convicted of “serious crimes” as defined by S.J.C. Rule 4:01, § 12(3).
25. The respondent’s conduct in committing these crimes violated Mass. R. Prof. C. 8.4(b) (criminal act reflecting adversely on a lawyer’s honesty, trustworthiness, or fitness).
26. The respondent’s conduct in failing to report his convictions to Bar Counsel within ten days violated Mass. R. Prof. C. 3.4(c) (knowing violation of rule of tribunal) and 8.4(d) (conduct prejudicial to the administration of justice).
27. The respondent’s conduct in committing the crime of failing to stop for a police officer violated Mass. R. Prof. C. 8.4(d).
28. The respondent’s conduct in violating the terms of his probation violated Mass. R. Prof. C. 3.4(c) and 8.4(d).

II. Mitigation and Aggravation

29. The respondent presented no evidence in mitigation.
30. In aggravation, the respondent did not cooperate in the disciplinary process by failing to answer the amended complaint, failing to comply with the order for production of documents, and by failing to appear at the hearing. Matter of Yonce, 20 Mass. Att'y Disc. R. 552 (2004); Matter of Garfinkle, 18 Mass. Att'y Disc. R. 239, 243-244 (2002); Matter of Bartlett, 15 Mass Att’y Disc. R. 28 (1999); Matter of Victor, 14 Mass Att’y Disc. R. 755 (1998); Matter of Keefe, 7 Mass Att’y Disc. R. 133 (1991).
31. In aggravation, the respondent’s conduct displays a pattern of violations of the criminal laws and the disciplinary rules. Matter of Saab, 406 Mass. 315, 326-327, 6 Mass. Att'y Disc. R. 278, 289-290 (1989); ABA Standards for Imposing Lawyer Sanctions, § 9.22(d) (1992).
32. In aggravation, the respondent has a history of discipline for similar violations, with similar aggravating factors. Pet. ¶ 2; Ex. 15, Ex. 16. Specifically, on July 11, 2000, the respondent received an indefinite suspension, retroactive to 1999, for convictions in 1995 and 1999 of similar crimes (including shoplifting, breaking and entering, and malicious destruction of property), aggravated by the respondent’s failure to report the convictions and failure to cooperate in the disciplinary process. Id. A disciplinary history of similar violations is an especially weighty aggravating factor. Matter of Shaughnessy, 19 Mass. Att’y Disc. R. 410, 418-19 (single justice), modified, 442 Mass. 1012, 20 Mass. Att'y Disc. R. 482 (2004); Matter of Chambers, 421 Mass. 256, 260, 11 Mass. Att'y Disc. R. 31, 36 (1995).
33. The records of the respondent’s convictions and sentences indicate that alcohol and chemical dependencies contributed to the respondent’s violations. We do not minimize the severity of the respondent’s dependencies, or his difficulties overcoming them. Still, the probationary requirement accompanying some of the respondent’s convictions that he remain sober and reside at a halfway house on release from the house of correction did not prevent recurrence of the respondent’s misconduct. The respondent’s failure to comply with our order that he produce relevant documents permits the inference that those documents would not support a finding of rehabilitation. Cf. Commonwealth v. Wood, 17 Mass. App. Ct. 304 (1983) (absence of medical records justifying prescriptions permitted an inference that the prescriptions were not issued for legitimate medical reasons in the ordinary course); and see P.J. Liacos, M.S. Brodin and M. Avery, Massachusetts Evidence, §§ 5.6.1, 5.6.2, at 245-254 (7th ed. 1999 and Supp. 2006). Therefore, even if we relieved the respondent of our order excluding evidence in mitigation, we would not consider the respondent’s alcohol and chemical dependencies in mitigation, ABA Standards, § 9.32 (i), and the evidence does not support a finding of rehabilitation that, supported by other factors, we might consider as mitigation, as distinguished from the respondent's dependencies per se. Cf. Matter of Hull, 6 Mass. Att’y Disc. R. 152, 153 (1990).

III. Recommendation for Discipline

Bar counsel seeks disbarment. We agree that sanction is appropriate.

The respondent received an indefinite suspension in 2000. Despite the numerous opportunities for change the disciplinary process and the criminal justice system presented, the respondent returns to us having committed similar violations. “[I]n the absence of mitigating factors, discipline should proceed in increments of escalating severity." Chambers, 421 Mass. at 260. In all of the circumstances, disbarment is warranted, and it affords the respondent the time he apparently requires to address his addictions. See also Matter of Siniscalchi, 15 Mass. Att’y Disc. R. 555 (1999) (on subsequent conviction for drug crime, the respondent’s affidavit of resignation was accepted and the respondent was disbarred).

 

FOOTNOTES:

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

² This order followed a number of related rulings. Bar Counsel moved for, and received, an order compelling the respondent to produce records of his treatment by April 10, 2008. The respondent instead presented motions for additional time; we denied the last.At the close of the hearing, Bar Counsel requested that we take administrative notice of the respondent’s failure to produce records of his treatment for addiction and the resulting order of preclusion. We grant that request.

³ This exchange of messages is in evidence as Exhibits 17 and 18.

⁴ The matters admitted in the respondent’s letter/answer and by the respondent’s failure to respond to the amended petition shall be referred to as “Pet. ¶_,” making reference to the pertinent paragraph(s) of the amended petition; the hearing exhibits shall be referred to as “Ex._.” The petition does not entirely correspond with the court records of the respondent’s convictions and sentences introduced into evidence. The petition alleged the date and court of the convictions and otherwise gave the respondent adequate notice of the convictions for which he was required to answer, see Matter of Abbot, 437 Mass. 384, 392, 18 Mass. Att'y Disc. R. 11-13 (2002), and the matter went to a hearing in which evidence was received. Therefore, where the exhibits vary from the petition, we have relied on the exhibits.

⁵ Count Two simply added charges concerning further convictions.

⁶ The records before us do not indicate whether the guilty finding was based on a plea of guilty or an admission to sufficient facts for a finding of guilt. In accordance with the usual practice in criminal courts in these circumstances, we infer that the respondent pleaded guilty and that the court accepted the plea.

⁷ See n. 5.

⁸ See n. 5.