In the Matter of Stephanie A. Sousa

(S.J.C. Judgment of Reinstatement entered by Justice Lenk on January 9, 2012.)

MEMORANDUM OF DECISION

This matter comes before the court on an information and record of proceedings, together with a vote of the Board of Bar Overseers (board). Bar counsel filed a petition for discipline on March 13, 2007, which was brought before a hearing committee of the board pursuant to S.J.C. Rule 4:01, § 8 (3), second par, as appearing in 435 Mass 1302 (2002). The petition alleged that Stephanie A. Sousa (respondent) testified falsely under oath on two occasions involving the same former client, initially at a probation surrender hearing and subsequently at the former client's criminal trial.

The hearing committee found that the respondent had acted substantially as alleged by intentionally giving false testimony at her former client's probation surrender hearing and at his criminal trial in the District Court, and also that the respondent thereafter "lied at [her] disciplinary hearing" when she denied having had a romantic relationship with her former client. The committee concluded that the respondent violated Mass. R. Prof. C. 3.3 (a)(1), 426 Mass. 1313 (1998) (knowingly making a false statement of material fact to a tribunal); Mass. R. Prof. C. 4[.1] (knowingly offering false evidence); (Mass. R. Prof. C. 8.4 (c) (dishonesty, fraud, deceit or misrepresentation); Mass. R. Prof. C. 8.4 (d) (conduct prejudicial to the administration of justice); and Mass. R. Prof. C. 8.4 (h) (other conduct reflecting adversely on fitness to practice), and recommended that she be suspended from the practice of law for two years. The public member dissented; while accepting the committee's findings of facts and rulings of law, he stated that, in the circumstances of this case, a one-year suspension would be appropriate. The parties cross-appealed to the board from the hearing committee's recommended sanction. Bar counsel sought a permanent suspension and the respondent sought a one- or two-year suspension.

The issue on appeal became whether the respondent testified falsely in order to retaliate against her client. Although the board states that it "adopt[ed] . . . the findings of fact and conclusions of law made by the hearing committee," it in fact found, contrary to the hearing committee, that the respondent testified falsely in order to harm her client. The board thus rejected the committee's recommended sanction and instead recommended that the respondent be suspended indefinitely from the practice of law. The board filed an information pursuant to S.J.C. Rule 4:01, § 8 (4), as appearing in 435 Mass 1302 (2002), requesting this disposition. Bar counsel supports the recommendation of indefinite suspension; the respondent requests that a suspension of no more than two years be imposed.

Despite the board's "adopt[ion]" of the hearing committee's findings of fact, its conclusion about the respondent's motive for giving false testimony is obviously inconsistent with the hearing committee's finding on that subject. In making an implicit finding regarding the respondent's motive in this regard, the board engaged improperly in a determination of credibility, thereby effectively repudiating the hearing committee's finding that the respondent testified falsely "out of shame," as well as the hearing committee's explicit rejection of bar counsel's argument that the respondent's motive had been to harm her client. While the board may properly revise findings of fact in some circumstances, it is not entitled to make a finding contrary to that of the hearing committee that requires a determination of credibility. S.J.C. Rule 4:01, § 8 (4). See Matter of Kerlinsky, 428 Mass. 656, 663, cert., denied, 526 U.S. 1160 (1999)

1. Facts. The hearing committee made the following findings of fact. As stated, these findings were explicitly adopted by the board. They are supplemented where indicated by undisputed evidence in the record.

The respondent was admitted to the bar in 1992 and began representing criminal defendants as a court-appointed attorney for bar advocate programs in the Bristol and Plymouth county district courts in 1996. In that year, she represented one client in several minor criminal matters in the Brockton District Court. In March of 1997, the client was incarcerated for unrelated felonies; he was represented by different counsel on these charges. While the client was in prison, however, the respondent represented him without charge in a number of civil actions relative to prison conditions and prison discipline, including a federal lawsuit on the civil rights of inmates.

The respondent visited her former client approximately forty times during his six years of incarceration. Although the hearing committee found that some of these visits were for professional purposes, the hearing committee did not credit the respondent's testimony that almost all were for professional reasons. In addition, from November 1, 1998 through December 27, 2002, the client made over 2,800 connected telephone calls to the respondent's office and her home office.² The calls to her home office were recorded by the Department of Correction because the client had not listed the respondent's telephone number as that of an attorney. Some of these calls involved requests for legal assistance. After listening to these tapes, however, the hearing committee concluded that "numerous" calls were sexually explicit and expressed both the respondent's and the client's intentions to conduct a physical relationship once the client was released from prison.

When the client was released in December of 2002, the respondent assisted him in finding an apartment near her office; she provided him with furnishings, clothing and cash, and also made a down payment on a cellular telephone for his use.³ The hearing committee credited the respondent's testimony that the client, who had been incarcerated beginning in his late teens, did not know how to perform basic tasks such as food shopping, going to the bank or using the post office, and that she assisted him with these tasks. However, the committee did not credit the respondent's testimony that she acted merely as a "mentor" or "friend," and found that the two had a "romantic and sexual" relationship.

The relationship deteriorated after about six weeks when the respondent and the client had an argument over the client's $900 cellular telephone bill. The hearing committee found that neither the respondent's nor the client's testimony about the cause of the altercation was entirely reliable, but that portions of both of their testimonies were credible.⁴The committee concluded that the client threatened the respondent, and that she, in turn, responded with verbal threats to return him to prison. The committee credited the respondent's testimony that she made the threats in an effort to keep the client away from her without involving the police and to keep the relationship secret.

After this altercation, the former client telephoned the respondent repeatedly at her office and her home office, despite her refusal to answer the calls and her requests that he stay away. On February 10, 2003, the client arrived at the respondent's office and accused her secretary of lying about where the respondent was; he frightened the secretary so much she left work for the day. When the respondent confronted the client about his threats to her secretary, he pressured her not to contact the police. He also made threatening telephone calls to her home on that day; she subsequently changed her home telephone number. On February 18, 2003, after the respondent again refused to meet with her former client, she discovered that the rear window of her car had been broken. When confronted, the client responded, "It's a coincidence how things happen to people who don't listen to me."

The hearing committee credited the respondent's testimony that she made efforts to stop the client's behavior without contacting the police; she testified that she hoped the client would stay away from her if he knew she would contact the police, and that she wanted to keep the relationship secret. In addition, the parties stipulated that, at one point, the respondent sought help from the client's boxing coach, who was also a constable, in getting the client to stay away from her; the coach spoke with the client and asked him to stay away from the respondent, her home, and her office. The coach offered to serve a no trespass order, but the respondent declined because of her concern that it would impact the client's probation.

On another occasion, the client arrived at the respondent's home and confronted her when she was alone with her young daughter. He left when she started to telephone the police. Later that day, he repeatedly called her office; the respondent told him to stay away from her. Instead, the client came to her office; finding she was not there, he left with the respondent's briefcase and her cellular telephone. When she telephoned her own number, the client answered and said that if the respondent wanted her property back, she would have to meet with him. When she refused, he threatened to kill her. At that point, she contacted the police and hired a bodyguard. A complaint issued in the Brockton District Court charging the client with larceny over $250, threatening to commit a crime, and intimidating a witness.

The following morning, the respondent found her briefcase, with her cellular telephone inside, in her driveway. The briefcase also contained a photograph of the client's mother and a note stating that if he went to jail, he loved her. On March 13, 2003, the client again went to the respondent's office and requested financial assistance; she told him to leave. On March 14, 2003, the client followed the respondent in his car while she was driving her daughter to day care. When she pulled into a police station, the client tried to run away on foot; he was eventually apprehended by the police.

In a period of less than two weeks in March and April of 2003, while the former client was being held in the Plymouth County House of Correction on the above charges, he made almost one thousand telephone calls to her home office.⁵ He told prison officials that the telephone number he was calling was his sister's. A complaint subsequently issued in the Attleboro District Court charging the client with intimidating a witness, criminal harassment, annoying telephone calls and stalking.

The respondent testified under oath at her former client's probation surrender hearing on July 22, 2003. She stated that her relationship with him was that of a friend, but not romantic. She testified that the client made "advances" but that "nothing" happened and that the advances were "stopped." The respondent also stated that she had visited the client no more than twenty times during the six years he was incarcerated. Following the hearing, the client was found in violation of his probation and returned to prison; the board found that the respondent's testimony concerning her relationship with the client was material to the probation surrender.

In August, 2003, the client filed a grievance against the respondent with the office of bar counsel. In October of 2003, two investigators from bar advocate programs conducted an investigation into the nature of the respondent's relationship with her former client; the investigation was initiated because of a letter to the Plymouth County bar advocate program from the client's successor counsel. The investigators determined that the respondent's failure to terminate her relationship with her former client demonstrated a failure of professional judgment and "created an appearance of impropriety"; they suspended the respondent from "duty days" until she completed a course on professional ethics.

In September of 2004, the respondent testified at her former client's criminal trial in the Brockton District Court on charges resulting from the respondent's complaints. She stated that her relationship with him had initially been only professional, and that, beginning in October or November of 2002, she acted as a "mentor" to him. The respondent further testified that, although her former client used a Spanish phrase that could mean "I love you," she understood his meaning as being that of a friend or family member. She testified that she had never responded with "anything romantic" and had repeatedly explained that she was "just a friend." She also testified that she had visited the client in prison "at most" twenty times over six years. The client was acquitted of all charges; the charges pending in the Attleboro District Court were subsequently dismissed.

In March of 2005, the client filed a motion to reconsider the denial of his appeal from the finding of a probation violation. This motion was allowed on June 13, 2005, and the client was released from prison. The client's successor counsel obtained copies of the tape-recorded conversations between the client and the respondent while the client was in prison and relied on these conversations during the hearing on the defendant's motion. The motion judge found that, even given the evidence of the actual nature of the respondent's relationship with the client, there was sufficient evidence to support both the finding of a probation violation and the sentence imposed on the client, but that the "integrity of [the] evidence was fatally flawed and the integrity of the hearing was impaired because of the false testimony of [the respondent]"; the judge emphasized that an attorney's lying under oath was "qualitatively different” from other types of false statements or presenting of false evidence by an attorney. As a result of this ruling, the client was released from prison, but an additional probationary term of no contact with the respondent was imposed on the client.

At her disciplinary hearing, the respondent testified that her testimony at the probation surrender hearing and the criminal trial was given to the best of her knowledge and belief. The hearing committee did not credit this testimony and found that the respondent had intentionally misrepresented the nature of her relationship with her former client. The committee also found that, by the end of the client's criminal trial, the respondent was aware of his statement to the bar advocate staff attorney that the client believed the respondent had falsified charges against him because she wanted to have him returned to prison in retaliation for his having ended their romantic relationship. Therefore, the committee concluded, the respondent was aware that her testimony concerned a material issue that her former client was likely to introduce at his criminal trial. However, the committee further found that, although the respondent's misrepresentations were "material," she testified truthfully about the "central" issues in the litigation at both the probation surrender hearing and at the client's criminal trial.

Bar counsel suggested several factors in aggravation that were rejected by the hearing committee.⁶ As stated, bar counsel argued that a significant factor in aggravation was that the respondent testified falsely because she wanted to harm her client. Bar counsel also argued that the respondent's conduct caused actual harm to her client by causing his return to prison, and that the respondent had not acknowledged her misconduct. See Matter of Clooney, 403 Mass. 654, 657 (1988). The committee found that the respondent did not testify falsely to harm her client, nor from "greed," but rather out of "shame." The hearing committee also found that there was no actual harm to the client. It determined that the client's conduct merited revocation of his probation, and that there was adequate evidence to support the surrender. By giving false testimony, however, that caused the court to release the client whose probation had been justifiably surrendered, the committee concluded that the respondent prejudiced the administration of justice. The committee also explicitly rejected bar counsel's argument about the respondent's failure to acknowledge her misconduct and instead found that the respondent was not "unmindful of ... basic ethical precepts of the legal profession." Id. The committee concluded that it would "not penalize a respondent attorney for exercising her right to an evidentiary hearing."

2. The appropriate sanction. Each case of attorney discipline must be determined on its own merits, and each attorney "must receive the disposition most appropriate in the circumstances." Matter of the Discipline of an Attorney, 392 Mass. 827, 837 (1984). The primary consideration in bar discipline is "the effect upon, and perception of, the public and the bar." Matter of Kerlinsky, 428 Mass. 656, 664, cert, denied, 526 U.S. 1160 (1999), quoting Matter of Finnerty, 418 Mass. 821, 829 (1994). One of the goals of bar discipline cases "is to ensure that the disposition imposed should not be markedly disparate from the dispositions imposed on attorneys in similar cases." Matter of the Discipline of an Attorney, supra. at 834, citing Matter of Alter, 389 Mass. 153, 156 (1983). Where an attorney has made false statements under oath, the presumptive sanction is a two-year suspension from the practice of law. See Matter of O'Donnell, 23 Mass. Att'y Disc. Rep. 508, 514, n.3 (2007) (false testimony under oath alone would have merited a two-year suspension, but misuse of client funds justified indefinite suspension); Matter of Shaw, 427 Mass. 764, 767-769 (1998) (two-year suspension for false testimony in court, filing false affidavits and issuing misleading opinion letters signed under oath with forged notarization).

Factors warranting a departure from the standard sanction include prior misconduct, the nature and purpose of the misrepresentation, the harm resulting and mitigating or aggravating circumstances. See, e.g., Matter of Kerlinsky, supra at 664-665 (three-year suspension for knowingly advancing claim that was unwarranted, assisting client in fraudulent conduct, filing false affidavits and misrepresenting client's employment and wages); Matter of Early, 21 Mass. Att'y Disc. Rep. 220, 226 (2005) (three-year suspension for numerous violations including misrepresentation "regarding a crucial and material fact in the litigation," made under oath "for personal gain," where attorney who owed child fiduciary duty attempted to misappropriate funds from child's trust). In addition, cases involving false statements under oath in which the false statements were made, as here, about matters outside of the attorney's practice of law, have resulted in sanctions of significantly less than a two-year suspension. See, e.g., Matter of Vinci, 23 Mass. Att'y Discipline Rep. 742, 742-744 (2007) (nine-month suspension for making false statement of material fact to tribunal, falsifying evidence and filing false financial statements with the court); Matter of Ferguson, 21 Mass. Att'y Discipline Rep. 231, 232-233, 145-246, 247-250 (2005) (four-month suspension for charges of committing assault against wife aggravated by "especially egregious" false testimony at attorney's trial on assault charges).

Here, as stated, the board determined that aggravating factors, in particular that the respondent's misrepresentations were made in an effort to harm her former client by sending him back to prison, merited a significant increase in the two-year sanction recommended by the hearing committee. The board emphasized that in other cases involving false statements under oath where a two- or three-year suspension had been imposed, the attorney had lied either to protect himself or in an effort to help a client.⁷ Because it adopted its own implicit finding that the respondent's misrepresentations were made to harm rather than to help her client, the board determined that the respondent's conduct was even more egregious than that of the attorney in Matter of Foley, 439 Mass. 324, 324, 339 (2003), in which the attorney received a three-year suspension for "calculated corruption" in "assisting and encouraging his client in the preparation of a fabricated defense to a criminal complaint" and also presenting the fabricated defense to the prosecutor.

As additional grounds in aggravation, the board pointed out that the respondent's conduct continued over a period of four years, and involved false testimony both in two criminal proceedings and in her own disciplinary hearing. The board stated that the fact that respondent made "intentionally false" statements before the hearing committee "should be weighed substantially in aggravation." But see Matter of Beatrice, 14 Mass. Att'y .Discipline Rep. 56, 60, 65, 70-71 (1998) (two-year suspension for lying under oath about relationship with suspended attorney working in his office, mishandling bankruptcy proceedings and charging a contingency fee in a criminal case, aggravated by testifying falsely to hearing committee) . The board concluded that the respondent's conduct was a serious interference with justice, whether her client was harmed by unjust imprisonment or society was harmed by his unwarranted release, and that such conduct warrants an indefinite suspension.

The recommendations of the board are entitled to great weight. See Matter of Johnson, 452 Mass. 1010, 1011 (2008); Matter of Foley, supra at 333. Nonetheless, the hearing committee is the sole judge of the credibility of witnesses appearing before it. See S.J.C. Rule 4:01, § 8 (4); Matter of Saab, 406 Mass. 315, 328 (1989), citing Salem v. Massachusetts Comm'n Against Discrimination, 404 Mass. 170, 174 (1989); Matter of McCabe, 13 Mass. Att'y Discipline Rep. 501, 507 (1997) (the findings of the hearing committee are entitled to deference similar to that accorded the findings of a jury). Therefore, the board may not reject a credibility finding "unless it can 'be said with certainty' that the finding is 'wholly inconsistent with another . . . finding.'" Matter of McCabe, supra at 507, quoting Matter of Hachey, 11 Mass. Att'y Discipline Rep. 102, 103 (1995). See also Matter of Provanzano, 5 Mass. Att'y Discipline Rep. 300, 304 (1987) (committee's findings "will not be disturbed absent some clear error").

Here, notwithstanding the hearing committee's explicit findings that the respondent did not testify falsely to harm her client, but rather out of "shame;" that the false testimony involved an issue not central to the proceedings; and that the respondent's testimony about the underlying issues was truthful, the board relied heavily on its own assertion that the respondent intended to harm her client as a significant factor in aggravation. Thus, the board evidently rejected the hearing committee's credibility finding regarding the respondent's intent, a determination which, at least on this record, it was not entitled to make. See, e.g., Matter of Gonick, 15 Mass. Att'y Discipline Rep. 230, 234 (1999) (hearing committee finding concerning respondent's intent cannot be disturbed unless record does not support finding). While the board "shall review, and may revise, the findings of fact" of the hearing committee, it must pay "due respect to the role of the hearing committee . . . as the sole judge of the credibility of the testimony presented at the hearing." S.J.C. Rule 4:01, § 8 (4). Questions of intent normally involve credibility determinations. See Matter of Kerlinsky, supra at 663. The board could not reject the finding on the respondent's intent unless there was a lack of evidence to support that finding.

There is, however, ample evidence in this record to support the hearing committee's finding as to the respondent's intent in contacting the police, as well as its finding that the respondent made efforts to stop the client's stalking without contacting the police specifically because she did not want to risk his being sent back to prison. The hearing committee found that the respondent "had good reason" to report the "stalking and threatening behavior" to the police. The client had threatened the respondent's life, had damaged her car, had shown up at her house despite requests that he not do so, had followed her when she was driving her young daughter to daycare, and had frightened her secretary into leaving the office; indeed, the client was arrested in the course of running from the police after they observed him following the respondent and her daughter. The parties stipulated to one of the respondent’s efforts, despite these actions, to avoid contacting the police. The committee determined further that, although the respondent testified falsely at the client's criminal proceedings about her relationship with the client, her false testimony was "material but not central" to the issues in the litigation, and that her testimony about the underlying issues was truthful. As stated, the judge who released the client from prison also found that there was sufficient evidence of stalking to have returned the client to prison.⁸

Nothing here establishes that the respondent's conduct was more egregious than that of other attorneys who have testified falsely under oath and received the presumptive two-year sanction, nor have aggravating factors been shown that would justify an increase. While the board emphasized that the respondent's conduct in lying first at the probation surrender hearing, then at the criminal trial, and then before the hearing committee, was deliberately planned and continued over a period of four years, in Matter of Foley, where a three-year suspension was imposed, the court noted that the attorney's conduct included "calculated corruption" that "repeatedly reflect[ed] complete disregard, if not utter contempt, for the fundamental ethical obligations of an officer of the court," involved his client in "premeditat[ed] and deliberate[]" misconduct, and also appeared to be his common method of practice. Matter of Foley, supra at 334, 335, 339. Similarly, in Matter of Aufiero, 13 Mass. Att'y Disc. Rep. 6, 25 (1997), the attorney received a two-year suspension where the board found that he deliberately continued his false statements "for years" after his initial attempts at covering up his actions.

Furthermore, bar counsel's reliance on Matter of Bailey, 439 Mass. 134, 149, 151 (2003) (attorney's false testimony "under oath, by itself, can justify disbarment") (emphasis supplied) is misplaced. In that case, the attorney was disbarred not only for lying to a judge under oath, but for misappropriating client funds, engaging in ex-parte communications with a judge in an effort to influence the outcome of a proceeding, divulging confidential client information, and violating court orders. Id.⁹

Conclusion. A judgment shall enter suspending the respondent from the practice of law in the Commonwealth for a period of two years.

 

FOOTNOTES:

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

² The client used his personal identification number to place over 26,000 telephone calls to these numbers, but many did not connect.

³ The respondent was divorced at the time, but was still living with her ex-husband and their young child.

⁴ The client testified that the respondent flew into a rage over her suspicion that he was seeing another woman, based on his telephone calls to specific telephone numbers; the respondent testified that she was afraid the client was engaging in drug transactions.

⁵ When the client was released, a condition was added to the terms of his probation that he have no contact with the respondent.

⁶ The hearing committee also rejected all of respondent’s factors in mitigation.

⁷ See, e.g., Matter of Spallina, 15 Mass. Att'y Discipline Rep. 568, 571, 592-594 (1999) (two-year suspension for, inter alia, improperly instituting actions attaching funds with intent to circumvent divorce judgment against client, and making false, deceptive or misleading representations under oath, where attorney "engaged in a scheme to evade and frustrate the Probate Court judgment primarily for his own personal benefit"); Matter of Kelly, 14 Mass. Att'y Discipline Rep. 346, 349, 350-354 (1998) (two-year suspension for false testimony under oath regarding client's claim against his insurer, corrected when attorney realized he would likely be discovered, misrepresentations in closing documents, and conflict of interest); Matter of Aufiero, 13 Mass. Att'y Discipline Rep. 6, 14-15, 17, 21-23, 25-27 (1997) (two-year suspension for signing opinion letter he had not reviewed concerning topic about which attorney "was ignorant," which ultimately caused harm to client, and misrepresentation under oath to cover up signing of letter, where attorney was motivated "by selfish concerns from the outset” and “maintained his mendacity for years after the initial signing”).

⁸ Bar counsel argued that the client’s behavior was not stalking but rather a "lover's quarrel," and that the judge would have acted differently had she been aware of the true relationship. However, the judge made her findings that there was sufficient evidence to have returned the client to prison after learning the full extent of the respondent's "intense romantic" relationship with the client, at a hearing on the client' s motion to revise and revoke the sentence received at his probation surrender hearing.

⁹ Because of the disposition reached here, the respondent’s claims regarding several evidentiary issues are not addressed.

 

Related to No. BD-2008-089

• S.J.C. Judgment of Reinstatement entered by Justice Lenk, 01/09/2012