No. BD-2003-080
S.J.C. Order Remanding to the Board of Bar Overseers entered by Justice Gants on May 27, 2010 1
MEMORANDUM OF DECISION
On December 17, 2003, a single justice of this court ordered that attorney Gerald L. Shyavitz be suspended from the practice of law in Massachusetts for an indefinite period. Bar Counsel's petition for discipline alleged that Shyavitz, as managing partner of the law firm of Shyavitz & Shyavitz, had (1) failed to keep adequate records of client trust funds and had commingled personal or business funds with trust funds, (2) as to two clients, he had intentionally misappropriated funds due the clients' creditors with intent to deprive the creditors of these funds at least temporarily, with actual deprivation resulting, and (3) as to two other clients, he had deprived them of funds due them, at least temporarily, with actual deprivation resulting. Shyavitz and Bar Counsel jointly recommended the sanction of indefinite suspension.
Shyavitz now petitions for reinstatement to the bar under S.J.C. Rule 4:01, § 18(4), as amended, 394 Mass. 1106 (1985). The Hearing Panel found that Shyavitz had met his burden of establishing that he possesses the moral qualifications, competency, and learning in the law to be reinstated to practice, and that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar. The Hearing Panel recommended his reinstatement, but with three conditions: (1) that he purchase and maintain professional liability insurance with coverage of at least $500,000 per claimant and a deductible not to exceed $10,000 for a period of five years; (2) that he refrain from handling any client funds for a period of five years, and thereafter agree to have all client trust accounts audited annually for a period of five years at his expense; and (3) that he accept peer review support from a named attorney. The Board also recommended reinstatement, but with somewhat different conditions: (1) that he obtain professional liability insurance if he returns to the private practice of law; (2) that he refrain from handling client funds for five years; and (3) that he not engage in the practice of law as a sole practitioner.2
While deference is given to the decision of the board, this court retains ultimate authority to decide a person's fitness to practice law in the Commonwealth. G.L. c. 221, § 37. See Matter of Prager, 422 Mass. 86, 89 (1996). "The test of fitness for reinstatement is two pronged. Not only must a petitioner demonstrate the requisite moral qualifications and learning in the law, but he also must show that his resumption of the practice of law will not be detrimental to the integrity of the bar, the administration of justice, or the public interest.." Id. at 93, citing S.J.C. Rule 4:01, § 18(5), as amended, 394 Mass. 1106 (1985) . The petitioner must show that he has so rehabilitated himself that he "currently possesses the necessary moral character to be admitted to the bar of the Commonwealth," id. at 92, and will "inspire public confidence once again, in spite of his previous actions." Id. at 89, quoting Matter of Hiss, 368 Mass. 447, 452 (1975). "[I]t is appropriate, despite the lack of specific directives, to consider the public perception of and confidence in the bar when determining the fitness of original applicants to practice law in the Commonwealth." Matter of Prager, supra at 93.
I recognize that reinstatement on conditions is often appropriate and consistent with the standard for reinstatement. Public confidence is sometimes best served when a disbarred or suspended attorney who is reinstated is required, as a condition of reinstatement, to demonstrate his continued sobriety, his continuing legal education, or his adherence to accounting principles to protect client trust funds. I do not see, however, how the Board's condition that Shyavitz refrain from handling client funds for five years is consistent with the Board's implicit finding, by its recommendation of reinstatement, that Shyavitz is morally fit to practice law, that he is worthy of public confidence, and that he will be perceived by the public as morally fit. The condition suggests that he is fit to practice law as long as he does not handle client funds, which suggests that he cannot be trusted with those funds. This condition is significantly different from a condition requiring a reinstated attorney to conduct independent audits of client trust fund accounts. Such a condition applies the Russian proverb of "trust, but verify;" the prohibition against handling any client funds suggests that the reinstated attorney is unworthy of trust, even with verification. I do not believe the public will have (or should have) confidence in an attorney without also having confidence that the attorney will safeguard any client funds he may receive.
Consequently, I do not accept the Board's recommendation that Shyavitz is worthy of reinstatement as an attorney provided he not be allowed for five years to handle client funds. The issue before me, then, is whether Shyavitz is worthy of reinstatement to the bar without this condition. There is nothing in the record or any indication from the hearing before me that the Board considered whether it would recommend reinstatement if Shyavitz were permitted to handle client funds. Because I respect the knowledge and experience of the Board, and give due deference to its decisions, I do not wish to decide the question of reinstatement without first learning whether the Board recommends reinstatement if Shyavitz is permitted to handle client funds. (perhaps with other conditions). 1, therefore, remand this matter to the Board with direction that it provide me this guidance no later than July 30, 2010.
FOOTNOTES:
1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.
2 At the hearing, bar counsel explained that this third condition was imposed because the board apparently did not see how an attorney could be a sole practitioner without handling client funds.
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