In the Matter of Richard M. Passalacqua

HEARING PANEL REPORT

I. Introduction

Represented by counsel, on June 20, 2017, the petitioner, Richard M. Passalacqua, filed a petition for reinstatement with the Supreme Judicial Court. He seeks reinstatement following the Court's order of temporary suspension entered on December 31, 1997 (Matter of Passalacqua, 13 Mass. Att'y Disc. R. 607 (1997)), and the Court's order of indefinite suspension, entered on August 26, 1999, retroactive to December 31, 1997. Matter of Passalacqua, 15 Mass. Att'y Disc. R. 486 (1999).

We received evidence under the petition at an evidentiary hearing on Monday, October 16, 2017. The petition was opposed by Bar Counsel. The petitioner testified on his own behalf and called three other witnesses: Thomas Freda, Esq. , who hired the petitioner as a paralegal; Dennis M. Spurling, Esq., who has used the petitioner's non-legal services -and who also hired the petitioner as a paralegal; and Paul Koziel, Esq., who had worked for the petitioner and maintained a professional relationship with him afterwards. Bar counsel called no witnesses. Eight exhibits were admitted into evidence. ¹ After considering the evidence and testimony, the panel recommends that the petition for reinstatement be denied, primarily because the petitioner has not maintained adequate learning and competence in the law. Still, we also recommend that the petitioner be allowed to file a successive petition six months after the effective date of the order denying reinstatement.

II. Standard

A petitioner for reinstatement to the bar bears the burden of proving that he possesses "the moral qualifications, competency, and learning in the law required for admission to practice law in this Commonwealth, and that his or her resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest." S.J.C. Rule 4:01, § 18(5); Matter of Daniels, 442 Mass. 1037, 1038, 20 Mass. Att'y Disc. R. 120, 122-123 (2004) (rescript). See Matter of Dawkins, 432 Mass. 1009, 1010, 16 Mass. Att'y Disc. R. 94, 95 (2000) (rescript); Matter of Pool, 401 Mass. 460, 463, 5 Mass. Att'y Disc. R. 290,293 (1988). Rule 4:01, § 18(5) establishes two distinct requirements, focusing, respectively, on (i) the personal characteristics of the petitioner; and (ii) the effect of reinstatement on the bar and the public. Matter of Gordon, 385 Mass. 48, 52, 3 Mass. Att'y Disc. R. 69, 73 (1982).

In making these determinations, a panel considering a petition for reinstatement "looks to '(1) the nature of the original offense for which the petitioner was [suspended], (2) the petitioner's character, maturity, and experience at the time of his [suspension], (3) the petitioner's occupations and conduct in the time since his [suspension], (4) the time elapsed since the [suspension], and (5) the petitioner's present competence in legal skills."' Daniels, 442 Mass. at 1038, 20 Mass. Att'y Disc. R. at 122-123, quoting Matter of Prager, 422 Mass. 86, 92 (1996), and Matter of Hiss, 368 Mass. 447,460, 1 Mass. Att'y Disc. R. 122, 133 (1975).

III. Disciplinary Background

The petitioner was indefinitely suspended following the Court's acceptance of his affidavit of resignation and a joint recommendation for indefinite suspension, retroactive to the date of his temporary suspension.

The petitioner's affidavit of resignation admitted that sufficient evidence existed to prove by a preponderance of the evidence that he had engaged in the following misconduct (15 Mass Att'y Disc. R. 486; Ex. 2):

A client retained the petitioner to represent her in a divorce matter in 1995. During the divorce proceedings, the petitioner received a tax refund check payable to the client and the client's spouse in the amount of $1,355. The petitioner should have held the money or disbursed it to the parties. Instead, he endorsed the check without authority from either party, deposited it into his IOLTA account, and withdrew nearly all of it by checks payable to himself. The petitioner misrepresented to the client that he had not received the check, but the client contacted the IRS and learned the truth. The client fired the petitioner, and her successor counsel demanded the money. When payment was not made, the client filed an application for a criminal complaint, which issued. The petitioner paid the client and the criminal complaint was dismissed. However, in his affidavit in support of the motion to dismiss the complaint, the petitioner misrepresented to the court that he had held the funds pending written authorization from the client and her spouse.

In another matter, in 1997, the petitioner received $2,000 from a client to pay towards child support arrears and thereby purge the client's contempt. The petitioner misused these funds, also, and issued an NSF check to the client's spouse. After the check was dishonored, the petitioner made unkept promises to pay and misrepresentations to the parties and to the court about what had happened to the money.

In a third matter, the petitioner had received a public reprimand conditioned on the petitioner causing an accountant to certify the proper maintenance of his trust accounts. Two reports were not timely and omitted the foregoing misuse of funds. The third required report was never filed. The petitioner did not comply with the resulting order of the Court limiting his practice to criminal law, and he failed to cooperate with bar counsel's investigation. Consequently, effective December 31, 1997 the petitioner was temporarily suspended from any practice of law whatsoever. When the petitioner's resignation was accepted, the resulting indefinite suspension was effective retroactively to the date of that temporary suspension.

IV. Findings

A. Moral Qualifications

We find that, while the matter is close, the petitioner has demonstrated that he has "the moral qualifications ... required for admission to practice law in this Commonwealth ....” S.J.C. Rule 4:01, § 18(5).

We credit that the petitioner is genuinely remorseful and committed to avoiding misconduct in the future. Tr. 90-91, 93-94, 132-133, 146-14 7 (Passalacqua). He understands and acknowledges the wrongfulness of his misconduct and does not seek to shift blame to others. Tr. 81-82, 90-91 , 98-110, 144-145, 146 (Passalacqua); Tr. 49-50 (Spurling); Tr. 60-62 (Koziell). He acknowledges that his abuse of alcohol played a role in his misconduct, and we credit that he has ceased using alcohol to self-medicate depression arising from problems for which he has since sought professional help. Tr. 90-91 , 130-133, 143 (Passalacqua).

The mere passage of time alone is not a basis for reinstatement. Matter of Waitz, 416 Mass. 298, 305, 9 Mass. Atty. Disc. R. 336, 343 (1993). Nevertheless, we are required to consider "the nature of the original offense for which the petitioner was [suspended], .. . the petitioner's character, maturity, and experience at the time of his [suspension], [and] the time elapsed since the [suspension] .... “Daniels, 442 Mass. at 1038, 20 Mass. Att'y Disc. R. at 122- 123. We find, based on all of the credible evidence of reform and current moral character that the twenty years that have elapsed since the petitioner's indefinite suspension provided him with sufficient time to reform himself.

Our finding of current moral fitness is based on our crediting the respondent's testimony about reform and remorse, his acceptance of responsibility, and his acknowledgment of the circumstances contributing to his misconduct, coupled with his efforts to obtain help to address them, as well as the petitioner's conduct during his suspension. Demonstrating his sense of personal responsibility, the petitioner developed a non-legal business to help support himself and his family. Tr. 82-83 (Passalacqua). He continued that business despite the increasing limitations imposed by his multiple sclerosis. Tr. 83-84, 111 (Passalacqua). He also assisted a disabled neighbor on a daily basis until his own disability prevented it. Tr. 112-113 (Passalacqua); Ex. 1.

The petitioner sought employment as a paralegal before seeking reinstatement, Tr. 87 (Passalacqua), giving his employers some opportunity to observe his morals as well as his competence. Neither of those employers, who were aware of his disciplinary history, had any concerns about the petitioner's moral fitness for reinstatement. Tr. 28-29 (Freda); Tr. 38-39, 42- 43, 46 (Spurling). See also Tr. 65-66 (Koziell).

A "fundamental precept of our system is that a person can be rehabilitated." Matter of Ellis, 457 Mass. 413,414, 26 Mass. Att'y Disc. R. 158, 163 (2010). The petitioner has satisfied us by a preponderance of the evidence that he has led '" a sufficiently exemplary life to inspire public confidence once again, in spite of his previous actions,"'² and that he "is a person worthy of trust."³ The conduct giving rise to the petitioner's indefinite suspension is "conclusive evidence that he was, at the time, morally unfit to practice law ....” and that misconduct “continued to be evidence of his lack of moral character ... when he petitioned for reinstatement." Dawkins, 432 Mass. at 1010-1011, 16 Mass. Att'y Disc. R. at 95 (to same effect, see Centracchio, 345 Mass. at 346, Matter of Waitz, 416 Mass. at 304, 9 Mass. Atty. Disc. R. at 342. We find that the petitioner has overcome the presumption arising from his indefinite suspension. He has demonstrated "[r]eform ... manifested by some external evidence ...” going beyond "the passage of time alone [which] is insufficient to warrant reinstatement.”⁴ The petitioner has "establish[ed] affirmatively that, during his suspension period, he [has] redeemed himself and become 'a person proper to be held out by the court to the public as trustworthy."'⁵

Nevertheless, there were certain aspects of the petitioner's presentation concerning his moral character with which we struggled. Because we recommend against reinstatement based primarily on the petitioner's failure to maintain learning and competence in the law, we take this opportunity to point out those matters that might be handled differently before a second reinstatement panel.

The respondent prepared his responses to the reinstatement questionnaire, part one. Tr. 94-95 (Passalacqua). He described the misconduct leading to his indefinite suspension as follows: "In general, I was suspended because I did not comply with the probationary terms of an earlier disciplinary matter, which imposed conditions on my handling of client funds. Copies of the Order of Immediate Temporary Partial Suspension and Order of Indefinite Suspension describing my misconduct in this case are attached, ... “Ex 1; Tr. 95-96 (Passalacqua). The petitioner thereby failed to acknowledge expressly that he had twice intentionally misused client funds. This failure, however, was cured to the Panel's satisfaction by his credible testimony before us acknowledging his wrongdoing. Whatever the petitioner's excuse for the inadequate description of his misconduct in his responses to the reinstatement questionnaire, that failing should not be repeated on re-application.⁶

Exhibit 8, which has been impounded, contains personal materials concerning alleged mitigation that the petitioner offered in his unsuccessful effort to avoid his temporary suspension two decades ago. We found that document, unsupported by testimony from the petitioner's professional care providers, far less persuasive that the petitioner's own testimony about current fitness. We also note the disconnect between what Exhibit 8 says about the circumstances building up to the misconduct and the petitioner's own testimony on that subject, and his jumbled testimony about seeking psychotherapy.⁷ Tr. 128, 129-130 (Passalacqua).

Bar counsel appears to criticize the petitioner for not having engaged in more charitable activities during his suspension. Tr. 112-113 (Passalacqua). We reject the notion that a petitioner for reinstatement must present a list of charitable works in addition to other evidence of current moral fitness. Such a list would have helped the petitioner here, given the concerns we have expressed. But it was not necessary.

For the foregoing reasons, we find that the petitioner has demonstrated current moral fitness by a bare preponderance of the evidence. Still, we recommend that on any re-application a more robust case be presented.

B. Learning in the Law

The petitioner failed to carry his burden of demonstrating that he has the "competency and learning in the law required for admission to practice law in this Commonwealth." S.J.C. Rule 4:01, § 18. The only continuing legal education the petitioner attended during his suspension was a course on the rules of professional conduct, attended in anticipation of his taking the Multistate Professional Responsibility Examination for this reinstatement proceeding. Tr. 117 (Passalacqua). Asked about maintaining learning in the law, the petitioner described continuing legal education as follows:

There are courses offered by the bar and all sorts of organizations. As far as I know, there is no statutory requirement, but in order to keep up with the law you take these courses. If I was doing wills or trusts, I would contact the board or the bar organization to find out what is a good course to take to keep up on current changes.

Tr. 139-140 (Passalacqua). Asked whether he understood that "demonstrating learning in the law means to take courses in legal matters" he responded: "Sure, and reading. Continuing your current knowledge is to talk to other lawyers who are doing the same thing. Besides reading and taking courses, you discuss it with other lawyers." Tr. 140-141 (Passalacqua). Nevertheless, he testified that "[c]ontinuing legal education was not something I was doing because I wasn't practicing law ... I was only concerned with [running Mortgage Discharge⁸]." Tr. 117-118 (Passalacqua).

The petitioner described only generically an effort to "keep up with developments in the law" concerning real estate. Ex. 1 (Reinstatement Questionnaire, Part I). He did not describe the sources on which he relied in those efforts, but it is clear from his testimony, cited above, that this did not include attending courses. He also claimed that he "remained informed" about changes in the law by reading The Massachusetts Lawyers Weekly and having discussions, only generally referenced, with colleagues, id., Tr. 88 (Passalacqua), but there was no evidence about the frequency or depth of these activities or the legal subject matters they covered.

The petitioner observed an undisclosed number of six-person jury trials in the district court. Tr. 88 (Passalacqua). Finally, he used his research and writing skills in his employment as a paralegal. Ex. 1. This evidence, too, remained at a very general level, and it gave this panel no basis for concluding that the petitioner has maintained learning and competence in any substantial or systematic way over the past 20 years that he has not practiced law.

Finally, although the petitioner's misconduct included mishandling trust funds, he did not attend bar counsel's course on trust accounting. Tr. 118 (Passalacqua). Before us, he was unable to describe the types of trust account records he is required to keep. Tr. 119-120 (Passalacqua). It is to the petitioner's credit that he has thought through how to structure his billings to avoid needing a trust account. Tr. 147-149 (Passalacqua). Still, reinstatement may not be conditioned on the attorney agreeing not to handle trust funds, because there is a fundamental disconnect between holding out an attorney as trustworthy while not trusting him to handle others' money. See Matter ofShyavitz, 26 Mass. Att'y Disc. R. 612, 613-614 (2010). Further, despite telling us that he would not need a trust account, the petitioner testified that he probably would maintain an IOLTA account. Tr. 149 (Passalacqua). As a result, his lack of knowledge about, and his failure to attend training in, how to handle trust accounts is a serious shortcoming in his knowledge of the law.

In light of the fact that the petitioner has been suspended since 1997, he has failed to meet his burden of showing that he presently has the learning in the law required for admission to practice. He joined the bar in 1975; his twenty-two-years career in the law, from 1975 to 1997, lasted only two years longer than his twenty-year suspension from 1997 to the present. The petitioner is entitled to some credit for the competence and learning he demonstrated during those two decades of practice. See Tr. 58 (Koziell) (before his suspension the petitioner was passionate about criminal law and a good mentor). Yet that is negated by the length of his suspension.

Other attorneys have been denied reinstatement where their evidence of competence and learning was little different from this petitioner's. Matter of Dawkins, 432 Mass. at 1011 , 16 Mass. Att'y Disc. R. at 96 (reading the "advance sheets," an unidentified book on ethics and Massachusetts Lawyers Weekly when able to borrow a copy, insufficient to show competency and learning); Matter of Waitz, 416 Mass. at 304, 9 Mass. Att'y Disc. R. at 344 (after indefinite suspension, attendance at three or four MCLE practical skills courses and "studying the law" or reading legal publications for two or three hours weekly at another lawyer's office insufficient for reinstatement).

By calling as witnesses the lawyers who employed him as a paralegal, the petitioner attempted to close certain gaps in proof identified in Matter of Wong, 442 Mass. 1016, 1018, 20 Mass. Att'y Disc. R. 540, 544-546 (2004) (where the attorney attended no formal courses, his general and undetailed description of work as paralegal, and the absence of testimony from experienced attorneys concerning the petitioner's skill and the nature of the work performed as a paralegal, were inadequate to meet the burden of proof). The testimony concerning the petitioner's largely unsupervised paralegal work did not demonstrate overall learning and competence, but only some narrow areas of learning undertaken ad hoc and for a limited purpose.⁹

The petitioner suggests that because his practice on readmission would be narrow, primarily confined to matters that interface with his non-legal real-estate related job, we should be satisfied with his learning in the law pertinent to that area. Tr. 157-158, 160 (closing argument); Tr. 84-86 (Passalacqua); Tr. 64-65 (Koziell). Aside from the paucity of evidence before us about the petitioner's efforts to keep up on real estate law, this will not do, and for two reasons.

First, a recommendation for reinstatement is typically a recommendation for reinstatement without limitation to a specific practice, and we cannot guarantee that the petitioner will not practice in additional areas. In fact, the petitioner has indicated a desire to go beyond areas of law contiguous to his non-legal work; he would draft trusts, wills, and other estate planning documents. In addition to his admitted shortfall of current knowledge in that specific field, Tr. 121-123, 142-143 (Passalacqua), it likely requires a broader understanding of other areas of law such as probate law, domestic relations law, and taxation.

Equally important, the petitioner is required to demonstrate that he has the competence and learning required for admission to the bar. As the variety of subjects included on the examination for admission to practice shows, the required competence and learning cannot be narrowly limited to a field the applicant for admission plans to pursue. The petitioner's argument that, well into their careers, even good lawyers might fail the bar exam, Tr. 157 (closing argument), is beside the point. We do not ask the petitioner to pass the bar exam anew; we merely acknowledge that, in general, the learning in the law required for admission is not satisfied by one or two narrow slices of knowledge. Therefore, generally it is not enough to say that the petitioner has some remaining competence in some tightly defined field to which he plans to confine most of his practice, when a recommendation for reinstatement holds a lawyer out as competent in general. Our opinion is not changed merely because the petitioner has other attorneys with whom he could consult should he recognize the need to do so. Tr. 86-87 (Passalacqua).

While the foregoing suffices to show why we cannot recommend reinstatement at this time, we also note that the petitioner's skeletal description of his wrongdoing did not reflect well on his learning and competence in the law. We expect that a petitioner for reinstatement, aware of the burden he is required to carry before us, will demonstrate a more competent understanding of the basis for his discipline.

We find, therefore, that the petitioner has not carried his burden of showing that he has the competence and learning in the law required for reinstatement.

C. Effect of Reinstatement on the Bar, the Administration of Justice and the Public Interest

Where the petitioner's case for moral reform barely passed the threshold, and where his evidence of efforts to maintain competence and learning fell short, we cannot conclude that reinstatement here would not have a deleterious effect on the bar, the public, and the administration of justice.

The public's perception of the legal profession as a result of the reinstatement and the effect on the bar must be considered. "In this inquiry we are concerned not only with the actuality of the petitioner's morality and competence, but also on the reaction to his reinstatement by the bar and public." Matter of Gordon, 385 Mass. at 53, 3 Mass. Att'y Disc. at 73. The panel must consider whether the public will perceive the bar as viewing the original offense with sufficient gravity, and whether it will find confirmation of the seriousness with which the board and the Court take their obligation to assure the protection of the public above all else, and we must consider the deterrent effect of the decision whether or not to reinstate in this case. See Matter of Ellis, 457 Mass. at 418, 26 Mass. Att'y Disc. R. at 168; Matter of Pool, 401 Mass. at 464, 5 Mass. Att'y Disc. R. at 298, Matter of Gordon, 385 Mass. at 55, 3 Mass. Att'y Disc. R. at 77-78.

The petitioner has not provided evidence to us that the public's well-being and safety are his highest concern, where his evidence of competence and learning is so inadequate. The public has a right to expect that lawyers, held out as worthy of trust, take seriously their obligation to learn and understand the law.

"The impact of a reinstatement on ... the administration of justice is a substantial concern." Matter of Waitz, 416 Mass. at 307, 9 Mass. Att'y Disc. R. at 345. We cannot reconcile this petitioner's learning and competence with the demands of precedent. 10 The impression on the public and the bar would not be of "even-handed results," see Matter of Weiss, 4 7 4 Mass. 1001, 1003 (2016), but instead of a capricious reinstatement system untethered to the rule of law, an impression that undercuts the deterrent function of the disciplinary system. See Matter of Pool, 401 Mass. 460,468, 5 Mass. Att'y Disc. R. 293,298 (1988) ("The primary considerations here involve the impact of reinstatement on the deterrence function served by the disciplinary process ... and the reputation of the bar for integrity.").

V. Conclusions and Recommendation

"The focus of reinstatement proceedings ... is on the 'integrity and standing of the bar, the administration of justice, [and] the public interest' ... [citation omitted], rather than on a petitioner's private interests." Matter of Weiss, 474 Mass. at 1003. We have sympathy for the petitioner's medical condition and ultimately we conclude that he has the moral character required for readmission. Nevertheless, the petitioner's case for reinstatement falls short in other ways.

For these reasons, we recommend that the petition for reinstatement filed by Richard M. Passalacqua be denied. Notwithstanding our finding that the petitioner provided barely enough evidence of moral qualification for reinstatement, our ultimate reason for recommending against reinstatement hinges on his lack of demonstrated learning and competence, which we believe can . be addressed in less than a year. For that reason, we recommend that the petitioner be allowed to petition for reinstatement six months after the date of the order denying reinstatement.

 

 

1 At the petitioner's request, Exhibit 8 has been impounded.

2 See Matter of Prager, 422 Mass. at 92, quoting Matter of Hiss, 368 Mass. at 452, 1 Mass. Att'y Disc. R. at 126.

3 See Daniels, 442 Mass. at 1039, 20 Mass. Att 'y Disc. R. at 123; Matter of Centracchio, 345 Mass. 342, 348 (1963).

4 See Waitz, 416 Mass. at 305, 9 Mass. Att'y Disc. R. at 343; see also Daniels, 442 Mass. at 1038, 20 Mass. Att'y Disc. R. at 123.

5 See Dawkins, 432 Mass. at 1010-1011, 16 Mass. Att'y Disc. R. at 95 (citations omitted); see also Ellis, 457 Mass. at 414, 26 Mass. Att'y Disc. R. at 163-164.

6 The petitioner's counsel made some effort to put the blame for this lapse on bar counsel. Tr. 134-137 (Passalacqua). The petitioner is solely responsible for his own filings and for their inadequacies.

7 Asked to "identify the factors that caused or contributed to your misconduct that led to your suspension," the petitioner did not itemize the matters in Exhibit 8. Tr. 128 (Passalacqua). We note, however, that the petitioner had referenced his drinking earlier in his testimony. Tr. 90-91 (Passalacqua).

8 "Mortgage Discharge" is the name of the non-legal business the petitioner established during his suspension.

9 Attorney Freda testified that he worked with the petitioner primarily by e-mail and telephone. Tr. 26, 30. He described three matters on which the petitioner worked for him in the context of a criminal appeal. Tr. 22-26, 34. Only one of these appears to have involved research on a legal issue, primarily procedural, concerning how to present the issue of ineffective assistance of counsel. The other two matters concerned (i) the creation of the Firearms Record Bureau, and (ii) whether as a matter of fact an alibi defense had been raised during a criminal proceeding. Tr. 22-26, 31. The petitioner performed only 16.25 hours of work for Freda over six months in 2015 and 2016, for an average of about 2.7 hours per month. ·

The petitioner's work for Attorney Spurling appears to have focused on the mechanics of stock transfer via the use of pre-prepared forms and the internet, and does not disclose any learning or competence in law. Tr. 39-40, 50-52 (Spurling). The petitioner has described this work as "just doing forms." Tr. 139 (Passalacqua). The petitioner performed about fifty hours of work for Spurling over the course of about a year. Tr. 44 (Spurling). Spurling also asked the petitioner to do some on-line research about trusts, but that was only for general background, and it did not ripen into any work-product on the basis of which Spurling could form an opinion about the petitioner's competence in the law. Tr. 44-45 (Spurling).

Koziell's description of a conversation in 2011 with the petitioner about a real estate transaction was too generic to credit as evidence of current learning and competence in the law. Tr. 62-64.

10 Superficially, this case bears some resemblance to Matter of Beaulieu, S.J .C. No. BD 2012-104, heard by the board at its November 2017 meeting, and in which the board voted to recommend the petitioner's reinstatement. There are substantial differences, however. Beaulieu's evidence of pre-suspension competence and learning was far more impressive that the petitioner’s. The field of law in which he kept himself knowledgeable during his suspension-special education law- strikes us as complex and sophisticated. Beaulieu’s commitment to a limited practice, closely connected to his on-going work as a social worker, was far more persuasive than this petitioner’s. Perhaps most important, Beaulieu was suspended for four years. He was not away from the law, with only the attenuated connection shown here, for twenty years, which requires more than the technical know-how to practice in one narrow field of law. Moreover, the petitioner at first testified that he would limit his practice to matters not requiring the use of an IOLTA account but later in his testimony he testified that he might engage in matters requiring an IOLTA account.

Related to No. BD-1997-021

• S.J.C. Order of Indefinite Suspension entered by Justice Marshall, 08/26/1999
• S.J.C. Order Allowing Employment As A Paralegal entered by Justice Spina, 11/18/2015
• S.J.C. Order Modifying Employment As A Paralegal with Conditions entered by Justice Gaziano, 11/14/2016