In the Matter of John N. Lewis

BOARD MEMORANDUM

Under the guise of “borrowing” money from a trust, the respondent, John Lewis, intentionally misused trust property and then lied about his actions in an attempt to cover up his misconduct. We affirm the decision of the hearing committee to recommend his disbarment. In dissent, a single member of our board writes that the conduct, while sanctionable, does not require that the respondent be disbarred and recommends a three-year suspension.[1]

Findings of Fact

We adopt the facts found by the hearing committee, as they are supported by the evidence and not erroneous. BBO Rules, § 3.53.

Counts 2 and 5: Intentional Misuse of Client Funds and Misrepresentation to Client

The respondent, John Lewis, shared office space with Attorney Lawrence Mehl, who was named as a co-respondent in this case and who has resigned from the bar as a disciplinary sanction. In addition to sharing offices, Lewis and Mehl worked on some cases together and occasionally used each other’s email addresses. Since approximately 2008, Mehl’s registration with the Board of Bar Overseers, as well as his business card, lists him as “Of Counsel” to “John N. Lewis & Associates.” Lewis was aware of, and consented to, Mehl’s holding himself out as “of counsel” to his firm.

In 2008, Victoria Flett was going through a divorce. Her lawyer referred Flett to Mehl for assistance in placing a value on her ex-husband’s business assets. As part of the divorce settlement, Flett was to receive $388,000 in several installments, and she consulted with both Mehl and Lewis about managing her assets since she had little experience in financial matters. Lewis recommended and drafted a trust, the Victoria Flett Family Trust (“the trust”), for which services he was paid $2,500 from the trust’s funds. The document named Mehl as sole trustee and Flett and her children and other relatives (two of whom were minors) as beneficiaries. There was no evidence that Lewis or Mehl presented Flett with any alternatives to Mehl serving as trustee. Mehl was the only authorized signatory on the trust’s bank account.

Flett wanted to use the trust to make conservative investments, slightly more aggressive than leaving the money in a bank account. But, the document Lewis drafted gave Mehl, “sole and absolute discretion” to “invest and reinvest … regardless of whether any particular investment would be proper for a trustee and regardless of the diversification of the assets in the trust under which said property is to be held.” As part of this broad discretion, the trust document authorized Mehl to make loans with trust funds, a provision that was not explained to Flett.

Flett signed the trust as settlor on August 18, 2008. Despite Mehl’s position as trustee, Lewis assumed record-keeping responsibility, including maintaining the trust’s ledger and check register. As trustee, Mehl gave Lewis copies of bank statements Mehl received from the bank, and Lewis entered the information into a computerized check register and ledger.

Flett could reasonably believe, and did believe, that Lewis and Mehl were law partners (not independent lawyers who shared office space) and that Lewis was her lawyer, based on the credible evidence, including: their collaboration on, and Lewis’s conception and drafting of, the trust; sharing of office space; shared emails; and Lewis’s ongoing services to the trust such as record-keeping. At times when Mehl was unavailable, Flett spoke with Lewis about making distributions from the trust. In addition, Lewis represented Flett on other matters at the same time he worked with her on the trust. Based on these facts, we adopt the hearing committee’s findings that Lewis fostered a relationship of trust and confidence with Flett and at the same time encouraged Mehl’s reliance on him in the administration of the trust.

In addition to the divorce settlement of $388,000[2], the trust received $225,000 from the sale of Flett’s marital home in 2012 and more than $428,000 from a life insurance policy on Mr. Flett after his death in 2015.

In December 2008, only a few months after establishing it, Lewis began a scheme of purportedly “borrowing” funds from the trust. He did so by convincing trustee Mehl, who Lewis knew had fiduciary and ethical duties to the beneficiaries, that Mehl had discretion to make loans, including unsecured loans[3], from the trust funds. In an effort to document the payments, Lewis prepared promissory notes to the trust for each advance. Each “loan” had the same condition: payable in full on the one-year anniversary with 6% simple interest. The “loans” were not negotiated arms-length transactions but were a concerted effort by Lewis and Mehl to use the trust for their personal benefit.[4] There was no evidence that Lewis intended unconditionally to repay the amounts he received, including interest; to the contrary, his assurances of repayment were typically conditioned on his recovering contingent fees in pending cases.

The hearing report provides the following table, which shows the amount of money “loaned” to Lewis, the amount repaid, and the running balance. Neither party has challenged the accuracy of the information.

Date Amount from (to) Trust Total Loans Made Total Loans Outstanding Total Unpaid Matured Notes: Net 12/11/08 $20,000 $20,000 $20,000 $0 1/9/09 $30,000 $50,000 $50,000 $0 1/20/09 $12,000 $62,000 $62,000 $0 12/11/09 $62,000 $62,000 $20,000 1/9/10 $62,000 $62,000 $50,000 1/20/10 $62,000 $62,000 $62,000 3/30/10 ($1,500) $62,000 $60,500 $60,500 7/18/11 $25,000 $87,000 $85,500 $60,500 8/4/11 $50,074 $137,074 $135,574 $60,500 8/5/11 $24,926 $162,000 $160,500 $60,500 8/31/11 ($75,000) $162,000 $85,500 $60,500 1/19/12 $11,500 $173,500 $97,000 $60,500 3/15/12 ($16,318) $173,500 $80,682 $44,182 7/18/12 $173,500 $80,682 $69,182 10/1/12 $20,000 $193,000 $100,682 $69,182 4/26/13 $20,000 $213,500 $120,682 $80,682 7/1/13 $20,000 $233,500 $140,682 $80,682 9/30/13 $233,500 $140,682 $100,682 10/23/13 $5,000 $238,500 $145,682 $100,682 12/3/13 $10,000 $248,500 $155,682 $100,682 12/9/13 $2,300 $250,800 $157,982 $100,682 12/10/13 $2,000 $252,800 $159,982 $100,682 1/6/14 $3,000 $255,800 $162,982 $100,682 1/13/14 ($1,000) $255,800 $161,982 $99,682 4/25/14 $255,800 $161,982 $119,682 6/28/14 $255,800 $161,982 $139,682 10/22/14 $255,800 $161,982 $144,682 12/3/14 $255,800 $161,982 $154,682 12/6/14 $255,800 $161,982 $156,982 12/10/14 $255,800 $161,982 $158,982 1/6/15 $255,800 $161,982 $161,982 8/7/15 ($2,300) $255,800 $159,682 $159,682 12/5/16 ($2,000) $255,800 $157,682 $157,682

Lewis never paid any interest on the loans and failed to pay the principal amounts on most of the notes when due. Although he made sporadic payments, almost all of the loans remained in default between 2008 and 2016. Even when Lewis was in default on multiple notes, he continued to “borrow” from the trust.

Mehl had a personal interest in helping Lewis because he depended on the continued viability of Lewis’s law practice to sustain his own practice. Lewis used some of the trust money to pay expenses in contingent fee cases, hoping that eventual large recoveries would allow him to reimburse the trust. Mehl was co-counsel in some of the cases and therefore had his own interest in funding the litigations with trust money.

At no time before August 2016 did Mehl or Lewis inform Flett of the payments; prior to that month, Flett was unaware that Lewis had “borrowed” money from the trust. Although Flett and the other beneficiaries were entitled to accountings, they never received any, a particularly noteworthy failing in light of Flett’s expressed preference for conservative investments and Mehl’s departure from her guidance. In 2012, Flett expressed to Lewis and Mehl her concern about how much money was left in the trust account in light of upcoming expenses. Instead of providing her with an accurate accounting (which would have disclosed that the trust had loaned Lewis $193,000 and was still owed $100,682), Mehl and Lewis co-wrote an email to Flett that deceptively assured her that expenses would be worked out. Lewis knew that Mehl was not providing accountings to Flett. Indeed, any information would have come from Lewis, who kept the books. None was forthcoming. Lewis’s and Mehl’s failure to account to Flett provides further evidence (if more were needed) of their knowledge of their wrongdoing.

Flett became suspicious in the summer of 2016. In response to her inquiries, Lewis prepared and sent to Flett a document in the form of a trust ledger. The ledger contained numerous false entries. The false ledger did not disclose the money paid to Lewis. The false ledger failed to include all income that the trust had received from Flett’s ex-husband. The false ledger characterized some expenses as “attorney’s fees” when no such fees had been paid. We adopt the hearing committee’s findings that the entries were “outright fabrications.” Lewis intended that the misrepresentations would conceal his misuse of the trust funds.

The ledger did not answer Flett’s questions or assuage her concerns. So, in August 2016 she wrote to Lewis that she found the ledger confusing, demanded trust bank statements, and notified Lewis and Mehl that she would seek other counsel. Later that month, Mehl distributed the balance of the trust funds to Flett. By that time, Lewis had paid back the trust only $96,118, and he owed the trust $159,682, not including interest. As of that time, all of the notes had come due, the last having matured eighteen months earlier.

On September 3, 2016, Mehl sent Flett a letter that purported to explain the discrepancies. Lewis drafted all or most of the letter, which contained intentional misrepresentations in an effort to cover up the misconduct. Since Lewis, not Mehl, had access to the trust’s books and records, Mehl relied on Lewis for the information. The letter falsely claimed an “inadvertent clerical error” concerning a double payment of $30,000 for legal fees. As the hearing committee found, the double billing of the fee was intentional, not inadvertent, and was done to conceal some of the funds paid to Lewis. The letter also falsely claimed that the ledger had accidentally omitted a $12,000 distribution to Flett in 2009. In fact, the $12,000 had been paid to Lewis as a “loan.”

Count 4: Conflict of Interest

In a separate count (Count 4), bar counsel charged that Lewis had conflicts of interest when, during the time that he was receiving money from the trust, he represented Flett in various matters. He represented her in litigation against Flett’s former mother-in-law, who was holding funds for the benefit of Flett’s minor children. Lewis also represented Flett in a personal injury lawsuit arising out of a motor vehicle accident. In a third matter, Lewis represented Flett in a claim against the estate of her ex-husband concerning a life insurance policy. In that case, Mehl represented Flett’s two daughters, who had competing claims to the policy. In none of the cases did Lewis (or Mehl in the case of the life insurance dispute) obtain the client’s informed written consent to represent parties with actual or potential conflicts of interest.

At the time of these litigations, Flett was a beneficiary of the trust that had “loaned” money to Lewis. Thus, she was the beneficiary of her lawyer’s creditor. This relationship could have influenced or compromised Lewis’s advocacy on behalf of his client. For example, Lewis’s concern about concealing the money that he had taken from the trust could have led him to take a less aggressive stance in the cases. Or, it could have led him to take an unreasonably aggressive stance in an attempt to obtain more money for the trust and thus postpone the day of reckoning. We therefore adopt the committee’s findings that the respondent’s personal interests materially affected his representation of Flett in the three matters and posed a conflict of interest to which the client did not consent.

Count 6: IOLTA Violations

We adopt the hearing committee’s findings of fact that Lewis periodically commingled personal funds in his IOLTA account. He also wrote checks in payment of personal expenses directly out of the IOLTA account, and made cash withdrawals from it.

Counts 1 and 3 were asserted solely against Mehl. In light of his resignation, these counts were not tried to the hearing committee and the committee did not issue a report on them.

Conclusions of Law

Counts 2 and 5

We adopt the hearing committee’s legal conclusion that the misconduct in Counts 2 and 5 violated Mass. R. Prof. C. 1.15(b), 8.4(c), and 8.4(h).

The hearing committee found, and we affirm, that his involvement in the drafting and administration of the trust imposed on Lewis obligations that lawyers assume when they act as fiduciaries, and he was aware that the funds were “trust property” as defined in Mass. R. Prof. C. 1.15(a)(1). The credible evidence supports this finding, including that it was Lewis’s legal advice to Flett to establish the trust and that Lewis assumed responsibility for the trust records and accounts. On occasion, Lewis spoke with Flett about trust distributions. Lewis knew that the funds were held by Mehl in a fiduciary capacity.[5] He knew that his conduct was the direct and proximate cause of Mehl’s violations of his fiduciary duty to the trust.

Rule 1.15(b)(4) requires that lawyers safeguard trust property. Lewis violated this rule by requesting and receiving the trust funds and by causing Mehl – over a period of years – to advance Lewis money from the trust when he did not have the ability to repay the money. By doing so, Lewis knew that Mehl was violating his fiduciary duties. We adopt the hearing committee’s conclusion that, while Lewis did not remove funds from the trust’s bank account (Mehl, the only person with signing authority, wrote the checks), Lewis, “initiated that misuse and reaped the benefits of it through a course of action in concert with Mehl.” (Hearing Report, ¶ 82). It is of no material significance that Lewis did not physically sign the checks. Based on all of the evidence summarized in the hearing report, he clearly instigated the misuse of trust funds and benefitted from the misuse. It was his recommendation to Flett that led to the creation of the trust. He had ongoing record-keeping responsibilities. Flett reasonably believed that Lewis and Mehl were law partners and that Lewis was providing legal services on behalf of the trust. But for Lewis’s conduct, Mehl would not have removed the funds from the account.[6]

The hearing committee concluded that the respondent is responsible under Rule 1.15 because he, “[v]iolate[d], or attempt[ed] to violate the Rules of Professional Conduct, knowingly assist[ed] or induce[d] another to do so, or d[id] so through the acts of another.” Mass. R. Prof. C. 8.4(a). In other words, Lewis violated Rule 1.15 by assisting Mehl in Mehl’s separate acts of misconduct. Although bar counsel did not charge a violation of Rule 8.4(a) in the Petition for Discipline, the hearing committee held that by applying this rule to the facts found it could find a violation of the substantive rule that was pled, Rule 1.15(b).[7] We agree.

In addition to Rule 1.15, Count 2 of the Petition charged Lewis with violations of Rule 8.4(c) and (h), which prohibit conduct that involves “dishonesty, fraud, deceit or misrepresentation” or that “adversely reflects on [the attorney’s] fitness to practice law.” The conduct that led to the Rule 8.4(c) and (h) charges is the same as the Rule 1.15 charge, i.e., the conversion of trust funds. The hearing committee concluded, and we agree, that the respondent violated Rules 8.4(c) and (h) by requesting and receiving the trust funds. The misuse of funds was dishonest and adversely reflects on his fitness to practice law. Matter of Tracia, 31 Mass. Att’y Disc. R. 640 (2015) (disbarment under Rules 8.4(c) and (h) for misuse of funds held under power of attorney).

In sum, there are three legal theories that support the hearing committee’s conclusion that Lewis intentionally misused trust funds. First, Lewis violated Rule 1.15 by requesting and receiving trust funds from Mehl. Because Lewis was intimately involved in the creation and operation of the trust and because the client believed that he and Mehl were law partners, Lewis is therefore subject to the strictures of Rule 1.15(a). Lewis’s conversion of the trust funds is a straightforward violation of the rule requiring that lawyers safeguard trust property. Second, Lewis violated Rule 1.15 “through the acts of another.” Mass. R. Prof. C. 8.4(a). Thus, the fact that Lewis did not legally hold the trust funds or physically sign the checks is no defense to a Rule 1.15 violation, because he stole the trust funds by means of Mehl’s misconduct. Lastly, his conversion of the trust funds violated Rules 8.4(c) and (h). As we discuss, post, under any of the three theories, the presumptive sanction for misuse of trust funds with deprivation and without restitution would be indefinite suspension or disbarment.

In addition to the misuse of trust funds, we adopt the hearing committee’s conclusions on Count 5 that Lewis engaged in conduct that was dishonest, deceitful and fraudulent when he tried to conceal his theft of the trust funds by intentionally providing Flett a false account ledger and false written explanation. This conduct violated Rules 8.4(c) and 8.4(h).

We also adopt the hearing committee’s legal conclusion that the trust was deprived of its funds, at the latest, when Flett demanded, and Mehl agreed, to disburse the funds remaining in the trust’s account and these were short by the more than $159,000 in “loans” that the respondent had not repaid. Deprivation has occurred when trust funds have been misused, putting the money at risk of loss, and as a result the funds are unavailable when due. Matter of Bailey, 439 Mass. 134, 150, 19 Mass. Att’y Dis. R. 12, 31 (2003). Lewis has replenished only some of the money he stole. Approximately $157,682 remains unreimbursed. (Hearing Report, ¶73).

Appealing the hearing report, the respondent characterizes his conduct as a routine default on a loan from a trust that was unrelated to his law practice. Thus, he argues, the board lacks personal and subject matter jurisdiction over him. Lewis also argues that the money he stole was not “client funds” within the meaning of Rule 1.15.[8] The arguments misconstrue the rules.

Every lawyer admitted to practice in Massachusetts is subject to the “exclusive disciplinary jurisdiction” of the Supreme Judicial Court. S.J.C. Rule 4:01, § 1(1). The court has designated the Board of Bar Overseers to oversee “the conduct and discipline of lawyers.” S.J.C. Rule 4:01, § 5(a). The court has made clear that the board has jurisdiction over lawyers, including conduct that does not occur in the course of an attorney-client relationship or in connection with the respondent’s practice of law. As set forth in S.J.C. Rule 4:01, § 3:

Each act or omission by a lawyer, individually or in concert with any other person or persons, which violates any of the Massachusetts Rules of Professional Conduct (see Rule 3:07), shall constitute misconduct and shall be grounds for appropriate discipline even if the act or omission did not occur in the course of a lawyer-client relationship or in connection with proceedings in a court.

see also Mass. R. Prof. C. 8.4(c) and (h) (prohibiting conduct involving fraud or dishonesty and conduct reflecting adversely on lawyer’s fitness to practice); Matter of Tracia, 31 Mass. Att’y Disc. Rep. 640, 646 (2015). Even if Lewis had no attorney-client relationship with Flett or the trust, his status as a Massachusetts lawyer subjects him to the board’s personal jurisdiction to determine whether he violated the Rules of Professional Conduct.

The argument that the “funds” were not “client funds” is likewise incorrect. Rule 1.15 regulates “trust funds,” not just client funds. Rule 1.15(a)(1) defines “trust property” to mean “property of clients or third persons that is in the lawyer’s possession in connection with a representation … including property held in any fiduciary capacity in connection with a representation, whether as trustee, agent, escrow agent, guardian, executor, or otherwise.” (emphasis added). Comment 2 to Rule 1.15 makes clear that it applies to all situations where an actively practicing attorney holds property as a fiduciary, even where that attorney is not providing legal services. Thus, the funds were trust funds under the authority of Rule 1.15.

Moreover, the trust funds were client funds, since Lewis drafted the trust and had recordkeeping responsibilities and because Flett reasonably believed she was his client. In addition, the trust funds were obviously “client funds” under the supervision of Mehl, who represented Flett and served as trustee.[9] Thus, even under a constricted reading of the rule, it would apply to this case.

For all of the above reasons, we adopt the hearing committee’s conclusions of law that the respondent violated Rules 1.15, 8.4(c), and 8.4(h) by his misuse of trust funds, resulting in deprivation. For the same reasons, we affirm the decision of the board chair to deny the respondent’s motion to dismiss, which was based on the same arguments he has made on appeal.

Count 4

We adopt the hearing committee’s conclusion of law that the respondent engaged in a conflicted representation when he represented Flett in several matters while at the same time the trust (of which she was a beneficiary) was his creditor. The conduct violated Mass. R. Prof. C. 1.7(a) as in effect on and after July 1, 2015. Superficially, Flett and Lewis may have had similar interests in maximizing her success in the litigations. To the extent she prevailed, Lewis would benefit financially, which theoretically could alleviate his debt to the trust. However, as discussed above and as the hearing committee noted, the situation was rife with potential conflicts. To the extent that he sought to maximize his client’s and his recovery, his objectives could have clouded his independent judgment on her behalf. In the alternative, his pattern of misconduct and concealment could have led him to prioritize his own interests over those of his client.

Count 6

We also conclude, not least because he so admitted, that the respondent violated Rule 1.15 as charged in Count 6 and found by the hearing committee. As alleged by bar counsel, the respondent commingled personal funds with trust funds and failed to keep compliant trust account records. He deposited personal funds into his IOLTA account, including money he received from the trust. He wrote checks to himself out of his IOLTA account to pay personal expenses. He made cash withdrawals. All of this conduct violated Rule 1.15(b), (d), (e), and (f).

Factors in Aggravation and Mitigation

We affirm all but one of the hearing committee’s multiple findings in aggravation. These factors include Lewis’s substantial experience in the law, Matter of Crossen, 450 Mass. 533, 580, 24 Mass. Att’y Disc. R. 122, 179 (2008); his failure to participate in the disciplinary process (by refusing to attend the hearing after the denial of his motion to dismiss), Matter of Yonce, 20 Mass. Att’y Disc. R. 552, 554 (2004); and the extended nature of his misconduct and violation of numerous rules. Matter of Zak, 476 Mass. 1034, 1038 (2017), 33 Mass. Att’y Disc. R. ___; Matter of Swaye, 27 Mass. Att’y Disc. R. 867, 876 (2011) (“While oral representations may result from a spur of the moment decision, an attorney who alters or prepares false documents necessarily engages in some level of prior thought and planning”). In addition, Lewis took advantage of a vulnerable person of limited financial means and his misconduct was motivated by greed. Matter of Zak, supra., 476 Mass. at 1039 (vulnerable person); Matter of Greene, 477 Mass. 1019, 33 Mass Att’y Disc. Rep. ___, (2017) (greed).

Our sole disagreement is with the hearing committee’s finding that, based on his pleadings, Lewis failed to recognize his ethical duties and the wrongfulness of his conduct. Although we conclude that his legal arguments lack merit, we hesitate to use his defense as an aggravating factor. Respondents are entitled to a vigorous defense, whether they represent themselves (as Lewis did) or have the benefit of counsel. The cases cited by the hearing committee, Matter of Zak, supra., and Matter of Eisenhauer, 426 Mass. 448, 154 Mass. Att’y Disc. Rep. 251, 261 (1998), present much more extreme examples of respondents who demonstrated a lack of candor and remorse.

Affirming the hearing committee, we find no mitigating factors.

Disposition

Under our case law, the presumptive sanction for intentional misuse of trust funds with deprivation and without restitution is disbarment. Matter of Schoepfer, 426 Mass. 183, 187, 13 Mass. Att’y Disc. R. 679, 685 (1997); Matter of Murray, 26 Mass. Att’y Disc. R. 406, 424 (2010); cf. Matter of Long, 29 Mass. Att’y Dis. R. 401, 414 (2013) (nine-month suspension for intentional misuse of trust funds without deprivation). The sanction applies whether the lawyer violates Rule 1.15, Rule 8.4, or otherwise intentionally misuses trust funds.

In addition to the conversion of funds, the hearing committee correctly concluded that the respondent violated Rules 8.4(c) and (h) by attempting to conceal his misconduct through egregious acts of deceit. On its own, this conduct would warrant a term suspension.[10] The conflicts of interest and the noncompliance with the record-keeping requirements of Rule 1.15(b) further support the sanction recommended by the hearing committee and adopted by us.

The dissent parts ways with us on the issue of a sanction, distinguishing cases where the respondent actually held the funds in his capacity as an attorney for a client. We believe that the distinction is immaterial. The principal case relied on by the dissent, Matter of Barrett, 22 Mass. Att’y Disc. R. 58 (2006), involved a lawyer who was also a corporate executive and who converted company funds. There was no connection between the lawyer’s role as an executive and the practice of law. By contrast, in Matter of Hilson, 448 Mass. 603, 23 Mass. Att’y Disc. R. 269 (2007), the lawyer converted trust funds that he had received “in the course of a representation, that is, in the course of practicing law.” Affirming a disbarment, the court followed the guidance in Schoepfer. The present case resembles Hilson more than Barrett. The entire enterprise arose in the course of Lewis’s law practice, from the time that he advised Flett about forming a trust, to his drafting the trust, and his ongoing record-keeping responsibilities. His misuse of trust funds was enabled by his relationship with Mehl, with whom he consulted about the formation of the trust. In addition, the dissent does not address why Schoepfer should not apply in circumstances such as these, where an attorney causes another attorney to misuse funds held in trust and subject to Rule 1.15.

Other Matters

As an additional matter on appeal, the respondent argues that the entire proceeding was “tainted” due to an alleged conflict of interest involving Jeffrey Woolf, who serves as an Assistant General Counsel at the Board of Bar Overseers. Woolf and Lewis are involved in litigation unrelated to the bar discipline case. Lewis alleges that Woolf and Assistant Bar Counsel Pamela Harbeson “colluded” in charging Lewis with violations of the Rules of Professional Conduct. According to the respondent, Woolf sought to use the pending bar complaint to obtain an advantage over Lewis and Lewis’s wife in the litigation. Lewis also alleges that Woolf used confidential information from the bar discipline case in the private litigation.

The allegations were the subject of two separate special investigations by the board.[11] A member of the board, Jeffrey Martin, Esq., investigated the complaints and concluded that Mr. Woolf did not use confidential information in his litigation against the respondent. He also found that there was no collusion between Woolf and Harbeson. Attorney Martin reported his findings to the board, which unanimously affirmed them. As a precautionary measure, Attorney Woolf was recused from all aspects of this case.

Conclusion

For all of the foregoing reasons, we recommend that the respondent be disbarred.

Dated:_______________

Respectfully submitted,

Kevin P. Scanlon, Esq., Secretary

DISSENT

I respectfully dissent from the sanction recommended by the majority.

I agree with the majority’s view of the facts and law. The respondent’s conduct was egregious. The evidence supports the hearing committee’s findings that the respondent received $255,800 over a period of about eight years and repaid only $96,118. Whether he believed that he could ultimately repay all of the money he “borrowed” is irrelevant. He abused his position of trust that Ms. Flett reposed in him. Worse, he attempted to conceal his misconduct by deceiving his client with false documents and outright lies.

Where I differ from the majority is its interpretation of cases such as Matter of Hilson, 448 Mass. 603, 23 Mass. Att’y Disc. R. 269 (2007) and Matter of Tracia, 31 Mass. Att’y Disc. R. 640 (2015). Under the majority’s analysis, Lewis’s conversion of funds took place in the course of a representation and therefore should be analyzed under the guidance of Matter of Schoepfer, 426 Mass. 603, 13 Mass. Att’y Disc. R. 679, 685 (1997).

While I agree that the conduct took place in the course of a representation, I am unaware of any case in which the Schoepfer standards have been applied where the respondent did not hold funds and control their disbursement. This is what distinguishes the current case from Hilson, where it was undisputed that the respondent actually held the funds and controlled how they would be distributed. And, while I agree with the majority that “[i]t is of no material significance that Lewis did not physically sign the checks,” it is of material significance that Lewis could not do so because he was not a trustee of the account. The majority also cite Tracia in support of disbarment. However, in Tracia, the single justice began her discussion of the appropriate sanction by focusing on Tracia’s misuse of trust funds, for which he was the trustee. Thus, she applied the Schoepfer standard, and the remainder of her discussion identified the reasons why disbarment, rather than indefinite suspension, was the appropriate sanction.

As the hearing committee notes, “[B]ar counsel's proposed findings and conclusions purport to ‘withdraw’ the charge that Lewis violated rule 1.15(b)” (HR, ¶ 81) (though the committee goes on to note that the charge cannot be withdrawn in such a manner). While it is not clear why bar counsel chose to withdraw the charge, I can only assume that bar counsel concluded that Rule 1.15 did not apply to these facts.

As the majority writes, “The trust instrument imposed on Mehl, as trustee, an obligation to act in the interests of the beneficiaries without conflicting self-interest and for the purposes for which the trust was created” (emphasis added). Lewis was not the trustee of the Flett trust. He had no legal responsibility with respect to the trust. Rather, Lawrence Mehl was the sole trustee, and the board has accepted Mehl’s resignation as a disciplinary sanction due to his misconduct. This is the appropriate sanction.

Rule 1.15 is important enough that it has 15 attendant comments (including 2A and 6A) clarifying its meaning and to whom it shall be applied. Of these, comments 1, 2, 3, and 6A repeatedly and specifically refer to a lawyer who “holds” client property. This was simply not the case here. The committee repeatedly notes that the trust funds were “held” by Mehl [emphasis added]:

• “The funds were held by Mehl”; they “went into Mehl's hands.” (HR, ¶ 19).
• “Flett, having lost trust in Mehl, wanted to get the Trust's funds out of his [i.e. Mehl’s] hands and succeeded in doing so.” (HR, ¶ 87).
• Bar counsel argues that deprivation occurred the moment Mehl misused the Trust's funds to make the clearly improper "loans"…. “On the record before us, until Mehl agreed to pay Flett the balance in the trust's accounts, the improper loans did not prevent Mehl from making any requested distributions.” (FN 22).

Contrast this language with that concerning Lewis:

• Lewis “caused” (HR, ¶ 77), “induced” (HR, ¶ 78), or “advised” (HR, ¶ 79) Mehl to remove funds from the trust.
• Lewis had “knowledge of Mehl's obligations as trustee.” (HR, ¶ 30).

Repeatedly, the hearing committee properly emphasizes that the trust was in Mehl’s hands, not Lewis’s.

The committee did consider the appropriate discipline if rule 1.15 were not implicated: “Therefore, even if we were constrained not to find a violation of rule 1. 15, and limited ourselves to finding a violation of rules 8.4(c) and (h), we would determine the appropriate sanction in accordance with Schoepfer and its progeny, directly or by analogy.” (HR, ¶ 84) I am not convinced.

In the recent appeal before the full bench in Matter of Strauss, 479 Mass. 294, 301 (2018), the justices devoted some energy to exploring whether Schoepfer applied no matter the magnitude ($1 or $1000) or duration (10 minutes or 10 months) of the deprivation. As it stands, there are no minima. This makes it especially important to apply Schoepfer only in circumstances where Rule 1.15 holds sway, and not to be bound to it “by analogy.”

For the many reasons noted in the hearing report, Mehl’s actions were for Lewis’s benefit, not for the trust’s. As an attorney—and even more so as an attorney for Ms. Flett— Lewis must be held to a high standard, and discipline is appropriate. However, regarding the trust funds, discipline should be based on violations of rules 8.4(c) and 8.4(h), not 1.15. I do not believe that this—along with the violations of 1.1, 1.3, and 1.8 appropriately found by the committee—rises to level of disbarment. Rather, I would recommend a term suspension of appropriate length. While no case is exactly on point, Matter of Barrett, 447 Mass. 453, 22 Mass. Att’y Disc. R. 58 (2006), is instructive. There, the respondent’s conduct resulted in a twoyear suspension. Barrett also had prior discipline, which Lewis does not, although there are many more rules violations and aggravating factors in the present case. On the whole, based on Lewis’s multiple violations, I believe a three-year suspension is appropriate.

Dated:_________________

Respectfully submitted,

David B. Krieger, M.D.

Board Member