In the Matter of Leonard N. Mancuso

HEARING PANEL REPORT

I. Introduction

On October 2, 2017, the petitioner, Leonard N. Mancuso, filed his petition for reinstatement with the Supreme Judicial Court. His indefinite suspension had been entered by the Court on August 9, 2012, retroactive to November 17, 2010, the date of his temporary suspension under SJC Rule 4:01, § 12A. Matter of Mancuso, 28 Mass. Att' y Disc. R. 598 (2012). The suspension was ordered after the petitioner was convicted of a felony (assault with a dangerous weapon) and two other criminal charges (illegal possession of a firearm and illegal possession of ammunition) following a 2010 domestic dispute during which he fired a loaded handgun in the direction of his (then) girlfriend. As a result of the convictions, the petitioner was incarcerated in state prison for nearly three (3) years. The petitioner was released from prison in September, 2013.

An evidentiary hearing on the reinstatement petition was held January 17, 2018. The petitioner, represented by counsel, testified on his own behalf and called three witnesses: Bruce Freeman, a social worker who has met with and tested the petitioner; Joel A. DeLuca, Esq., a non-practicing attorney who operates the company where the petitioner has been working; and Leo S. Fama, Esq., an attorney who employs the petitioner as a paralegal. Bar counsel called no witnesses. Before the hearing, seven exhibits were admitted into evidence. Bar counsel made no recommendation concerning reinstatement but requested, if the petitioner is to be reinstated, that certain conditions be imposed.

On January 22, 2018, the panel issued a sua sponte post-hearing order, asking the parties to provide additional documents, including some court transcripts. On February 5, 2018, bar counsel provided some of these materials. On February 21, 2018, petitioner's counsel submitted a status report and some documents. On March 7, 2018, we received a letter from petitioner's counsel, indicating that some of the requested materials would not be available until June. On March 29, 2018, some materials received directly from the trial court on DVD and copies were sent to the parties. This included the petitioner's voluntary statement to the police on September 30, 2010, after he was in custody; we had a certified court reporter prepare a transcript of it. On June 20, 2018, we received copies of the transcripts of the petitioner's 2012 criminal trial. On July 12, 2018, we admitted into evidence the following additional exhibits:

• Ex. 8, February 11, 2005, police report.

• Ex. 9, petitioner's "statement with regard to incident of February 11, 2005."

• Ex. 10, November 11 , 2005, police report.

• Ex. 11 , tax return for 2007 (Documents produced 2/22/18)

• Ex. 12, The DVD of the petitioner's voluntary statement to the police on September 30, 20 l 0, after he was in custody.

• Ex. 13, The transcript of the petitioner's voluntary statement to the police on September 30, 2010.

• Ex. 14, The transcript of day two (March 6, 2012) of the petitioner's superior court criminal trial.

• Ex. 15, The transcript of the petitioner's sentencing hearing, which was day five (March 9, 2012), of the petitioner's superior court criminal trial.

We gave the parties until July 19, 2018, to file anything in response to these additional exhibits. Nothing was submitted. After considering the evidence and testimony, the panel recommends that the petition for reinstatement be denied.

II. Standard

A petitioner for reinstatement to the bar bears the burden of proving that he or she 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 (I 982).

In making these determinations, a panel considering a petition for reinstatement " looks to '(l) 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 and Procedural Background

The following facts are set forth in the Mass. Attorney Disciplinary Reports: the petitioner's suspension stemmed from his conviction of crimes arising from a domestic dispute. On September 30, 20 I 0, during the course of a heated argument, Mancuso fired a loaded handgun in the direction of a woman he was living with. The woman's teenage daughter was in the home at the time and called the police. On March 9, 2012, Mancuso was convicted in Essex Superior Court on three criminal charges: assault with a dangerous weapon, possession of a firearm without an F1D card, and illegal possession of ammunition. He was sentenced to not less than three years and not more than five years in state prison on the conviction of assault with a dangerous weapon and to concurrent terms of two years' probation on the remaining charges, to commence on and after the state prison sentence. The probation was subject to conditions that Mancuso participate in a batterers' intervention program, remain free of drugs and alcohol and participate in drug and alcohol screening, and engage in a mental health evaluation and screening as directed by probation. He was also prohibited from being in contact with the victim or her daughter.

Bar counsel and the petitioner (as respondent) filed a stipulation in which he admitted that he had violated Mass. R. Prof. C. 8.4(b) and (h). The stipulation recommended an indefinite suspension retroactive to the effective date of the temporary suspension and that, as a condition of petitioning for reinstatement, Mancuso must have successfully completed his probation. The Board of Bar Overseers voted to adopt the parties' recommendation and, on August 9, 2012, the order of indefinite suspension was entered, retroactive to November 17, 2010.[1] Following the petitioner's release from prison in September, 2013, he worked in a variety of non-legal jobs, such as landscape and limo driver. On March 30, 2017, the SJC entered an order, allowing the petitioner's request to work as a paralegal.

IV. Findings

A. Moral Qualifications

The conduct giving rise to the petitioner's suspension is "conclusive evidence that he was, at the time, morally unfit to practice law .... " Dawkins, 432 Mass. at 1010-1011 , 16 Mass. Att'y Disc. R. at 95 ( citations omitted). That misconduct "continued to be evidence of his Jack of moral character ... when he petitioned for reinstatement," Dawkins, 432 Mass. at 1010-1011, 16 Mass. Att'y Disc. R. at 95, and to same effect, see Matter of Centracchio, 345 Mass. 342, 346 (1963), Matter of Waitz, 416 Mass. at 304, 9 Mass. Atty. Disc. R. at 342. "Reform is a 'state of mind' that must be manifested by some external evidence ... [and] the passage of time alone is insufficient to warrant reinstatement." 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.

"It [is] incumbent on [the petitioner], therefore, to establish 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. "'[2] Dawkins, 432 Mass. at 1010-1011, 16 Mass. Att'y Disc. R. at 95 (citations omitted); see also Matter of Ellis, 457 Mass. 413, 414, 26 Mass. Att'y Disc. R. 158, 163-164 (2010).

“(C]onsiderations of public welfare are dominant. The question is not whether the petitioner has been punished enough." Matter of Cappiello, 416 Mass. 340, 343, 9 Mass. Att'y Disc. R. 44, 47 (1993); Matter of Keenan, 314 Mass. 544, 547 (1943). "The act of reinstating an attorney involves what amounts to a certification to the public that the attorney is a person worthy of trust." Matter of Daniels, 442 Mass. at 1039, 20 Mass. Att' y Disc. R. at 123; Matter of Centracchio, 345 Mass. at 348. The petitioner must show that he has led '"a sufficiently exemplary life to inspire public confidence once again, in spite of his previous actions. '" Matter of Prager, 422 Mass. at 92, quoting Matter of Hiss, 368 Mass. at 452, 1 Mass. Att'y Disc. R. at 126.

We find that the petitioner has not met his burden of showing that he possesses the moral qualifications to be reinstated. Our reasons are set forth below. Although we are mindful of the serious nature of the crimes committed by the petitioner, our finding is not based solely on those events. A " fundamental precept of our system is that a person can be rehabilitated," Matter of Ellis, 457 Mass. at 414, 26 Mass. Att'y Disc. R. at 163, and even conviction of a serious crime does not preclude a showing of present moral fitness. Matter of Hiss, supra. We also acknowledge (although as discussed below, we do not fully credit) the petitioner's testimony concerning his abuse of alcohol going back to his childhood and his extraordinary efforts, beginning with his incarceration in September of 20 l 0, to overcome his alcoholism. (Tr. 9, 12- 17, 22-23, petitioner). We also credit the sincerity of the petitioner's remorse over his actions on September 30,2010. (Tr. 91-93, petitioner).

We are, however, very troubled by some significant discrepancies between the petitioner's testimony at the reinstatement hearing and other credible evidence. Taken in isolation, each discrepancy might be viewed as a simple lapse in recollection. But taken as a whole, the nature and number of discrepancies causes this panel to conclude that the petitioner's testimony was not fully candid and was intended to minimize or evade responsibility for certain events.

Specifically, the petitioner was asked questions about the handgun used during the incident leading to his criminal convictions. His testimony concerning how he came into possession of the gun, when he came into possession and his overall experience with firearms was, in the view of this panel, not candid:

• At the reinstatement hearing, the petitioner identified by name the client from whom he had obtained the gun. He also stated that he had obtained it from the client about three weeks prior to the September 30, 2010 incident. (Tr. 40-41 , petitioner). That testimony was not consistent with statements made in his post-booking statement to the police on September 30, 2010. There, the petitioner stated that he had obtained the gun "years ago" from a client whose name he claimed to no longer remember. (Ex. 13, statement transcript, pp. 12,14, HP035, P037; Ex. 12, DVD, at 11:22, 11:40 and 13:15 minutes).[3]

• At the reinstatement hearing, the petitioner stated, "I never fired a gun in my life" before the incident that led to his arrest and conviction. (Tr. 82, petitioner). However, at his sentencing hearing in 2012, the petitioner stated that he had some prior experience with firearms that included shooting a weapon at a firing range on two or three occasions. ("I've been to a firing range two or three times in my life."). (Ex. 15, sentencing hearing tr. p. 28, HP352).

We find these inconsistencies to be more than lapses in memory. Instead, they cause us to question the petitioner's credibility. The petitioner's post-booking statement in 2010 that he had possessed the gun for several years, coupled with the statement at his 2012 sentencing hearing that he had some familiarity with guns, simply cannot be reconciled with his testimony at the reinstatement hearing of being a complete novice. For instance, the petitioner testified at the reinstatement hearing that his possession of the gun was an unwanted circumstance that accidentally arose when he visited a terminally ill client who was potentially suicidal. The petitioner stated that, to protect his client from harm, he took possession of the gun. Thereafter, he claimed to have such limited knowledge of firearms that he did not unload it because he did not know how to do so. (Tr. 40-41, 82, petitioner). In addition, he testified that he kept the gun at his home because he did not know how to tum the weapon into the police without possibly incriminating his terminally ill client. (Tr. 41, 81, petitioner).

In our view, it is not credible that the petitioner did not know, or could not have learned, how to unload the gun. We also do not credit his testimony that, even though he was a practicing attorney with more than 20 years of experience, including experience in the criminal defense field, he could not figure out a safe way to tum a supposedly unwanted handgun into the police. In addition to his testimony regarding the gun, there were other troubling inconsistencies and omissions in the petitioner's testimony. For instance, at the reinstatement hearing, the petitioner described several prior incidents that he characterized as "little scrapes" with the law. (Ex. 1, App. 8, BBO 117-123). He testified that one was due to his unknowingly driving with a suspended license (Tr. 86-87, petitioner) and the other (in 2005) was due to his transporting a car he had recently purchased, which the seller had "taken off the road" after the petitioner had asked him not to, and the petitioner was pulled over for it. (Tr. 87, petitioner; Ex. l, App. 8, BBO 121-122, "attaching the wrong plates"). However, the documents subsequently produced at our request showed that the petitioner had told the police officer that he had purchased the vehicle from someone, but the vehicle was in one name, and the plates were in another person's name, and neither of these matched the purported "seller." (Ex. I 0, police report of 11/ 11/2005, p. 1, ,i,i 15, 17, HPO 11 ). There was also no signature in the "signature of seller" block on the title). (Ex. 10, p. 2, ,J 18, HP012).[4]

The petitioner also failed to disclose in his reinstatement testimony that he had been arrested for assaulting his teenage son. In February of 2005, the petitioner entered his son's school and, after school officials observed him assaulting his son, police were called. The petitioner was arrested and taken from the school in handcuffs. (Tr. 86-87, petitioner; Ex. 8, police statement, HP004; Ex. 9, petitioner's "statement with regard to incident of February 11 , 2005," HP007). Instead of being candid with the hearing panel about this prior incident, the petitioner opted for omission. When asked whether there had been any prior incidents involving the use of violence, the petitioner testified as follows:

Never. No. No. No. Never. This physical abuse, this was the one and only isolated incident. No other cases in the physical aspect of it at all, ever.

(Tr. 82-83, petitioner).

Aside from these discrepancies in the testimony, we are troubled by the petitioner's inaccurate tax returns and the various and unpersuasive and ad hoc excuses he gave for their inaccuracies and his tardiness in filing them. The petitioner admitted that his tax returns for 2007, 2009 and 2010 were inaccurate. (Tr. 96, petitioner). Among other things, he reported no income for 2010 on his IRS Form I 040 (BBO 328) or on his state Form 1 (BBO 335), and he was evasive when asked specifically if he had any earned income in 2010.[5]

The petitioner also failed to file his fax returns promptly. While he was released from prison in September of 2013, he did not file tax returns for the tax years 2007 through 2010 until 2016. We are unimpressed with his excuses for not complying with his obligations under the tax laws. The petitioner testified that when he was released from prison, "the tax returns were not my primary concern." He also testified that he was unable to find someone to prepare the returns without an upfront payment, and he had no money. (Tr. 97, petitioner). He also said he could not have his returns prepared for 2009 and 2010 until he eventually located his IOL TA ledgers from those years (Tr. 97, petitioner),[6] but this makes no sense to us in light of the fact that he reported no income for those years. Even if we were to credit the petitioner's various excuses for the delays in filing his tax returns, his cavalier attitude toward his obligations and the returns' inaccuracies undermine his claim that he has the moral qualifications to be reinstated.

And finally, we address the petitioner's attempt to blame much, if not all, of his past misconduct on his use of alcohol, including the incident that led to his arrest, conviction and suspension, and his two prior disciplines. (Tr. 37-39, 45-47, 49, petitioner).[7] While we accept the obvious proposition that excessive use of alcohol can influence behavior in negative ways, we find it noteworthy that, at his sentencing hearing -- which took place in 2012 after the petitioner had been attending programs in prison for alcohol abuse and had been sober for nearly two years -- the petitioner made no reference at all to his own use of alcohol, but instead blamed the shooting incident on his girlfriend's use of drugs and her "downward spiral"; her loss of her job, which led the petitioner to feel "taken advantage of'; and the fact that he had felt "provoked" and "threatened" in connection with a man whom the girlfriend had asked the petitioner to keep away from her. (Ex. 15, sentencing hearing tr., pp. 27, 28, 30, 31 , HP35 l , HP352, HP354, HP355).

The petitioner is certainly entitled to credit for overcoming his alcoholism, and we acknowledge the several letters in support of the petitioner's success in this regard. (App.5, BBO 83-93, 99-100). [8] He entered an alcohol rehabilitation program while he was incarcerated (Tr. 12-16, petitioner); he has been sober since the date of his arrest on September 30, 2010 (Tr. 16, petitioner); he began going to AA while in prison and now goes to AA twice a week (Tr. 14, 16-17, 22-23, 49, 78, petitioner). He participated in LCL and he attended a court-ordered anger management/violence intervention program while in prison and again after his release, from January 2014-0ctober 2014. (Tr. 20-22, petitioner; Ex. I, BBO 5-6; App. 5, BBO 95, 97). However, becoming sober and addressing anger-management issues do not, by themselves, satisfy the moral qualifications standard for reinstatement.

The petitioner bears the burden of proof on establishing his moral qualifications for reinstatement. For the reasons set forth above, we find that he has not carried it.

B. Learning in the Law

Under S.J.C. Rule 4:01, § 18, a petitioner must demonstrate that he has the "competency and learning in law required for admission to practice law in this Commonwealth." The petitioner has worked as a paralegal for Attorney Leo Fama since April of 2017. (Tr. 30, 54, 62- 63, petitioner; Tr. 112-118, Fama). He has worked with Fama on both civil and criminal cases, doing case analysis, research and writing, and we credit Fama's testimony about the quality of the petitioner's work and value to him. (Tr. 113-116, Fama). We also credit that the petitioner has taken numerous MCLE courses. (Tr. 63-66, 90, petitioner; Ex. I, BBO 7; Ex. 7). He was also able to explain the three-way reconciliation process for trust accounting and how to handle client retainers. (Tr. 66-70, petitioner). We conclude that the petitioner has met his burden of establishing that he possesses the requisite competency and learning in the law.

C. Petitioner's Occupation and Conduct Since His Suspension

The petitioner remarried in 2015 and lives with his current wife and two of her children in subsidized housing. (Ex. 1, BBO 15, 21; Tr. 58-60, petitioner). Surprisingly, the petitioner testified that he does not know the eligibility requirements for living in subsidized housing. (Tr. 60, petitioner). We are troubled by, and find it difficult to credit, such testimony. Even if the testimony was truthful, it leaves us with the impression that the petitioner might be intentionally ignoring these requirements because they may render him and his family ineligible for lowincome housing and perhaps other welfare benefits. If nothing else, the willingness of an attorney to accept public assistance paid for by Massachusetts taxpayers without knowing if he qualifies detracts from a finding of moral fitness. See Matter of Corben, 31 Mass. Att'y Disc. R. 91 , 102 (2015) (reinstatement denied; petitioner lived on food stamps and others paid his bills); Matter of Dawkins, 432 Mass. at 1012, 16 Mass. Att' y Disc. R. at 97 ( denying reinstatement and noting he had no gainful employment during his suspension).

We also are concerned the petitioner's tax returns, if they are to be believed, show that he had lost money for the several years prior to his suspension.[9] Clearly, the petitioner was "underemployed" both before his suspension and since his release from prison. (Tr. 104-108). We credit the petitioner's testimony that, before his suspension, he was not interested in rainmaking and generating business because "when ['m drinking, I don't want to make any rain, it gets in the way of my drinking. I don't have time for anything else when I'm drinking." (Tr. 32, petitioner). He also testified that he grew up poor and was not "hugely motivated" by money; even before his suspension, he "scraped by" and his family lived at a subsistence level. (Tr. 45, petitioner).

None of these pre-suspension circumstances fully explain the petitioner's apparent lack of motivation to earn a self-supporting income since his release from prison in 2013. Our concern is not simply that the petitioner chooses to live a marginal financial existence, as the evidence indicates. Choosing to live that way is acceptable when it is an honest choice that includes a commitment to living within one's means. However, we are concerned that the petitioner seeks reinstatement without any explanation for his inability to find some sort of gainful non-legal employment during the nearly five (5) years since his release from prison. The petitioner presented no evidence showing his efforts to generate income above the subsistence level, nor did he present evidence showing that he was unable to obtain employment because he was choosing to devote his time to other compelling matters, such as charitable or volunteer work. These circumstances give us pause, especially when we consider that the petitioner has previously received an admonition stemming in part from his not returning the unearned portion of a fee because he needed the money. (Tr. 78-79, petitioner).

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

Finally, the public's perception of the legal profession as a result of the petitioner's 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 [with] 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 impact of a reinstatement on public confidence in the bar and in the administration of justice is a substantial concern." Matter of Waitz, 416 Mass. at 307, 9 Mass. Att'y Disc. R. at 345. We must consider whether the public will perceive our actions as viewing the original offense with sufficient gravity and that we take seriously our obligation, above all else, to protect the public. Matter of Ellis, 457 Mass. at 418, 26 Mass. Atf 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. See Matter of Finnerty, 418 Mass. 821, 829, 10 Mass. Att' y Disc. R. 86, 95 (1994).

V. Conclusion

In light of the discrepancies between the petitioner's hearing testimony and various records, including his own sworn testimony at his sentencing hearing, his attempts to minimize or gloss over his arrests and criminal history, his lack of credibility on key issues, and his cavalier attitude about his inaccurate tax returns, we find that the public interest and public confidence in the bar and in the administration of justice would be undermined by the petitioner's reinstatement. We therefore recommend that his petition for reinstatement be denied.

Date: July 20, 2018

Respectfully submitted, By the Hearing Panel,

Jeffrey Martin, Esq., Chair

David A. Rountree, Member

John J. Morrissey, Esq., Member

Related to No. BD-2010-109

• S.J.C. Order of Temporary Suspension entered by Justice Botsford, 11/17/2010
• S.J.C. Order of Term Suspension entered by Justice Botsford, 08/09/2012
• S.J.C. Order Allowing Employment as a Paralegal entered by Justice Lowy on April 19, 2019., 04/19/2019