In the Matter of Sergio P. Vespa

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I. Introduction

Acting pro se, on July 11, 2018, Sergio P. Vespa filed a petition (his third) for reinstatement with the Supreme Judicial Court from an order pf indefinite suspension the Court entered on January 30, 2008, effective February 29, 2008. Matter of Vespa, SJC No. BD 2008-009, 24 Mass. Att'y Disc. R. 714 (2008).

We established pre-hearing schedule at a conference on October 2, 2018.

We received evidence under the petition at an evidentiary hearing on November 28, 2018. petitioner testified on his own behalf and called only himself as a witness; bar counsel called no witnesses. Eight exhibits were admitted into evidence; seven were submitted pre· hearing by agreement and eighth was admitted during the hearing at the request of the committee. The exhibits included a set of exhibits from the petitioner's reinstatement hearing in 2014 and the panel report on his petition for reinstatement in 2016.

Bar counsel would prefer to see the petitioner's financial circumstances more settled before reinstatement but also suggested that if the petition is denied, the petitioner should be allowed to again seek reinstatement in less than one year because those circumstances should be settled within months. Tr. 59-62. After considering the evidence and testimony, the Committee recommends that the petition for reinstatement be allowed on conditions.

II. Standard

A petitioner for reinstatement to the bar bears the burden of proving that h~ possesses "the moral qualifications, competency and learning in 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 ofjustice, or to the public interest." S.J.C. Rule 4:01, § 18(5); 1vfatter ofDaniels, 442 Mass. 1037, 1038, 20 Mass. Att'y Disc. R. 120, 122-123 (2004) (rcscript). See Matter ofDawkins, 432 Mass. 1009, 10l0, .16 ... Mass. Att'y Disc. R. 94, 95 (2000) (rescript); Matter o.f Pool, 401 Mass. 460, 463, 5 Mass .. Att'y Disc. R. 290,293 (1988). Rule 4:01, § 18(5) establishes two distinct requirements,cfocusing, respectively, on (i) the personal characteristics of the petitioner; and (ii) the, effec~ of. reinstatement on the bar and the public. lvfatter of Gordon, 385 Mass. 48, 52, 3 Mass. Att'y Disc. R. 69, 73 (1982).

In making these determinations, a panel or committee 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 [suspensionl, and (5) the petitioner's present competence in legal skills."' Daniels, 442 Mass. at l 038, 20 Mass. Att'y Disc. R. at 122-123, quoting Afatter of Prager, 422 Mass. 86, 92 (1996), and Matter of Hiss, 368 Mass. 447,460, l Mass. Att'y Disc. R. 122, 133 (1975).

III. Disciplinary Background

The petitioner was indefinitely suspended based on a stipulation of facts a1~d violations and a recommendation for discipline. The stipulation established misconduct that ci;,.u, b,e summarized as follows (see 24 Mass. Att'y Disc. R. 714 (2008)):

The petitioner received two checks from two insurers, each in the amount of $1,:NO, in settlement of a client's auto accident claim. The client had signed a r~lease inap.ticip<;ltion.of.the first half of the settlement, but he was unaware of the second $1,200. The petition~r.endors~d and deposited those checks without authority or permission from the client, who. was a .co~payee on both, or from the child support enforcement division of the departmen~ of rev:enue,a.pa:yee on the first of the two. The petitioner misused the settlement fonds, intentionally, and with deprivation resulting. In addition, he violated trust account rules requiring notice and prompt delivery of the receipt of trust funds and a reporting provision of the C.M.R .. Add~tional violations included: misrepresenting to one of the insurers that he .had witnes~ed :his cli~t1t ;_ signing the settlement release; misrepresenting to bar counsel th?,t the deposit of one of the checks shown in bank records was instead the receipt of working capital, and that the client had been paid by money order when the client requested cash; also misrepresenting to bar counsel that he had never received the second check; failing to respond to the client's inquiries about the matter; failing to render an accounting at the conclusion of the matter; and failing to enter into a written fee agreement in a contingent-fee matter.

The petitioner made full restitution to his former client. Ex. I, at BBO 7.

The petitioner's first two petitions were filed and denied around 2014 and2016, respectively. Ex. 1, at BBO 10; Ex. 6; Ex. 7. In January 2016, the Court granted him permission to be employed as a paralegal. His work as a paralegal began that same month. Ex. 3.

IV. Findings

A. Moral Qualifications

We are persuaded by a preponderance of the evidence that the petitioner has "the moral. qualifications ... required for admission to practice Law in this Commonwealth... " S.J.C. Rule 4:01, § 18(5).

The two panels who heard the petitioner's 2014 and 2016 requests for reinstatemepJ concluded that had the required moral qualifications.[1] 7, at BBO 327 ... We h:;i,vc gi:ven findings some weight. Still, neither party has moved for an order that the matter has been decided and need not be relitigated, and with the passage of time we have additional perspective from which to view petitioner's moral character. Therefore, we have considered the evidence afresh. Having done so, we arrive at the same conclusion.[2]

We start with the petitioner's acceptance of responsibility for his misc.ond.uct and·. acknowledgment of his wrongdoing. His discipline was based on his stipulation .ofmisconduct and violations. Ex. 1, at BB4; Ex. 4. be sure, his 2014 petition was accompanied by ' :, ' " .. ,, ,,., i; ;) ', questionnaire responses that failed to fully describe his \vrongdoin~, teferringt9 hi~ in,t¢:h~i6~al misuse of client funds as "commingling." Ex. 6, at BBO 12:( Still, tne petiti9111:/fa/t!1ftilly0 .:" .' reported his other rules violations without hesitating to note the dishonesty involved, id, and his personal statement admitted not only "mistakes," but also "transgressions."

The petitioner's current questionnaire responses unflinch~ngly characterize his misconduct as including intentional misuse fonds with resulting deprivation. Ex. J, at HBO 5, BBO 1 13. His testimony before us was similarly forthrightly in admitting his misconduct. Tr. 7-8 (Vespa). The petitioner is remorseful, 8 (transcript of testimony from 2016 reinsta,tement hearing), at [transcript page] 10-11 (Gatei), and his personal statement reflects a loss of pride, in himself and in his parents' eyes, on which he has fully self-reflected during his suspensiqn., 6, at BBO 132-133. us he characterized his misconduct as an aberration that is "th~ one thing [he actually ashamed in [his] life." Tr. 10 (Vespa).

The petitioner cannot answer why he put his legal career at risk for $2,400 .. Tr. 9 , We would that the petitioner had greater insight into the cause of his misconduct, for the purpose of diagnosing it and thereby increasing the likelihood that it will not recur. He appears to first denied, then admitted, that the misconduct. was related to. ; temporary financial difficulties. Tr. 9, 19-20 (Vespa); 1, at BBO 6. We ctmdude, however, that this lack of insight is far outweighed by the evidence. of the petitioner's remor:5e and acknowledgment of vvTongdoing, by the lesson impressed on him by the trauma of his indefinite suspension, together with the objective evidence before us of good character, dempnstrated by conduct.

The petitioner displays a sense of responsibility and of service to others, qualities needed in a service profession with primary obligations of loyalty to clients and to the legal system. graduating from the Virginia Military Institute, he served four years in the 82nd Airborne Division of the United States Army, achieving the rank of Second Lieutenant. Ex. 1, at BBO 12. is currently an active member of the Italian Benevolent Society, vvhich assists Italian immigrants, young and old. Tr. 15-16 (Vespa); 1, at BBO 7. He has assisted in the care of his elderly parents when they faced health issues. 8, at 19-20 (Gatei).

Additionally, in letters submitted in support of the 2016 petition, people who have worked in the office where the petitioner serves as a paralegal have expressed full confidence in working him should he be reinstated. Ex. 6, at BBO 145 (Att'y Belliveau), 146 (Kalaiya), 151 (Att'y Jordan). They do not expressly address his moral fitness, but their level of comfort with having him in the office speaks volumes.

The conduct giving rise to the petitioner's indefinite suspension is "conclusive evidence that was, at the time, morally unfit to practice law ... .' Da,vkins, 432 Mass. at 1010, 16 Mass. Atf y Disc. R. at 95 ( citations omitted). That misconduct "cont.inued to be eviqence of his lack of moral character ... when he petitioned for reinstatement," Dawkins, id., and to same effect; see,> lltfatter ofCentracchio, 345 Mass. 342, 346 (1963), Matter of Waitz, 416 Mass. 2981 304, 9 Mass. Atty. Disc. R. 336,342 (1993). "Reform is a 'state of mind' that must be manifested by some 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, 442Mass .. at 1038, 20 Mass. Att'y Disc. R. at J "It [is] incumbent on [the petitioner}, therefore, tq. establish .. : affirmatively that, during his suspension period, he [has] redeemedhimselfand pecorn~ 'cl , .. proper to be held out by the court to the public as trustworthy.'" Da,wkins, 4(.n Mass. at l 011, 16 Mass. Att'y Disc. R. at 95 (citations omitted); see also Matter ofEllis, 457 Mass. 413, 414, 26 Mass. Att'y Disc. R. 158, 163-164 (2010). Still, a "fundamental precept. of our system is that a person can be rehabilitated .... " lvfatter of Ellis, 457 Mass., at 414, 26 Mas~:-,Att'.f·Pisc. · at 163.

Having had the opportunity to observe the petitioner during the prehearing conference and during his testimony under oath, having reviewed his questionnaire responses and the substance of his testimony before us, as well as the letters of recommendation and evidence and findings from previous reinstatement hearings, we are persuaded that he has reformed himself~ is not likely to repeat his misconduct, and currently has the moral qualifications for admission to practice.

This is the petitioner's third reinstatement effort, and he has not practiced law for well over ten years. There might be some temptation so say that he has already "been punished enough," where even a disbarred attorney is eligible to seek reinstatement after eight years. S.J.C. Rule 4:01, § 18(2)(a). question," however, "is not whether the petitioner has _been punished enough." Matter of Cappiello, 416 Mass. 340,343, 9 Mass. Att'v Disc. R. 44, 47 . . . . * .. (1993); lv1atter o_fKeenan, 314 Mass. 544,547 (1943). Rather, we find that he has led '"a sufficiently exemplary life to inspire public confidence once again, in spite of his pnevious ... ctctions."' Matter of Prager, 422 Mass. at 92, quoting A1atter of Hiss, 368 Mass. at 452, 1 Mass. Att'y Disc. R. at 126.

B. Competence and Learning in the Law

The petitioner has demonstrated the "competency and learning .in the law required for. admission to practice law in this Commonwealth." S.J.C. Rule 4:01, § 18(5).

Because the petitioner has been suspended for longer than the approximately seven years of practice between his admission to the bar and his indefinite suspension, we have carefully : considered his present competence and his efforts to maintain his learning in the law.

The petitioner has attended six continuing legal education seminars from 201.6 to.October 2018, Ex. 1, at.BBO 8, BBO 11, Ex. 2, at BBO 101, paid for by Attorney L&t:wrence Qatei who, in exchange, uses his services as a paralegal. .Tr. 54-56 (Vespaand representations ofcoit11sc1)~ Ex. 8, at 11 (Gatei). Four of these courses are pertinent to his plan to practice "crimmigration", law at the intersection of immigration and criminal law, which is the-focus of his intended practice with Attorney Gatci; two others arc pertinent to the potential interests of Gatci' s clients. 8, at 7-8, l 5 (Gatci). The petitioner has attended some of these seminars multiple times, over multiple years, to keep himself up-to-date on developments in the law. Ex. 1, at BBO 8, BBO 11, Ex. 2, at BBO 101.

He has supplemented his continuing legal education by reviewing the ABA Journal's online issues, and lvfassachusetts Lawyer's Weekly. 1, at BBO 9. To address his former. shortcomings in trust account record-keeping, he attended a course sponsored by the Law Office Management Assistance Program and the trnst account seminar presented by the Office of Ba.r Counsel. l, at BBO 8. He also reviews LOMAP's weekly newsletter. Ex. l, at BBQ 9.

As suggested by his first reinstatement panel, the petitioner obtained leave from Court to employed as a paralegal, by Attorney Gatei. Ex. 1, atBBO 6,BBO: 11, Ex. 3. Gatei has, both recently and in 2016, affirmed under oath his willingness to employ the petitioner as an attorney once reinstated. Ex. 3, ii 4, Ex. 8, at 9, 16; see also 6, at BBO 150 (Gatei letter of 11/18/2016). Gatei describes the petitioner's work, consisting primarily ofresearch, writing, document preparation (Ex. 8, at 11), as (somewhat confusingly)"remarkable and satisfactory." Ex. 3, at BBO 102, ~ 3. He also describes the petitioner as having fully availed himself of the continuing education his firm offers, becoming current with the law and, therefore, preparing to resume the practice oflaw. 8, at 8-9. He believes tha.t the petitioner has the . skills necessary to do so. 8, at 25-26 (Gatei)

Attorneys the office where the petitioner works as a paralegal have submitted uniformly favorable reviews of abilities and competence at legal research and analysis. fac 6, at BBO 145 (Belliveau), 151 (Jordan).

We also find that the petitioner has addressed the concerns, expressed by the la$t pflnel to consider his reinstatement (Ex. 7, at HBO 330-332), regarding his ability to go ;int0.practice on his own, including the management a lmvyer' s tmst account, at least to the san1e extent as any attorney when entering practice after admission to the bar.

The petitioner gave self-deprecating testimony to the effect that he should not have his own firm and should not manage his own trust account. Tr. 11-12 (Vespa). Yet, he has (as above) obtained training in trnst account management. Ex. l, at BBQ 8. He "understand[s] IOLTA accounts as a lawyer should understand them," albeit not as an "expert." Tr. 13 (Vespa). During closing arguments, bar counsel acknowledged that the petitioner's understanding of trust account management, while somewhat murky, was "as good ... as a lot of people [who attend the monthly trust account class run by bar counsel]." Tr. 61; and see testimony at Tr. 45-48 (Vespa). Commendably, the petitioner stands ready to obtain.further guidance it: as, and when he is required to open his own accounts. Tr. 12 (Vespa).

We conclude that the petitioner's efforts to comply with the suggestions of the prior two reinstatement panels have established, in substance and effect, a "back-up" plan if his current expectation that Attorney Gatei will employ him until his retirement (Tr. 16 (Vespa)), iSJlOt fulfilled. has chosen to concentrate intersecting areas of law centered around immigration, Tr. 22-25 (Vespa), to which he can bring added value beyond legal expertise, i.e., his knowledge of Italian and connections to the local Italian immigrant community. As.noted above, he has studied and gained experience those areas law, has learned about tru:~t account maintenance, and is prepared to learn more as needed. However vague his current understanding of the details of trust accounting might be, he clearly understands that he must segregate client and trust funds from personal and business funds. 48-49 (Vespa). His life experience running; a fam:Hy ... business should provide insight into maintaining the business side of a law firm.· ,He is building relationships with other attorneys who work in the same office with Attorney .Gatei and who think well of him, and he is thereby creating a network on which he can draw for contaqts and We are hopeful that the petitioner's current plans will come to fruition bi1t, ~f not, he is not without options, including using his experience and learning to obtain employment in a different immigration firm. Tr. 43-44 (Vespa). Therefore, we respectfully decline to endorse appears to be bar counsel's only substantial reservation about reinstating the petitioner, i.e., his "back-up plan." Tr. 60.

To the extent that reservation is linked to a concern that financial difficulties might result in the petitioner again misusing funds, Tr. 61, that is inconsistent with bar counsel's announcement, at the start of closing argument, that "[a)s far as the moral qualifications that the hearing panel had found, I don't take any issue with those." Tr. 60. If someone cannot be trusted to handle client funds, they do not have the moral character required for reinstatement. Matter of Shyavitz, 26 Mass. Att'y R. 61 613-614 (2010). Yet the 2016 hearing panel wrote (Ex. 7 at BBO 327-328), and bar counsel does not contest:

[W]e find that the petitioner has affirmatively established that he is reformed and has been rehabilitated .... The prior reinstatement panel found that the petitionerpossessed the moral qualifications to be reinstated ... and we agree .... Having observed the petitioner carefully during his testimony, we find him to be repentant and remorseful .... Considering all the evidence with which we have been presented, we agree that the petitioner has shown moral fitness to resume the practice of law.

We cannot foresee the future. Still, we found that the petitioner has learned his lesson. .As the · . . ' ' preceding section explained, we have been convinced by a preponderance of the evidence that he is not likely to misuse client or trust funds again, even in time of financial stress, having already suffored personal humiliation of indefinite suspension before a proud fmnily and a community that he does not want to disappoint yet again.[3]

For the foregoing reasons, we find that the petitioner has established the minimum level competence and learning required for admission to the bar and, therefore, for reinstatement.

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

 

"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. 100 l, 1003, 32 Mass. Att'y Disc. R. 263, 266-267 (2016) (upholding denial of reinstatement for an attorney who had a sincere desire to return to practice and whose one year and one day suspension plus the denial of reinstatement had resulted in his not practicing for about five years). "In this inquiry we are concerned not only \Vith 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. impact of a reinstatement on public confidence in the bar and in the administration of is a substantial concern.' Afatter ciWaitz, 416 Mass. at 9 Mass. Atf y Disc. R. at The committee must consider whether the public will find confirmation of the seriou.sncss with which the board and the Court take their obligations to assure the protection of the public above all else, along with the deterrent effect of the decision whether t.o reinstate .in this case. Matter of Ellis, 457 Mass. at 418, 26 Mass. Att'y Disc. R. at 168; Afatter of Pool,, 401 Mass. al 464, 5 Mass. Att'y Disc. at 298, Matter of Gordon, 385 Mass, at 55, 3 Mass. A.tt'.y Disc. R.. at 77-78. 'The primary considerations here involve the impact of reinstatement on the deterrence function served by the disciplinary process [citing Gordon] and the reputation of the bar.for integrity." Matter of Pool, 401 Mass. 460, 468, 5 Ma5s. Att'y Disc. R. 293,298 {1988).

The record before us establishes the minimal showing under the "personal characteristics" prong of the two-prong test for reinstatement, consistent with precedent, and we find that an informed public and bar would see the matter in the same light.

Still, our conclusion to that effect is based on the "personal charac;teristics' sta,nd11rci~.of S.J.C. Rule 4:01., § 18(5), Gordon, 385 Mass. at 52, 3 Mass. Att'y Disc. R. at 73, which, in tum, look to the requirements for admission to the bar. At the petitioner's age and station, he might be perceived by the public as a more accomplished lav.yer than he is. His application before us does not display the "sloppiness" noted by the 2016 hearing panel, Ex. 7, at BBQ 332, yet his testimony at times was opaque and required unpacking-and, at times, outright leading-by bar counsel or the committee. His failure to provide focused and illuminating responses and explanations does not appear to be solely a function of his understandable nervousness while testifying. 8, at 13 (Gatei) (" ... I have guided him through to give him particular issues to research so he's not all over the place .... He goes over the case la,v, I make some adjustnients, and then I'll redirect him again to exactly what he needs to do. . This is a fault he cannot allow in court appearances, especially before overworked tribunals such ,a,s the imn1igratio11 courts and state district courts where he would practice. We also take seriously the petitioner's acknowledgement that he needs additional guidance in handling trust accqunts ~~~· oaseq_~11,his testimony on that topic while under cross-examination by bar ccmnseI, Tr. 45~48 (V~spa}; ~e· · agree with his self-assessment. In fact, we have some concern that the; petitioner i's not~- "expert" in the requirements for trust accounting and recordkeeping after his first two efforts at reinstatement were denied for, among other things, shortcomings i.n that a.rea.

The goal of maintaining the confidence of the public Zind. th~ bar in o:ur discipJi11ary 1 ; therefore, precludes us from recommending reinstatement unconditionally.

To address our concerns, we recommend the following conditions on the petitioner's reinstatement:

1. If at any time during the first three after the petitioner's reinstatement, he opens his own practice, opens a trust account, or receives trust funds, he shall submit to accounting probation under supervision by bar counsel on the usual terms and ·conditions, to the conclusion of those three years, and beyond as necessary to ensure a minimum of one year of accounting probation;

2. During the first three years after his reinstatement, the petitioner shall attend a total of six continuing legal education courses, two per year, as reasonably approved by bar counsel, in fields of law related to immigration and criminal practice, which may include courses on evidence, proof: or procedure in immigration and criminal tribunals.

3. The petitioner shall enter into a mentoring agreement with Attorney Gatei, or such other mentor as is reasonably satisfactory to bar counsel, for a term of two years and on such other terms and conditions as are reasonably consistent with mentoring agreements in other reinstatement cases, and subject to review by and reporting to bar counsel.

V. Conclusions and Recommendation

For the reasons set forth above, we conclude that the petitioner, Sergio P. Vespa, has met the minimum requirements for his reinstatement as a member the bar of .Massachusetts. Therefore, we recommend that his petition for reinstatement be allowed on the conditions set forth above.

Respectfully submitted,

By the Hearing Committee,

Susan Mellen, Esq., Chair

Scott E. Price, Member

Martha Rush O’Mara, Esq., Member

Filed: January 7, 2019

Related to No. BD-2008-009

• S.J.C. Order of Indefinite Suspension entered by Justice Ireland, 01/30/2008
• S.J.C. Order Denying Reinstatement entered by Justice Duffly, 10/26/2015
• S.J.C. Order Allowing Employment As A Paralegal entered by Justice Duffly, 01/13/2016
• S.J.C. Order Denying Reinstatement entered by Justice Budd on June 28, 2017., 06/28/2017