In the Matter of Gary M. Lee

COMMONWEALTH OF MASSACHUSETTS
BOARD OF BAR OVERSEERS
OF THE SUPREME JUDICIAL COURT

____________________________________

                                                            )

BAR COUNSEL,                                           )

                              Petitioner,  )

                                                            )

vs.                                                        )           BBO File No. C3-99-0212

                                                            )

GARY M. LEE, ESQ.,                       )

                              Respondent.          )

____________________________________

S.J.C. Order or Term Suspension (6 months, with the last 3 months suspended for a period of 2 years) entered by Justice Greaney on February 2, 2001. ¹

BOARD MEMORANDUM

We are concerned in this case with the appropriate sanction for a lawyer who has been convicted of engaging in domestic violence and violating abuse prevention orders. The respondent, Gary M. Lee, admitted to sufficient facts on one count of assault and battery, two counts of assault and battery with a dangerous weapon, and four counts of violation of an abuse prevention order under G.L. c. 209A. His admission to sufficient facts constitutes a conviction within the meaning of S.J.C. Rule 4:01, § 12(1). Five of the six counts involve "serious crimes" because assault and battery with a dangerous weapon is a felony and because violating court orders "interfere[s] with the administration of justice." See S.J.C. Rule 4:01, § 12(3). A hearing committee recommended that the respondent be suspended from the practice of law for six months, with execution of the suspension to be stayed and suspended for two years on certain terms of probation. Bar Counsel appeals, seeking an outright suspension for a term of three months. The respondent asks that we adopt the hearing committee's proposed sanction. Oral argument was held before the entire Board on November 13, 2000. For the reasons set out below, we recommend a six-month suspension, the last three months to be suspended for two years subject to terms of probation.

Findings of Fact and Conclusions of Law

The parties accept the hearing committee's findings of fact and conclusions of law, which we adopt and incorporate by reference. We set out below a summary of the findings and conclusions.

On June 3, 1999, the respondent came home highly intoxicated. He began shouting obscenities and verbally abusing his wife, who was in bed. He pulled the bed sheets off his wife and slapped her twice on the ear. Alarmed, she gathered her three daughters and brought them into the bedroom with her. The respondent began throwing things- shoes, a book, a remote control unit, a hairspray bottle-at Mrs. Lee and the children. Mrs. Lee was struck by one or more of the objects. A shoe struck one of the children, cutting her above the eye. The respondent also bit Mrs. Lee's foot, drawing blood. A neighbor called the police, who arrested the respondent.

After her husband was taken into custody, Mrs. Lee immediately obtained an emergency abuse prevention order under chapter 209A. The order required him to stay away from the family residence, prohibited him from contacting his wife and children, and compelled him to stay at least 100 yards away from them. At 7:30 a.m. on June 3rd, after his release from custody and despite knowledge of the order, the respondent returned to his residence to pick up an automobile and called his wife to see if she would accompany him to his arraignment.

That same morning Mrs. Lee filed for a permanent abuse prevention order and sought to have the automobile returned to her. The court entered a permanent order containing the same provisions as those in the emergency order. When arraigned later that day, the respondent was specifically advised that the abuse prevention order had entered against him, and he assented to the order. Following his arraignment, however, he violated the order by driving past the family residence. In further violation of the order, he telephoned his home. When his mother-in-law answered the phone, he asked for his wife and was told she was not at home. He told the mother-in-law he needed two checks that belonged to him and advised her where Mrs. Lee could retrieve the car. His mother-in-law hung up. Later that afternoon the police arrested the respondent on three charges of violating the abuse prevention order.

In connection with his release from custody, the respondent met with a probation officer and an officer from an employee assistant program. The upshot of these meetings was a treatment plan under which the respondent agreed to enter a detoxification program, participate in counseling, and attend meetings of Alcoholics Anonymous and Lawyers Concerned for Lawyers. The court accepted the components of this plan as conditions of bail. On June 4th, the respondent entered a detoxification program.

A month later, however, the respondent drove past the family residence. Mrs. Lee was not home at the time, but a neighbor spotted him and called the police. On July 8th, the respondent was arraigned on a fourth charge of violating the abuse prevention order. The conditions of his bail were modified to specify the streets that were included in the stay-away portion of the order.

On August 20, 1999, the respondent appeared in Dedham District Court. He admitted to sufficient facts to establish (a) that he had committed assault and battery in violation of G.L. c. 265, § 13A; (b) that he had committed two acts of assault and battery with a dangerous weapon in violation of G.L. c. 265, § 15A; and (3) that he had four times violated an abuse prevention order in violation of G.L. c. 209A, § 7. The Court continued all of the cases without a finding and placed the respondent on probation for eighteen months. As conditions of probation, the respondent is required to abide by the abuse prevention order, continue alcohol counseling and attendance at LCL meetings, and enter a certified program for treating batterers. At least through the date of the hearing before the hearing committee, the respondent had complied with the conditions of his probation, which has been supervised by a probation officer. He and his wife have reconciled. The judge who presided over his criminal case appeared before the hearing committee and testified on the respondent's behalf.

In mitigation, the committee found that the respondent suffers from alcoholism, which contributed to his abusive behavior. He acknowledged his alcoholism and took steps to treat it. The committee expressly found that the respondent's abusive behavior was less likely to recur because "he has grown into a willing participant in his treatment and . . . he appreciates the value of treatment." The committee also noted that the respondent's misconduct did not occur in connection with the practice of law.

In aggravation, the hearing committee found that the respondent's conduct on June 3, 1999, was not an isolated event; he had previously engaged in a pattern of abusive behavior toward his wife. In addition, the respondent received an admonition in 1998 for commingling earned fees with client funds in his IOLTA account, for paying personal and business expenses directly from the account, and for keeping inadequate records of the funds in the account. AD 98-16, 14 Mass. Att'y Disc. R. 834 (1998). During the course of his testimony before the hearing committee, the respondent minimized the significance of the events that led to his admonition.

The hearing committee concluded that the respondent's convictions evidenced violations of Mass R. Prof. C. 8.4(b) (commission of a criminal act that reflects adversely on one's honesty, trustworthiness, or fitness as a lawyer in other respects), 8.4(d) (conduct prejudicial to the administration of justice), and 8.4(h) (conduct that reflects adversely on one's fitness to practice law).

The Appropriate Sanction

The hearing committee observed that the Supreme Judicial Court has embraced the proposition that "physical force within the family is both intolerable and too readily tolerated." Custody of Vaughn, 422 Mass. 590, 595 (1996). While the committee found the misconduct here "certainly reprehensible," it nonetheless recommended a suspended suspension. We respectfully disagree. We believe the appropriate sanction is the three-month suspension advocated by Bar Counsel.

It is true, as the committee points out, that convictions for domestic abuse appear not to have been previously the subject of disciplinary proceedings in Massachusetts. Despite this absence, the Court has imposed consistent sanctions for felony convictions in general. Felony convictions not involving the practice of law have typically resulted in at least a term suspension, if not indefinite suspension or disbarment. See Matter of Concemi, 422 Mass. 326, 12 Mass. Att'y Disc. R. 63, 330 n.4, 12 Mass. Att'y Disc. R. 63, 69 n.4 (1996).

Looking to the courts of other jurisdictions, we find that they have almost uniformly imposed suspensions for convictions involving domestic abuse. See Committee on Professional Ethics and Conduct of the Iowa State Bar v. Patterson, 369 N.W.2d 798, 801 (Iowa 1985) (indefinite suspension "with no possibility of reinstatement for three months"); People v. Musick, 960 P.2d 89 (Colo. 1998) (suspension for one year and a day); People v. Reaves, 943 P.2d 460 (Colo. 1997) (six-month suspension); People v. Knight, 883 P.2d 1055 (Colo. 1994) (six-month suspension). The facts of Reaves are close to those at issue here: the lawyer was convicted of OUI as well as domestic violence and harassment involving his wife; despite his subsequent abstinence from alcohol, the rehabilitation of his marriage, and his involvement in charitable endeavors, the court suspended him for six months.

By contrast, the only two cases called to our attention in which the lawyer was not suspended are readily distinguishable. In two companion cases decided in 1995 the New Jersey Supreme Court issued public reprimands to lawyers who had been convicted of misdemeanor assault for domestic violence. Matter of Principato, 655 A.2d 920 (N.J. 1995); Matter of Magid, 655 A.2d 916 (N.J. 1995). The court stressed, however, the particular circumstances that convinced it not to order suspensions: But for the fact that we have not previously addressed the appropriate discipline to be imposed on a lawyer who is convicted of an act of domestic violence, and that the respondent's offense was an isolated incident and did not present a pattern of abusive conduct, respondent's discipline would be greater than the public reprimand we hereby impose. We caution members of the bar, however, that the Court in the future will ordinarily suspend an attorney who is convicted of domestic violence.

Matter of Principato, supra at 923. Here, by contrast, the hearing committee found that the respondent's convictions were not an isolated incident but part of a pattern of abusive conduct. In addition, the respondent was convicted of felonies rather than a misdemeanor, and his four additional convictions for violation of the abuse prevention order, standing alone, would likely warrant public reprimand. See Matter of Ring, 427 Mass. 186, 14 Mass. Att'y Disc. R. 655 (1998). When we add to the mix his prior discipline, which is a substantial factor that must always be weighed in aggravation, see Matter of Dawkins, 412 Mass. 90, 8 Mass. Att'y Disc. R. 64 (1992), it is evident that an actual suspension of some length is called for. Cf. Matter of Toronto, 696 A.2d 8 (N.J. 1997) (suspending New Jersey lawyer for three months following misdemeanor conviction for assaulting wife even though conviction entered ten months before decisions in Principato and Magid, because of other misconduct-to wit, lying in connection with another disciplinary investigation).

We also question the appropriateness here of declining to impose a suitable sanction simply because the Court has not addressed the issue previously. Such a prospective enunciation may be apt where the Court has never "spoken to the seriousness" of certain rules, as was the case with client funds in Matter of the Discipline of an Attorney (and two companion cases) (Three Attorneys), 392 Mass. 827, 835, 4 Mass. Att'y Disc. R. 155, 164-165 (1984), or where the Board intends to increase the sanctions, as it determined to do with regard to lawyer neglect in Matter of Kane, 13 Mass. Att'y Disc. R. 321, 327-329 (1997). Here, however, the full Court has spoken to the seriousness of domestic violence, see Custody of Vaughn, supra, and no one is proposing to disrupt settled case law by imposing tougher sanctions. The Board merely seeks to fit the appropriate sanction to the underlying misconduct. Cf. Matter of Fordham, 423 Mass. 481, 494, 12 Mass. Att'y Disc. R. 162, 178 (1996) ("The fact that this court has not previously had occasion to discipline an attorney in the circumstances of this case does not suggest that the imposition of discipline in this case offends due process.").

We are concerned, too, that the sanction recommended by the hearing committee fails to give adequate force to the need to treat violence in the home as seriously as the Court has indicated. If the violence at issue here had been visited on a stranger and his or her children, it is difficult to imagine that an outright suspension would not have been imposed. "[F]orce within the family and in intimate relationships is not less but more of a threat to th[e] basic condition of civilized security, for it destroys the security that all should enjoy in the very place and context which is supposed to be the refuge against the harshness encountered in a world of strangers." Custody of Vaughan, supra, at 596. See also id. at 596 ("The recent literature also exposes the sham and hypocrisy that condemns violence among strangers and turns a blind eye to it where its manifestations are most corrosive."). Viewed in this context, "the modest discipline" recommended by the committee would "threaten[] the public's respect for the legal profession and [would] impair the public's confidence in the court's regulation of the bar." Matter of Deragon, 98 Mass. 127, 133, 5 Mass. Att'y Disc. R. 96, 103 (1986) (Wilkins, J., dissenting).

The public's confidence and respect of which Justice Wilkins wrote should be our paramount concern. A suspended suspension places too much emphasis on the perceived needs of the respondent and his family. Leniency is not justified because temporarily depriving the respondent of his license might cause additional hardship to his already victimized wife and children. Society has come to recognize that domestic assault is not simply a family affair. It is a serious, dangerous crime committed against the state and should be viewed as such not only by the criminal justice system but also by this Board. Although "[e]ach case must be decided on its own merits and every offending attorney must receive the disposition most appropriate in the circumstances," Three Attorneys, supra, 392 Mass. at 837, 4 Mass. Att'y Disc. R. at 166, in bar discipline "the primary factor is the effect upon, and perception of, the public and the bar." Matter of Alter, 389 Mass. 153, 156, 3 Mass. Att'y Disc. R. 3, 6-7 (1983). In the interest of the public and the bar, therefore, we believe a period of outright suspension is warranted.

At the same time, we wish to put in place incentives for the respondent's continued recovery. The need for such incentives underlies much of the hearing committee's rationale for a suspended suspension: it would supply both a stick and a carrot in this regard, while outright suspension alone might take both away. A six-month suspension with the last three months suspended for two years subject to the terms of probation suggested the committee would impose the appropriate discipline while encouraging further efforts toward recovery. We add the further condition that any material breach of the terms of probation would result, in addition to the imposition of a full six-month suspension, in the surrender of the right to automatic reinstatement under S.J.C. Rule 4:01, § 18(1)(a).

Conclusion

For all of the foregoing reasons, we adopt the hearing committee's findings of fact and conclusions of law, but modify its proposed disposition. An Information shall be filed with the clerk of the county court recommending that the respondent, Gary M. Lee, be suspended from the practice of law for for six months, with execution of the last three months of the suspension to be stayed and suspended for two years subject to the probationary terms set out at the end of the hearing committee's report and subject to the further condition that a material breach of the probationary terms shall constitute a surrender of the right to automatic reinstatement under S.J.C. Rule 4:01, § 18(1)(a).

Respectfully submitted,

THE BOARD OF BAR OVERSEERS

By: ___________________________
Mitchell H. Kaplan
Secretary

Approved: December 11, 2000