No. BD-2015-042
Petition for Reinstatement
IN RE: VALERIANO DIVIACCHI
BBO NO. 555940
The following opinion was posted at the time it was issued. It may be subject to appeal
and may not be the final decision in the case. Readers are advised to check the BBO and
SJC websites for more information.
COMMONWEALTH OF MASSACHUSETTS
BOARD OF BAR OVERSEERS
OF THE SUPREME JUDICIAL COURT
______________________________
)
In the Matter of )
)
VALERIANO DIVIACCHI ) SJC No. BD-2015-042
)
Petition for Reinstatement )
______________________________)
HEARING PANEL REPORT
I. Introduction and Statement of the Proceedings
Acting pro se, on December 11, 2020, Valeriano Diviacchi filed with the Supreme
Judicial Court his second petition for reinstatement from an order of term suspension the Court
entered on December 3, 2015, effective January 2, 2016. Matter of Diviacchi, 31 Mass. Att’y
Disc. R. 135 (2015), aff’d 475 Mass. 1013, 32 Mass. Att’y Disc. R. 268 (2016).
We were appointed as the hearing panel on February 5, 2021.
On March 9, 2021, after a remote prehearing conference, we issued orders for the
exchange of proposed exhibits and lists of witnesses, and the filing of agreed exhibits, witness
lists, objections to proposed exhibits, motions in limine, etc., leading up to the hearing.
The petitioner filed three motions in limine, which we describe in turn.
We denied the motion seeking to bar introduction of Part II of the petitioner’s
reinstatement questionnaire responses. Among other things, B.B.O. Rules, § 3.63 renders Part II
admissible. The Board issued a protective order concerning questionnaire Part II, and we
admitted it into evidence as Exhibit 12.
We reserved until the hearing ruling on the other two motions in limine.
One of these sought to exclude unidentified but purportedly “repetitive” and “prejudicial”
evidence of the basis for the petitioner’s suspension. We reserved ruling until specific proposed
2
exhibits were put at issue. We also notified the petitioner and Bar Counsel, however, that we
reserved the power to take administrative notice of any public records reflecting the fact and
basis of the petitioner’s discipline and the fact and basis for the rejection of his first reinstatement
petition.
The other reserved motion in limine sought to exclude evidence of the petitioner’s views
about the legal system, the courts, the Board, and the bar discipline system, based on the
petitioner’s purported First Amendment/freedom of speech rights. This motion, also, had not
identified specific documents the petitioner sought to exclude. When Bar Counsel’s opposition
identified the one proposed exhibit that might fall within the scope of the petitioner’s First
Amendment/free speech objection, we notified the parties that we would want to hear more
foundational evidence before ruling. We took that same approach during preliminary arguments
at the hearing about the admission of exhibits. Tr. 24-25, 28.1 We later allowed the document –
Ex. 17 – into evidence, reserving for our report our assessment of its weight and significance.
Tr. 24, 151.
We respectfully refer the Board and the Court to the record of our written rulings on the
three motions in limine, and to the transcript of the hearing for our final rulings concerning these
matters.2
At the request of Bar Counsel, the remote hearing, originally scheduled for April 16, was
re-scheduled to April 15, when we received the evidence. Bar Counsel opposed the petition.
Neither party fully complied with the prehearing order. The admissibility of materials
erroneously submitted to the Board as agreed exhibits, including proposed exhibits potentially
falling within the petitioner’s motions in limine, had to be determined. Once again, we
respectfully refer the Board and the Court to the transcript for those rulings.
1 The Court reporter issued a corrected transcript, eliminating certain typographical errors in the original
transcript. We cite to the corrected transcript.
2 See BBO Rules, § 3.47(2). In accordance with usual practice, however, we omit at this stage the
transcript page numbers, leaving it to the parties to determine whether to pursue these rulings before the Board and
the Court.
3
The petitioner testified on his own behalf and called no other witnesses. Bar Counsel
cross-examined the petitioner but called no other witnesses. Eighteen exhibits were admitted
into evidence during the hearing. At the petitioner’s request we reopened the proceedings and
took into evidence as Exhibit 19 an affidavit from the petitioner concerning the legal significance
of certain testimony at the hearing.
After considering the testimonial and documentary evidence, we recommend that the
petition for reinstatement be denied.
II. Standard
A petitioner for reinstatement to the bar bears the burden of proving that he 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 of justice, or to the public
interest.” S.J.C. Rule 4:01, § 18(5); Matter of Leo, 484 Mass. 1050, 1051, (2020), quoting
Matter of Weiss, 474 Mass. 1001, 1002, 32 Mass. Att’y Disc. R. 263, 264-265 (2016) and S.J.C.
Rule 4:01, § 18 (5); Matter of Daniels, 442 Mass. 1037, 1038, 20 Mass. Att’y Disc. R. 120, 122-
123 (2004) (rescript). See Matter of Dawkins, 432 Mass. 1009, 1010, 16 Mass. Att’y Disc. R.
94, 95 (2000) (rescript); Matter of Pool, 401 Mass. 460, 463, 5 Mass. Att’y Disc. R. 290, 293
(1988). Rule 4:01, § 18(5) establishes two distinct requirements, focusing, respectively, on (i)
the personal characteristics of the petitioner; and (ii) the effect of reinstatement on the bar and
the public. Matter of Gordon, 385 Mass. 48, 52, 3 Mass. Att'y Disc. R. 69, 73 (1982).
In order to determine whether or not the petitioner has met that burden, a panel
considering a petition for reinstatement “looks to ‘(1) the nature of the original offense for which
the petitioner was [suspended], (2) the petitioner’s character, maturity, and experience at the time
of his [suspension], (3) the petitioner’s occupations and conduct in the time since his
[suspension], (4) the time elapsed since the [suspension], and (5) the petitioner’s present
competence in legal skills.’” Daniels, 442 Mass. at 1038, 20 Mass. Att’y Disc. R. at 122-123,
4
quoting Matter of Prager, 422 Mass. 86, 92 (1996), and Matter of Hiss, 368 Mass. 447, 460, 1
Mass. Att’y Disc. R. 122, 133 (1975).
III. Disciplinary Background
The petitioner was suspended for twenty-seven months based on the report of a hearing
committee that was adopted by the Board, upheld by a single justice, and affirmed on appeal
before the full Court. Matter of Diviacchi, supra.
In summary:
The petitioner was found to have violated Mass. R. Prof. C. 3.3(a)(1) and 8.4(c) by
making a knowing misrepresentation to a court in a verified complaint (and later amendments)
about a former client’s treatment of a series of lawyers, because the petitioner represented as
facts within his own personal knowledge matters for which he did not have personal knowledge
and about which he had not conducted reasonable inquiry. Additional misconduct consisted of
violations of rule 1.5(f) by failing to obtain informed consent to a contingent fee agreement that
varied materially from the forms approved by the Supreme Judicial Court, rules 1.1, 1.2(a) and
1.3 by failing to communicate with his client or take any action about matters touching on his
representation, and rule 1.5(a) by seeking to recover a legal fee under a written contingent-fee
agreement when the contingency contemplated by the agreement had not occurred.
We discuss the basis for the petitioner’s suspension, as articulated by the full-bench
decision of the Court, in greater detail below in connection with our discussion of the
significance of the petitioner’s refusal to acknowledge his wrongdoing. A more complete
description of the petitioner’s misconduct is set forth in the panel report from the petitioner’s
first effort at reinstatement. Ex. 15.
In January 2018, the petitioner filed his first petition for reinstatement. A hearing panel
recommended that the petition be denied concluding:
[T]he petitioner, in substantial part, does not acknowledge that the conduct that
resulted in his suspension was in violation of the rules of professional conduct. In
the circumstances of those serious ethical violations, and as required by governing
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precedent, that omission causes us to conclude that the petitioner lacks the moral
qualifications (the term used in S.J.C. Rule 4:01, $18(5)) to be reinstated.
Ex. 15, at -0373. That panel also concluded that the petitioner had not met his burden of proof
on two other points. First, he had not demonstrated the required learning in law. Second, he had
failed to demonstrate that his reinstatement would not be detrimental to the public interest and
the administration of justice. Ex. 15, at -398, -399.
The petitioner objected to these conclusions, which were adopted by the Board after full
briefing. The Board denied the petitioner’s accompanying motion to reopen the proceedings to
admit the personal financial information he had consistently refused to provide before and during
the reinstatement hearing. The petitioner then sought leave from the single justice to withdraw
his petition for reinstatement, which was denied. He sought and was denied an order for
reopening from the single justice. He then waived any appeal and instead moved that the order
denying his reinstatement be issued nunc pro tunc to a date seven months prior, in effect
allowing near instantaneous reapplication for reinstatement. On November 19, 2020, the Court,
Kafker, J., denied the petition for reinstatement, effective October 21, 2019.
The petitioner is now before us on his second petition for reinstatement.
IV. Findings
A. Moral Qualifications for Reinstatement to the Bar
We find and conclude that the petitioner has not carried his burden of demonstrating that
he has “the moral qualifications … required for admission to practice law in this
Commonwealth.” S.J.C. Rule 4:01, § 18(5).
The petitioner faces a heavy burden. It is not open to us, and we do not, question the
outcome of the petitioner’s discipline case. Therefore, 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, 16 Mass. Att'y Disc. R. at 95 (citations omitted). That misconduct
6
“continued to be evidence of his lack of moral character … when he petitioned for
reinstatement.” Matter of Leo, 484 Mass. 1050, 1051, (2020), Dawkins, id., and to same effect,
see Matter of Centracchio, 345 Mass. 342, 346 (1963), and Matter of Waitz, 416 Mass. at 304, 9
Mass. Atty. Disc. R. at 342. Furthermore, an earlier hearing panel of the Board found and
concluded that the petitioner was not yet morally fit to resume practice and, as a result of the
petitioner’s waiver of his appeal from that determination, that finding and conclusion is final and
binding on him.
We are not persuaded that anything of consequence has changed since the petitioner’s
suspension and since the denial of his first petition for reinstatement. He still maintains that he
did not violate the rules that a hearing panel, the Board, and the Court found he had violated. Tr.
192-193. He considers his suspension to be a “wrong” that he seeks to “right” by obtaining
reinstatement. Tr. 88. There is no credible basis on which we can find that the “conclusive
evidence [of] moral[…] unfit[ness],” which “continued to be evidence of his lack of moral
character … when he petitioned for reinstatement” (Leo, supra), has been overcome. We have
no choice but to find that the petitioner continues to lack the moral qualifications for
reinstatement.
The petitioner has argued that he has a right to maintain his innocence of the charges
found against him, citing Matter of Hiss, supra. Below, we explain why Matter of Hiss is no
haven for the petitioner’s refusal to acknowledge his wrongdoing. We start, however, by noting
that even if Hiss did apply, the petitioner has not carried his burden of showing current moral
fitness.
Whether or Not Hiss Applies, the Petitioner Has Not Met His Burden of Proof
Even if the petitioner is excused from showing reform and acknowledgment of
wrongdoing, he has not made a showing of current moral fitness sufficient to overcome the
presumption of continuing unfitness described above.
Hiss only excused a petitioner from admitting guilt in the circumstances there by
declaring that it was not a necessary element of a showing of moral fitness. Hiss, supra, 368
7
Mass., at 456-459, 1 Mass. Att’y Disc. R., at 128-133. The Court did not say that other evidence
was unnecessary. Consequently, in Hiss the Court emphasized the extensive evidence of good
character that sufficed to warrant Hiss’s reinstatement despite his refusal to acknowledge guilt.3
Hiss, supra, 368 Mass., at 462-467, 1 Mass. Att’y Disc. R., at 135-141.
Notwithstanding the Board’s recommendation against reinstatement because Hiss did not
acknowledge guilt, its findings indicated that “Mr. Hiss is presently of good moral character and
he would almost certainly not commit any serious crime if readmitted to the bar,” and that
granting reinstatement would “clearly have no adverse effect upon the integrity of the Bar….”
Hiss, supra, 368 Mass at 461-462, 1 Mass. Att’y Disc. R. at 135. The Court found this supported
by substantial evidence. Id. Among other things, the Court noted:
Hiss’s scrupulous adherence to the order of disbarment and his clean criminal record in
the interim, with no taint of moral turpitude, 368 Mass. at 462, 1 Mass. Att’y Disc. R. at
135-136;
his efforts to earn an honest living and support his family without bewailing financial
losses from his disbarment, 368 Mass. at 462, 1 Mass. Att’y Disc. R. at 136;
his pursuit of scholarly activities through a program of lectures and publications that
avoided reference to his disbarment and focused on the United Nations and American
foreign policy, 368 Mass. at 462-463, 1 Mass. Att’y Disc. R. at 136;
the “uniformly good” evidence of Hiss’s character from his gainful employment in the
business world, including his “excellent business reputation both for industry and
honesty,” and his record of customers who wanted to deal only with him, Id., including
his refusal to charge a higher markup on sales to customers simply to generate higher
commissions, 368 Mass. at 463, 1 Mass. Att’y Disc. R. at 136-137;
the testimony from “a number of talented and eminent attorneys” attesting to his good
character, 368 Mass. at 464ff, 1 Mass. Att’y Disc. R. at 137ff, including testimony from a
member of the Harvard law school faculty who said he would have no hesitation hiring
Hiss as a legal consultant, 368 Mass. at 465, 1 Mass. Att’y Disc. R. at 138-139, testimony
from another member of the Harvard law school faculty that Hiss “disclosed a perception
of and sensitivity for the interests of others in controversial situations,” 368 Mass. at 465,
1 Mass. Att’y Disc. R. at 138, and testimony from a friend who was a member of the
New York bar that Hiss had the “highest” integrity, and whose attitude towards our
system of justice was that he would “take his chances with it again and again and again.”
3 We acknowledge that later-developed evidence supports a finding that Hiss was in fact guilty—and
therefore continued to lie at his reinstatement hearing—but we are here concerned with the evidentiary basis for the
decision in Hiss, whether or not later developments militated towards a different result.
8
368 Mass. at 466, 1 Mass. Att’y Disc. R. at 139
Hiss’ own “forthright and principled” testimony that included no hint of animosity or
grudge against the legal system that convicted him, and reaffirmed his trust and belief in
that system. 368 Mass. at 466-467, 1 Mass. Att’y Disc. R. at 140.
In contrast, the petitioner presented no such persuasive testimony as to his moral fitness
for reinstatement.
The petitioner presented no live testimony whatsoever from other lawyers or former
clients about his character and conduct. He appears to consider evidence of the esteem of
professional peers to be no more than a popularity contest before the legal “Brahmin” elites in
Boston. Tr. 89-90; Petitioner’s Objections to Reinstatement Procedure/ Hearing Brief, at 8, 11.
We, of course, disagree. Evidence of good character from one’s peers does not always, and does
not have to, come solely from the blue-blood lawyers of Boston. See, e.g., Matter of Scannell,
31 Mass. Att’y Disc. R. 554 (2015) (character testimony received from attorneys from Quincy
and Plymouth and from AA sponsor).
The supportive letters he offered the panel, Ex. 1, at -133 to 134, Ex. 8, Ex. 9, and Ex. 10,
are all entitled to little or no weight. At least two out of four were not current. They were
submitted to the first hearing panel and do not help to establish any change since the first panel
determined that the petitioner was not ready for reinstatement.4 None of the four demonstrate an
appreciation of the basis for the petitioner’s suspension and, therefore, none carry substantial
weight in determining moral fitness. Matter of Hiss, 368 Mass. at 464, 1 Mass. Att’y Disc. R. at
137-138 (the Court and the board discounted testimony from witnesses who did not acknowledge
the petitioner’s guilt and did not distinguish his character before and after the underlying
conviction leading to disbarment); Matter of Dawkins, 432 Mass. at 1011, n. 5, 16 Mass. Att’y
Disc. R., at 96, n. 5 (Court held that hearing panel was warranted in discounting supportive
letters that focused on good works before suspension, shed little light on rehabilitation or current
moral qualifications, and where one of the writers admitted knowing little of the petitioner’s
4 The letter from Professor Atina Knowles, a professor of philosophy, attached to Exhibit 1 at Bates pages -
133 to -134, is undated.
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wrongdoing or that the petitioner had been suspended twice); Matter of Corben, 31 Mass. Att'y
Disc. R. 91, 101 (2015) (citing Hiss, supra, and Dawkins, supra); Matter of Lee, 28 Mass. Att'y
Disc. R. 540, 549-551 (2012) (same). We note that of the four letters offered, only one was
signed by a lawyer. Ex. 10. The others were signed by a former client and business person (Ex.
9), and philosophy professors. Ex. 1 at 133ff, Ex. 8.
Furthermore, rather than a focus on protecting the public interest with knowledge of the
petitioner’s suspension and the underlying misconduct firmly in mind, these letters have the
flavor of being prepared by acquaintances with a willingness to accommodate the petitioner,
about which the Court has warned the Board and its panels. Matter of Keenan, 314 Mass. 544,
550 (1943) (“Evidence of character or reputation from friends or acquaintances is usually subject
to discount for the complacency of witnesses who are willing to be accommodating and many of
whom, although sincere, may not fully appreciate the necessity of protecting the public
interest.”).
In fact, one of those letters addresses the petitioner’s moral fitness using what appears to
be a rote recitation of the language of Hiss concerning an appreciation of the distinctions
between right and wrong in the conduct of human beings towards one another. Ex. 8; compare
similar language at Ex. 1 at -134. This rote recitation was apparently made in ignorance of the
facts that, after a breakdown in the attorney-client relationship that followed his failure to
comply with his professional obligation of communicating with that client, the petitioner had
tried to collect a fee to which he was not entitled, and lied to a court under oath about his former
client in an effort to collect it.
Evidence of moral fitness can be found in good works that demonstrate a sense of
responsibility to others. See Matter of Wong, 442 Mass. 1016, 1017-1018, 20 Mass. Att’y Disc.
R. 540, 544 (2004) (Court notes approvingly physical labor, active role in church community,
participation in sons’ activities and community work); Matter of Sullivan, 25 Mass. Att’y Disc.
R. 578, 583 (2009) (“[a] petitioner’s moral character can be illustrated by charitable activities,
volunteer activities, commitment to family, or community work.”). The petitioner, however,
10
presented no evidence of charitable activities that evidenced moral fitness generally.5 Tr. 133-
134.
We do not seek to minimize the potential significance of the petitioner’s establishment of
a non-profit corporation, the “mission” of which is to educate working class individuals in
critical thinking in philosophy and religious studies. Tr. 134; Ex. 1 at -006 to -007. If that is its
mission, and if that mission is pursued without regard to self-interest, the petitioner deserves
some credit. The petitioner, however, presented no evidence, other than vague and general
descriptions, of what this corporation has, in fact, done, or how many “working class” people it
has actually educated. The petitioner has not allayed our substantial concerns whether this
“charitable” corporation was merely a vanity project serving as an outlet for the petitioner’s
views, disseminated by exploiting forms of media that avoid peer review. See Tr. 134 (“I doubt
if you agree with anything I wrote [for the podcast] … [y]ou will not agree with anything that I
wrote or any analysis.”). Our concerns are deepened by the petitioner’s self-confessed inability
to recall any “charitable work of significance during [his] suspension.” Tr. 229.
The petitioner presented himself, through non-specific testimony and assertions, as
something of a “warrior” for the downtrodden, who took on cases for the “underserved” that noone
else would take on a contingency basis. Tr. 47-50, Ex. 1, at 12. Any persuasive force of that
evidence was entirely undercut by the petitioner’s own testimony.
First, the petitioner made it clear that he would put up with difficult behavior from the
well-heeled that he would refuse to accept from poor clients. Tr. 214 (“I mean if I had a banker
as a client or, you know, some highly educated Ph.D. who was suing in a lender liability case,
then I wouldn’t have the problem. But usually it’s some working class person who lost their job,
5 Ex. 9 references work by the petitioner on behalf of a real estate management firm whose portfolio
includes affordable housing. Ex. 10 references prisoners’ rights work the petitioner took on referral that others
would not. Neither letter indicates that the work was performed pro bono or that the petitioner did not anticipate
seeking court-awarded fees for his work if the clients could not pay. The petitioner’s testimony about the work he
did and would do for the real estate management firm indicates that it is far from limited to advancing the public
interest. Tr. 220-223.
11
lost their house …”). Second, we note the following exchange with Bar Counsel emphasizing
the petitioner’s personal pecuniary interest (Tr. 118-120):
A. … If she wanted me to file an actual appearance and not just get
involved in some kind of workout, it was 25 grand. She knew that.
Q. Mr. Diviacchi, didn't you --
A. We talked on the phone before she came in. She was supposed to bring
$25,000, right, I mean 25,000 is what she was supposed to bring in. If she
says she wasn't, she's lying. She was lying back then and lying now. How
can I make it any clearer?
Q. I am not talking about her testimony. I am talking about your own
email to her saying does this mean you're going to bring $15,000 to the
meeting next Tuesday.
A. That was to represent her in a workout for the 50th time. It does not
involve an appearance. You think -- would you handle a $2.8 million
lender liability case for 15 grand? Would you?
… Do you think I'm some kind of idiot? She got a deal. 25 grand, she was
supposed to bring 25 grand to the meeting, and when she didn't I should
have kicked her out of there.
The Inapplicability of Matter of Hiss
We now explain why the petitioner’s refusal to truly acknowledge the nature of his
misconduct, see, e.g., Ex. 1, at -015, cannot be excused on this reinstatement petition by resort to
Matter of Hiss, supra. See Tr. 13-17; Ex. 1 at 15 (invoking Hiss to excuse petitioner’s refusal to
acknowledge wrongdoing). To be clear: we review the basis for the petitioner’s discipline for
the sole purpose of analyzing this case under Hiss by determining whether the petitioner either
admitted or did not contest the operative facts of his misconduct. We limit our discussion to
certain examples and do not suggest that we question any other findings, conclusions, or the
outcome, all of which were fully vetted by the Board, a single justice, and the full Court, and
which are binding on us.6
As explained below, this case is unlike Hiss. There Alger Hiss, despite petitioning for
reinstatement, staunchly maintained his factual innocence of the (criminal) conduct set forth in
the charges resulting in discipline. Therefore (based on the information available to the Court at
6 We also leave to another day the question of the current outer boundaries of Hiss in light of the Court’s
repeated emphasis on the need for true reform as evidenced by acknowledgment of responsibility. Leo, supra, 484
Mass. at 1051.
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the time), asking Hiss to acknowledge guilt would have been to demand that he lie in order to
prove moral fitness.7 Hiss, supra, 368 Mass. at 457-459, 1 Mass. Att’y Disc. R. at 131-133. In
contrast, the basic facts of this petitioner’s misconduct were admitted or uncontroverted by the
petitioner himself. As noted by the first reinstatement panel, Ex. 15, at -384, -388, and argued
before us by Bar Counsel, Tr. 18-19, 22-23, the petitioner refuses to accept the legal significance
of his misconduct, as adjudged by the Commonwealth’s highest court, with exclusive jurisdiction
over Massachusetts legal ethics and lawyer discipline.8 This places the petitioner’s case
categorically outside of the holding in Hiss, where the Court said: “We do not consider in this
context the person who admits committing the alleged criminal act but honestly believes it is not
unlawful.” 368 Mass. at 459, 1 Mass. Att’y Disc. R. at 122.
The petitioner insisted on attempting to re-litigate the underlying disciplinary findings
and conclusions, Tr. 13, 31, 33ff, simply because Bar Counsel sought to introduce evidence of
the basis for his discipline and demanded some evidence of the petitioner’s acknowledgment of
his wrongdoing. Tr. 12-13. We allowed him some latitude, but it was clear that he was
challenging findings that, after careful review, we consider to be immaterial to the decision by
the hearing committee, the Board, the single justice, and the Court, Tr. 53-74, 75-77, as
illustrated by the analysis that follows. He argued before us that he contested every material fact
in his disciplinary case, e.g. Tr. 19-20, but he did not.
Concerning the disciplinary charge of charging or attempting to collect a clearly
excessive fee, the Court noted (475 Mass. at 1019; Ex. 1, at -035):
The hearing committee found that the contingency called for in the agreement did
not occur. The client recovered nothing on her counterclaim. Any funds obtained
by the client did not come from her adversary in the Federal court litigation, but
from the third party to whom she sold the property, a transaction with which
7 The petitioner’s emphasis on the later-discovered evidence of Hiss’s involvement in espionage against the
United States, Petitioner’s Objections to Reinstatement Procedure/ Hearing Brief, at 11, merely underscores that our
system is fallible, and that later-received evidence might show the unwisdom of the reinstatement granted in a
particular case. This, of course, does not relieve the petitioner of his burden of proof in this case.
8 Ellis v. Department of Industrial Accidents, 463 Mass. 541 (2012).
13
Diviacchi did not assist. We agree with the committee, board, and single justice that
the fee agreement did not cover this eventuality.
Diviacchi, supra, 475 Mass. at 1019 (emphasis supplied). There was no dispute about the
existence and written terms of the fee agreement. There is no doubt that the petitioner sought to
recover a contingent fee calculated under it. Tr. 118, 123; Ex. 5 at -171. There was no dispute
that a settlement had occurred as a result of negotiations the petitioner knew were occurring but
in which he refused to participate. Tr. 82 (“[W]ere there settlement negotiations going on behind
my back? No. I filed an attorney’s lien. I knew they were trying to settle the case….”). There
is no dispute that the client’s debt to a bank was reduced, allowing the client to sell her real estate
for a value in excess of the remaining debt to that bank. Tr. 120-121, 122-125; Ex. 1 at 33, Ex.
2. Still, the petitioner is unwilling to accept the legal significance of his acts: he was not entitled
to a contingent fee based on purported net proceeds of the client’s sale of her own property
because the contingency set forth in the fee agreement he wrote had not occurred, and his lawsuit
against his client therefore constituted an effort to collect a clearly excessive fee.9
Concerning the charges that the petitioner had violated rules concerning competence,
diligence, and pursuit of his client’s goals, the Court noted (475 Mass. at 1020; Ex. 1, at 36):
The violations of these rules were not based merely on [Diviacchi’s] not filing any
particular motion or petition, but on his persistent refusal to take any action in
furtherance of the client’s clear desire to avoid foreclosure. Moreover, he refused
to participate in settlement negotiations and refused to meet with the client to
discuss her case. We agree that Diviacchi violated the rules as charged.
Diviacchi, supra, 475 Mass. at 1020.
There appears to be no dispute that the petitioner flatly refused to discuss the client’s case
with her at certain points and to participate in the settlement discussions. The petitioner
acknowledged before us more than once that he did not talk to his client enough and that he
9 For this reason, the petitioner’s arguments about collecting a balance of $10,000 due as an upfront
payment, and his arguments about quantum meruit recovery, Ex. 19, at 4-5, are inapposite. We need not address the
petitioner’s erroneous argument that the Court’s holding imposes a subjective standard applicable only to him
because it does not involve the application of the “objective factors” listed under Mass. R. Prof. C. 1.5(a) (setting
forth a non-exclusive list of factors). Tr. 84-86, 170-171, 231-233; Ex. 1, at -004; Ex. 19, at 4. The Court’s
pronouncements meant that, as a matter of law, there was no “recovery,” i.e., the contingency on which recovery of
a percentage fee depended.
14
should have withdrawn when unwilling to discuss the client’s case with her. Tr. 50-52, 79 (“I
was found in violation of rules 1.1, 1.2 and 1.3… I denied … that I violated any of that until I got
back from California in early June.”), and 217 (“After I got back from California since I didn’t
withdraw I should have met with her. … I should have withdrawn, but since I didn’t I should
have met with her and done all that other stuff, yes.”). The petitioner’s post-hearing effort to
finesse his way out of his own admissions before us (Ex. 19) is not credible; we do not credit that
his post-hoc arguments undo the import of his hearing testimony before us, conceding the basic
facts.
Finally, with respect to the findings and conclusions that the petitioner made sworn
misrepresentations to two courts about his client, the Court said (475 Mass. at 1020; Ex. 1 at 36):
As to his violations of rules 3.3 and 8.4 by making sworn false statements to court,
Diviacchi maintains, without citation to authority, that his statements should be
evaluated under a subjective, good faith basis standard. That is not the law. “[A]n
assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the
lawyer or in a statement in open court, may properly be made only when the
lawyer knows the assertion is true or believes it to be true on the basis of a
reasonably diligent inquiry ” (emphasis added). Mass. R. Prof. C. 3.3 comment 2.
Diviacchi's false allegations about the client's supposed “standard habit and
business routine of dealing with lawyers” were made on his own behalf and
purportedly on his own personal knowledge. The allegations were found by the
committee to be false. Diviacchi has offered no evidence that he conducted a
reasonably diligent inquiry prior to making them.
What the petitioner said about his client,10 and the circumstances under which he said it
(i.e., under oath, and in court, as part of an effort to obtain relief against his former client) were
undisputed. The petitioner asserted, under oath to a court, that he had “discovered” the things of
which he accused his client, presenting them as a matter of his own knowledge when they were
10 Putting to one side the petitioner’s representations, found by the hearing committee and the Board
(upheld by the single justice, and the full Court) to be knowingly false, concerning purported “lies” by the client
about the payment to be brought to an initial meeting, and about settlement “behind [the petitioner’s] back” (Ex. 1,
at 33), the petitioner said the following (Ex. 1, at 33):
Discovery has further revealed that such deceit by the [client] is her standard habit and business
routine for dealing with attorneys. In the past ten years, [the client] has had > 15 different attorneys
represent her in a half-dozen matters ranging from a divorce in probate court to a lender liability
action in [F]ederal court with the same pattern: she hires an attorney, works him or her until she
stops paying the bill, fires that attorney and disputes the bill and files a [board] complaint, and then
gets another attorney and starts the process again.
15
not; the petitioner admitted before us that they were not presented to a court as a “fair” or “good
faith” inference. Tr. 107. Further, the hearing committee found, and the Court affirmed, that the
petitioner had no reasonable basis for his accusations. The single justice noted: “The respondent
provides no evidence to suggest that he conducted a ‘reasonably diligent inquiry’ prior to making
the misrepresentations to two courts. … Rather, as the board noted, ‘[a]t the hearing, the
respondent was unable to offer evidence to support his statements.’” Diviacchi, supra, 31 Mass.
Att’y Disc. R. at 148-149.
Claiming to have hard facts within his personal knowledge, when he did not have such
knowledge, was not just a “mistake,” as the petitioner seeks to characterize and minimize his
misrepresentation.11 Tr. 83, 105, 106.
The petitioner’s directions to the panel to consider Ex. 5, consisting of his requests for
findings in the underlying discipline case, Tr. 109, for the missing bases for these accusations is
unavailing; these do not make out the “standard habit and business routine” to which he swore as
a matter of his own knowledge. Ex. 5 at -114-145. Ex. 5 in substance concedes that his
accusations about his client’s treatment of more than fifteen prior counsel were mere
“inferences” and, we note, on such thin information as to be mere speculation without a
reasonable basis—just as the Court stated, supra, in upholding his suspension. Ex. 5 at 171-172,
176-178.
We do not credit the petitioner’s efforts before us to back-fill a basis for his accusations
about his client’s allegedly uniform and systematic treatment of fifteen or more attorneys,
especially in light of the concessions of Ex. 5. The issue is whether the petitioner has
consistently asserted his innocence of the conduct at issue. His vague testimony before us does
not make up retroactively for the lack of evidence at his disciplinary hearing; further, we found
the testimony before us to be unilluminating and suspiciously inconsistent. Tr. 105-106, 107
(talked to “all the attorneys [he] knew about”), 204 (“I talked to about 10 or 12 – no, I talked to
11 This misrepresentation of his own state of knowledge is the “intentional misrepresentation” that the
petitioner says rules 8.4(c) and 3.3(a) require, yet which he continues to insist he did not violate. Tr. 108.
16
more. I talked to a lot of attorneys”), 205 (after claiming he spoke to fifteen attorneys, changed
to “I spoke to a lot of her prior attorneys. … I don’t remember the exact number. … Whether it
was 10 or 15, I don’t remember.”). Further, the petitioner admitted before us that he did not
confirm with fifteen or more other attorneys that his former client had abused them all following
a certain specific “standard habit and business routine,” (see note 10, supra) and he specifically
admitted that he did not have evidence that the client had invariably topped off her purported
serial abuse of her attorneys by reporting them to the Board of Bar Overseers. Tr. 82-84, 104-
105, 204-205.
The petitioner has not shown that he in fact contested at his disciplinary hearing the fact
that he did not have a reasonable basis for his accusations against his client. Ex. 5 confirms that
he did not have that basis and instead shows that the petitioner chose to defend speculation,
misleadingly dressed as personal knowledge, by using the term “fair inference.”
There is no dispute, therefore, that the petitioner did things on the basis of which the
Court upheld a finding of knowingly false statements to a tribunal under oath.
It follows, therefore, that because the petitioner has not denied or contested conduct that
formed the basis for his discipline, the Court’s express limitation on the scope of Hiss applies.
That limitation does not merely leave an open question about whether Hiss should or should not
be extended to cases like this. That limitation is fully consistent with the Court’s teaching that an
attorney generally finds no sanctuary from disciplinary consequences merely by refusing or
failing to understand or acknowledge the legal significance of his conduct.12
Therefore, this petitioner must meet the standard requirement in reinstatements that he
acknowledges his misconduct, in order to demonstrate reform and to assure the panel, the Board,
and the Court that lessons have been learned and misconduct will not be repeated. Leo, supra,
12 See Matter of the Discipline of an Attorney (Three Attorneys), 392 Mass. 827, 835, 4 Mass. Att'y Disc.
R. 155, 165 (1984) quoted in Matter of Hrones, 457 Mass. 844, 855, 26 Mass. Att'y Disc. R. 252, 268 (2010):
“There have been, and will be, few cases of unethical conduct where we consider it relevant that an offending
attorney was not aware of the disciplinary rules or their true import.” See also Matter of Zankowski, 487 Mass. 140,
153 (2021) (“[The hearing committee] also weighed in aggravation that the respondent had not acknowledged the
nature, effects, or implications of her misconduct. … Like the board, we accept those factors in aggravation.”)
17
484 Mass. at 1051.
No Showing of Remorse or Reform
We start by reviewing the pertinent, well-established, general principles.
A “fundamental precept of our system is that a person can be rehabilitated,” Matter of
Ellis, 457 Mass. 413, 414, 26 Mass. Att’y Disc. R. 158, 163 (2010), and even conviction of a
serious crime does not preclude a showing of present moral fitness. Id. “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.” Matter of Waitz, 416 Mass. 298, 305, 9 Mass. Att'y Disc.
R. 336, 343 (1993); see also Daniels, supra, 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.’” Leo, supra, 484 Mass. at 1051, Dawkins, supra, 432 Mass.
at 1011, 16 Mass. Att'y Disc. R. at 95 (citations omitted); see also Matter of Ellis, supra, 457
Mass., at 414, 26 Mass. Att’y Disc. R. at 163-164. “It is not enough to show that he has not been
sued or accused of a crime; the petitioner must also demonstrate that he understands and has
taken responsibility for his actions, and that he has done his best to make amends.” Leo, supra,
484 Mass. at 1051.
We are wholly unpersuaded that the petitioner has shown any reform that would ensure
that he would not repeat his misconduct, and not only because the petitioner does not accept the
teachings of the Board and the Court about the ethical impropriety of his misbehavior. The
personal statement in his questionnaire, part one, response contains the following:
I fully accept responsibility for my suspension and do not claim to be a victim.
It was stupid of me and I accept full responsibility for my stupidity in agreeing to
represent the underlying client when she came back to me begging that I would
represent her after having previously declined the representation based on my
distrust of her; and it was incredibility stupid of me to fight the client's legal fee
claims against me. In the end, I have no one to blame but myself for my suspension.
I should have simply waived my fee and my constitutional right to have a jury
decide my fee claim thus avoided further contact with Bar Counsel and the BBO
18
which is what I will do in the future. Though such stupidity was a violation of my
ethical obligations as an attorney, they do not show any moral turpitude.
This purported “acceptance of responsibility,” especially when coupled with the petitioner’s
stubborn insistence that the hearing committee, the Board, the single justice, and the full
Supreme Judicial Court, all got it wrong in imposing discipline on him, Tr. 134-136, 148; Ex. 1,
at -002ff, is nothing of the sort.13 It is, despite its disingenuous wording, an example of the type
of “blame someone else” thinking about which the Court has warned:
A bar discipline proceeding is not a forum best used broadly to cast blame or
aspersions on others. … [E]vidence of misconduct is neither excused nor obscured
by accusations of misconduct by others.
Matter of Ablitt, 486 Mass. 1011, 1019 (2021).
The Petitioner’s Continued Reckless Accusations and Contempt for the Legal System
What we have said suffices to deny the petitioner’s reinstatement. Nevertheless, we take
this opportunity to point out a matter that adds weight to, but does not drive, our determination
that the petitioner has not met his burden of proof.
The petitioner’s fitness to return to the practice of law is put in serious doubt by his
contempt for the legal system in general and the disciplinary system in particular. This contempt
has been displayed over and again in his assertions in this reinstatement proceeding and
elsewhere.14 Of course, the petitioner is entitled to his opinions, and he may publish them
13 Likewise, his assertion that he knows his professional obligations, including an obligation not to
misrepresent to a court, Tr. 86, although academically supported by his score on the MPRE, see infra, is belied by
his attitude towards his sworn misrepresentations about his client, which he dismisses as a “mistake.” Tr. 83.
14 “The hearing panel was incompetent in its review of a convoluted lender liability case and as a result of
their incompetence made wrong findings.” Ex. 1 at -002; see also Tr. 136-137.
“Such conduct again confirms Petitioner’s career-long criticism of the disciplinary process.” Id.
“Thus for the purposes of this case, The Supreme Judicial Court applied a unique subjective standard to
Rule 1.5 not present in any case law before or since in order to discipline Petitioner.” Ex. 1 at -004.
“In the future, as soon as a client gets difficult, as would the esteemed members of the Panel, the BBO, and
the Bar, he will move to withdraw and abandon his client to their fate.” Ex. 1 at -005.
“As with my graduate studies, Bar Counsel and the BBO are contemptuous of such politically incorrect
charitable work. I maintain it establishes my good moral character and my ability to understand and distinguish
right from wrong which is the required attribute – not political correctness – for reinstatement.” Ex. 1 at -007.
19
“My life should be judged holistically as a whole and not solely by what politically correct activities I have
or have not done during the last few years of life nor upon the politically correct work which Bar Counsel does not
consider sophomoric and of which they are not contemptuous.” Ex. 1 at 7.
“Bar Counsel ridicules me for not having a nicer personality; …. This is typical of the hypocrisy and
elitism that led to the false findings made in my suspension hearing and of the form-over-substance nature of socalled
professional ethics exhibited in my suspension hearing and prior reinstatement hearing serving only to enforce
uniformity of belief and action among members of the Bar with little concern for the diversity of belief and action of
which the Bar is constantly pontificating.” Ex. 1 at 13.
“I now know my aggressive combative manner of practice is no longer wanted nor appreciated by those
who govern the post-modern practice of law in which form is much more important and considered substantive than
substance. The practice of law like everything else in post-modern Technological Society demands uniformity and
homogeneity of word and action and a strict allegiance to blind rule-following without question. There is simply no
room for diversity of opinion and belief in the practice and ethics of law given the modern need for it to be and to
remain an oligarchy. I must adapt and will do so and have done so.” Ex. 1 at -014.
“I anticipate that Bar Counsel will also oppose my reinstatement based on my social and political
statements criticizing Bar Counsel, the BBO, and the present judiciary system as a plutocratic oligarchy outdated
and unfair both in terms of general philosophy and in particular methodology.” Ex. 1 at -015.
“Because Bar Counsel once again will be using Petitioner’s career-long criticism of the Judiciary and its
BBO as a basis to deny reinstatement, Petitioner as a matter of principle here outlines his conceptual criticism of the
reinstatement process and its nominal use of the pleasing words of morality to hide its immoral substance.”
Petitioner’s Objections to Reinstatement Procedure/ Hearing Brief, at 1.
“Petitioner’s free speech opinions are confirmed by the historical and conceptual foundations of the Rules
of Professional Conduct when actually known and studied which is rarely done by the self-regulating oligarchy of
the Bar. The law has already (unjustly) suspended the Petitioner for twenty-seven months.” Id. at 1.
“However, Petitioner respectfully submits that the historical reality of Codes of Ethics and their actual
foundation not just the aesthetic beauty of saying their words ought to be remembered here where the Petitioner is
assumed to be a moral inferior whose life is about to be judged by his moral superiors and especially when Bar
Counsel starts chastising the Petitioner for referring to the BBO as “moral busybodies”. Id. at 4-5.
“If present legal and social culture were as rationally consistent and honest with its morality as the
Confederate veterans of 1887 Alabama were with theirs, professional codes of ethics would be joining the books,
statutes, and other unpleasant reminders of our shared human past that are presently being burnt, banned, torn down,
or whatever as supposedly moral acts of contrition and renewal.” Id. at 5.
“They [professional codes of conduct] are accepted and foster because the words “ethics” and “morality”
sound pretty even when used to commit what their proponents would call immoral acts if actually studied and
contemplated.” Id. at 5.
“[T]he actual substance behind the so-called Code of Ethics [...] is not the empathic morality preached by
the ethicists of the Bar but blind rule following converting morality to at best little more than a secular religious
personality and popularity contest.” Id. at 8.
“To the “moral busybodies” of the Supreme Judicial Court who through appointment by a few, absolute
immunity for their decisions, and life tenure have become a modern House of Stuart Star Chamber so accustomed to
stating fact and “law” as necessary to enforce their own personal ruling class ideology that they have become
incapable of differentiating fact from fiction and whose fear of losing their power prevents them from dealing
honestly with the miserable lives who have the misfortune of appearing before them (remember the words of Upton
Sinclair, “judges are not bought, they are selected”)…” Ex. 17 at -0448.
“To the glorified bookkeepers that call themselves Bar Counsel and Board of Bar ‘Overseers’ consistent
with their plantation heritage and mentality whose only knowledge of ethics is how to spell it and including but
limited to the hypocritical, delusional, sycophant, bigots who were involved in the above case who were and are
willing to have their personal emotional dislike and professional jealousy of an individual they consider beneath
their class serve as a basis for financial, personal, and familial punishment of that individual; …” Ex. 17 at -0448.
“I have done over a hundred appeals. I would say three-quarters of them the statement of facts are almost
completely worthless. So there is usually no relationship between the facts stated on an appeal and the facts stated at
trial. So that is not unusual. I don't blame the SJC for it. It's just a matter of life. You just cannot trust a statement
of facts in any appellate decision.” Tr. 122.
20
without facing criminal or civil liability, so long as they do not exceed the limits posed by law
outside of the Rules of Professional Conduct.
Still, one of the requirements for the “ethical” practice of law, as that term is used in the
rules of professional conduct, is respect for the legal system. One can easily see that a person
convinced to his bones of the utter corruption of the Courts, and that they are merely
intellectually dishonest enforcers of a system of oppression, will find little need for professional
restraint when attempting to pursue a personal sense of justice through abusive legal process.15
But this is not permissible, not only under the specific rules that limit zealous advocacy to
conduct consistent with the truth-finding function of adjudication, but also under the general
principles that guide interpretation of the Massachusetts Rules of Professional Conduct. As the
Court states in their preamble:
A lawyer should demonstrate respect for the legal system and for those who serve
it, including judges, other lawyers, and public officials. While it is a lawyer's duty,
when necessary, to challenge the rectitude of official action, it is also a lawyer's
duty to uphold legal process.
S.J.C. Rule 3:07, Preamble: A Lawyer’s Responsibilities, ¶ 3. It is difficult to reconcile the
disdain displayed by the petitioner towards the Rules of Professional Conduct, those who
administer it, the court system generally and the Supreme Judicial Court in particular, with
reinstating the petitioner to a position within the system governed by those rules, their
administrators, and that Court. Our concern about the petitioner’s inner motivations towards the
Court and the legal system is deepened by his testimony that he “hated … every minute” of his
25-year legal career. Tr. 87.
Nevertheless, to give as wide latitude as is reasonably possible to the petitioner’s First
Amendment/ free speech rights we focus on a specific reckless accusation concerning the
15 We do not credit the petitioner’s tortured efforts to convince us that he “respects” the legal system
despite his conviction that it is corrupt. Tr. 214-215, 235-236. That testimony improperly treated “respect” as no
more than compliance obtained at gunpoint: “I have to respect the system I mean the same way I have to respect
someone who holds a gun to my head…. If I’m not respectful of the judiciary, just as with a gun to my head I will be
punished.” Tr. 236. In fact, one senses in the petitioner’s testimony a general disdain for our system of law: “You
can find a case that says anything you want.” Tr. 188.
21
hearing committee in the petitioner’s disciplinary adjudication. The petitioner published it on the
internet in a document that purports to tell the “truth” about his disciplinary case, which he still
maintains there and intends to keep there for the indefinite future. Tr. 137-140; Ex. 17.
As quoted in note 14, above, the petitioner accused his hearing committee of being
composed of bigots. Tr. 156; Ex. 17, at -0448. Pressed on cross-examination for the basis of
this accusation of bigotry, he pointed to the fact that one hearing committee member was not
present for one day of his disciplinary hearing. Tr. 177-179, 182. In his view, this meant that the
committee member viewed him as an ambulance chaser whose side of the case was not worthy
of consideration. Tr. 177-179, 180-181. The petitioner pronounced: “I don’t care what the
reason [was for the committee member’s absence]. If she wasn’t there, she’s got no business to
sign off on decisions calling me a liar.” Tr. 179. He admitted that he did not know or care what
actual biases or prejudices warranted calling the committee member a “bigot;” it was enough for
him that she had contributed to a decision when she was not in attendance at the hearing for one
day. Tr. 180-181.
The committee member’s absence was permitted by B.B.O. Rules § 3.7(c). Section
3.7(c) expressly allowed the absent hearing officer to participate in deliberations so long as she
was provided with a copy of the transcript. The absent member, therefore, had available a
number of resources for contributing to the committee’s credibility determinations. These
included the transcript, that member’s personal credibility determinations concerning other
witnesses who testified before her, the impressions of the other committee members shared
during deliberations, and other tangible and intangible factors that go into the finder of facts’
credibility determinations (including the petitioner’s demeanor and conduct during the sessions
of the evidentiary hearing that the committee member did attend). There was, therefore, no
reasonable basis for the petitioner to assert that the only basis for one committee member’s
contribution to the committee’s decision was bigotry.
Because the accusation of bigotry was baseless and, therefore, reckless, and was directed
specifically against the adjudicative body hearing the petitioner’s discipline case, it falls outside
22
of First Amendment protections of speech by lawyers. See Matter of Cobb, 445 Mass. 452, 21
Mass. Att'y Disc. R. 93, 120-121 (2005) (reckless accusations casting aspersions on judges may
constitutionally form the basis of bar discipline). See also Garrison v. Louisiana, 379 U.S. 64, 74
(1964) (“[E]ven when the utterance is false, the great principles of the Constitution which secure
freedom of expression in this area preclude attaching adverse consequences to any except the
knowing or reckless falsehood.”) (emphasis supplied). We reject the petitioner’s attempt,
presented in his motion in limine, to distinguish Cobb, and his citation there to decisions from
other jurisdictions that are not controlling here.
Publishing the accusation, and maintaining it on the internet, also shows that the
petitioner cannot be trusted to refrain from repeating the very type of misconduct that warranted
his suspension. See Ex. 1 at 36-37. There is a limit to reasonable inference; the point at which it
is passed might be hard to discern in some cases, but not here. The petitioner ignored it when he
attacked his former client in his effort to collect a clearly excessive fee, and he continues to
ignore it by maintaining his internet post tarring his hearing committee as composed of “bigots.”
For all of the foregoing reasons, we conclude that the petitioner has not shown that he has
“the moral qualifications … required for admission to practice law.”
B. Competence and Learning in the Law
We find and conclude that the petitioner has not met his burden under S.J.C. Rule 4:01, §
18, to demonstrate that he has the “competency and learning in law required for admission to
practice law in this Commonwealth.”
We start by emphasizing that there appears to be no question that the petitioner has the
raw intellectual firepower to maintain his learning in the law. We are favorably impressed by the
passing score of 106 he received on the Multistate Professional Responsibility Examination. Tr.
35; Ex. 1 at -101. We are also favorably impressed that the petitioner has been accepted into a
doctoral program in philosophy and has been pursuing that advanced degree with great diligence,
23
Tr. 39-42; we certainly do not consider these studies to be “sophomoric.”16
Nevertheless, these do not demonstrate the maintenance of the learning required of
someone seeking readmission to the bar. As S.J.C. Rule 4:01, § 18 specifies, the learning to be
demonstrated is that required “for admission to the bar,” not that required for a post-graduate
degree in another field. Indeed, the petitioner himself suggested that re-taking the bar
examination would be a good way to measure his learning in law. Tr. 36, 131.
Unfortunately, the petitioner did not follow his own advice or pursue any reasonable
approximation, and he has not otherwise sufficiently maintained his learning in the law. We note
that he attended the “Practicing with Professionalism” course, Ex. 1 at 8, 105, but this is not
directed to substantive areas of the law in which the petitioner might practice, or in which he
would be licensed to practice on reinstatement.17
The petitioner has taken no formal continuing legal education courses in substantive
fields. Tr. 224; Ex. 1, at 8. The reason he offered for not doing so—in sum, that CLE courses
are schmooze sessions where the presenting lawyers expand thirty minutes of materials into an
entire day, Tr. 90, 188-189—is inadequate and contrary to the long tradition of the Board and the
Court looking to such courses as an appropriate vehicle for maintaining learning in law.18 We
add that this testimony and his testimony that you do not need continuing education because
“you can look it up” (Tr. 209) is contrary to the status of law as a learned profession with a
shared obligation to aid in the development and improvement of the law. S.J.C. Rule 3:07,
16 We have seen no evidence, despite the petitioner’s accusations to the contrary, Tr. 126-130, 133; Ex. 1 at
6, that the prior reinstatement hearing panel, the Board, or Bar Counsel dismissed his post-graduate education as
“sophomoric.” The petitioner offered to present the document in which, he says, Bar Counsel used the word
“sophomoric” to describe his studies, Tr. 127, but he did not move any such document into evidence. Tr. 146-147,
152.
17 In addition, the petitioner dismissed the PWP course as, in effect, worthless. Tr. 37-39.
18 Similarly, we join the prior reinstatement panel in rejecting the petitioner’s reasoning to the effect that,
because each civil rights case is unique, and because judges have made contradictory decisions, attending
professional education seminars is pointless. Ex. 15, at -397, Ex. 16, at -429. None of these “reasons” detracts from
a need to stay current on developments, and someone who does so will not, contrary to the petitioner’s view, have to
“relearn the law every time….” Id. A much stronger argument can be made that an attorney deciding whether or
not to accept a new case should be current on recent developments lest they disserve themself and their client by
taking on a difficult and excessively risky case simply because they do not know what they do not know.
24
Preamble: A Lawyer’s Responsibilities, ¶ 4. In a similar vein, the petitioner has not maintained
memberships in professional organizations. Tr. 224-225.
The petitioner attempted to make up for his lack of formal professional education by
reviewing Massachusetts Lawyers Weekly, including back issues. Tr. 91-92. We received in
evidence the notes he took during this review, which extended from December 2015 to March
2021. Ex. 18. This was clearly a time-consuming task, and we applaud the petitioner’s efforts
so far as they went.
However, simply reading Massachusetts Lawyers Weekly has never been enough to
warrant reinstatement where the petitioner has been away from the practice of law as long as this
petitioner.
To the extent the petitioner offers it to us in this case as a substitute for other forms of
continuing education (which, therefore, distinguishes it from other reinstatements where
petitioners were not required to show the depth of their learning from Massachusetts Lawyers
Weekly) those notes appear to be rather sketchy and superficial, being largely limited to a brief
statement of the petitioner’s understanding of the holdings of cases. They do not include any
jurisprudential analysis—of the type one can at least attempt during a CLE session with fellow
professionals—of the reasoning behind the decisions, the broader implications of the cases, or
their place within discernible trends in the law. The petitioner claims to have read cases that
Massachusetts Lawyers Weekly brought to his attention, Tr. 91, but other than his dubious sayso,
we see no evidence to that effect in his notes or elsewhere. Once again, we would not insist
on proof on this point but for the fact that the petitioner has not presented other evidence of
competence and learning.
The petitioner pointed to an affidavit he submitted as an attachment to Ex. 1, at 111-129,
purporting to set forth a list of “a lot of Law Review articles and books by philosophers of law”
that he had read. Tr. 90. The affidavit and attached bibliographies are more generally
philosophical, or at the boundaries of science and philosophy, but none are “Law Review
25
Articles” in the more common legal usage of that phrase. They do not, therefore, indicate
learning in law.
Given that the petitioner has been suspended since 2016, he has failed to meet his burden
of showing that he presently has the learning in the law required for admission to practice. Cf.
Matter of Dawkins, 432 Mass. at 1011, 16 Mass. Att'y Disc. R. at 96 (reading the “advance
sheets,” an unidentified book on ethics and Massachusetts Lawyers Weekly when able to borrow
a copy, insufficient to show competency and learning); Matter of Waitz, 416 Mass. 298, 304, 9
Mass. Att'y Disc. R. 336, 344 (1993) (after indefinite suspension, attendance at three or four
MCLE practical skills courses and “studying the law” or reading legal publications for two or
three hours weekly at another lawyer’s office insufficient for reinstatement). Matter of Wong,
442 Mass. 1016, 1018 (2004) (where no formal courses taken, a general description of work as
paralegal without detail, and in the absence of testimony from experienced attorneys testifying to
the petitioner’s skill the petitioner had not met the burden of proof).
As we said at the outset of this section of the report, there is ample evidence that the
petitioner has the raw intellectual firepower to maintain his learning in an appropriate way. Still,
he has not done so.19
C. Effect of Reinstatement on the Bar, the Administration of Justice and the
Public Interest
We also find and conclude that the petitioner has not satisfied his burden of showing that
his “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).
19 The petitioner described changes in the law that have, in fact, been in place for some time. Tr. 92-94.
This does not speak well of the petitioner’s upkeep of his education, and suggests that his work with Massachusetts
Lawyers Weekly was more cosmetics for this reinstatement proceedings that a demonstration of a commitment to
continuing professional education. See, e.g., Tr. 186, where the petitioner acknowledges that he took his notes
because of the findings of the prior reinstatement panel. We note that the petitioner is aware of some relatively
recent changes to the rules of civil procedure, Tr. 94-96, and he has at least a superficial familiarity with some recent
decisions that have garnered headlines, along with some off-the-cuff sense of the import of the cases. Tr. 96-101.
26
We again start with a review of familiar and fundamental principles. “[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.” Daniels,
supra, 442 Mass. at 1038, 20 Mass. Att’y Disc. R. at 123. The petitioner must show that she has
led “‘a sufficiently exemplary life to inspire public confidence once again, in spite of his
previous actions.’” Matter of Prager, supra, 422 Mass. at 92, quoting Matter of Hiss, supra, 368
Mass. at 452, 1 Mass. Att'y Disc. R. at 126. “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, supra, 474
Mass. 1003, 32 Mass. Att’y Disc. R. at 266-267 (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).
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 on the reaction to his
reinstatement by the bar and public.” Matter of Gordon, 385 Mass. at 53, 3 Mass. Att'y Disc. at
73. “The 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.
With these principles in mind, we cannot recommend reinstatement.
The public’s respect for the attorney discipline system would be seriously eroded by
reinstating an attorney who came before a reinstatement panel wholly unrepentant about the fact
that he had ignored and then turned on a client by lying to a court in an effort to obtain from that
client a fee that was not contemplated in the fee agreement. It would find wholly unpersuasive
27
the certification, implicit in the reinstatement process, that a reinstated attorney is worthy of
being held out to the public as trustworthy. Daniels, supra.
Likewise, the bar could hardly take the process of discipline and reinstatement seriously
if we recommended reinstatement on this record. The petitioner’s vengeful and unrepentant
attitude towards his client, his refusal to acknowledge wrongdoing, his insincere “acceptance” of
responsibility by saying that his only mistake was to accept engagement by a client who was not
worthy of him, and his superior and dismissive attitude toward continuing legal education are the
antithesis of the model for reinstatement.
Finally, the petitioner’s reinstatement would run counter to the established precedent
discussed above and would run counter to the fair and even-handed administration of justice. In
this regard, we bear in mind that nothing of substance has changed since the petitioner’s first
reinstatement petition was denied; a recommendation to the contrary here would be inconsistent
and indefensible.
Other decisionmakers have noted, as relevant to the public interest inquiry, a petitioner’s
interest and expertise in serving an underserved community. See Matter of Beaulieu, 33 Mass.
Att’y Disc. R. 26, 35 (2017) (reinstatement after four-year suspension; “[w]e find the case for
reinstating the petitioner, based on his value to his community, to be compelling. A petitioner’s
ability to provide needed legal services to an otherwise underserved community has been cited as
a reason to recommend reinstatement”); Matter of Pudlo, 31 Mass. Att’y Disc. R. 537, 546, 548-
549 (2015) (relying in part on petitioner’s specialized knowledge in areas like boundary disputes
and riparian rights in finding in his favor on public interest prong). The petitioner attempted to
make a showing of this type, but for reasons set forth above, we are not persuaded. Even if we
were, the countervailing considerations here are simply too weighty for a successful showing on
this topic to tip the scales towards a recommendation of reinstatement.
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V. Conclusions and Recommendation
For the foregoing reasons, we recommend that the second petition for reinstatement filed
by Valeriano Diviacchi be denied.
Respectfully submitted,
By the Hearing Panel,
/s/ Elizabeth Rodriguez-Ross
Elizabeth Rodriguez-Ross, Esq., Chair
/s/ Elisabeth O. Da Silva
Elisabeth O. da Silva, C.P.A., Member
/s/ Marsha V. Kazarosian
Marsha V. Kazarosian, Esq., Member
Filed: June 7, 2021
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