In the Matter of Ilya Ablavsky

IN RE: MATTER ILYA ABLAVSKY
BBO No. 678225

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
ILYA ABLAVSKY,
Petition for Reinstatement

SJC No. BD-2010-114

HEARING PANEL REPORT

On December 12, 2022, the petitioner, Ilya Ablavsky, filed his petition for reinstatement with the Supreme Judicial Court.¹ The petition was filed with the BBO on the same date. The hearing was scheduled for March 24 and May 5, 2023. On February 13, 2023, the petitioner requested a continuance until November 2023, citing the unavailability of his treating psychiatrist, a key witness. Bar counsel assented, and the hearing was rescheduled for November 3 and December 1, 2023. The petitioner, represented by counsel, testified on his own behalf and called three witnesses: Charles Popper, M.D., and Attorneys Jeremy Cohen and Laurence Cohen. Bar counsel called no witnesses. Nineteen exhibits were admitted into evidence.² At the end of the hearing, bar counsel recommended against reinstatement. After considering the evidence and testimony, we recommend that the petition for reinstatement be denied.

I. Applicable Standards

The petitioner is requesting reinstatement from both an order placing him on disability inactive status, dated November 23, 2010, and a disciplinary suspension, dated May 21, 2012. Ex. 2 (016); Ex. 6. For the sake of making a full and complete record, we address both. Different standards apply to reinstatement after disability inactive status and reinstatement after disciplinary sanction. A lawyer seeking reinstatement after being placed on disability inactive status “shall have the burden of demonstrating that his or her physical or mental condition does not adversely affect the lawyer’s ability to practice law and that he or she has the competency and learning in law required for admission to practice.” S.J.C. Rule 4:01, § 13(6)(e). See generally Matter of Dodge, 31 Mass. Att’y Disc. R. 157, 158 (2015) (allowing reinstatement after disability inactive status, with conditions). Cf. Matter of Devlin, No. BD-2008-080 (May 10, 2010), at p. 1 (petitioner seeking reinstatement after an order of disability inactive status does not have to take the MPRE because “no finding of ethical wrongdoing is required or implicit in an order of disability inactive status;” “the attorney’s ethics were not at issue in the order of disability inactive status.”).

A lawyer seeking reinstatement after disciplinary suspension must prove that he or she 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 Weiss, 474 Mass. 1001, 1002, 32 Mass. Att’y Disc. R. 263, 264-265 (2016). This latter rule establishes two distinct requirements, focusing on (1) the personal characteristics of the petitioner and (2) 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 making the section 18 determinations, 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.’” Matter of Daniels, 442 Mass. 1037, 1038, 20 Mass. Att’y Disc. R. 120, 122-123 (2004), 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).

II. Background and Misconduct

The petitioner was born in St. Petersburg Russia, and came to the United States as a nineyear- old. Tr. 1:24 (Petitioner). He is fluent in Russian and English. Tr. 1:24-25 (Petitioner). He was diagnosed with bipolar disorder in 1997. Ex. 2 (005). He managed well for years with medication and therapy, graduating cum laude in 2003 from Salem State College, and in 2009 from Western New England School of Law. Ex. 2 (005); Tr. 1:25 (Petitioner). The petitioner was divorced after a very short-term marriage, and has a fifteen-year-old daughter for whom he provides financial and emotional support; he speaks to her and her mother daily. Tr. 1:26-28, 65 (Petitioner). He lives with his mother, who is currently eighty-two and has been diagnosed with Alzheimer’s disease. Tr. 1:28 (Petitioner). They have lived together since 1988, except for a three-year break before 2009. Tr. 1:24 (Petitioner).

The petitioner passed the bar exam on his second try, in February 2010. He had had prior involvement with the criminal justice system, and disclosed this when applying for bar admission. Tr. 1:96 (Petitioner).³ He met with the Board of Bar Examiners (BBE) before his admission to ensure that, in the petitioner’s words, he was “on an even keel and . . . fit to practice.” Tr. 1:96 (Petitioner). The BBE imposed no conditions on the petitioner’s bar application or practice, but suggested he avoid solo work. Tr. 1:97 (Petitioner).

The petitioner was sworn in as a member of the Massachusetts bar in June 2010. Tr. 1:25 (Petitioner). He immediately opened a solo practice and, within a few months, had twenty-seven open matters. Ex. 2 (005). His misconduct occurred only months after his June 2010 admission to the bar.

The activities giving rise to the misconduct had their genesis in November 2008, before the petitioner was admitted to the bar. Ex. 2 (005). A friend from high school had a cousin, Jose Cabrera, on trial for murder in the Salem (Essex County) Superior Court. Tr. 1:29, 71-72 (Petitioner).⁴ The petitioner told us that he had known the friend and his family for many years, was friendly with them, and “wanted to help them as much as possible.” Tr. 1:29, 70 (Petitioner). Once admitted to the bar, the petitioner represented Cabrera on a malpractice claim, and visited him several times in jail. Tr. 1:29, 72 (Petitioner); Ex. 1 (005). He testified that he developed a delusion that if he took Cabrera’s criminal file from the courthouse, his criminal case “would be gone.” Tr. 1:29-30 (Petitioner). On November 3, 2010, the petitioner took the file and left the courthouse, delivering the file to his friend, who presumably destroyed it. Tr. 1:30 (Petitioner); Ex. 5 (081); Ex. 10 (122). The petitioner did this under a delusion that stealing the file would have a positive effect on Cabrera’s case. Tr. 1:73-74 (Petitioner). He did it despite, as he admitted to us, thinking there was only “some chance” that Cabrera had not committed the murder, and with the knowledge that the file included “something like” impounded or sensitive material about minors or third-party witnesses. Tr. 1:74, 93-94 (Petitioner).

After giving the file to his friend, the petitioner spoke with another lawyer, who suggested he retrieve the file. He called his friend, but was told that the file was “gone.” Tr. 1:30 (Petitioner). The petitioner confessed to Cabrera’s defense lawyer what he had done, and that lawyer turned him in; he was subsequently arrested. Tr. 1:31, 32 (Petitioner).⁵

The petitioner told us that at the time he took the file, he was feeling stressed and overwhelmed and wanted to stop practicing. Tr. 1:74-75 (Petitioner). He had underestimated the stress of working as a practicing lawyer. See Ex. 2 (005). He believed that his misbehavior would cause him to lose his law license, and that he would “possibly serve probation.” Tr. 1:32 (Petitioner). As noted above, he was placed on disability inactive status as of November 23, 2010. In January 2012, he pleaded guilty to tampering with court records, and was sentenced to an eighteen-month suspended sentence and two years of probation. Id. He was deemed to have served sixty-four days of committed time, since he was in pretrial custody for two months. Id. His probation conditions were that he comply with mental health counseling and meet with a probation officer every month. Tr. 1:33 (Petitioner). He complied with the conditions, and was

discharged after two years. Id. Bar counsel filed a petition for discipline on March 28, 2012, and the petitioner stipulated to an indefinite suspension retroactive to the date of the transfer to disability inactive status. Exs. 7, 8. This recommendation was approved by the Board and the SJC. The petitioner’s indefinite suspension was imposed May 21, 2012, retroactive to November 23, 2010. Ex. 9.

III. Findings and Conclusions on Reinstatement From Disability Inactive Status

A. History of Mental Illness/Current Conditions

As noted above, the petitioner was diagnosed with bipolar disorder in 1997. Ex. 2 (005). He began treating with his current psychiatrist, Charles Popper, M.D., in 2004. Tr. 1:34-35 (Petitioner); 1:122 (Popper). Dr. Popper, who is board-certified in both psychiatry and child and adolescent psychiatry and is a specialist in psychopharmacology, was qualified as an expert at the reinstatement hearing, and testified at length about the petitioner’s treatment, state of mind, and prognosis. Tr. 1:115, 116, 121 (Popper).

The petitioner has seen Dr. Popper regularly since 2004, for medication and counseling, at intervals ranging from every week to every two weeks. Tr. 1:34 (Petitioner). Their work together has been essentially without pause, except for Dr. Popper’s travel or vacation, and for a period from October 2022 through September 2023, when Dr. Popper took a leave from practice. Tr. 1:122-123 (Popper). During Dr. Popper’s absences his colleague, Jonathan Bass, M.D., treated the petitioner. Tr. 1:123 (Popper); Ex. 16 (impounded). Dr. Popper has practiced psychiatry since 1979, and is considering retiring in one to two years. Tr. 1:115, 174 (Popper). Below, we discuss the significance of Dr. Popper’s retirement.

In addition to Dr. Popper, the petitioner also sees a therapist once or twice a week, sometimes including group therapy, at Eliot Community Human Services. Tr. 1:35-36 (Petitioner). He has attended, since 2016 and lately via Zoom, meetings of Lawyers Concerned for Lawyers. Tr. 1:34, 37, 42 (Petitioner).

The petitioner’s current primary diagnosis is schizoaffective disorder, bipolar type. Tr. 1:127 (Popper). Since the criminal incident in 2010, the petitioner has had two in-patient mental health hospitalizations, one in 2014, which began as involuntary but which he converted to a voluntary, and a voluntary one in March 2020. Tr. 1:42-44 (Petitioner).⁶

The petitioner’s current medications are Zyprexa, which acts as a mood stabilizer and takes care of any manic symptoms; Nerontin, an anti-anxiety medication and mood stabilizer; and Lamotrigine, a mood stabilizer. Tr. 1:39-41 (Petitioner). In an impounded document, Dr. Popper described the medication regimen as including anti-anxiety, anti-depressant and antipsychotic medications. Ex. 18 (231) (impounded). The petitioner also takes natural supplements. Tr. 1:41 (Petitioner). He has needed only one medication change in the last year and a half, a change he requested, which was a very small upward adjustment in his anti-depressant in April 2023. Tr. 1:140-141 (Popper). Prior to that, Dr. Popper wrote in an impounded document dated March 21, 2022, that the doses of the petitioner’s medications “have been maintained without significant change for over 18 months, remain monitored by me about once weekly, and recently have not required ongoing modification due to his reasonably good mental stability.” Ex. 18 (231). Dr. Popper described the petitioner as medication-compliant, and as being “excellent” in terms of attending and participating in treatment. Tr. 1:127-128 (Popper). The petitioner’s conditions are not curable; the primary goal is to manage them, to minimize his symptoms and to maximize his functioning. Tr. 1:129 (Popper).

The petitioner was treating with Dr. Popper at the time of the 2010 criminal incident, and in 2014 and 2020 when he needed hospitalization. Nonetheless, Dr. Popper testified, credibly, that while there have been “ups and downs, it’s clear that both, over the last few years and over the last 20 years, he’s been progressively improving.” Tr. 1:143 (Popper). He stated further that the petitioner’s willingness and ability to reach out for help when he needs it has “drastically changed” over the years, and that now he is “increasingly able to reach out.” Tr. 1:139 (Popper).

He gave as an example the fact that the petitioner’s last hospitalization, in late March 2020, was voluntary. Tr. 1:140 (Popper). We credit that this hospitalization was driven, at least in part, by the petitioner’s reaction to the start of the Covid pandemic, which he found “overwhelming.” Tr. 1:43 (Petitioner). Dr. Popper described as “extremely important” the fact that the petitioner initiated the process to enter the hospital. Tr. 1:140 (Popper).

Although describing the question as a “close call,” Dr. Popper supports the petitioner’s reinstatement, with significant conditions. Tr. 1:147 (Popper); Ex. 18 (232) (impounded). These include: permanent monitoring by the Bar of the petitioner’s professional activities, even after professionally successful and psychiatrically uneventful years; very part-time practice doing paralegal-type research and legal writing for other lawyers or a non-profit; no money handling; no high-stress work like court appearances; and psychiatric monitoring. Tr. 1:147-148 (Popper); Ex. 18 (232) (impounded).

These limitations are generally consistent with the petitioner’s testimony. He told us he would like to work ten to twenty hours per week for other lawyers, and would not set up his own practice, handle client funds or make court appearances. Tr. 1:68-69 (Petitioner). He does not want to take on his own clients. Tr. 1:68, 88-89 (Petitioner). He would comply with a mentoring arrangement, and would accept as conditions continued compliance with mental health treatment and attendance at LCL. Tr. 1:69 (Petitioner). We credit that while the petitioner recognizes that reinstatement could increase his stress, he wants the “honor” of again being part of the legal profession, and the financial means to better provide for himself and his daughter. Tr. 1:89-90 (Petitioner).

B. Our Concerns About the Petitioner’s Mental Health

We have lingering concerns about the petitioner’s current and future mental health and state of mind. The petitioner continues to have obsessive thoughts. When stressed, he has written, without sending, emails “about bribing supreme court justices.” Tr. 1:44 (Petitioner). The emails say he would pay each justice $20.00 “for each conviction that is overturned from this day forward.” Tr. 1:45 (Petitioner). Dr. Popper has encouraged this behavior—writing, but not sending, these emails—as a way to “express, and in some manner discharge some of the feeling he had around all the court involvement that he had.” Tr. 1:137 (Popper). The writer of an impounded treatment note from Eliot Community Human Services seems to concur, noting that the petitioner “never writes the names into the addresses,” and that “writing out what we want in a safe way can be healthy.” Ex. 17 (225) (impounded). As noted, the petitioner has never sent the emails; he composes and deletes them. Tr. 1:44 (Petitioner). He has done this “many times” during the past four years. As Dr. Popper stated: “There’s still a temptation that he has to send, but he has been able to manage controlling that temptation.” Tr. 1:138 (Popper).

A second strong concern for us is the petitioner’s periodic need for a break from law practice. Since 2015, he has been working as a paralegal for Laurence Cohen, Esq., and for additional lawyers beginning in 2017 (Stephen H. Newman, Esq.), 2018 (Christopher Parker, Esq.), and 2022 (Jeremy Cohen, Esq.). Tr. 1:47 (Petitioner); Exs. 11, 12, 13. 14. He does legal research and drafts documents, including appellate briefs. Tr. 1:48 (Petitioner). He testified that “[o]ccasionally, including this year, there have been lapses . . . periods of time when I did not work for them when I needed a break.” Tr. 1:49 (Petitioner). His longest break was for a month in the spring of 2023 when, as he told us, he found his mental health issues “to be overwhelming and interfering with my work.” Tr. 1:50 (Petitioner). The most recent time this happened, the petitioner did not say anything to his employers, and did not answer their calls. Tr. 1:50 (Petitioner); Ex. 16 (196) (impounded).

The petitioner assured us that were he to be reinstated, if he needed a break from practice, he would “discuss it with the lawyer that I work for and explain my situation and that I needed a break,” and perhaps also talk to Dr. Popper about it. Tr. 1:104 (Petitioner). However, he agreed that when confronted with this situation just a few months ago, when Dr. Popper was away, he could not or did not proceed as described above. Tr. 1:105 (Petitioner).⁷

Another concern also stems from relatively recent behavior that was not adequately explained. In 2021, the petitioner drafted and emailed to a client an answer to a divorce complaint. Tr. 1:79-80 (Petitioner). He agreed that this was a violation of his suspension order. He had no actual explanation for his behavior, other than the unenlightening statement that it was a “lapse in judgment.” Tr. 1:80 (Petitioner).

We have already noted that the petitioner’s mother has been diagnosed with Alzheimer’s. Tr. 1:46 (Petitioner). We take administrative notice of the fact that this is a progressive disease. His mother’s decline has not been rapid, but the petitioner believes it has increased his depression. Tr. 1:46-47 (Petitioner). He will also face the practical problem of having to do more to care for her and, most likely, eventually living alone, something he has not done in decades. Both the petitioner and Dr. Popper confirmed that the petitioner’s mother’s health is one of his main stressors. Tr. 1:135-136 (Popper).

Finally, Dr. Popper’s own retirement, while not imminent, is looming. His testimony and treatment notes reflect that he has become a great support to the petitioner. While the petitioner has seen Dr. Bass in Dr. Popper’s stead, it was during Dr. Popper’s last absence that the petitioner “ghosted” his employers. Perhaps this would have happened even if Dr. Popper had not been away, but we find that the prospect of losing Dr. Popper, and readjusting to a new treating psychiatrist, is likely to cause the petitioner significant stress.

C. Conclusions as to Whether the Petitioner’s Mental Condition
Adversely Affects his Ability to Practice Law

We cannot conclude that the petitioner’s mental condition does not adversely affect his ability to practice law. We think that it does. We rely for this conclusion on the concerns enumerated above. All are problematic, but we are especially troubled by the emails the petitioner has drafted to the SJC. Although he has not sent them, and although his clinicians seem to recognize their therapeutic value, these emails signal to us the precariousness of the petitioner’s mental state, and a certain ambivalence towards the court system. The petitioner agreed that the emails represent a sort of “escape route if things got to be too much,” that he would “get [him]self in trouble in this way.” Tr. 1:81 (Petitioner). This is uncannily similar to one of the petitioner’s explanation for the 2010 criminal misconduct, namely, that he wanted to get out of practicing law and did so by purposefully getting himself in trouble. Tr. 1:75 (Petitioner). These admissions give us great pause.

To his credit, the petitioner was candid and frank about his struggles. He agreed that particular stresses in his life, citing specifically his mother’s deterioration, can “throw [him] off track.” Tr. 1:85 (Petitioner). He also admitted that “there’s some sort of delusional component to my mental health diagnosis,” and agreed that while medication is very helpful, these delusions are not totally controlled and “can pop up at any time.” Tr. 1:75-76 (Petitioner).

Manifestly, we are not holding that we cannot readmit to practice someone with active mental illness. We recognize that many lawyers with mental health challenges practice effectively and uneventfully, and that numerous conditions, mental as well as physical, require regular medication for their management. We hold only that we cannot find, on this record, that the petitioner’s mental condition does not adversely affect his ability to practice law. Cf. Matter of Dodge, supra, 31 Mass. Att’y Disc. R. at 159-160 (reinstatement allowed after disability inactive status; hearing panel cites detailed letter from treating psychologist, his unconditional recommendation for reinstatement, and the lawyer’s failure to relapse after occurrence of stressful event); Matter of Ostrovitz, 31 Mass. Att’y Disc. R. 486, 491-492 (2015) (reinstatement allowed; hearing panel cites doctor’s testimony that petitioner is no longer depressed or drugaddicted and is not likely to relapse). This is particularly true since it is the petitioner who bears the burden of proof on this issue, and the petitioner’s own treating psychiatrist admitted to having reservations.

IV. Findings and Conclusions on Reinstatement From Disciplinary Suspension

A. Moral Qualifications

We turn to the petitioner’s request for reinstatement from his disciplinary suspension. The conduct giving rise to the petitioner’s suspension is affirmative proof that he lacks the moral qualifications to practice law. See Matter of Hiss, supra. That the misconduct “continues to be evidence against . . . [the petitioner] with respect to lack of moral character at later times [is] in accordance with the principle that ‘a state of things once proved to exist may generally be found to continue.’” Matter of Hiss, id. (citation omitted). To gain reinstatement, the petitioner has the burden of proving that he has led “‘a sufficiently exemplary life to inspire public confidence once again, in spite of his previous actions.’” Matter of Prager, 422 Mass. at 92, quoting Matter of Hiss. He can do this by proving he has reformed, since a “fundamental precept of our system is that persons can be rehabilitated.” Matter of Ellis, 457 Mass. 413, 414, 26 Mass. Att’y Disc. R. 162, 163 (2010).

1. Work and Volunteer Activities

We noted above that the petitioner has performed paralegal work for four lawyers, beginning in 2015. See Exs. 11-14. Two of them, Laurence Cohen and Jeremy Cohen, the latter of Boston Dog Lawyers, testified at the hearing.

Laurence Cohen met the petitioner in law school in 2006, and considers him a friend. Tr. 2:41, 56-57 (L. Cohen). Cohen represented the petitioner in a bankruptcy proceeding following the criminal involvement. Tr. 2:42 (L. Cohen). He is aware of the petitioner’s 2010 criminal activity. Tr. 2:43 (L. Cohen).

Cohen’s solo practice is primarily criminal defense and health law. Tr. 2:39 (L. Cohen). The petitioner works for him as an independent contractor paralegal, doing legal research and drafting documents. Tr. 2:42, 44 (L. Cohen). The workflow is sporadic, ranging between “several” and twenty hours per week. Tr. 2:45-46 (L. Cohen). Cohen is very satisfied with the petitioner’s work. Tr. 2:46 (L. Cohen). He is aware of the petitioner’s mental health challenges. Tr. 2:48, 51 (L. Cohen). If the petitioner is reinstated, Cohen would continue with the same arrangement and research and writing duties, but would compensate the petitioner at a higher rate. Tr. 2:52-55 (L. Cohen).

The petitioner worked for Jeremy Cohen of Boston Dog Lawyers from February 2022 until June 2023, drafting pleadings and doing legal research in their civil litigation practice, and assisting with research on their occasional criminal cases. Ex. 2 (007); Tr. 1:47 (Petitioner); Tr. 2:9-10 (J. Cohen). He worked on an as-needed basis, always less than ten hours per week. Tr. 2:11 (J. Cohen). Attorney Jeremy Cohen described him as a fast and motivated worker who performed reliable and consistent work and delivered what was asked of him. Tr. 2:11, 13-14 (J. Cohen). The petitioner did not interact with clients, or go to court. Tr. 2:19 (J. Cohen).

Cohen is aware of the petitioner’s mental health issues and criminal history. See Tr. 2:18, 32 (J. Cohen). He has not used the petitioner’s service since June 2023 because his firm hired a full-time paralegal, and he has not recently had any criminal cases in the petitioner’s “wheelhouse.” Tr. 2:27-28 (J. Cohen). He would “love” to see the petitioner reinstated, and should this occur, he would continue to employ the petitioner on a part-time basis, would consider hiring him on a full-time basis if he was able and interested, and would cooperate with the BBO as needed. Tr. 2:20-24, 33-34 (J. Cohen).

The petitioner has held other non-legal jobs during his suspension. He worked from 2016 through 2020 as a medical interpreter for Russian speakers. Tr. 1:52-53 (Petitioner). From April 2014 through February 2015, he worked as a policy consultant for ServiceNet, Inc., an organization aiding the homeless, developmentally disabled and mentally ill. Tr. 1:51-52; Ex. 2 (007). He worked briefly in September 2012 as an office assistant for Congregation Ahabat Shalom in Lynn, but was terminated after a few weeks after he was “Googled” and his recent criminal conviction was discovered. Tr. 1:52 (Petitioner); Ex. 2 (007).

In addition to paid work, evidence of moral reform can also 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 has engaged in significant volunteer work. On November 14, 2016, he was appointed to the Lynn Site Board of the Development of Mental Health for a three-year term, renewed on February 26, 2020 and ending in February 2023. Tr. 1:53-55; Ex. 2 (008). He was elected vice president, and then president. Tr. 1:53 (Petitioner). The Board deals with mental health issues that affect the community. Id. The petitioner also serves on the statewide advisory council; they advise the commissioner of DMH on mental health policy issues. Tr. 1:56 (Petitioner). He has done this for approximately one year. Id.

The petitioner volunteered at Pathways, Inc. from 2015 through 2017 teaching classes in basic computer skills, English conversation for immigrants, and citizenship. Tr. 1:56-57 (Petitioner); Ex. 2 (007). He helps Russian-speakers in his building with translation when interacting with their rental office. Tr. 1:57 (Petitioner). He has volunteered at Northeast Independent Living Program (NILP) running chess groups for those with mental health issues, and has become certified as a peer specialist. Tr. 1:57-58 (Petitioner). NILP is an organization that contracts with DMH to provide peer-related services to consumers with mental health issues. Tr. 1:58-59 (Petitioner). He volunteered for five months in 2013 for a program for disadvantaged youth, tutoring mathematics and other subjects. Ex. 2 (008). He did additional GED tutoring in 2014. Id.

2. Witness Testimony and Letters

We have discussed above the testimony of Jeremy Cohen and Laurence Cohen. The petitioner submitted five letters, including two from lawyers he has worked for as a paralegal. Laurence Cohen’s letter adds nothing to his testimony, so we give it little weight. Ex. 2 (066). Attorney Stephen Newman praised the petitioner, describing him in a November 15, 2021 letter as “very proficient and prompt with his responses.” Ex. 2 (067). His letter reflects no knowledge of the petitioner’s misconduct or rehabilitation. Other letters, one dated August 29, 2017 from the Volunteer Coordinator of Pathways, one dated June 4, 2020 from the Site Director for the DMH Lynn Site Citizens Advisory Board, and one dated May 23, 2013 from the Assistant Director of Choice Thru Education, all praise the petitioner’s work. Ex. 2 (068-070). However, none of the letters addresses the petitioner’s unethical conduct or his rehabilitation.

Case law teaches that evidence that does not distinguish the petitioner's conduct before and after his underlying discipline, that sheds little light on his rehabilitation, or that does not acknowledge the petitioner's unethical conduct, carries little weight. See Matter of Dawkins, 432 Mass. 1009, 1011, n.5, 16 Mass. Att'y Disc. R. 94, 96, n.5 (2000); Matter of Corben, 31 Mass. Att'y Disc. R. 91, 101 (2015); Matter of Lee, 28 Mass. Att'y Disc. R. 540, 549-551 (2012). The Court has specifically disclaimed reliance on letters where the writers “knew little or nothing about the reasons for either of [the petitioner’s] suspensions or of the fact that he had been suspended twice.” Dawkins, id.

Accordingly, we give these letters scant weight. None is current and, as noted, none addresses the petitioner’s unethical conduct or his rehabilitation.

3. Other Evidence of Moral Reform

Everything we have seen points to the fact that the petitioner’s mental illness served as a major contributing factor to his criminal conduct. He wrote in his Questionnaire answers that he was overwhelmed by the pressure from his workload, and “experienced a delusion that somehow I could save Cabrera’s case by removing the case document[s]. I thought that the disappearance of the file would delay the trial and would weaken the case.” Ex. 2 (005). He testified to similar effect, again citing a delusion that without the documents, Cabrera’s case “would be gone.” Tr. 1:29-30 (Petitioner). He explained that at the time, his mental health was deteriorating and he was in “bad shape,” not sleeping and experiencing racing thoughts. Tr. 1:31-32 (Petitioner). He testified that the mental health issues explained but did not excuse his actions. Tr. 1:33 (Petitioner). He testified that he deeply regrets “treating the justice system in that way and not honoring my oath as an officer of the court.” Tr. 1:33 (Petitioner).

Dr. Popper sounded similar themes, testifying that there was no question that the misconduct was a “manifestation of psychotic thinking” and that the decision the petitioner made “would really be one that one cannot come to rationally.” Tr. 1:132 (Popper). He and the petitioner talk about the criminal action “periodically,” and the petitioner has told him he thinks about it every day, and “clearly, sincerely understands how wrong it was and regrets it, and feels guilt about it.” Tr. 1:132-133 (Popper); Ex. 18 (229) (impounded). In his impounded report dated March 21, 2022, Dr. Popper describes insights the petitioner has recognized about the drivers and inappropriateness of the criminal conduct. Id.

Laurence Cohen testified that the petitioner feels “very sorry” and “ashamed” about his criminal conduct, and that the petitioner “knows he made a mistake. He’s been paying a price for it for many years.” Tr. 2:59 (L. Cohen). “He became overwhelmed and . . . went into kind of a manic state and he made a horrible mistake.” Id.

4. Conclusions as to Moral Qualifications

We conclude that the petitioner is morally fit to resume practice. We base our conclusion on the testimony and evidence we have summarized above, as well as on our observations of the petitioner. The petitioner has demonstrated contrition, shame, self-awareness and insight. We find that he has dissipated the moral taint of his criminal conduct.

B. Competence and Learning in Law

Under S.J.C. Rule 4:01, § 18, a petitioner must demonstrate that he has the “competency and learning in law required for admission to practice law in this Commonwealth.”

The petitioner practiced only very briefly before he was placed on disability inactive status, so we have no pre-suspension practice to weigh in the balance. However, as described in detail above, he has worked as a paralegal since 2015, and has worked for a total of four different individuals or firms. In addition, he took and passed the MPRE on November 7, 2015, and has taken numerous MCLE courses and classes in the period between 2016 and 2021, mostly in the criminal defense area. Tr. 1:60-61 (Petitioner); Ex. 2 (008, 009-011, 022-065). The petitioner has not taken MCLE classes since 2021, citing loss of interest and his knowledge that his involvement in paralegal work is sufficient to keep him current with the law. Tr. 1:61 (Petitioner).

We had the opportunity to hear from two of the petitioner’s employers, who praised his work. And while we recognize that Laurence Cohen is also the petitioner’s friend, we give particular weight to his testimony. He has employed the petitioner in a paralegal capacity since 2015; we find that he would not have done so if the petitioner’s work was not helpful and solid. Accordingly, we conclude that the petitioner has satisfied this criterion.

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

"Consideration of the public welfare, not [a petitioner' s] private interest, dominates in considering the reinstatement of a disbarred applicant." Matter of Ellis, supra, 457 Mass. at 414, 26 Mass. Att'y Disc. R. at 164. The public's perception of the legal profession as a result of the reinstatement, and the effect on the bar, must be considered. "In this inquiry we are concerned not only with the actuality of the petitioner's morality and competence, but also [with] the reaction to his reinstatement by the bar and public." Matter of Gordon, supra, 385 Mass. at 52, 3 Mass. Att'y Disc. R. 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. 298, 307, 9 Mass. Att'y Disc. R. 336, 345 (1993).

The petitioner has submitted a Revised Monitoring Agreement and Conditions for Reinstatement. It includes the conditions we have noted above: mentorship/supervision by the four attorneys for whom the petitioner now does paralegal work; part-time work, for no more than twenty hours per week; no clients and no client contact; no court appearances; no client funds; compliance with mental health treatment; continued attendance at LCL meetings; and cooperation with the BBO’s efforts to monitor compliance. These limitations and conditions are generally consistent with the petitioner’s preferences and Dr. Popper’s recommendations summarized above, supra at p. 8.

We recognize that it is not at all uncommon for reinstatement to depend on various conditions of/restrictions on practice, or compliance with a mental health regimen. Many of our cases reflect this. E.g., Matter of Gomez, 39 Mass. Att’y Disc. R. __ (2023) (reinstatement allowed, subject to conditions that lawyer: continue in therapy for two years and that therapist check in with bar counsel; attend MCLE; enter two-year mentoring agreement; submit to monthly drug tests for one year; contact LCL and participate in support group; and open practice to LOMAP audit); Matter of Willis, 37 Mass. Att’y Disc. R. 532 (2021) (reinstatement allowed, subject to conditions that lawyer: work with a mentor on every case for one year; continue with LCL professional group for one year; continue with individual therapy for one year; take a course on IOLTA trust accounting; and consult with LOMAP concerning setting up an office). Cf. Matter of Jackman, 444 Mass. 1013, 1015, 21 Mass. Att’y Disc. R. 349, 353-354 (2005) (disciplinary case; Court orders two-year suspension, after which lawyer may apply for reinstatement and, if reinstated, in addition to any other terms, “his practice shall be limited to representation of criminal defendants in the District Court Department, and further provided that he annually shall furnish bar counsel with an affidavit stating under the penalties of perjury that he has not engaged in any civil practice during the preceding year.”).⁸

In Matter of Ellis, supra, a disbarred attorney was reinstated after he, his brother and his father, all of whom had practiced law together, engaged in criminal misconduct. The Court imposed significant conditions on Ellis, among them: taking an IOLTA course; having his IOLTA account audited for two years, and avoiding the use of a particular accountant and his firm; for five years, no practice with family members or former members of disgraced firm; no personal injury or workers’ compensation cases, and no representation of family members for five years; purchasing and maintaining malpractice insurance; and taking forty hours of CLE courses within the next two years. Ellis, 457 Mass. at 417-418, 26 Mass. Att’y Disc. R. at 167- 168.

Matter of Shyavitz, 26 Mass. Att’y Disc. R. 612 (2010) explores the contours of the Ellis analysis and the meaning of its conditions on reinstatement. Shyavitz involved a lawyer whose petition for reinstatement was denied after the Single Justice rejected the Board’s recommendation that Shyavitz be allowed to practice with a condition that he refrain from handling client funds for five years. In a pre-Ellis decision, the Single Justice concluded that this restriction was inimical to the implicit representation to the public that a reinstated Shyavitz could be trusted. After Ellis was decided, Shyavitz sought reconsideration, claiming that the Single Justice’s earlier holding was inconsistent with the Court’s adoption of the various conditions in Ellis. The Single Justice disagreed, writing that the Ellis conditions were “different in kind, purpose and effect” from the rejected condition that Shyavitz refrain for five years from handling client funds, a condition that “suggests that Shyavitz cannot be trusted with client funds.” The lack of trust issue was not vindicated by a prohibition on handling funds. “[I]f he cannot be trusted to protect client funds, there is no sound reason for the public to believe that he can be trusted to protect other interests of his clients.” Shyavitz, 26 Mass. Att’y Disc. R. at 616-617.

The above discussion illustrates why there are fatal problems with the petitioner’s proposed conditions. The limitations on practice the petitioner seeks largely undermine what it is that lawyers do: counsel clients, communicate with clients, and responsibly handle client funds. The petitioner’s deep ambivalence or reluctance to resume basic legal duties strongly suggests that he is not ready to resume the practice of law. A related concern is the fundamental inconsistency of the petitioner’s requests, as explained in Shyavitz: if the petitioner cannot be trusted to communicate competently with clients and manage client funds, which together comprise such a core part of legal practice, how can the Board responsibly and ethically hold him out to the public as fit to practice?⁹

Finally, once the petitioner is reinstated as an active lawyer, the public would have no way of knowing that he had agreed to limitations in practice. There would be no asterisk next to the petitioner’s name, and no parenthetical explanation adjacent to the listing on our website holding him out as an active attorney. He could easily take on a client or accept client funds. Cf. Matter of Molloy, 34 Mass. Att’y Disc. R. 357, 365 (2018) (reinstatement denied; “[t]he petitioner testified that she hates the business aspects of the legal profession and that she wants to work for someone else. But because we cannot limit her reinstatement to working in such an environment, we must be sure she is capable of compliance with the IOLTA rules before we can recommend readmission.”). Enforcement of the petitioner’s various promises would be extraordinarily difficult, in part because many of his proposed restrictions are not limited in time, but appear to run in perpetuity. None of the cases we have seen featured this sort of need for indefinite support and oversight.

We conclude that the petitioner’s readmission to the bar at this time would be detrimental to the bar and the public interest. See Matter of Prager, supra, 422 Mass. at 99. In our view, the facts of this matter, as set out above, and the applicable case law, compel this conclusion.¹⁰

V. Conclusions and Recommendation

Based upon the petitioner’s written submissions, his own testimony, and that of his witnesses, the Hearing Panel recommends that the petition for reinstatement of Ilya Ablavsky be denied.

Respectfully submitted,

By the Hearing Panel,

_________________________

R. Michael Cassidy, Esq., Chair

_________________________

Rita Balian Allen, Member

_________________________

Ashley Hayes, Esq., Member

Dated: January 12, 2024

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1 An earlier petition, filed December 24, 2015, and a First Amended Petition, filed January 4, 2016, were withdrawn without prejudice in December 2016. Ex. 2 (012); Ex. 4 (079).

2 Five exhibits are impounded: Exs. 15-19. We are mindful of the significance of impoundment, and have tried not to quote from them. When we have had to use them to explain our reasoning, we have tried to make our references as brief and generic as possible.

3 The petitioner was convicted in 2000 of two counts of making bomb threats and two counts of threatening to commit a crime. Tr. 1:95 (Petitioner). While the circumstances are not entirely clear, the context appears to be the petitioner’s campaign and run for mayor of Waltham; the threats were made against a political opponent, Brandeis students, and an administrator. Tr. 1:96 (Petitioner). The petitioner served five years of probation, and had to live in a DMH facility and take medications. Tr. 1:95 (Petitioner). The petitioner did not disclose this prior criminal involvement in his Reinstatement Questionnaire. We recognize that Question 3 of the Questionnaire is entitled “Conduct since sanction imposed,” and therefore subparagraph K, concerning criminal proceedings, does not capture pre-suspension criminal conduct. Ex. 2 (006, 012). We raise this incident not as evidence of dishonesty or misrepresentation on the Questionnaire, but rather as further evidence that stresses in the petitioner’s life exacerbate the symptoms of his mental illness, and cause him to act in ways contrary to the public interest.

4 The petitioner once referred to Cabrera as the brother, not cousin, of his friend, Tr. 1:29 (Petitioner), but aside from that one instance consistently called Cabrera his friend’s cousin. E.g. Tr. 1:71-72 (Petitioner); Ex. 2 (005); see also SJC Order of Indefinite Suspension (Ex. 10 (122)) (describing petitioner as having a personal connection with a “relative” of the murder defendant). The degree of relationship is immaterial.

5 Cabrera was ultimately convicted of second-degree murder. Tr. 1:74 (Petitioner).

6 We credit that the 2014 hospitalization was the result of starting a new medication, and that the 2020 hospitalization, see infra, was due to Covid-related stress. Tr. 1:42-44 (Petitioner).

7 We recognize that Attorney Laurence Cohen, one of the petitioner’s employers, testified otherwise, saying that the petitioner has always informed him when he needed time off, and that the most recent period six months ago was because his mother, who suffers from dementia as noted, “picked up her own criminal case,” and the petitioner helped her with that and subsequent medical appointments. Tr. 2:63-64 (L. Cohen). Attorney Cohen’s testimony about the petitioner always informing him in advance or contemporaneously about a need for a break from practice conflicts with the petitioner’s own testimony and the impounded treatment notes cited above. We credit the petitioner’s testimony, supported by the treatment notes.

8 Jackman never applied for reinstatement.

9 The petitioner may want to consider other career paths, options which may be more satisfying to him and better aligned with his limitations. We mean no disrespect by this suggestion. While we cannot, at this time, recommend the petitioner for reinstatement to the bar, we were, nonetheless, struck by the many strengths and skills he appears to have. This non-exhaustive list includes research, writing, policy-making, tutoring and peer counseling. Perhaps a career coach or counselor could identify for the petitioner a professional outlet more in keeping with his current preferences and skills.

10 Despite the fact that his position did not prevail, we commend Attorney Hoffman on the vigor, thoroughness and skill with which he presented his case and his client. We also found bar counsel to have handled this matter with sensitivity and tact. We were deeply impressed by the excellent lawyering on both sides of this difficult case.

Related to No. BD-2010-114

• S.J.C. Order of Indefinite Suspension entered by Justice Botsford, 05/21/2012
• S.J.C. Order Allowing Employment As A Paralegal entered by Justice Botsford, 02/23/2015
• Judgment Denying Reinstatement, 04/09/2024