No. BD-1995-035
Hearing Panel Report
IN RE: MATTER OF ROBERT J. CATALANO
BBO NO. 078840
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
ROBERT J. CATALANO,
Petition for Reinstatement
______________________________
SJC No. BD-1995-035
HEARING PANEL REPORT
I. Introduction
On March 10, 2023, the petitioner, Robert J. Catalano, filed his petition for reinstatement with the Supreme Judicial Court. See Ex. 1.1 The petitioner was disbarred in 1999 while serving a three-year suspension imposed in 1995. See Matter of Catalano, 15 Mass. Att’y Disc. R. 109 (1999) (Ex. 2, at 0016 (Memorandum of Decision and Judgment of Disbarment)); Matter of Catalano, 11 Mass. Att’y Disc. R. 28 (1995) (Ex. 9 (Order on three-year suspension)). The disbarment was based on the petitioner’s conversion of client funds, making false representations to clients about the status of their funds, and failure to notify clients about his suspension, among other things.
An in-person hearing was held on October 13, 2023, November 29, 2023, and February 23, 2024.2 The petitioner, represented by counsel, testified on his own behalf and called four witnesses: Cathleen Catalano, his ex-wife; Robert J. Marek, LICSW, his therapist; and John M. Pavlos, Esq., and John E. Zajac, Esq., attorneys for whom the petitioner performed work as a paralegal. Bar counsel called no witnesses. The hearing panel called one witness, Andrew J. McDevitt, the son of the petitioner’s former client. Twenty-six exhibits were admitted into evidence. Exs. 1-26. Two exhibits are subject to a protective order.3 Exhibits 3 and 24. We take administrative notice that a prior petition for reinstatement was filed in 2022 and withdrawn by the petitioner in early 2023.
At the end of the hearing, bar counsel recommended reinstatement. Tr. II:135-136; Tr. III:41-42 (Assistant Bar Counsel). After considering the evidence and testimony, we recommend that the petition for reinstatement be allowed, on certain conditions.
II. Standard
A petitioner for reinstatement to the bar bears the burden of proving that he has satisfied the requirements for reinstatement set forth in S.J.C. Rule 4:01, § 18(5), namely, 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 thepublic interest.” Matter of Weiss, 474 Mass. 1001, 1002, 32 Mass. Att’y Disc. R. 263, 264-265(2016). The S.J.C.’s 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 these determinations, a panel considering a petition for reinstatement “looks to ‘(1) the nature of the original offense for which the petitioner was disbarred, (2) the petitioner’s character, maturity, and experience at the time of his disbarment, (3) the petitioner’s occupations and conduct in the time since his disbarment, (4) the time elapsed since the disbarment, and (5) the petitioner’s present competence in legal skills.’” Matter of Alfred C.W. 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).
III. Disciplinary and Personal History
The petitioner was admitted to the Massachusetts bar in 1977. Ex. 2, at 0004; Tr. I:177 (petitioner). He began his legal career working for a private law practice in Taunton, Massachusetts. Tr. I:177 (petitioner). In the spring of 1979, he opened his own law practice. Id. at 178.
In 1993, the petitioner was diagnosed with a malignant melanoma (cancer) and underwent related surgery in October 1993. Tr. II:35-36, 38 (petitioner). He was told that he had a 50% chance of surviving until 1995. Id. at 105. He spent little time in the office in the months after his surgery, during a time when remote work was not really possible. Id. at 36. In or around this time, the petitioner was also going through a divorce with his first wife and adjusting to his new custody arrangement with his two young daughters. Id. at 35. He repeatedly described these years as a “dark” time for him. Id. at 8, 98, 102, 104-105.
A. Three-Year Suspension and Contempt
In June 1995, the petitioner stipulated to a three-year suspension for “knowingly violat[ing] court orders concerning the handling of clients’ funds, misus[ing] those funds for his own benefit, and [being] held in contempt of court on two separate civil contempt charges.” Matter of Catalano, 11 Mass. Att’y Disc. R. 28 (1995) (Ex. 2, at 0013). The Court noted that there were “some suggestions of depression, family problems, and impaired functioning during the period of the attorney’s misconduct, which may have influenced the level of recommended discipline.” Catalano, id. at 30. The petitioner testified before us that his misconduct included encouraging his corporate client to violate a court order that the corporation’s funds be used solely for business expenses. The petitioner persuaded his client to pay the petitioner’s legal fees for services to the corporation, as well as the legal fees of his brother (also an attorney). Tr. I:178; Tr. II:33 (petitioner).
Following his suspension, on August 21, 1996, the petitioner was found in contempt by the Court for failure to comply with the order of suspension. Matter of Catalano, 12 Mass. Att’y Disc. R. 49 (1996) (Order of civil contempt) (Ex. 2, at 0016). More specifically, the petitioner failed to file the required affidavit of compliance with the Court and failed to send required notification of his suspension to clients, courts, and opposing counsel. Id. He eventually purged himself of the contempt in September of 1996 when he complied with the requirements of the Court’s order. Id.; Tr. I:184 (petitioner).
B. Disbarment
A second petition for discipline was filed against the petitioner in March of 1997. Ex. 4. The alleged misconduct occurred in 1993 and 1995, prior to his suspension. As alleged in Count One of the 1997 petition for discipline, the petitioner was retained by a client, Ms. Pimental, to file a counter-complaint for divorce against her husband. Ex. 4, at 0184. The petitioner advised Ms. Pimental to refinance the mortgage on her house - the only asset of the marriage - so that she could pay off outstanding debts on the property and buy out her husband’s share as part of a divorce settlement. Id. at 0185. The closing on the refinance occurred at the end of September 1993, shortly before the petitioner’s cancer surgery in October of that year. Id. The petitioner deposited the funds from the closing into his IOLTA account and disbursed $1,500 to his client from the proceeds. He retained $5,000 of his client’s funds in his IOLTA account. In later meetings over the next few months, he disbursed an additional $2,000 to his client. Id. at 0186. However, he converted the remaining $3,000 of the client’s funds to his own use to pay unrelated personal and business expenses. Ultimately, Ms. Pimental decided not to go forward with her divorce and requested the balance of her funds (both on her own and through successor counsel). The petitioner never responded to her multiple attempts to contact him and never repaid her the money. Id. at 0187.
Count Two of the second petition for discipline alleged that the petitioner was retained to defend a client against criminal charges. Id. at 0188. Among other things, the petitioner commingled retainer funds paid on the client’s behalf with his own funds and then misused the funds to pay personal and business expenses. During the time he was representing the client, the petitioner was suspended for three years. He failed to inform the client of his suspension or tell the client that he would have to retain new counsel. The petitioner similarly failed to notify the court or the prosecutor. Id. at 0189. Eventually, and due in large part to the petitioner’s actions, the court issued a warrant for the client’s arrest. The petitioner never accounted for the use of the client’s funds and did not return any unearned portion. Id. at 0191.
After a disciplinary hearing, the petitioner was found to have failed to segregate client funds, converted client funds, and made false representations to his clients regarding the status of their funds. Ex. 2, at 0017 (Judgment of Disbarment and Memorandum of Decision, Matter of Catalano, 15 Mass. Att’y Disc. R. 109 (1999). He was also found to have failed to advise his clients of his suspension in violation of the earlier suspension order and was in contempt of the Court’s order. Id. The Board of Bar Overseers unanimously voted to file an Information with the S.J.C. recommending that the Court enter an order disbarring the petitioner. Ex. 6. In January 1999, the petitioner was disbarred. Ex. 2, at 0020.
C. Leave to Work as a Paralegal
In January 2007, the petitioner filed a Motion for Leave to Engage in Employment as a Paralegal. Ex. 2, at 0027 (Docket No. 25). Thereafter, in January and March 2007, the petitioner filed requests with the Court to withdraw his prior motion. Id. (Docket Nos. 26-27). On August 15, 2007, bar counsel filed a Petition for Contempt alleging that the petitioner had engaged in the practice of law by working as a paralegal in July 2007 before he had obtained leave of Court to do so. Id., at 0024-0025. The Court found that the petitioner had not only performed paralegal work for Attorney John Zajac (a witness in the instant proceeding, discussed infra) but had admitted that he lied to Attorney Zajac about having permission from the Court to work as a paralegal. Id., at 0025. The petitioner was found to have “engag[ed] in legal work prior to reinstatement” and an order issued, barring him from applying for reinstatement for ten years, until September 11, 2017. 23 Mass. Att’y Disc. R. 65 (2007) (unpublished). The petitioner was eligible to petition for reinstatement in 2017. S.J.C. Rule 4:01, § 18(2)(b). On October 12, 2017, he moved for leave to engage in employment as a paralegal under S.J.C. Rule 4:01, § 18(3). Ex. 7. The petitioner was granted leave to work as a paralegal for Attorney Zajac on October 18, 2017. Ex. 8.
IV. Findings and Conclusions
Our findings and conclusions are set forth in three sections: moral qualifications, competency and learning in the law, and the public interest.
A. Moral Qualifications
The conduct giving rise to the petitioner’s disbarment is affirmative proof that he lacked the moral qualifications to practice law. See Matter of Hiss, 368 Mass. at 460, 1 Mass. Att’y Disc. R. at 134. 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.’” Id. (citation omitted). “The act of reinstating an attorney involves what amounts to a certification to the public that the attorney is a person worthy of trust.” Matter of Alfred C. W. Daniels, 442 Mass. at 1038, 20 Mass. Att’y Disc. R. at 123, Matter of Prager, 422 Mass. at 92; see Matter of Centracchio, 345 Mass. 342, 348 (1963). In fact, “considerations 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), quoting Matter of Keenan, 314 Mass. 544, 547 (1943). Cf. Matter of Nickerson, 422 Mass. 333, 337, 12 Mass. Att’y Disc. R. 367, 375 (1996) (“To make that the test would be to give undue weight to his private interests, whereas the true test must always be the public welfare.’”) (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, 368 Mass. at 452, 1 Mass. Att'y Disc. R. at 126. 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). “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).
For the reasons set forth below, we conclude that the petitioner has proved his moral reform.
1. The Petitioner’s Insight into his Misconduct
We described the petitioner’s complicated disciplinary history in detail above. With respect to his suspension and subsequent disbarment, the petitioner satisfactorily summarized the bases for his misconduct before us. See Tr. I:178-181, 185-186, 190-192; Tr. II:9 (petitioner).
The petitioner testified:
…I have always loved the law and helping people through the law, but back then there were two underlying currents to that love. One was aggressiveness and total focus upon the finish line. Not so much that the end justifies the means, but definitely too much focus on the finish line…The second underlying current, an insecurity about money and needing to make enough to pay the overhead and support my family…Too much focus on more money than last week or last month or last year.
Tr. I:192-193 (petitioner). We found this testimony to be both perceptive and powerful. The petitioner forthrightly acknowledged his misdeeds, including using other people’s money, and took responsibility for them.
The petitioner explained that in 1993, leading to his first suspension, he was having a “tough year”. Tr. II:35 (petitioner). He had been involved in a “protracted and acrimonious” divorce from his first wife a few years prior (see Ex. 20) and was adjusting to not seeing his two young daughters as much as he was used to. Id. at 34-35. Further, he was having “problems with self-esteem, with self-worth, feeling of hopelessness” and feeling “burned out.” Id. at 35; see also Ex. 20. Then, in August 1993, he was diagnosed with an advanced malignant melanoma and had surgery that October. Id. at 35-36; Tr. II:96-97 (petitioner). He took a lot of time away from the office and that interfered with his ability to perform his work responsibilities and contributed to his misconduct. Tr. II:36 (petitioner). Although many of his stressors were not atypical, we acknowledge their cumulative effect on him.
While he provided us with the full context of what was happening in his life at the time of his misconduct, the petitioner also explicitly disclaimed that any of his problems, e.g. divorce and custody issues, other family issues with his parents and siblings, cancer diagnosis and surgery, financial stresses, etc., justified his violating court orders and the ethical rules of his profession. Tr. I:180, 190-191; Tr. II:104-176 (petitioner). However, the connections between these significant life events and the petitioner’s misconduct are evident to us. He expressed “deep, deep sorrow” for his conduct that hurt his clients, his family, and himself. Tr. I:181 (petitioner). He describes himself as “humbled” by the effects of his disbarment: foreclosures, bankruptcies, and “losing the honor and privilege of being an attorney.” Id. at 193. We credit this testimony and find the petitioner to be both humbled by, and remorseful for, his misconduct.
As we noted above, following his disbarment, in 2007, the petitioner began the process of seeking permission from the S.J.C. to work as a paralegal. Tr. I:201 (petitioner). However, he began performing paralegal work for Attorney Zajac, falsely claiming that he had obtained the Court’s permission, when he had not. Id. at 201. It troubled us that as late as 2007, the petitioner had apparently still not learned from the past. There is no way around those bad facts. However, 2007 is seventeen years ago. The petitioner testified that he realizes now that he was “not ready” to return to legal work in 2007 because he was still “focused on the finish line and not paying enough attention to the ethics and to the proper way to get there…Getting approved as a paralegal the proper way was just as important as being a paralegal, but I did not see that in 2007.” Id. at 193.
He recognizes that, in the past, he was insecure and did not feel “like [he] was enough.” Id. at 195. With the help and support of his family, particularly his current wife, Janet, whom he has been in a relationship with for twelve years, the petitioner no longer feels that way. Id.; Tr. II:9, 30 (petitioner). Further, to support his emotional progress, the petitioner has participated in regularly scheduled therapy sessions with Robert Marek, LICSW, for many years. We describe this therapy in more detail below in the section on the petitioner’s witnesses.
The petitioner testified that his current petition for reinstatement is no longer about the money but, rather, about his love of the law and helping others navigate it. Tr. I:194 (petitioner). In heartfelt testimony, the petitioner explained that he “really do[esn’t] feel the often long hours are work because it doesn’t feel like work. And I rarely think about the money and much more often [am] thinking about doing excellent work and feeling blessed because I’m able to do that work.” Id. We credit this testimony both because we found the petitioner to be sincere as he testified before us and because we credit the testimony of his witnesses regarding his moral character as described in more detail below.
2. Restitution to the Petitioner’s Clients
The petitioner asserted in his Petition for Reinstatement that he had repaid the Clients’ Security Board (“CSB”) for any funds awarded on account of his misconduct. Ex. 1. The CSB made awards on four claims between March 1996 and March 2000 for a total of $23,150. Ex. 2, at 0006. The CSB was repaid in full by two checks from the petitioner dated August 1, 2022 and February 8, 2023. Id. at 0037-0040; Ex. 10 (letter from CSB to the Board confirming that the petitioner had made full restitution to the CSB).
That is not the end of the inquiry, however. In Reinstatement Questionnaire, Part I, the petitioner was asked to describe all “other actions taken by you…to make restitution…to persons injured by your professional misconduct. If you have not made restitution, compensation, or payment, please set forth your reasons for not doing so.” Ex. 2, at 0006. The petitioner explained that in October 2022, he hired a private investigator to help him find a former client, Patricia Pimental.4 Id. In February 2023, he was able to speak with her youngest of two children, Andrew McDevitt, who informed the petitioner that his mother had passed away in 2021. Id. at 0006-0007; Tr. III:24, 27 (petitioner).
We credit the petitioner’s testimony before us that once he had his sights set on reinstatement, he tried hard to find Ms. Pimental, including by hiring a private investigator. He testified that he was seeking her out to reconnect with her, apologize to her for his misconduct, and see if she would be supportive of his reinstatement, perhaps even by writing a letter in support of his petition. Tr. II:68-70 (petitioner). He described wanting to “have closure” with her (Id. at 95). He was less clear about whether he was reaching out to her to arrange for restitution, mentioning it only in response to questioning by the panel: “Relative to the $3,000, yeah, I think I definitely would have talked with her about that. If she felt that she wanted me to repay that money to her, I would have certainly done that.”5 Id. at 68.
When the petitioner spoke with Mr. McDevitt in February of 2023, he learned that Ms. Pimental had passed away. Neither the petitioner’s counsel nor Assistant Bar Counsel questioned him about restitution to Ms. Pimental. In response to our questioning, he testified that he did not tell Mr. McDevitt that he owed Ms. Pimental money, and he did not offer to pay Mr. McDevitt, or Ms. Pimental’s estate, the money that he owed. Tr. II:64-65, 93 (petitioner). He explained to us that, after he discovered she had passed away, he did not think about making efforts to pay restitution to her estate. Id. at 95-96. (“I just didn’t think of doing that. I didn’t think of doing that. My focus was to try to find her, and when I heard she was deceased, I never thought about her estate or if she had an estate. I hadn’t spoken to her in 15 years. I didn’t think about that.”). Despite the petitioner’s acknowledging that he had not made restitution, at the end of the second day of hearing, Assistant Bar Counsel unreservedly recommended reinstatement Tr. II:135-136 (Assistant Bar Counsel) (“I think that this is the first reinstatement that I have had the honor of reviewing that I can wholeheartedly say this man should come back into the bar.”). It is possible that the petitioner, his counsel, and Assistant Bar Counsel all concluded that the petitioner’s restitution obligation to Ms. Pimental was extinguished by her death. Indeed, we have found no caselaw that is directly on point. Nevertheless, we disagree with such a conclusion.6
When we made clear to the petitioner that we would consider restitution or lack thereof in our decision, the petitioner immediately and willingly agreed that he had an obligation to pay $3,000 in restitution to Ms. Pimental or her estate (Id. at 95), that it would be “the right thing to do” and indicated that he would be “happy to do so.” Id. at 65. Following the second day of hearing in this matter, in December 2023, the petitioner met with Mr. McDevitt and repaid him $3,000, plus a nominal amount of interest ($694).7 Tr. III:11-12 (McDevitt). Mr. McDevitt voluntarily split the money with his only sibling. Id., at 18-19.8
While we note that the petitioner could have been more transparent to Mr. McDevitt about why he owed money to Mr. McDevitt’s mother, we think he adequately explained the circumstances. See Tr. III:15 (McDevitt) (“He came to the house, I met him outside. He had an envelope. He said that he had some financial dealings with my mother in the past and he fell ill or had some medical issues, and he [had] gotten behind on things. And it had been bothering him that he had never settled up with this with her. And that he wanted me to have it instead.”); cf. Ex. 25 (letter from the petitioner to Mr. McDevitt stating, “I’m glad to have explained to you these monies and to have repaid to you today these monies that I should have repaid to your mom many years ago.”). We find that the petitioner’s payment constituted full restitution to Ms. Pimental. We commend the petitioner for unhesitatingly accepting before us that he owed this money and then making prompt restitution once he was aware that we considered the restitution obligation to continue beyond Ms. Pimental’s death.
3. Work and Volunteer Activities
Following his suspension and ultimate disbarment, the petitioner worked in a series of non-legal jobs. First, he earned a teaching certificate in elementary education and began working as a first-grade teaching assistant in September 1996. Ex. 2, at 0005. However, he was not making enough money to support his family so he obtained a new position as a salesperson with Offtech Ricoh in June 1997. Id.; Tr. I:184 (petitioner). He worked there until December 2004. He worked in a similar position with another company from December 2004 until he was laid off in December 2008. Ex. 2, at 0005. Between January 2009 through 2016 he worked “independently in advertising / printing to coordinate small businesses promoting themselves thru family-owned restaurants in the community or town where the small businesses were located.” Id.
As noted earlier, on October 18, 2017, he was granted permission by the Court to work as a paralegal. Id. Between October 2017 through the present, the petitioner has worked as a paralegal for John E. Zajac, Esq., at Cornerstone Law Group, LLC. Id. On March 4, 2020, the petitioner was granted leave to also work as a paralegal for John Pavlos, Esq., at the Law Office of John Pavlos. Id. We discuss this work below in the Learning in the Law section of our report.
In addition to paid work, evidence of moral reform 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 testified about his caregiving responsibilities and volunteerism during his years out of practice. Many of his activities involved his children and/or stepchildren. For example, he coached girls’ softball for his daughter and stepdaughters for a number of years from the late 1990s through the early 2000s. Ex. 2, at 0006; Tr. II:29 (petitioner). He was also East Taunton’s Little League Manager from 2004 through 2009. Ex. 2, at 0006. He volunteered in his son’s classroom from 2004 through 2007 and was a Cub Scout den leader for five years in the early 2000s. See id. Although his son is currently an adult in his twenties, the petitioner is still very actively involved in his son’s day-to-day life as his son struggles with mental health issues. Tr. I:199 (petitioner). Finally, he cared for his mother at various times but visited her almost daily in 2010, the last year of her life. Id. at 200.
In addition to his family caregiving, the petitioner testified about his involvement in church-related activities. He volunteered to teach religious education courses for children in public school (“CCD”) at his church, unpaid, both prior to, and after, his disbarment for the period from 1995-2007. Ex. 2, at 0006; Tr. II:25-26 (petitioner).9 Also, for a period of nine years, until the start of the pandemic in 2020, the petitioner volunteered at his church for an hour every week. Ex. 2, at 0006. Tr. II:25, 27 (petitioner); Ex. 16.
4. Witness Testimony and Letters
Four witnesses testified at the petitioner’s hearing in support of his reinstatement and also provided supportive letters: one of his ex-wives, Cathleen Catalano; his therapist, Robert Marek, LICSW; and the two attorneys he has performed paralegal services for, John Zajac, Esq., and John Pavlos, Esq. Exs. 12-15. We find that the witnesses’ testimony reflected helpful insights into the petitioner’s moral rehabilitation. Another four people provided supportive letters but did not testify at the hearing. Exs. 11 and 17-19. Those supportive letters, not accompanied by testimony, were less helpful to our determination of his moral qualifications but they reflected that the petitioner is a good and loyal friend (Exs. 11 and 18) as well as a caring and compassionate paralegal (Exs. 17 and 19).
Ms. Catalano testified that she met the petitioner in or around 1987. Tr. I:15 (Cathleen Catalano). She was his second wife and they were married for almost twenty years. Id. at 22. They divorced in the 2000s. Id. at 15. They have one son together who is twenty-five years old. Id. at 17. At the time of the petitioner’s suspension, they were still married and they each had two pre-teen / teenage daughters from their prior marriages living with them (four total). Id. at 15, 24-25. Ms. Catalano testified similarly to the petitioner that this was a very stressful time for the petitioner as he had been diagnosed with an aggressive form of skin cancer for which he had surgery, and he had family troubles with his father and brother. His mother was also ill. Id. at 16.
9 In his testimony before us, the petitioner stated that he taught CCD from 1995–2010 as opposed to 1995-2007. We consider this a minor discrepancy and credit that he volunteered to teach religious education classes for over ten years. She described the petitioner at that time as “scared, nervous” and depressed. Id. at 16; see also Ex. 15.
Since their divorce, she has remained in close contact with the petitioner, as they have to speak frequently about their son and his struggles. Id. at 18. She provided sincere testimony about the petitioner’s role in his son’s life and what a good father he has been. She credits her ex-husband with supporting and encouraging their son to persevere through his goal of obtaining his drivers’ license recently at the age of twenty-four. Id. at 20-21. Ms. Catalano explained that the petitioner today is “older, wiser, kinder” (Id. at 19) as opposed to before his suspension when she described him as “…very aggressive. Money was a driving issue with him to be successful or maybe more successful than his father and brother, who were both attorneys also.” Id. at 26. We find Ms. Catalano’s testimony to be credible evidence that distinguishes the petitioner’s conduct before and after his underlying discipline, and that sheds light on his rehabilitation. See Matter of Dawkins, 432 Mass. at 1011, n.5, 16 Mass. Att’y Disc. R. at 96, n.5; 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).
Robert Marek, LICSW, testified that he has known the petitioner for over twenty years and has been continuously treating the petitioner as his therapist for approximately nine to ten years. Tr. I:34, 36 (Marek); Ex. 14. Mr. Marek currently meets with the petitioner approximately once every two months. Tr. II:118-119 (petitioner). The petitioner initially sought Marek’s help for issues related to depression stemming from incidents in his family life. Tr. I:37-38 (Marek). He testified that, years ago, the petitioner informed him that he had been disbarred and had described his misconduct in full. Id. at 36-37. The petitioner has expressed remorse to Mr. Marek, lamenting being “very stupid” and wishing he had not done the things that led to his disbarment. Id. at 57. Mr. Marek described the petitioner as “a good man. He’s honest. He’s got a good heart.” Id. at 40. He spoke eloquently about how much the petitioner loved being a lawyer and missed practicing law and “taking care of people.” Id. at 38-40, 57. Mr. Marek testified that, because of his good opinion of the petitioner, he has referred other clients to the law firm where the petitioner works as a paralegal. Id. at 46. It is clear from both Mr. Marek’s and the petitioner’s testimony that the petitioner has worked diligently in therapy to process his past stressors and to gain insight into his misconduct.
Attorney Pavlos, for whom the petitioner worked part-time as a paralegal from early spring 2020 to approximately spring of 2021 (Tr. I:82, 89, 122 (Pavlos)), also testified before us and submitted a letter in support of the petitioner. Ex. 13. Attorney Pavlos is in private practice and divides his time between criminal defense and a variety of civil matters. Tr. I:81 (Pavlos). Attorney Pavlos testified that the petitioner voluntarily informed him that he was a disbarred lawyer in their first interview. Id. at 86. He described the petitioner as “humble,” “in a learning position,” and as willing to take directions. Id. at 96. The thing that impressed him most about the petitioner was that he “has a very nice way with clients” and “see[s] human beings in cases.” Id. at 95-96. Attorney Pavlos’s opinion of the petitioner’s legal competency will be discussed below.
Attorney Zajac also testified on the petitioner’s behalf and submitted a letter in support of his petition. Ex. 12. Attorney Zajac is the owner of Cornerstone Law Group, LLC which is a general practice with a focus on litigation. Tr. I:127 (Zajac). He first met the petitioner in either 2004 or 2005 in connection with representing the petitioner in a civil matter. Id. at 137-138. In or around 2006 or 2007, the petitioner, through his counsel at the time, asked Attorney Zajac to be a sponsor or mentor for the petitioner in his attempt to be readmitted. Id. at 139. As discussed supra, the petitioner lied to Attorney Zajac and claimed that he had been granted permission from the S.J.C. to work as a paralegal. By the time Attorney Zajac learned the truth, the petitioner had worked for him for less than a year. Id. at 142. Attorney Zajac described his thoughts at that time:
..I was certainly disappointed, both because I, you know, had – I was trying to help him and because he put me in a difficult position. Although once his lie came to light, he, you know, fully admitted that he misrepresented it to me and left me in the dark. And I was disappointed because he had been a help to me in the months that he did work with me.
Id. at 143. Between 2007 and 2017, Attorney Zajac had limited contact with the petitioner. Id. at 142.
In 2017, the petitioner approached Attorney Zajac and again asked to work as a paralegal for him to gain knowledge of the current law before applying for reinstatement. Id. at 144, 170. Despite being previously misled by the petitioner, Attorney Zajac testified credibly that he decided to rehire the petitioner for four reasons: (1) the quality of his work; (2) the petitioner’s expressed repentance for the prior situation; (3) Attorney Zajac now understood the process and knew he would have the correct paralegal authorization from the Court; and (4) “…because I still had respect for [the petitioner] for the reason of why he wanted to, after all this time, still be a lawyer.” Id. at 144-145. The petitioner offered to work for Attorney Zajac for free for a few months as an apology. Id. at 162. Attorney Zajac took him up on that offer for approximately two months and has employed the petitioner as a part-time paralegal continuously since 2017 (approximately seven years). Id. at 146, 169. Attorney Zajac’s opinion on the petitioner’s legal work product is described in more detail below.
The petitioner’s witnesses gave their full support for his reinstatement and we found their testimony to be both sincere and credible. Although only the petitioner’s ex-wife could comment on the transformation in his conduct before and after his underlying discipline, we note the decades that have passed since that misconduct and the confidence the people who know him now have in his morals and insight.
5. Conclusions as to Moral Reform
We conclude that the petitioner has proved moral reform. The petitioner acknowledged the wrongfulness of his actions and took complete responsibility for them. He displayed deep regret and remorse for his past misconduct and spoke movingly of being motivated to seek reinstatement so that he could use his legal skills to help people. See Tr. II:53-54 (petitioner). This petitioner has persuaded us that he has reformed, rehabilitated, and redeemed himself to “become ‘a person proper to be held out by the court to the public as trustworthy.’” Matter of Dawkins, 432 Mass. at 1010-1011, 16 Mass. Att'y Disc. R. at 95 (citations omitted).
B. Competency 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.” We find that the petitioner has demonstrated his commitment to learning and his current ability to practice law again through his hard work and determination.
In his response to his Reinstatement Questionnaire, Part I, the petitioner wrote that he has taken six continuing legal education courses over the last few years. Ex. 2, at 0043-0049; Ex. 22 (providing documentation of four courses); Tr. II:14, 46-48 (petitioner). We credit that he has taken six continuing legal education classes in preparation for his reinstatement. He also testified that, beginning in 2012, he began regularly reading Massachusetts Lawyers Weekly. Ex. 2, at 0007; Tr. II:13 (petitioner). Starting in 2022, he began reading the advance sheets that are emailed every week. Tr. II:14-15 (petitioner). Although his formal coursework would be insufficient on its own to prove his current competency and learning in law, we find that the petitioner’s extensive paralegal work over the last almost seven years, described infra, more than meets his burden of proof on this issue.
Although the petitioner was eligible to apply for reinstatement in October of 2017, he instead applied for, and was granted, permission to work as a paralegal. Exs. 7-8. In his words, he knew he had not worked as a lawyer for a long time and he wanted “to make sure that I haven’t lost my fastball…That I can still do this.” Tr. I:175 (petitioner). The petitioner was emotional as he spoke about the tough position he had put Attorney Zajac in and how he was questioning his ability to be a lawyer. Id. at 176. We found his testimony to be quite candid and acknowledge the petitioner’s careful and mindful path back to the practice of law. We note that our caselaw has generally found that seeking leave from the Court to work as a paralegal for a period of time before seeking reinstatement is a successful approach at establishing competency and learning in the law after many years out of practice. See Matter of Sullivan, 25 Mass. Att’y Disc. R. at 578 (the single justice described seeking leave to work as a paralegal as a “good step” in preparing for reinstatement). See also Matter of Stewart, 36 Mass. Att’y Disc. R. 418 (2020), and Matter of Gilpatric, 39 Mass. Att’y Disc. R. __ (2023), for recent instances of petitioners who have had a long absence from practice and worked as paralegals to acquire adequate knowledge of current law.
The petitioner initially planned to work as a paralegal for a year or two and then ready himself to apply for reinstatement. However, the COVID-19 pandemic began in early 2020 and that “threw everything out of whack.” Id. From late 2017 through the present, the petitioner has worked as a paid paralegal for Attorney Zajac for approximately 25 to 35 hours per week.10 Ex. 2, at 0008. His work has focused on both criminal defense matters and civil matters, including real estate, landlord/tenant, consumer protection, plaintiff-side personal injury, and family law. Id.
As a paralegal, the petitioner has conducted online legal research tasks and drafted documents, including pleadings, memoranda, complaints, discovery requests and responses. Tr. I:108-109 (Pavlos); Tr. I:154-155 (Zajac). He has also drafted motions for summary judgment and opposed such motions. Tr. I:154 (Zajac). He also worked on practical research tasks such as figuring out how to handle a zoning board of appeals case or dealing with personnel at the city hall level. Tr. I:107-108 (Pavlos).
Both Attorneys Zajac and Pavlos spoke credibly about the petitioner’s legal acumen. Attorney Pavlos gave him high praise for his diligence and legal skills. Id. at 93-94 (“And a couple of things he knew how to do that I just didn’t do a lot of in my practice, whether it was, you know, setting up assessment of damages hearing…). Attorney Pavlos testified that he found the petitioner to be proficient with the computer and up to date with respect to online legal research. Id. at 114. He felt that the petitioner was always looking for a way to help a client in their brainstorming sessions. Id. at 122-123. Ultimately, Attorney Pavlos grew to trust the petitioner so much that he would give the petitioner a blank check to go to court and file papers and pay the filing fee. Id. at 98-99. The petitioner’s employment with Attorney Pavlos ended when Attorney Pavlos’s practice slowed down due to the pandemic. See id. at 89; Ex. 13.
Attorney Zajac described the petitioner as having a “real passion” for the law, he “wakes up in the morning and wants to talk about it. Wants to read about it. Wants to use the skill that he does have, I think, to help people, particularly people who have a need. And that need being for legal representation or services.” Tr. I:149 (Zajac). He finds the petitioner’s work product to be commendable and he “put[s] a lot of stock in [the petitioner’s] opinion.” Id. at 150, 159. Over the years, Attorney Zajac has observed the petitioner get up to date on both changes in the law substantively and technically, e.g. the Superior Court Rule 9A civil motion process. See id. at 158. Attorney Zajac also highly praised the petitioner’s interactions with clients – he has frequently sat in on client meetings and also gone to court with Attorney Zajac – and explained it is “one of his greatest skills.” Id. at 160.
We found both Attorney Zajac and Attorney Pavlos to be credible witnesses who provided helpful testimony about the petitioner’s current legal skills and learning in the law. We note that when asked about the rules surrounding fee agreements, the petitioner adequately explained the current requirements during the hearing. Tr. I:189 (petitioner). He also was able to explain the process of three-way reconciliations. Tr. II:19-21 (petitioner). Further, he testified knowledgeably about the S.J.C.’s findings in a case that he worked on with Attorney Zajac. Tr. III:35-38 (petitioner).
We initially had one area of concern with respect to the petitioner’s work for Attorney Zajac as it was unclear how to reconcile the number of hours that the petitioner purportedly worked as a paralegal, his stated rate of pay, and his adjusted gross income as reflected on his Reinstatement Questionnaire, Part II. See Ex. 3, at 0051 (impounded); see also Ex. 23 (checks to the petitioner from Cornerstone Law Group LLC for 2022). His reported income was substantially lower than simple arithmetic would predict based on the hours the petitioner claimed to have worked (see Tr. II:122-125 (petitioner)); either 20 to 30 hours per week (Tr. I:169-170 (Zajac) or 25 to 35 hours per week (Ex. 2, at 0008) over the last six years. Attorney Zajac testified that he paid the petitioner “in the range of $50 an hour” but admitted that he believed the petitioner actually put in a lot more time on cases than he reported to Attorney Zajac. Tr. I:165 (Zajac).
As we discussed supra, the petitioner testified repeatedly that he has learned that the practice of law “really isn’t about the money” (Tr. II:45-46 (petitioner)) and his testimony and related documents appear to corroborate that – the petitioner has consistently, for the past six years, undercounted his paralegal hours in the interests of getting the work done for a rate or amount that both the client, and Attorney Zajac, can afford. See Tr. II:74-82 (petitioner). The petitioner testified:
Cases where I would put in maybe 50, 60 hours of time but only asked to be paid…for about half of that time at my request…I will ask [Zajac] to pay me usually an average of about 50 percent of the hours that I’m actually putting in for a client because I know the reality that he doesn’t have a lot of money coming in from that client on his end…I’m not going to ask him to pay me money unless the client is paying him money for my work…it needs to be a manageable number for the client. A number that the client can afford.
Id. This was not done for accolades either as the information was not volunteered and we had to drill down to understand their arrangement. We credit this testimony and find that it resolves for us the apparent discrepancy between the amount of time both he and Attorney Zajac testified that he worked and the amount of money that he was paid. If reinstated, the petitioner intends to continue working for Attorney Zajac as an independent contractor on the same types of cases. Tr. II:51-53 (petitioner); Tr. I:152, 171 (Zajac). If he is reinstated, we recommend that the petitioner and Attorney Zajac come to a transparent and equitable understanding of the billing and payment expectations.
We also recommend, given the petitioner’s long years away from the practice of law, that a mentoring agreement be established to help ease his transition back into practice, and that the petitioner propose a mentor other than Attorney Zajac. See Order of the Hearing Panel, dated January 12, 2024. The petitioner has proposed Attorney Pavlos as a possible mentor which Attorney Pavlos has agreed to. See Ex. 26.
Based on the foregoing, we conclude that the petitioner has met his burden of demonstrating that he possesses sufficient competency and learning in law to be re-admitted to practice.
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. at 307, 9 Mass. Att'y Disc. R. at 345.
Given our findings with regard to the petitioner’s current moral fitness, and his demonstrated learning in law over the past almost seven years of paralegal work, we believe that his readmission would not adversely impact the public, the bar, or the administration of justice.
V. Conclusions and Recommendation
Based upon the petitioner’s written submissions, his own testimony, and that of his witnesses, we recommend that the petition for reinstatement of Robert J. Catalano be allowed on the following conditions:
(a) The petitioner shall continue his regular therapy sessions with Robert Marek (at their established interval of once every two months) for one year from the date of reinstatement to ensure that the petitioner is receiving support during his initial return to practice; that Mr. Marek report to bar counsel at least twice in that year that the petitioner is continuing his regular therapy sessions; and that Mr. Marek notify bar counsel if the petitioner discontinues their therapy sessions within one year of his reinstatement;
(b) The petitioner shall enter into a mentoring agreement with John Pavlos, Esq. subject to bar counsel’s prior approval; the petitioner and the mentoring attorney shall meet as often as the mentor deems necessary but not less than once per month during the first six months and thereafter once every two months for two years; the mentoring attorney shall make quarterly reports to bar counsel as to the petitioner’s legal practice;
(c) The petitioner shall contact Lawyers Concerned for Lawyers (“LCL”) within one month of the date of reinstatement and participate in a support group recommended by LCL, on a regular basis as recommended by LCL (e.g. once per week), for at least one year after reinstatement; and
(d) If the petitioner opens his own law practice within two years of the date of reinstatement, as opposed to continuing to work for Attorney Zajac, the petitioner shall make his practice available for an audit by Law Office Management Assistance Program (“LOMAP”) within six months of opening his practice and shall implement any recommendations of LOMAP.
Respectfully submitted,
By the Hearing Panel,
_____________________________________
Ernest L. Sarason, Jr., Esq., Hearing Panel Chair
_____________________________________
David B. Krieger, M.D., Hearing Panel Member
______________________________________
Azizah P. Yasin, Esq., Hearing Panel Member
Dated: August 7, 2024
______________________________________
1 The transcript is referred to as “Tr.[vol.]:[page].” and the hearing exhibits are referred to as “Ex.__.” We have considered all of the evidence, but we have not attempted to identify all evidence supporting our findings where the evidence is cumulative. We credit the testimony cited in support of our findings to the extent of the findings, and we do not credit contradictory testimony. In some instances, we have specifically indicated testimony that we do not credit.
2 On the second day of hearing, testimony concluded and the parties gave their closing arguments. See Tr. II:132-141. Before the close of the hearing, the hearing panel ordered the record to be left open until January 31, 2024 in the event that the petitioner had any additional evidence to submit, particularly his tax returns for 2022 (if filed before that date) and any information about further restitution attempts by the petitioner. See Tr. II:142 (Attorney Sarason, Chair). Following the receipt of additional documents from the petitioner on December 13, 2023, the panel issued an order seeking further testimony from the petitioner and from Andrew McDevitt, whose role is explained infra. See Order of the Hearing Panel, dated January 12, 2024. The additional day of hearing testimony occurred on February 23, 2024. See Tr. III.
3 Exhibit 3 is the petitioner’s response to Part II of the Reinstatement Questionnaire which includes his tax returns and related information. This exhibit was the subject of a Joint Motion to Impound which was allowed by the Board Chair. Exhibit 24 is the petitioner’s 2022 tax returns which should be impounded pursuant to the prior Motion and Order. In this report, we recite our findings and conclusions, supported by citations to the pertinent sections of the impounded exhibits as needed, but we refrain from reciting the evidentiary details contained therein except to the extent they were discussed at the public hearing, during non-impounded testimony.
4 As discussed supra, the petitioner admitted that he misused $3,000 of Ms. Pimental’s funds in 1993 and had not repaid her. Tr. II:62-63 (petitioner). Ms. Pimental had not applied to the CSB for an award. See Ex. 2, at 0006; see also Ex. 10.
5 We note for the record that it is irrelevant to us whether the victim of an attorney’s misuse of funds wants to be repaid – restitution is owed under our caselaw. See cases cited infra.
6 Our caselaw is clear that “[f]or purposes of reinstatement, making restitution is not simply a matter of making clients whole, but is an outward sign of the recognition of one’s wrongdoing and the awareness of a moral duty to make amends to the best of one’s ability. Failure to make restitution, and failure to attempt to do so, reflects poorly on the attorney’s moral fitness…Voluntary payments, even in small amounts that a petitioner can afford, speak well of a petitioner’s moral fitness.” Matter of McCarthy, 23 Mass. Att’y Disc. R. 469, 470 (2007). Many cases highlight the importance of restitution in the reinstatement context. See, e.g. Matter of McPhee, 34 Mass. Att’y Disc. R. 315 (2018), citing Matter of Fletcher, 466 Mass. 1018, 1020, 29 Mass. Att’y Disc. R. 263, 266 (2013) (court notes, in upholding denial of reinstatement, that the hearing panel properly relied on the petitioner’s failure to make restitution); Matter of Dawkins, 432 Mass. 1009, 1011, 16 Mass. Att'y Disc. R. 94, 95-96 (2000) (denying reinstatement because, among other things, Dawkins “failed to reimburse the clients’ security board for what it had paid to a former client [and] failed to resolve outstanding Federal and State tax liabilities”); Matter of McCarthy, supra, 23 Mass. Att’y Disc. R. at 469 (principal reason for hearing panel’s negative recommendation was the “failure to make restitution to his victims (or to reimburse the Client Security Board for the amounts it paid out)”); Matter of Wynn, 7 Mass. Att’y Disc. R. 316, 317 (1991) (reinstatement denied, single justice notes, among other things, that “[t]he lack of payment of moneys owed for taxes and payment of restitution to wronged clients…pose a
substantial impediment to a finding that reinstatement would be in the interests of the bar and the public”) (emphasis added). We have distinguished this moral obligation to make restitution from enforceable legal obligations. See Matter of McCarthy, supra (“The issue is not whether [the petitioner] has an enforceable legal obligation to reimburse his victims – he does not – but whether he recognizes that he still has a moral obligation to do so.”). We cannot say whether the petitioner here had a legal obligation to repay Ms. Pimental’s estate after her death, but we need not do so as he promptly acknowledged his moral obligation before us and made restitution to her sons as detailed infra.
7 The petitioner testified that he asked his accountant to calculate how much interest $3,000 would have accrued in a passbook savings account over the last thirty years (1993-2023). His accountant told him that the interest would amount to $694. Tr. III:30-31 (petitioner).
8 We considered whether Ms. Pimental’s sons were the proper payees. Given the relatively small amount of money at issue, the decades it had been owed, and Mr. McDevitt’s testimony that his mother passed away without any assets, and, presumably, no estate, we did not feel a deeper inquiry was warranted. See Tr. III:17-20, 23 (McDevitt).
10 For approximately one year (spring 2020–spring 2021), the petitioner also worked part-time for Attorney Pavlos doing similar work. Ex. 13.
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