In re Kersey

825 N.E.2d 994, 444 Mass. 65, 2005 Mass. LEXIS 163
Massachusetts Supreme Judicial Court·Decided April 21, 2005·Published·Cited by 12 cases

Opinion

Spina, J.

This is an appeal from a judgment of a single justice of this court disbarring the respondent, George E. Kersey, from the practice of law, pursuant to S.J.C. Rule 4:01, § 16, as appearing in 425 Mass. 1319 (1997) (reciprocal discipline). The respondent claims error because (1) his disbarment in New Hampshire is wrongful and was based on a wrongful New Hampshire suspension imposed as reciprocal discipline for a three-month Massachusetts suspension (Matter of Kersey, 15 Mass. Att’y Discipline Rep. 317 [1999], aff’d, 432 Mass. 1020 [66] [2000], cert. denied, 531 U.S. 1127 [2001]); (2) he was deprived of due process in the New Hampshire disbarment proceeding; and (3) his disbarment from the practice of law in Massachusetts would represent disparate discipline from sanctions imposed on other attorneys for similar conduct. We affirm the judgment of disbarment.

1. Background. A series of contempt orders and two arrest warrants issued against the respondent during his divorce proceedings before the Vermont Family Court in the early 1990’s. A single justice of this court in 1999 suspended the respondent from the practice of law for three months, specifying that a petition for reinstatement would not be entertained until he purged himself of the orders of contempt still outstanding against him. Matter of Kersey, supra. Bar counsel represents that the respondent never has applied for reinstatement, a fact the respondent does not dispute. See note 1, infra.

In 2001, the respondent was found in contempt of the order of suspension on the basis that he had continued to practice law in violation of his suspension. The respondent’s suspension was extended for six months from the date of the contempt finding, but a petition for reinstatement still could not be filed until he purged himself of the Vermont contempt orders. Although the respondent claims he is in “substantial compliance” with the Vermont orders, no evidence is before us indicating that he has purged himself of contempt in that jurisdiction.

Subsequent to the initial three-month suspension imposed by this court, New Hampshire suspended the respondent for the same period on a petition for reciprocal discipline. The respondent’s noncompliance with court orders and further contempt in New Hampshire eventually led to his disbarment in that jurisdiction.

We need not recite facts so thoroughly detailed elsewhere. In sum, the respondent was found in contempt of the New Hampshire Supreme Court’s suspension order for conduct that amounted to practicing law under New Hampshire’s local rules and for repeatedly refusing to comply with a court order to turn over client files and accounts. The respondent did not request reconsideration of the order or appeal from it, but rather repeatedly failed to comply despite numerous specific orders. The [67] New Hampshire court extended the respondent’s suspension until further notice and referred the matter to its committee on professional conduct, which ultimately filed a petition for disbarment. The New Hampshire court ordered the respondent be disbarred. Other background relevant to this decision was determined by the New Hampshire Supreme Court in two decisions, each based on the findings of a judicial referee after hearing. Kersey’s Case, 147 N.H. 659 (2002), cert. denied sub nom. Kersey v. DeHart, 535 U.S. 906 (2002) (finding of contempt), and In re Kersey’s Case, 150 N.H. 585, cert. denied sub nom. 543 U.S. 874 (2004) (disbarment incorporating contempt findings).

On April 9, 2004, the Commonwealth’s bar counsel filed a petition for reciprocal discipline, pursuant to S.J.C. Rule 4:01, § 16, seeking disbarment. On July 20, 2004, the single justice, after hearing, ordered the respondent disbarred from the practice of law in the Commonwealth effective immediately. The respondent filed a request for reconsideration, which was denied, and now appeals to the full court. The respondent asserts that the single justice did not properly weigh certain facts before him regarding infirmities in the New Hampshire Supreme Court decision and that disbarment in Massachusetts would represent disparate discipline for sanctions for similar conduct.1

2. Standard of review. “A final adjudication in another jurisdiction that a lawyer has been guilty of misconduct . . . may be treated as establishing the misconduct for purposes of a disciplinary proceeding in the Commonwealth.” S.J.C. Rule 4:01, § 16 (5). In reviewing reciprocal discipline, “[t]he judgment of suspension or disbarment shall be conclusive evidence of the misconduct unless the bar counsel or the respondent-lawyer establishes, or the court concludes, that the procedure in the other jurisdiction did not provide reasonable notice or opportunity to be heard or there was significant infirmity of proof establishing the misconduct.” S.J.C. Rule 4:01, § 16 (3).

In deference to the procedures of other States, “we generally [68] give effect to the disciplinary decisions of another jurisdiction without undertaking the often difficult and protracted task of redoing the inquiry which has already been concluded there.” Matter of Lebbos, 423 Mass. 753, 755 (1996), cert. denied, 520 U.S. 1275 (1997). However, the imposition of reciprocal discipline is not automatic. Id. at 755-756, citing Matter of McCabe, 411 Mass. 436 (1991). Rather, S J.C. Rule 4:01, § 16 (3), implicitly adopts a modified rule of res judicata whereby the disciplinary action taken by a foreign jurisdiction may be adopted unless “(a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in this Commonwealth; or (c) the misconduct established is not adequately sanctioned by the same discipline in this Commonwealth.”

3. Grave injustice. The New Hampshire proceedings provided the respondent a fair hearing. The respondent claims that “the procedure by the State of New Hampshire was lacking in opportunity to be heard because the Court ignored and misconstrued the presentation by [the respondent]” in violation of his due process rights. This claim is not supported by the record. It is clear to us that the New Hampshire court addressed each of his arguments, despite ultimately rejecting all of them. There was no due process violation.

The respondent does not contest meaningfully the sufficiency of the factual evidence submitted in the New Hampshire proceedings. The events underlying the findings of misconduct are undisputed. The respondent’s dispute centers on what he characterizes as the “wrongful” conclusions of law the New Hampshire court reached based on those facts.

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In re Kersey, 825 N.E.2d 994, 444 Mass. 65, 2005 Mass. LEXIS 163 (Mass. 2005).

825 N.E.2d 994 (In re Kersey) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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