In re Shaw

696 N.E.2d 126, 427 Mass. 764, 1998 Mass. LEXIS 343
Massachusetts Supreme Judicial Court·Decided July 7, 1998·Published·Cited by 10 cases

Opinion

Greaney, J.

This case concerns the appropriate sanction to be imposed on an attorney who made false statements under oath, filed a false affidavit in court proceedings, and issued false and misleading opinion letters signed under oath to which he forged the notarization of another attorney. A single justice of this court ordered that the respondent be suspended from the practice of law for a period of one year. Both the respondent and bar counsel appealed from the judgment of suspension. We conclude that the respondent should be suspended from the practice of law for a period of two years.

The background of the case is as follows. In 1986 and 1987, the respondent represented Thomas A. Toomer in many business and personal ventures and was aware, or should have been aware, of the fact that Toomer engaged in questionable business activities and did not pay his lawful debts. In the course of 1986 and 1987, Toomer, who had paid the respondent a few thousand dollars in fees, borrowed $47,000 from the respondent to pay rent and personal expenses. The respondent hoped that Toomer would repay the loan from one of his business transactions.

[765] In August, 1987, Toomer told the respondent that he was traveling to Antwerp, Belgium, to pursue the release of funds, which Toomer believed he was entitled to, from that city’s Bank Generate. From August to November, 1987, Toomer was in frequent contact with the respondent, keeping him informed that he had failed to obtain the funds.

On or about September 12, 1987, at Toomer’s request, the respondent prepared and executed an affidavit entitled “Affidavit of availability of funds — Thomas A. Toomer.” The affidavit was addressed to the president of Enmin Trading Company, Ltd. After executing the affidavit, the respondent forged the signature of another attorney as notary public, purportedly attesting to the authenticity of the respondent’s own signature. The respondent then transmitted the Enmin affidavit. The purpose of the affidavit was to provide financial assurances to the Enmin Trading Company in its commercial dealings with Toomer. In the Enmin affidavit, the respondent stated: “I, Philip S. Shaw, member of the Bar of the Commonwealth of Massachusetts, No. 45520, on behalf of my client, Thomas A. Toomer, hereby attest to the existence and availability of funds to purchase the following bank instruments . . . Amount: 500,000,000 (Five Hundred Million) USD . . . .” At the time the respondent wrote the Enmin affidavit, he had no reasonable basis, on his personal knowledge of Toomer’s finances, on which to make a statement that Toomer had access to large sums of money. In fact, all the respondent’s information was to the contrary.

On or about September 16, 1987, the respondent prepared and transmitted, at Toomer’s request, a tetter addressed to one Zulfeqar Ah Khan in the United Kingdom, using information provided by Toomer. After preparing and signing the Ah Khan tetter, the respondent again forged the other attorney’s signature as the purported notary pubhc attesting to the authenticity of the respondent’s own signature. The respondent began the tetter with the following statement: “On behalf of my chent, Thomas A. Toomer, I hereby attest that a securities transaction has been completed in Generate de Banque, Antwerp, Belgium, and that your commission will be in excess of $3,000,000.00 US. This sum will be completely paid to you within thirty days of September 17, 1987. A sum of not more than $200,000.00 US will be paid to you within seven days of September 17, 1987.” The respondent made this representation without any reasonable [766] factual basis to support it, and in the face of information that Toomer’s transactions in Belgium had been unsuccessful. Nevertheless, when Ali Khan’s attorney requested confirmation two days later that the payments would be forthcoming, the respondent wrote that Ali Khan would be receiving the payments in keeping with the commitment expressed in the letter. The payments promised to Ah Khan were never made.

On October 20, 1987, and October 22, 1987, the respondent proceeded to send letters, in furtherance of Toomer’s business affairs, to an officer of Barclays Bank in London concerning the wiring of funds to an account in the name of Champcash Ltd. at that bank. In these letters to the bank, which vouched for Toomer’s solvency to satisfy obligations owed the bank, the respondent forged the other attorney’s signature as notary public, purportedly attesting to the authenticity of the respondent’s signature.

In October, 1987, the respondent proposed to one Gregory Arabian that Arabian lend money to Toomer to complete a currency transaction involving several European banks. The respondent told Arabian that Toomer would return the loan with a four-fold profit, and that Arabian’s loan would be protected from risk by a surety bond. Arabian agreed to lend $110,000 to Toomer, $10,000 of which was intended by Arabian to purchase the surety bond. On the respondent’s instruction, Arabian wired $100,000 to the Champcash Ltd. account in England and gave the respondent $10,000 to purchase the bond.

Although the respondent paid $5,250 to an individual Toomer suggested could secure a bond, the respondent failed to obtain the promised bond. The respondent used the remaining $4,750 to defray expenses he had incurred in representing Toomer. Arabian subsequently lent an additional $35,000 to Toomer who defaulted on the loans causing Arabian a $145,000 loss.

Toomer was eventually indicted and tried by a jury in the United States District Court for the District of Massachusetts on three counts of wire fraud arising from the circumstances of the Arabian loans. Toomer was acquitted of the charges. The respondent testified at Toomer’s trial under a grant of immunity after Toomer waived the attorney-client privilege. The respondent knowingly testified falsely that, on November 6, 1987, before Arabian lent Toomer additional funds, Arabian had told the respondent that he (respondent) could keep some of the $10,000 “as your fee.”

[767] Arabian subsequently brought an action against the respondent in the Superior Court, alleging that he had sustained damages from Toomer’s default because of the respondent’s failure to secure the agreed-upon bond. On March 30, 1993, the respondent signed an affidavit, filed in support of his motion for summary judgment, in which he falsely averred, under the pains and penalties of pequry, that Arabian had told him in a conversation prior to November 6, 1987, that Arabian did not need a bond. Arabian never told the respondent at any time that he no longer wanted a bond to protect his loan to Toomer.

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In re Shaw, 696 N.E.2d 126, 427 Mass. 764, 1998 Mass. LEXIS 343 (Mass. 1998).

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