In re Slavitt

864 N.E.2d 1160, 449 Mass. 25, 2007 Mass. LEXIS 273
CourtMassachusetts Supreme Judicial Court
DecidedMay 2, 2007
StatusPublished
Cited by9 cases

This text of 864 N.E.2d 1160 (In re Slavitt) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Slavitt, 864 N.E.2d 1160, 449 Mass. 25, 2007 Mass. LEXIS 273 (Mass. 2007).

Opinion

Cowin, J.

The respondent, Evan Slavitt, was suspended from the practice of law for one year by a single justice of this court on recommendation of the Board of Bar Overseers (board). The discipline was imposed because the respondent made false statements in a letter recommending an applicant to the Board of Bar Examiners (BBE) and because he submitted a false affidavit in connection with a lawsuit. The respondent has appealed from the order of the single justice. He concedes that the sending of the letter of recommendation to the BBE was improper but maintains that the affidavit was not “dishonest or fraudulent.” We agreed with the respondent and ordered that he be suspended from the practice of law for two months from the date on which he commenced his suspension.

[26]*261. Facts. We recite the facts, which are generally undisputed. In 1994, the respondent represented one Douglas Fineberg in connection with a lawsuit in which Fineberg was alleged to have posed as a lawyer and converted to his own use the corpus of a trust. Fineberg was deposed in the case and made the following claims: that he had earned a master’s degree; that he had earned a law degree from a California university; that he had been admitted to the California bar in 1979; and that he had worked as an associate at a law firm in California. Opposing counsel learned before trial that each of those assertions was false in some way, and in early 1995 the deposition was resumed so that Fineberg could correct his misstatements. On that occasion, Fineberg was represented personally by Slavitt, and explained as follows: he did not earn the master’s degree because he failed to complete a required internship; he graduated from a predecessor of the named law school; he was not admitted to the California bar because, although he passed the examination, the results were “set aside” as a result of a criminal investigation of the firm where he worked during law school; and he never practiced as an associate at any California law firm. The civil action was eventually dismissed for reasons not entirely clear in the record, filed anew in another jurisdiction, and apparently settled. The record does not reflect that Slavitt had knowledge of the outcome of the suit after it was dismissed here.

In 1998, Slavitt joined a large Boston law firm as a partner. While working at the new firm, he saw Fineberg occasionally in Boston and also visited his home on one occasion. Fineberg told Slavitt that he had resolved his California bar status and was doing legal work at a Boston bank. Slavitt knew a “senior legal person” at the bank, who “confirmed” that Fineberg performed legal work for the bank. Slavitt desired to develop a client relationship with the bank and invited Fineberg to a client reception at his (Slavitt’s) new law firm. At the reception, Slavitt introduced Fineberg to one of his new partners, and as a result of a nfiscommunication exploited by Fineberg, the partner came to believe that Fineberg had worked as a lawyer at Slavitt’ s previous law firm.

Perhaps sensing opportunity, Fineberg applied to join the [27]*27firm's technology consulting affiliate as a banking and technology specialist. He provided Slavitt’s name to the firm as a professional reference. The firm’s general partners (a group of which Slavitt was not a member at the time) engaged in a process that extended over several months, to determine whether Fineberg should be hired. At one point, one of Slavitt’s partners stopped by Slavitt’s office and asked for his opinion of Fineberg. Slavitt provided a positive reference. This was Slavitt’s only involvement in the hiring process. No one asked him whether Fineberg was an attorney. Eventually, in 1998, the firm hired Fineberg as a director of the affiliate entity, and in addition retained him as “of counsel” with the firm.

The firm believed that Fineberg was admitted to the bar in California, and the partners assumed that he would seek admission in Massachusetts by taking the bar examination. Fineberg missed his first opportunity to sit for the examination, and then after less than one year at the firm, Fineberg sought from lawyers at the firm letters of recommendation for his application. Slavitt was among those attorneys who agreed to write a letter. On firm letterhead, in correspondence addressed to the BBE, Slavitt recommended Fineberg for admission to the Massachusetts bar, stating:

“I would like to recommend Douglas Fineberg for admission to the bar. I have known Mr. Fineberg for some years both in a professional and personal capacity. Evan [szc] in the face of some adversity, I have found his conduct to be honest, honorable and professional. I am confident he will uphold the highest standards of the bar.”

The cryptic reference to “adversity” was intended to refer to certain difficulties in Fineberg’s family life. Fineberg failed the bar examination, and in any event was not qualified to sit for the bar because he had not graduated from an accredited law school.

In 2000, the firm discovered that Fineberg could not be admitted to the Massachusetts bar and at the same time discovered that he was not a member of the California bar. Fineberg was fired, but his significant practice at the firm remained a serious matter. Slavitt was assigned the task of managing the firm’s response to the crisis.

[28]*28Apparently because of his role addressing the aftermath of Fineberg’s work at the firm, Slavitt was named personally as a defendant in a malpractice lawsuit arising from Fineberg’s work in which no other partner at the firm was personally named.1 Slavitt, through counsel, filed a motion to dismiss himself from the suit, in support of which he filed an affidavit. In the affidavit, Slavitt stated: “I had no involvement in [the firm’s] interviewing, hiring, or supervising of Douglas Fineberg. ... I did not learn that Douglas Fineberg was not admitted to practice law in California until after the events asserted in this litigation.” The judge appeared to ignore the affidavit and denied the motion,2 writing in the margin that “accepting as true the allegations of the complaint,” the pleading stated a claim for relief. The suit eventually resulted in judgment against Fineberg, who failed to appear for a deposition.3

Meanwhile, Slavitt’s partners became aware of the nature of his previous interactions with Fineberg, and apparently questioned why Slavitt had failed to disclose to them the details of those interactions. Slavitt had, of course, an opportunity to do so during the hiring process. Under pressure, Slavitt resigned from the partnership.

2. Disciplinary proceedings. Bar counsel petitioned for discipline for the respondent’s making of false statements to the BBE in connection with Fineberg’s bar admission application, and for the making of false statements in connection with the declaration in the affidavit that Slavitt “did not learn” that Fineberg was an imposter until after Fineberg was fired by the firm. See Mass. R. Prof. C. 3.3 (a) (1), 426 Mass. 1383 (1998); Mass. R. Prof. C. 8.1 (a), 426 Mass. 1427 (1998); Mass. R. [29]*29Prof. C. 8.4 (c), 426 Mass. 1429 (1998).4

A special hearing officer heard testimony and recommended a term of suspension of one year and one day. Slavitt conceded to the hearing officer that he should not have written the letter, although he vigorously contested the allegation concerning the affidavit.

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Bluebook (online)
864 N.E.2d 1160, 449 Mass. 25, 2007 Mass. LEXIS 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-slavitt-mass-2007.