In re Wise

740 N.E.2d 946, 433 Mass. 80, 2000 Mass. LEXIS 764
CourtMassachusetts Supreme Judicial Court
DecidedDecember 19, 2000
StatusPublished
Cited by6 cases

This text of 740 N.E.2d 946 (In re Wise) 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 Wise, 740 N.E.2d 946, 433 Mass. 80, 2000 Mass. LEXIS 764 (Mass. 2000).

Opinion

Spina, J.

On February 24, 1998, bar counsel filed with the Board of Bar Overseers (board) a petition for discipline against Attorney Steven Mark Wise (respondent). The petition alleged that the respondent violated several provisions of the disciplinary rules arising out of a fee dispute with a Texas nonprofit corporate client.1 The board referred the petition to a hearing committee. S.J.C. Rule 4:01, § 5 (3) (d), 365 Mass. 696 (1974). The committee concluded that the respondent had pursued a course of conduct that was marked by a conflict of interest and that he disclosed client confidences to benefit himself and others, but because his misconduct caused no harm, it recommended that he be suspended from the practice of law for a period of six months.

[81]*81Bar counsel and the respondent appealed to the board. The board adopted the hearing committee’s findings of fact and conclusions of law, but concluded that the appropriate sanction was a public reprimand. Bar counsel notified the board, pursuant to S.J.C. Rule 4:01, § 8 (4), as appearing in 425 Mass. 1311 (1997), that he objected to the sanction of a public reprimand. The board filed an information and record of proceedings with the Supreme Judicial Court for Suffolk County. A single justice of this court reserved and reported the matter to the full court. We order a six-month suspension.

1. Facts. We summarize the facts found by the hearing committee and adopted by the board. The respondent concentrates his practice in the area of animal rights law. He represented a Texas nonprofit corporation, Primarily Primates, Inc. (PPI), pro hac vice in a variety of matters beginning in 1991. PPI operates an animal sanctuary near San Antonio. Wallace Swett, the only corporate member of PPI, elected its board of trustees, of which he was a member. He was also the president of PPI and manager of the sanctuary. The respondent’s services were authorized by the trustees, through Swett.

In 1992 the respondent represented PPI in a claim against the Doelger Foundation to enforce payment of a grant that was suspended in the face of allegations that PPI had not met certain conditions of the grant. The matter was settled in March, 1993, at which time the trustees, consisting of Swett, Stephen Tello, Kay McMichael-Trevino, and Melissa Karron, approved the respondent’s outstanding bills, $59,079.95, for payment from settlement proceeds expected in June.

On June 22, 1993, as sole member of the corporation, Swett elected a new board of trustees, consisting of himself, Stephen Tello, and a third person. In late June, 1993, the respondent requested immediate payment of his fees and costs. On June 30, Swett wrote to the respondent that his bills would not be paid until they were reviewed by the new board, PPI’s accountant, and other attorneys. Swett further informed the respondent that he was not authorized to represent PPI on any matter without Swett’s approval, other than a particular contract dispute. On July 1, the respondent sent a letter to Trevino, Karron, Tello, and Swett, who he believed were the trustees of PPI, demanding itemization of the disputed portions of his bills and payment of the undisputed portion by July 9.

On July 5, 1993, the respondent spoke with Trevino about his [82]*82bills. She told him that the trustees had not authorized Swett’s letter of June 30, and that she and Karron disagreed with the refusal to pay him. Trevino also told the respondent that she and Karron had been illegally removed as trustees, and that she intended to notify the Attorney General of Texas that Swett and Tello were misusing PPI funds, not caring properly for the animals, and sexually abusing PPI employees. Many of these same allegations had been made a year before in a complaint by John Hollrah, an animal rights activist, a matter in which the respondent had successfully defended PPI. Trevino expressed the intent to take PPI financial records to substantiate her charges. The respondent asked her to delay making a complaint, as he would inquire first to see if her concerns would be something the Attorney General might pursue, and how best to present them. In subsequent conversations, Trevino and Karron asked the respondent to assist them to freeze PPI’s bank accounts, to force Swett to relinquish exclusive control over PPI, and to achieve financial accountability from PPI’s officers and trustees.

The respondent placed an anonymous call to Texas Assistant Attorney General John Vinson, at the request of Trevino and Karron, and informed him of the details of the dispute. He also asked officers at two financial institutions holding PPI assets to freeze PPI’s assets because of an internal dispute that included accusations of misconduct. No bank account was actually frozen. On July 7, 1993, with the approval of Trevino and Karron, the respondent transmitted by facsimile a letter to Swett and Tello, who were out of the country, announcing that he was representing PPI on behalf of Trevino and Karron. The respondent provided details of their accusations, including a revival of the Doelger and Hollrah matters, in which he took contrary positions from those taken when he defended PPI. He also raised the issue of Swett’s refusal to honor the agreement to pay his fees, and he reported that the Attorney General of Texas had been apprised of the situation, that corporate funds had been frozen, and that both Swett and Tello were suspended and relieved of their duties. He added that the Attorney General, Trevino, and Karron would seek a receivership of PPI if all matters were not settled in a manner acceptable to Trevino and Karron by July 9, the date Swett and Tello were scheduled to return from their trip abroad. PPI was a corporate client of the respondent at this time and it had not authorized his representation of Trevino and Karron.

[83]*83Swett retained Attorney Karl Hays of Texas to represent PPI in the matter. Hays called the respondent on July 9 to advise that he was representing PPI. Hays asked the respondent to explain his concerns about PPI, which he did, including the allegations from the Hollrah matter. The respondent forwarded copies of the Hollrah documents to Hays. After investigating the matter, Hays transmitted by facsimile a letter to the respondent on July 13, advising him that Trevino and Karron were not trustees of PPI and that the respondent was not authorized to represent the corporation in any matter except pending litigation. Hays further requested the respondent to direct all communications to PPI through his office.

On July 13, 1993, after receiving Hays’s letter, the respondent spoke with Trevino and Karron, who authorized him to discuss their dispute openly with Assistant Attorney General Vinson, which he then did. Trevino delivered a letter to Vinson the same day, outlining her concerns about Swett and including financial records about PPI and documents from the Hollrah matter. She was Vinson’s sole source of documents about PPI. On July 19, Swett and Tello sent a letter to the respondent terminating his services, and requesting his withdrawal from PPI litigation and the return of his files. On July 21, the respondent responded directly to Swett and Tello by letter, without first obtaining Hays’s consent, questioning their authority and refusing to cease his activities until so instructed by a majority of the board of trustees. On July 21, the respondent informed Vinson about his fee dispute, explaining that “it could be used to impugn my motives.”

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Bluebook (online)
740 N.E.2d 946, 433 Mass. 80, 2000 Mass. LEXIS 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wise-mass-2000.