In the Matter of Dwyer-Jones

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SJC-11516

IN THE MATTER OF SUZANNE T. DWYER-JONES.

Suffolk. October 6, 2014. - February 5, 2015.

Present: Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Attorney at Law, Reciprocal discipline, Suspension, Disability,

Inactive status.

Information filed in the Supreme Judicial Court for the

county of Suffolk on May 16, 2012.

A petition to transfer to disability inactive status was

heard by Gants, J.

Thomas R. Kiley for the respondent.

John W. Marshall, Assistant Bar Counsel.

SPINA, J. We consider in this case whether an attorney who

has been suspended from the practice of law in another

jurisdiction based on mental health conditions or substance

abuse is subject to reciprocal transfer to disability inactive

status in Massachusetts without a separate hearing in

Massachusetts to determine her incapacity. See S.J.C. Rule

2

4:01, § 13 (1), as amended, 435 Mass. 1302 (2002). We conclude

that she is.

1. Background. The respondent, Suzanne T. Dwyer-Jones,

has been admitted to practice in both Maine and Massachusetts.

On March 25, 2013, a final hearing was held before a single

justice of the Maine Supreme Judicial Court on a petition filed

by the Maine board of overseers of the bar for suspension of the

respondent pursuant to Me. Bar R. 7.3(e)(2)(B). That rule

permits the board to file a petition directly with the court

where it is alleged that "the continued practice of [an]

attorney poses a substantial threat of irreparable harm to the

public," id., because the attorney is "incapacitated from

continuing practice by reason of mental infirmity or addiction

to drugs or intoxicants." Me. Bar R. 7.3(e)(2)(A). After the

hearing, at which the respondent was both present and

represented by counsel, the Maine single justice found that the

respondent "is afflicted with a substantial proclivity for

substance abuse and a very serious mental health condition." He

stated:

"[T]he combined effects of these conditions clearly

produced a substantial incapacity that adversely impacted

[the respondent's] ability to practice law and resulted in

a substantial threat of irreparable harm to the public.

Indeed, . . . she was essentially unable to manage her own

affairs, let alone the complex matters involved in the

representation of others. The court finds that the

incapacitating symptoms of these conditions remain

essentially as florid today as they were during the last

two years. Accordingly, the court hereby orders that [the

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respondent] be suspended from the practice of law in the

State of Maine."

Considering that the "issues of the duration and conditions of

the suspension are conjoined with [the respondent's] insight

into her medical conditions and the progress she has made to

manage them," the Maine single justice imposed a one-year

suspension with conditions, and ordered that:

"[a]ny petition for [reinstatement] must show insight into

the serious problems that resulted in this suspension, her

plan to address them, and a showing of substantial progress

toward the goal of being able to undertake the affairs of

others without being distracted or incapacitated by her

underlying conditions."

After entry of the Maine order, on June 20, 2013, bar

counsel in Massachusetts notified this court of the respondent's

suspension in Maine "as a result of a substantial incapacity

that adversely impacted her ability to practice law and resulted

in a substantial threat of irreparable harm to the public." Bar

counsel provided a certified copy of the Maine order, and

petitioned for an order transferring the respondent to

disability inactive status in Massachusetts, pursuant to the

reciprocal provisions of S.J.C. Rule 4:01, § 13 (1). That rule

provides:

"(1) Involuntary Commitment, Adjudication of Incompetence,

or Transfer to Disability Inactive Status. Where a lawyer

has been judicially declared incompetent or committed to a

mental hospital after a judicial hearing, or where a lawyer

has been placed by court order under guardianship or

conservatorship, or where a lawyer has been transferred to

disability inactive status in another jurisdiction, the

court, upon proper proof of the fact, shall enter an order

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transferring the lawyer to disability inactive status. A

copy of such order shall be served, in the manner the court

may direct, upon the lawyer, his or her guardian or

conservator, and the director of the institution to which

the lawyer is committed" (emphasis added).

Id.1 The respondent opposed the petition. After a hearing, a

single justice of this court placed the respondent on disability

inactive status in Massachusetts for a period of one year,

effective as of August 18, 2013. The respondent appeals.2

2. Standard of review. Neither Supreme Judicial Court

Rule 4:01 nor prior decisions of this court address the standard

of review for a single justice's order -- reciprocal or not --

transferring an attorney to disability inactive status.

Although "[d]isability proceedings are not disciplinary

1

Supreme Judicial Court Rule 4:01, § 13 (1), 435 Mass. 1302

(2002), was amended in 2001 to provide for reciprocal transfer

to disability inactive status based on actions taken in another

jurisdiction. Although the rule, as amended, appears in the

Massachusetts Reports, id., it may not have been included in

certain publications of the annotated laws of court for some

period. See Mass. Ann. Laws Court Rules, Supreme Judicial Court

Rule 4:01, § 13 (1), at 656 (LexisNexis 2012). Before the

single justice, however, bar counsel quoted the amended rule,

and respondent's counsel argued in part that, because the

respondent was suspended in Maine but not transferred to

disability inactive status, the reciprocal provisions of § 13

(1) did not apply.

2

On May 16, 2012, bar counsel filed a notice of conviction,

pursuant to S.J.C. Rule 4:01, § 12 (9), as appearing in 425

Mass. 1313 (1997), notifying the court that the respondent had

been convicted in Maine of two charges of operating under the

influence, and one charge of refusing to submit to arrest and

detention. Neither crime is defined as a "serious crime" for

purposes of S.J.C. Rule 4:01, § 12 (3), as appearing in 425

Mass. 1313 (1997), and the matter was remanded to the board for

further proceedings. That alleged misconduct is not the subject

of these proceedings.

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proceedings," Matter of Disability Proceeding Against

Diamondstone, 153 Wash.2d 430, 437, cert. denied, 546 U.S. 845

(2005), we recognize that they have procedural similarities.

See S.J.C. Rule 4:01, § 13 (4) (a), as appearing in 425 Mass.

1315 (1997) (proceedings to determine incapacity "conducted in

same manner as disciplinary hearings") and § 13 (6), as amended,

435 Mass. 1302 (2002) (with some exceptions, petitions for

reinstatement following suspension or disbarment apply to

reinstatement from disability inactive status). We generally

will apply the same principles applicable to disciplinary cases

to disability cases.

Where reciprocal proceedings are involved, the disability

rules provide that "upon proper proof of the fact [that a lawyer

has been transferred to disability inactive status in another

jurisdiction, the court] shall enter an order transferring the

lawyer to disability inactive status" in the Commonwealth.

S.J.C. Rule 4:01, § 13 (1). Compare S.J.C. Rule 4:01, § 16 (5),

as appearing in 425 Mass. 1319 (1997) ("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"). Rule 4:01,

§ 13 (1), treats the foreign judgment or order restricting the

attorney's practice as conclusive of the underlying disability

or incapacity to practice law. As we do in the reciprocal

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discipline context, we will limit our review to considering

whether the procedures followed in the other jurisdiction lacked

reasonable notice or opportunity to be heard, and whether there

was a significant infirmity of proof as to the disability. See

S.J.C. Rule 4:01, § 16 (3), as appearing in 425 Mass. 1319

(1997). Finally, if we conclude that a practice restriction is

appropriate in this Commonwealth, we consider independently

whether applying the same restriction would "result in grave

injustice," and whether the disability established elsewhere

would warrant the identical restrictions here. Matter of

Lebbos, 423 Mass. 753, 756, cert. denied, 520 U.S. 1275 (1997)

(Lebbos II).

3. Applicability of § 13 (1). Whether in the context of

attorney disability or discipline, "considerations of public

welfare are wholly dominant." Matter of Keenan, 314 Mass. 544,

547 (1943). The reciprocal disability and disciplinary rules

accordingly acknowledge that an "attorney is not suddenly

rehabilitated when she crosses a State line," Lebbos II, supra

at 755, and provide that the lawful disability and disciplinary

decisions of our sister States should have reciprocal effect

here. S.J.C. Rule 4:01, §§ 13 (1), 16. This reflects

appropriate deference to the proceedings of other jurisdictions,

and gives effect to the decisions made "without undertaking the

often difficult and protracted task of redoing the inquiry which

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has already been concluded there." Lebbos II, supra at 755.

See Bar Counsel v. Board of Bar Overseers, 420 Mass. 6, 9-11

(1995) ("offensive use of collateral estoppel is appropriate in

bar disciplinary proceedings").

We recognize that the rules and procedures of other

jurisdictions may not align perfectly with ours, but if they are

"equivalent" in practical application and effect, orders and

judgments entered elsewhere serve as the basis for reciprocal

treatment here. Matter of Lebbos, 407 Mass. 1010, 1011 (1990),

cert. denied, 498 U.S. 1040 (1991) (Lebbos I) (involuntary

transfer to inactive status in California based on alleged

misconduct equivalent to temporary suspension in Massachusetts).

See Matter of Ngobeni, 453 Mass. 233 (2009) (reciprocal

discipline permissible where lawyer permitted to resign without

admission or finding of misconduct in other jurisdiction). See

also, e.g., Matter of Marquez, 63 A.3d 1059 (D.C. 2013)

(disability suspension in District of Columbia functional

equivalent of impairment suspension in Virginia); Matter of

Carter, 395 S.C. 128 (2011) (transfer to incapacity inactive

status in South Carolina based on disability inactive status in

Tennessee); Matter of McDonough, 6 A.3d 1283 (D.C. 2010)

(disability suspension in District of Columbia based on

disability inactive status in Connecticut).

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In Maine, when an attorney is "incapacitated from

continuing practice by reason of mental infirmity or addiction

to drugs or intoxicants," Me. Bar R. 7.3(e)(2)(A), the rules

provide for suspension or voluntary resignation, rather than

transfer to "disability inactive status." Me. Bar R. 7.3(e)(1).

The Maine rules do not recognize a "disability inactive" status

per se. The Maine single justice accordingly suspended the

respondent -- after a hearing -- because he concluded that she

suffered from "a substantial incapacity that adversely affected

[her] ability to practice law and resulted in a substantial

threat of irreparable harm to the public." In Massachusetts,

that conclusion would support "an order transferring the

respondent to disability inactive status until further order of

the court." S.J.C. Rule 4:01, § 13 (4) (e), as amended, 453

Mass. 1307 (2009). In the circumstances, the single justice of

this court correctly concluded that the Maine suspension order

was the practical equivalent of what our rules consider to be a

"transfer to 'disability inactive status.'"

4. Fairness of Maine proceeding. We next turn to the

question whether the respondent "received a fair hearing [in

Maine] at which sufficient evidence was presented to justify our

taking reciprocal . . . action." Lebbos II, supra at 756.

There is nothing in the record before us to suggest that she did

not. In accordance with the rules of that State, a single

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justice of the Maine Supreme Judicial Court conducted a hearing

at which the respondent was present and was represented by

counsel, and at which she testified. The Maine single justice's

thorough memorandum of decision reflects that counsel

participated in prehearing conferences and exchanged materials,

and that the hearing was continued for several months at the

respondent's request. In short, the respondent has not

established that she lacked notice or an opportunity to be

heard. See Matter of Mitrano, 453 Mass. 1026, 1027 (2009);

Matter of Steinberg, 448 Mass. 1024, 1025 (2007). While the

procedures followed in Maine are not identical to those of

Massachusetts, the differences do not establish a due process

violation.

5. Sufficiency of evidence. Nor are we persuaded that

there was any significant infirmity of proof in Maine. The

Maine single justice's decision reflects thoughtful

consideration of the evidence before him, concluding that the

respondent attorney "is afflicted with a substantial proclivity

for substance abuse and a very serious mental health

condition . . . that adversely impacted [her] ability to

practice law and resulted in a substantial threat of irreparable

harm to the public." He also found that "the incapacitating

symptoms of these conditions remain essentially as florid today

as they were during the last two years," and concluded that

10

"[t]he issues of the duration and conditions of the suspension

are conjoined with [her] insight into her medical conditions and

the progress she has made to manage them." See Matter of

Mitrano, supra at 1027. The respondent has not demonstrated

that proof of incapacity was lacking. Indeed, apart from the

Maine single justice's decision itself, no transcript or other

record of the underlying proceeding in Maine has been provided

to this court. As the single justice of this court reasoned,

"[t]here is nothing in the record to suggest that this factual

issue [of capacity] was not fully and fairly litigated in Maine,

and no reason why the mandate in § 13 (1) providing essentially

for a reciprocal transfer to 'disability inactive status' should

not be triggered."

6. Appropriate reciprocal response. As we do in the

context of reciprocal discipline, we consider what level of

restriction on practice in Massachusetts "is warranted by the

facts even if that [restriction] exceeds, equals, or falls short

of the [restriction] imposed in another jurisdiction." Matter

of Watt, 430 Mass. 232, 234 (1999). We are not bound by the

single justice's determination, and consider de novo the single

justice's order. Matter of Goldberg, 434 Mass. 1022, 1023

(2001).

Neither due process considerations nor the applicable rules

require that a separate hearing on disability be conducted in

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Massachusetts pursuant to S.J.C. Rule 4:01, § 13 (4), to

evaluate an attorney's incapacity to practice law where it fully

and fairly has been adjudicated elsewhere.3 S.J.C. Rule 4:01,

§ 13 (1). Because the respondent has not established that the

proceedings in Maine were procedurally deficient, or that there

was a significant infirmity of proof, the single justice of this

court properly declined to provide the respondent an opportunity

to litigate her physical or mental status during the term of the

Maine order. See Lebbos II, supra at 756-757 (noting reluctance

to examine claimed defects in disciplinary proceeding "where an

appellate forum exists in that jurisdiction which may and did

address these particular concerns"). Prior to giving reciprocal

effect to the Maine order, the respondent was given adequate

notice and an opportunity to be heard on bar counsel's petition

for transfer to disability inactive status, and she availed

herself of them. Among other things, she replied to bar

counsel's petition and supplemented her reply, and a telephonic

hearing was held.

We emphasize that a transfer to disability inactive status

is not a disciplinary measure. See S.J.C. Rule 4:01, § 4, as

appearing in 425 Mass. 1304 (1997). Ordinarily, that status

does not have a defined duration, and an attorney is permitted

3

Supreme Judicial Court Rule 4:01, § 13 (4), as amended,

453 Mass. 1307 (2009), applies to "[p]roceedings to adjudicate

contested allegations of disability" that have not been

established under the provisions of § 13 (1).

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to petition to transfer to active status once each year or "at

such intervals as this court may direct." S.J.C. Rule 4:01,

§ 13 (6) (b). When a respondent who has been reciprocally

placed on disability inactive status has been

"returned to active status by the other jurisdiction, this

court, after hearing, may dispense with referring the

matter to the Board pursuant to [S.J.C. Rule 4:01, § 18

(5), as appearing in 453 Mass. 1315 (2009),] for the taking

of further evidence that his or her disability has been

removed and may immediately direct the lawyer's

reinstatement to active status upon such terms as are

deemed proper and advisable."

S.J.C. Rule 4:01, § 13 (6) (d). Therefore, where, as here, an

attorney's inactive status is founded on proceedings in another

jurisdiction, if she is returned to active status in that

jurisdiction, she may petition a single justice of this court to

"immediately direct" her reinstatement to active status, without

the necessity of petitioning for reinstatement pursuant to

S.J.C. Rule 4:01, § 18.4 We do not consider the single justice's

order to have foreclosed her from filing a petition for

reinstatement at the time the suspension in Maine is lifted.

8. Conclusion. The respondent's suspension in Maine based

on a finding of incapacity was the practical equivalent of a

transfer to "disability inactive status," for purposes of the

reciprocal disability provision of S.J.C. Rule 4:01, § 13 (1).

4

The respondent has represented that the Maine single

justice's order is or was the subject of review by the Maine

Supreme Judicial Court. The status of that review is not before

us.

13

The single justice correctly concluded that the respondent was

not entitled to a separate hearing in Massachusetts to evaluate

her incapacity, and properly transferred her to disability

inactive status in Massachusetts.

Order affirmed.