In the Matter of Moran

NOTICE: All slip opinions and orders are subject to formal

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SJC-12356

IN THE MATTER OF ROBERT C. MORAN.

April 20, 2018.

Attorney at Law, Disciplinary proceeding, Suspension, Deceit,

Drafting of will.

The respondent, Robert C. Moran, appeals from an order of a

single justice of this court, acting on an information filed by

the Board of Bar Overseers (board), suspending him from the

practice of law for nine months. We vacate the order and remand

the case for the entry of an order suspending the respondent

from the practice of law for fifteen months.1

1. Background. Bar counsel filed an amended five-count

petition for discipline with the board alleging multiple acts of

misconduct in connection with the respondent's handling of the

affairs of two elderly clients, both of whom are now deceased.

Two counts alleged that the respondent charged excessive fees;2

that he failed to inform his clients of fees for services

rendered and fee withdrawals;3 that he held the clients' funds in

1 This bar discipline appeal is subject to the court's rule

governing such appeals. See S.J.C. Rule 2:23, 471 Mass. 1303

(2015). We have reviewed the materials filed. Pursuant to the

rule, we dispense with further briefing and oral argument.

2 See Mass. R. Prof. C. 1.5 (a), as appearing in 459 Mass.

1301 (2011).

3 See Mass. R. Prof. C. 1.15 (d) (2), as appearing in 440

Mass. 1338 (2004).

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nontrust accounts;4 and that he drafted testamentary instruments

for both clients that included substantial testamentary gifts to

himself.5 Two other counts concerned the respondent's conduct as

executor for the same clients' estates. They alleged that the

respondent failed to render diligent and competent services;6

that he charged and collected excessive fees;7 that he failed to

hold estate funds in segregated interest-bearing accounts;8 that

he negotiated and withdrew estate funds before his appointment

as executor;9 and that he intentionally misrepresented, under

oath, the amount of estate assets in a probate court filing for

one estate.10 The fifth count charged misconduct in connection

with trust accounts and trust funds.11 The respondent answered

and asserted certain facts in mitigation. See S.J.C. Rule 4:01,

§ 8 (3), as appearing in 453 Mass. 1310 (2009) ("[a]verments in

the petition are admitted when not denied in the answer").

A hearing committee of the board conducted an evidentiary

hearing and determined that bar counsel had proved, with limited

exceptions, the petition's allegations. A majority of the

committee recommended that the respondent be publicly

reprimanded; a dissenting member found additional facts

supporting violation of Mass. R. Prof. C. 1.8 (c), 426 Mass.

4 See Mass. R. Prof. C. 1.15 (b) (1), as appearing in 440

Mass. 1338 (2004).

5 See Mass. R. Prof. C. 1.8 (c), 426 Mass. 1338 (1998).

6 See Mass. R. Prof. C. 1.1, 426 Mass. 1308 (1998); Mass. R.

Prof. C. 1.2 (a), 426 Mass. 1310 (1998); Mass. R. Prof. C. 1.3,

426 Mass. 1313 (1998); Mass. R. Prof. C. 1.15 (c), (d) (1), as

appearing in 440 Mass. 1338 (2004); Mass. R. Prof. C. 3.4 (c),

426 Mass. 1389 (1998); Mass. R. Prof. 8.4 (d), 426 Mass. 1429

(1998).

7 See Mass. R. Prof. C. 1.5 (a).

8 See Mass. R. Prof. C. 1.15 (b) (1), (e) (5), as appearing

in 440 Mass. 1338 (2004).

9 See Mass. R. Prof. C. 1.1, 3.4 (c), 8.4 (d).

10See Mass. R. Prof. C. 3.3 (a) (1), 8.4 (c), (d), (h), 426

Mass. 1383 (1998).

11 See Mass. R. Prof. C. 1.15.

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1338 (1998) (substantial testamentary gifts), and recommended a

greater sanction. Both the respondent and bar counsel appealed

to the board. The board adopted the dissenting hearing

committee member's factual findings concerning the additional

misconduct, and the hearing committee's findings as to remaining

misconduct and the factors in aggravation. It voted to

recommend that the respondent be suspended from the practice of

law for nine months, as well as that a reinstatement hearing be

required on any petition for reinstatement. It also recommended

that the respondent be permitted to apply for reinstatement

after six months of suspension. The board filed a corresponding

information in the county court. After a hearing, a single

justice considered and discussed at length each of the

respondent's contentions. She ordered that the respondent be

suspended for a period of nine months, with the additional

requirement of a reinstatement hearing. The respondent appeals.

2. Sufficiency of the evidence of misconduct. The single

justice reviewed the record establishing the misconduct charged

in the petition, accepted the hearing committee's role as the

"sole judge of the credibility of the testimony presented at the

hearing," S.J.C. Rule 4:01, § 8 (5) (a), as appearing in 453

Mass. 1310 (2009), and determined that the board's findings

concerning the respondent's misconduct were supported by

substantial evidence. See Matter of Johnson, 452 Mass. 1010,

1011 (2008). On appeal, "[w]e review the single justice's

decision (on issues other than the initial choice of a sanction

at the disciplinary stage) to determine whether there has been

an abuse of discretion or clear error of law." Matter of Weiss,

474 Mass. 1001, 1002 (2016). There was no error.

a. General claims of error. The respondent does not mount

a substantial challenge on appeal to the weight of the evidence

supporting the most serious charges of misconduct found by the

board. He contends generally that the hearing committee and the

board improperly relied on the Massachusetts Rules of

Professional Conduct, S.J.C. Rule 3:07, 426 Mass. 1303 (1998),

because the rules themselves were not offered in evidence at the

hearing, and the hearing committee did not notify the parties

that it would take notice of them, pursuant to G. L. c. 30A,

§ 11 (5). As the single justice recognized, however, § 11 (5)

pertains to judicially noticed facts, not rules of court

concerning attorney discipline. The board and its hearing

committee may take notice of the disciplinary rules as a matter

of course. Cf. Cohen v. Assessors of Boston, 344 Mass. 268, 269

(1962) (in Appellate Tax Board proceedings, "[t]he rules of the

board are necessarily before it in all the cases which it

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hears"); Mass. G. Evid. § 202 (2018) (judicial notice of law,

including Massachusetts statutes, common law, rules of court,

and codified regulations); M.S. Brodin & M. Avery, Handbook of

Massachusetts Evidence § 2.8.1, at 54 (2018), and cases cited

(general or public law of Commonwealth judicially noticed

without request).

There was likewise no error in the hearing committee's and

the board's reliance on the respondent's answer to the amended

petition for discipline. Under applicable rules, admissions

contained in a pleading are considered established, and there is

no additional requirement that the pleading itself be introduced

in evidence. See S.J.C. Rule 4:01, § 8 (3) (a), as appearing in

453 Mass. 1310 (2009) (averments in petition for discipline are

deemed admitted if not denied in answer); Rule 3.15(d) of the

Rules of the Board of Bar Overseers (2009) (same). Cf. Mass. G.

Evid. § 611 note on binding admissions, at 134 (2018), and cases

cited (statement of fact or declaration in pleading is binding

admission and relieves opposing party of need to present

evidence on issue); Mass. R. App. P. 8 (a), as amended, 378

Mass. 932 (1979) (record on appeal includes pleadings); 801 Code

Mass. Regs. § 1.01(10)(k) (1998) (record of adjudicatory

proceedings includes pleadings).

The respondent's remaining arguments primarily focus on

three issues related to the board's determination that he

charged or collected clearly excessive fees. See Mass. R. Prof.

C. 1.5, as appearing in 459 Mass. 1301 (2011) (lawyer shall not

"charge, or collect an illegal or clearly excessive fee"). As

we discuss below, none of those claims has merit. Moreover,

from a disciplinary perspective, they are also largely beside

the point because of the other very serious misconduct charged

and found by the board, the consequences of which are more

severe than those associated with charging a clearly excessive

fee. We therefore address the more serious allegations of

misconduct first.

b. False statement. In connection with his representation

of one client, the respondent filed an estate inventory with the

probate court, which he signed under oath, that knowingly

misrepresented estate assets. Matter of Neitlich, 413 Mass.

416, 422-423 (1992) (knowing misrepresentation to court

concerning terms of pending transaction warranted one-year

suspension). As the board observed, the respondent's

misrepresentation effectively obscured from the probate court's

review certain payments that he either had made or expected to

make, including payments to himself. This conduct violated

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Mass. R. Prof. C. 3.3 (a) (1), and 8.4 (c), (d), and (h), 426

Mass. 1383 (1998).

c. Testamentary gifts. Over the course of years, the

respondent prepared a series of wills and durable powers of

attorney for these clients, neither of whom he was related to by

blood or marriage. The final durable power of attorney for each

client appointed the respondent as attorney-in-fact, and each

will nominated him as the executor. Each will bequeathed all of

the client's tangible personal property to the respondent, and

included a request that the respondent distribute the items as

the client might subsequently indicate. One will also made

specific bequests to individuals and charities. By preparing

testamentary instruments for two clients providing for

substantial testamentary gifts to himself, the respondent

violated Mass. R. Prof. C. 1.8 (c).12 See Matter of Wainwright,

28 Mass. Att'y Discipline Rep. 883, 883 (2012) (public

reprimand). The rule strictly proscribes such gifts, even in

the absence of undue influence, overreaching, fraud, or

misrepresentation. Id.

d. Lack of diligence. The hearing committee's findings

amply support its conclusion that the respondent engaged in

lengthy delays in settling both estates. By failing to marshal

and liquidate estate assets promptly, resulting in unnecessary

expense and escheat of some assets, failing to file timely

estate inventories, and delaying distribution of estate assets

for years, while simultaneously failing to complete probate of

the estates, the respondent's conduct violated Mass. R. Prof. C.

1.2 (a), 426 Mass. 1310 (1998) (failure to seek client's lawful

objectives); Mass. R. Prof. C. 1.3, 426 Mass. 1313 (1998) (lack

of diligence); and Mass. R. Prof. C. 1.15 (c), as appearing in

440 Mass. 1338 (2004) (failure promptly to deliver funds to

12 The board correctly concluded that the testamentary gifts

were "substantial," where they had a collective value from one

estate of at least $7,500 (more than five per cent of the gross

estate), and more than $8,000 from the other. See Matter of

Moran, 27 Mass. Att'y Discipline Rep. 612, 612-613 (2011) (two-

month suspension for drafting instrument providing $15,000

bequest to attorney where client's assets were in excess of

$380,000, exclusive of home, about four per cent of assets);

Matter of Field, 20 Mass. Att'y Discipline Rep. 140, 142 (2004)

(public reprimand for preparing will containing $25,000 bequest

to lawyer's wife, where bequest represented less than two per

cent of client's estate).

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third parties). See Matter of Bottomly, 2 Mass. Att'y

Discipline Rep. 19, 22 (1980) (beneficiaries harmed by lawyer's

delay in making restitution; six month suspension warranted).

See also Matter of Munroe, 26 Mass. Att'y Discipline Rep. 385

(2010); Matter of Reardon, 22 Mass. Att'y Discipline Rep. 640,

646 (2006).

e. Trust account violations. The amended petition for

discipline charged the respondent with numerous client trust

account and accounting violations. The respondent failed to

hold personal funds of his clients, and funds belonging to their

estates, in trust accounts, in violation of Mass. R. Prof. C.

1.15 (b) (1) , as appearing in 440 Mass. 1338 (2004).

Admonition No. 05-20, 21 Mass. Att'y Discipline Rep. 712 (2005).

He failed to disclose to his clients the payments he made to

himself, in violation of Mass. R. Prof. 1.15 (d), as appearing

in 440 Mass. 1338 (2004), and failed to keep required trust

account records. The respondent did not dispute the majority of

these charges, and the hearing committee found the respondent

had violated the applicable rules. Together, these violations

would ordinarily support a public reprimand. See Matter of

Beatrice, 23 Mass. Att'y Discipline Rep. 31 (2007); Matter of

Soforenko, 22 Mass. Att'y Discipline Rep. 732 (2006).

f. Excessive fees. As stated, the respondent's primary

focus is on three issues related to the board's determination

that he charged or collected clearly excessive fees. See Mass.

R. Prof. C. 1.5. The single justice correctly concluded that

there was no error.

i. Spreadsheets. First, the respondent contends that the

hearing committee erred in permitting the use of certain

spreadsheets that had been prepared as "chalks" by bar counsel

at the hearing. The spreadsheets summarized approximately 750

pages of the respondent's handwritten notes describing the

services he performed for both clients over the course of many

years, and classified the services into various categories.

Although the respondent contends that the choice to classify

certain tasks as either legal or nonlegal impermissibly

interjected bar counsel's opinion into the chalk, the

handwritten notes themselves were admitted in evidence and the

hearing committee conducted its own review of them. In these

circumstances, the single justice concluded that the hearing

committee did not abuse its discretion in permitting the use of

the spreadsheets as chalks, and the respondent failed to

demonstrate prejudicial error in that regard. See Commonwealth

v. Greenberg, 339 Mass. 557, 581-582 (1959) ("judge could

7

properly find that concise schedules demonstrating the

transactions would be helpful to the jury). See also Mass. G.

Evid. § 1006 (2018) ("proponent may use a summary, chart, or the

like to prove the content of voluminous writings or records that

cannot be conveniently examined in court").13

ii. Expert witness. Second, the respondent contends that

the hearing committee erred in qualifying a witness as an expert

at the hearing, and that there was an inadequate factual basis

for his opinion. The hearing committee's findings establish,

however, that the witness has many years of experience in

numerous aspects of probate law, and previously has been

qualified and testified as an expert in bar discipline cases.

The respondent has not demonstrated that the committee abused

its discretion in qualifying the witness as an expert or in

crediting his testimony. See Commonwealth v. Mahoney, 406 Mass.

843, 852 (1990) (tribunal has broad discretion to qualify an

expert witness, and its determination "will not be upset on

appeal if any reasonable basis appears for it"). Likewise, the

respondent failed to demonstrate that there was an inadequate

factual basis for the expert's opinion as to the

unreasonableness of the respondent's fees. While the expert did

not review all 750 pages of the respondent's handwritten notes,

he testified that he verified and cross-checked a sufficient

portion of the materials to satisfy himself as to the accuracy

of the spreadsheets. Moreover, the hearing committee conducted

its own review of the respondent's records and notes. The

committee was therefore within its discretion in admitting the

expert's testimony in this regard.

iii. Due process. Third, the respondent complains that

the hearing committee failed to give him a full and fair hearing

because, he contends, it unfairly limited his testimony and

prohibited him from relying on the approximately 750 pages of

13 We recognize that the board and its hearing committee

need not strictly apply the rules of evidence in bar discipline

proceedings. See Rule 3.39 of the Rules of the Board of Bar

Overseers (admissibility of evidence governed by rules

applicable to adjudicatory proceedings under G. L. c. 30A);

Matter of Abbott, 437 Mass. 384, 393 (2002). See also G. L.

c. 30A, § 11 (2) ("agencies need not observe the rules of

evidence observed by courts . . . . Evidence may be admitted

and given probative effect only if it is the kind of evidence on

which reasonable persons are accustomed to rely in the conduct

of serious affairs"); Mass. G. Evid. § 1101(c)(3) (2018).

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handwritten notes during his testimony. The single justice

correctly rejected both points. Although nine days initially

were allocated for the hearing, the hearing committee indicated

that more would be scheduled if necessary. The respondent

concedes that he did not exhaust the initial time allotment, and

he does not suggest anything he would have done differently if

additional time had been scheduled. With respect to reliance on

the notes, the committee specifically instructed that it would

permit the respondent to refer to them "for a particular point

to be made," which he in fact did. "The respondent was afforded

notice and the opportunity to be heard, to present evidence, and

to challenge evidence against him. He has had the opportunity

to appeal to a panel of the board, the board, a single justice,

and the full court." Matter of Eisenhauer, 426 Mass. 448, 454,

cert. denied, 524 U.S. 919 (1998). The single justice did not

err in concluding that the respondent was not denied a full and

fair hearing.

A final observation: even if the board's characterization

of some of the particular services rendered by the respondent as

legal or nonlegal may be debatable, much of it is not. There

can be no denying, for example, that services such as snow

shoveling, moving and house cleaning, shopping, and making

funeral arrangements are not legal services. See Matter of

Eisenhauer, 426 Mass. at 452 (expert testimony not required to

prove ethical violation of rule proscribing charging excessive

fees). The evidence established that the respondent charged for

these and other nonlegal services as if they were legal

services, in violation of Mass. R. Prof. C. 1.5 (lawyer shall

not "charge, or collect an illegal or clearly excessive fee").

A "lawyer may not bill nonlawyer services at lawyer rates, no

matter who performs them." E.J. Bennett, E.J. Cohen, & H.W.

Gunnarsson, Annotated Model Rules of Professional Conduct 81

(8th ed. 2015). See Matter of Moore, 29 Mass. Att'y Discipline

Rep. 461 (2013); Matter of Chignola, 25 Mass. Att'y Discipline

Rep. 112, 112-113 (2009) (public reprimand for charging and

collecting fees for nonlegal services and trust account

violations); Matter of Harbeck, 23 Mass. Att'y Discipline Rep.

262, 262-263 (2007) (charging for nonlegal work at legal rates

constitutes excessive fee); Matter of Kliger, 18 Mass. Att'y

Discipline Rep. 350 (2002).

3. Appropriate sanction. The findings adopted by the

board amply support the conclusion that the respondent

repeatedly violated multiple rules of professional conduct. We

therefore turn to the question of sanction. In reviewing the

single justice's choice of sanction, we inquire whether it is

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"markedly disparate from those ordinarily entered by the various

single justices in similar cases."14 Matter of Alter, 389 Mass.

153, 156 (1983). In this case, considering the "cumulative

effect of the several violations committed by the respondent,"

Matter of Palmer, 413 Mass. 33, 38 (1992), we conclude that a

fifteen-month suspension is appropriate. See Matter of Gordon,

385 Mass. 48, 58 (1982) (while the board's recommendation as to

sanction is entitled to substantial deference, "ultimate duty of

decision rests with this court"). Although we give substantial

deference to the board's recommendation, see Matter of

Eisenhauer, 426 Mass. at 455, we ultimately "decide every case

'on its own merits [such that] every offending attorney . . .

receive[s] the disposition most appropriate in the

circumstances." Matter of Lupo, 447 Mass. 345, 356 (2006).

The respondent here knowingly misrepresented estate assets

on an inventory he filed, under oath, in the probate court, the

effect of which was to obscure from the probate court's

consideration payments the respondent had made or intended to

make to himself and others. An intentional misrepresentation to

a court typically warrants a suspension of at least one year.

See Matter of an Application for Admission to the Bar, 431 Mass.

678, 682 n.6 (2000); Matter of McCarthy, 416 Mass. 423, 431-432

(1993); Matter of Neitlich, 413 Mass. at 422-423. Where the

misrepresentation is made under oath, a longer suspension is

warranted. See Matter of Diviacchi, 475 Mass. 1013, 1020 (2016)

(twenty-seven month suspension for misconduct including charging

clearly excessive fee and false statements to tribunal); Matter

of Finneran, 455 Mass. 722, 731 n.13 (2010) (two-year suspension

for false testimony under oath); Matter of Shaw, 427 Mass. 764,

769-770 (1998) (two-year suspension for multiple false

statements under oath). Cf. Matter of Smoot, 26 Mass. Att'y

Discipline R. 637, 643 (2010) (six-month suspension where

misrepresentation did not bear on substantive merits of client's

case).

In addition, the respondent engaged in other serious

misconduct. He charged and collected clearly excessive fees

from two clients and, after their deaths, from their estates.

He did so both as a lawyer and an attorney-in-fact acting under

a durable power of attorney during the lifetimes of his clients,

and as an attorney and executor after their deaths. Considered

individually, any one of those actions would warrant a public

reprimand. See Matter of Fordham, 423 Mass. 481 (1996), cert.

14 In the county court, bar counsel requested that the

single justice impose a suspension of eighteen months or more.

10

denied sub nom. Fordham v. Massachusetts Bar Counsel, 519 U.S.

1149 (1997). See also Grimes v. Perkins School for the Blind,

22 Mass. App. Ct. 439 (1986). Additionally, although no undue

influence, overreaching, fraud, or misrepresentation was found,

the respondent prepared testamentary instruments for both

clients, which provided for substantial testamentary gifts to

himself. Conduct of this nature also warrants a public

reprimand. Matter of Wainwright, 28 Mass. Att'y Discipline Rep.

at 883. Considered individually, any of the remaining

categories of misconduct discussed above also would warrant at

least a public reprimand. See Matter of Fordham, supra.

a. Factors in mitigation. The hearing committee

considered in mitigation that the respondent's "actions were not

engineered to deprive [clients] of their property or to take

advantage of them but rather to provide for them and give them a

sense of peace in their last days, which they would not have

received anywhere else or from anyone else." The committee

therefore recommended "a downward departure of the appropriate

sanction based on his providing personal services to these two

elderly women." It also considered the extensive and detailed

client notes the respondent maintained, as well as that he did

not conceal his actions. While we acknowledge these

considerations, they are not the type of "special" factors that

we consider in mitigation of misconduct. Although the

respondent evidently provided necessary personal services for

his clients, he also charged and collected excessive fees for

performing them and did not provide appropriate notice to them.

In addition, keeping detailed client records and cooperating

with bar counsel in an investigation are actions that are to be

expected of attorneys, not factors to be weighed in mitigation

of sanction. Finally, although the respondent corrected the

misrepresentation to the probate court after bar counsel raised

the issue, the fact remains that the misrepresentation was

intentional. "As an officer of the court, an attorney . . . is

bound to uphold the integrity of that system by being truthful

to the court." Matter of Neitlich, 413 Mass. at 423. In the

circumstances, the correction does not mitigate the misconduct.

b. Factors in aggravation. Although we find no special

mitigating factors, there are factors to be weighed in

aggravation. The respondent was admitted to the practice of law

in 1977, and since 1999 has been engaged in a solo law practice

focusing primarily on probate and estate matters. His

substantial experience in the practice of law, including in the

practice area in which the misconduct occurred, properly was

considered an aggravating factor. See Matter of Luongo, 416

11

Mass. 308, 311-312 (1993). In addition, he engaged in multiple

acts of misconduct over the course of years. Matter of

Kerlinsky, 428 Mass. 656, 666, cert. denied, 526 U.S. 1160

(1999). Both clients were particularly vulnerable, given their

ages, infirmity, and needs, and the lack of relatives to monitor

their affairs. See Matter of Lupo, 447 Mass. at 354; Matter of

Cobb, 445 Mass. 452, 480 (2005); Matter of Palmer, 423 Mass.

647, 651 n.1 (1996). Finally, as the board observed, the

respondent has not demonstrated an understanding about the

wrongful nature of the misconduct. See Matter of Bailey, 439

Mass. 134, 152 (2003); Matter of Eisenhauer, 426 Mass. at 457;

Matter of Clooney, 403 Mass. 654, 657 (1988) (attorney's

"persistent assertions that he did nothing wrong . . .

demonstrated that he 'continue[d] to be unmindful of certain

basic ethical precepts of the legal profession'"). Lastly, at

least as of the time of the board's decision, the respondent had

not refunded or repaid excessive fees received from the clients

or their estates. Matter of Eisenhauer, supra.

4. Disposition. The court system depends on the integrity

of attorneys who appear before it. Considering the substantial

misconduct in this case, including intentional misrepresentation

to the probate court, charging and collecting clearly excessive

fees, lack of diligence in the probate of two estates, as well

as the other substantial violations of the rules of professional

conduct, together with the aggravating factors discussed above,

we conclude that a term suspension of fifteen months is

appropriate.

So ordered.

The case was submitted on the papers filed, accompanied by

a memorandum of law.

Robert C. Moran, pro se.

Susan A. Strauss Weisberg, Assistant Bar Counsel.