Petition for Writ of Certiorari — Ilya Liviz, Petitioner v. Supreme Judicial Court of Massachusetts

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SJC-12732

IN THE MATTER OF ILYA LIVIZ.

May 12, 2020.

Attorney at Law, Disciplinary proceeding, Suspension, Contempt.

Contempt.

The respondent, Ilya Liviz, appeals from an order of a

single justice of this court administratively suspending him

from the practice of law, and from an order of a second single

justice adjudicating him in contempt for failing to comply with

the order of administrative suspension.1 We affirm.

On April 2, 2019, the first single justice administratively

suspended the respondent from the practice of law for failure to

respond to requests for information by bar counsel during the

course of her investigation of alleged professional misconduct.

See S.J.C. Rule 4:01, § 3 (1) (b), 3 (2), as appearing in 453

Mass. 1308 (2009). He was not reinstated within thirty days.

Accordingly, the terms of the suspension order, as well as

S.J.C. Rule 4:01, § 17, as amended, 425 Mass. 1321 (1997),

required that the respondent withdraw his appearances in all

pending matters; resign from fiduciary appointments; provide

notices to clients and to counsel in pending matters; close any

trust accounts and distribute trust funds and unearned fees;

make client files and property available to clients; and not

engage as a lawyer or in legal work while under suspension. The

respondent also was required to file an affidavit certifying

1 We have reviewed the respondent's preliminary memorandum

and record appendix, as well as the records that were before the

single justices. Pursuant to S.J.C. Rule 2:23, 471 Mass. 1303

(2015), governing appeals in bar discipline cases, we dispense

with oral argument.

2

compliance with the order and bar disciplinary rules.

S.J.C. Rule 4:01, § 17 (5) .

See

On June 6, 2019, bar counsel filed a complaint for

contempt, alleging that the respondent had failed to comply with

the order of administrative suspension. A substituted complaint

for contempt was filed on July 8, 2019. After a hearing, a

second single justice adjudged the respondent in civil contempt.

The respondent appeals from both orders.

With respect to the first order, the respondent was

administratively suspended from the practice of law because bar

counsel fulfilled the requirements of S.J.C. Rule 4:01, § 3 (2),

by filing a petition, accompanied by an affidavit of bar

counsel, and made a showing that the respondent failed without

good cause "to respond to requests for information by Bar

Counsel or the [board of bar overseers] made in the course of

the processing of a complaint. "2 S.J.C. Rule 4:01, § 3 (1). The

respondent alleged that he "DID COMPLY, and DID PROVIDE AN

ANSWER, and my answer was provided in a form of SILENCE.

(BOOM

SHARALAKA)." He also stated that, to the extent an answer was.

required, he "formally den[ied], and demand[ed] a Jury Trial."

2 By letter dated February 20, 2019, bar counsel provided to

the respondent a copy of a Federal District Court judge's order,

and a transcript of a hearing in that court. The respondent

represented the plaintiffs in that matter. Bar counsel

indicated that the materials raised questions of professional

misconduct, and requested the respondent to respond, with

supporting documentation. He was asked to provide, among other

things, the names and contact information for plaintiffs not

identified by name in the Federal litigation; the dates of his

engagement, engagement letters, and fee agreements; the dates of

his last communication with the plaintiffs; identifying

information concerning other litigation involving the

plaintiffs; identifying information concerning cases in which he

had been removed as counsel or ordered not to speak to

particular parties; cases in which he had been sued for

malpractice or otherwise; and cases in which he had appeared as

counsel since 2016.

The respondent did not produce any of the requested

documents. He did not assert that any one or more of bar

counsel's requests sought records that were not within the scope

of the required records doctrine. See Matter of Kenney, 399

Mass. 431, 438 (1987).

3

By failing without good cause to cooperate with bar

counsel's investigation of a complaint of misconduct, the

respondent violated S.J.C. Rule 4:01, § 3 (1). Silence in the

face of bar counsel's request for information is not, as the

respondent claims, a "response" categorically protected by the

privilege against compelled self-incrimination under the Fifth

Amendment to the United States Constitution. See Matter of

Kenney, 399 Mass. 431, 441 (1987) ("required records exception"

precludes "valid assertion of the Fifth Amendment privilege").

See also Stornanti v. Commonwealth, 389 Mass. 518, 521-522

(1983); Mass. R. Prof. C. 1.15A, 480 Mass. 1316 (2018)

(generally requiring retention of client files for six-year

period). He is not entitled to a jury trial. See Matter of

Carver, 224 Mass. 169, 172 (1916), and cases cited. See also

Matter of Garqano, 460 Mass. 1022, 1025 (2011). The respondent

has thus demonstrated no error in the single justice's order

administratively suspending him from the practice of law.3

We need go no further. The respondent makes no meaningful

attempt to challenge on appeal the second single justice's order

adjudging him in contempt for failing to comply with the first

single justice's order of administrative suspension. He focuses

instead on his claims concerning the validity of the suspension

order. We therefore consider the facts alleged in bar counsel's

complaint for contempt established for purposes of appeal. See

Matter of Shauqhnessy, 446 Mass. 1013, 1013 (2006). After a

3 Contrary to the respondent's claim, a single justice has

jurisdiction to issue an order of suspension. See S.J.C. Rule

4:01, § 1 (1), as amended, 430 Mass. 1319 (2000). The Supreme

Judicial Court and its single justices have "exclusive

disciplinary jurisdiction" over "[a]ny lawyer . . . admitted to,

or engaging in the practice of law in this Commonwealth."

Matter of Moore, 449 Mass. 1009, 1011 (2007), quoting S.J.C.

Rule 4:01, § 1 (1). See Matter of Fordham, 423 Mass. 481, 485

(1996). Although the respondent claims that bar counsel's

petition for administrative suspension was "frivolous" or

otherwise deficient because it did not describe the alleged

misconduct under investigation, the respondent was not

administratively suspended from the practice of law for the

conduct under investigation. He was suspended because bar

counsel established that the respondent failed to cooperate with

bar counsel's investigation, which itself' "shall constitute

misconduct and shall be grounds for appropriate discipline."

S.J.C. Rule 4:01, § 3 (1). Bar counsel's letter of February 20,

2019, see note 2, supra, adequately informed the respondent of

the nature of the misconduct under investigation.

4

hearing, at which the respondent appeared and was given an

opportunity for explanation and defense, the second single

justice was warranted in concluding that the respondent failed

to comply with the first single justice's clear and unambiguous

order. Among other things, the second single justice did not

err in concluding that the respondent rendered legal services

after the effective date of the suspension.4 See id.

Order of administrative

suspension affirmed.

Order of civil contempt

affirmed.

The case was submitted on the record, accompanied by a

memorandum of law.

Ilya Liviz, pro se.

4 To the extent the respondent claims that he was not

afforded due process, we observe that the respondent responded

in writing to bar counsel's petition for administrative

suspension and was given an opportunity to challenge the

temporary, administrative suspension in person at the hearing

before the second single justice. See Matter of Kenney, 399

Mass, at 436. See also Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 546 ("The opportunity to present reasons, either

in person or in writing, why proposed action should not be taken

is a fundamental due process requirement"). In the

circumstances, nothing more was required.