IN RE: DOUGLAS MICHAEL SURPRENANT

NO. BD-2011-044

S.J.C. Order of Term Suspension entered by Justice Duffly on September 6, 2011, with an effective date of October 6, 2011.1

Page Down to View Memorandum of Decision

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

(S.J.C. Judgment of Reinstatement entered by Justice Duffly on April 3, 2012.)

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SUPREME JUDICIAL COURT· · FOR THE·COUNTY OF S:OFFOLK DOCKET NO,· aD::-20117'.044 ·

IN RE : DOUGLAS MICHAEL SURPRENANT

MEMORANDuM OF DE~ISION

· .This.matter comes before me on an information and record of . .

proceedings and· a vot.e of the· Board . of Bar OYerseeis (bo~rd)

· purs'l,.lant to S .·J. c. Rule 4: 01, § 8 ( 4) ,.; . The proceedings were . . .

Initiated by. a petition for discipline filed by bar counsel, and·

. then assigned to· a hearing committee. See S. J. C. RU'le. 4:011. § ~.

Following all eYidentiary hearing, the:comm~ttee concluded that . .

· the ·respondent is· conduct. in: ·a) filing. and s~gning ·a bankruptcy

petit;Lon. on 't.he part of a husband arid wife, withou't ey'er meeting

or speaking, with the husba:n~) impersonating the husband clurin~-

·a telephone .credit counseling. session; c) signing-a false .

certifica-tion on beha1f of the hw:~band ·stating. that. the husband

had attended credit counseling.; and d) .. signing his own ll<;inie. on a

:certificate. stating, .. that he had ·d:i:s.cussed different bi:mkruptcy

Options With both·~ husba-nd arid wi.f.e 1 and had ffiade tne ·.statutorily

:t-~qu:i;;red qiscl.osu:res to both of t'hem,_ was in violati~:ri of l1asa.

~. P.rof. C". 1.2- (a),· 1.2(d), 1.4(a), 3.3(a}.(l}, 4.1(a)., 4~i(b),

JL 4 (c-); an:d 8.4 · (d};-. The committee determined that the . .

·~&.~onq'en-t ·hast etxg.aged' in d:k_shorte·s·ty·and misrepreserttation··to. a.

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tribunal,,. and recommended that ~he. respondent be suspended from.

: th~ practice of 1aw .for nine. months. · Upon cross apPe.als by· the

·: reSpCmderit, and bar· COUnSel, the ·bO~rd adopt~d the. COffitnittee IS

•' findin9's of·. fact and. conclusions,, but.' determined that, given 'the

mitigating circumstance's .·in this case, a three-month ·suspension

was appropriate. . .

. While the· respondent :does not dispute.· the· facts found ]::)y th~

. board, at a hearing b~fore. me. he suggested that a p~blic.·

reprimand would be.a inore.appr.6priate sanction.given the

cir.cumsti:l,nceSi bar COUrlS.el, by contrast, ~rgued that the ·bQard

· erred in q.pplying the'· factors· in mitigation,· q.nd that ·a longer . . . .

suspension should be ·imposed. . For the re:asons discu13sed below, I·

conclude·that the respondent's conduct violated the rules of

:prof~ssional conduct as .·determined. by . the board, and that a

suspepsiori of·six.tri.Onths is the appropriate sanction in the

-·-circums ti:mces .

Background. The fol.lowing facts are from the hearing

cC>mmittee' s. and the board's findings. The respondent was

.contacted .±initiallY. b~ a poten,tial·client, the.wife, who informed

him that ·he·r house was.. to .be· foreclosed within a week. 1 ·· The

respondent scheduled· a meeting with th~. wife and· the husbandi .the . . ·.. .

·wife came to the appointment alone. The.wife told the respondent ' . .,

· 1 The .potential client was. referred .by a ·bu's.l,nes.s associate ·of the: respondent;·· · · . ·

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that she had .been respo'nsible for- paying the ~ortgage on the

fan,lily home, that she had failed to make timely paytnents, theit:

she and her husband had been .fighting ov~r their financial

·situation:, and that her husband wanted her to take, c?-ie of the

problem she. had· created and had authorized the filing of·a joint

·petition 'for bankruptcy. ·· Notwithst_anding the wife •s . .

repr~sentations, the. hushand was unaware of the impending

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forec1osure and·had had:no diS<;!USj3ions with th-e.._wife concerning a

bankr~ptcy filing.

The respondent advised the wi:te to file an immediate

petition for.bankruptcy; and prepared the nece-ssary·documents.

When he was unable to reach·. the husband by telephone·· during that . . . •'

initial meeting with the ;.'life, the respondent;. participa~ed the . .

same day·in a mandat~ry credit counseling session w-ith the wife,

representing during that session that. he was the husba~d, in.

·reli~nce ·on personal information supplied by the-.wife. ·The

credit counseling session. was a prerequisite to filing a.

bankruptcy petition; certificates of. completion were .. issued that

day on behalf of the husband and the wife. . ' . .

After the meetin·g:., . ·the wife took with her the documents

_prepared by the respondent :eor ·her husband to sign and·return.

She returned the .next day with.the documents purportedly' signed

by her husband,'· but in fa:ct_signed by her. The respondent filed· . . .

:the bankruptcy petitiori .. eJ:ectrohicallyon behalf of both.· husband·

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and wi~e; he atta,ched .the hetsband' s electronic . sign~ture to the .

petition, rE?pre·senting cis the hu_sbanci that the husband had. . . . . . .

•. undergone credit counseling and. that the . statemen~ .. s .. in. the

petition were true arid correct; .these assertions ··were· made under ·

the pain·s and penalties of perjux:y. .The respondent ceitifiecf ·.

also, under his own name, and ~falsely, that he had explained to

both the husband and the wife th~ir bankruptcy filing options,

and_that he had-made. mandato'ry.disclosur~s to them.

After filing the. :P.et"ition, the respondent rriade repeated

efforts to contact the husband.at the telephone numbers supplied

by the wife, The husband's bus.iness number, provided by the .

. wife, was i.n reality the couple's home'tel'ephone·number; .·the

husband never received any m.essages from the respondent. When

the bankruptcy trustee .scheduled.a creditor meeting for the . . . . . . .

couple, the respo~dent att:empt,ed unsuccessfully to contact the . . . . .

couple by· telephone. Aft,er. failing to receive.· a~y. l;'eply, he

advised them by telephone message· that he wouid not be: attending

the meeting, because he assumed ·that. they would not be.. He did··

no.t ·contact the bankruptc~ t:tus:tee to attempt to reschedule the

meeting.

on the day of the· scheduled creditor meeting, the wife.· ..

tel.ephoned the respondent to say that she. had gotten lost en . . . .

rOUte to'. the meeting 1 and that her hUSband WOUld nOt be

attending.; t;:he respondent ·advised heY that he would not be

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attending, but.that she should.go to the ·meeting, request a.

continuance, a,nd. t:elephorie him aft·erwards. The- wife did not·

attend the meeting and.did not agaip. cont~ct the. respondent.

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Approxi'mate.ly. a· -week aft€r the _scheduled meeting,· the.

bankruptcy t:J:uste.e. moved to dismiss the petition because the .

couple had. fp.iled' to make sche.duled payn\ents: according to their

chapter 13 }:)ankruptcy plan. The respondent wrote to the couple., ' . . . .

explaining the pending dismissal,_a~d advising. the couple th<:tt,·

if the case.were'dismissed, they would become.inei:Lgible for

further bankruptcy :relief. He stated aLso .that ·he would be·

·willing. to accept a reduced fee of less than half of. the

. originally agreed t1POn $2,500 fee that he had negotiated with the.

wife; at the time he wrote the letter, the respondent had not· . . . ' ' .

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been paid any portion. of his fee. Neither the. wife nor the

husband responded, and the bankruptcy court dismissed the

petition.

·shortly after the dismissal, the husband learned of the

impending foreclosure, and learned.: subsequently from his wife of · . . .

the .di.smiss.ed bankruptcy petition. He hired separate counsel and. ' . . . '

moved to expunge his portion of the. bankruptcy filing. When the

re.spondent learned o~ the wife 1 s ·fal-sehoods from the husband 1 s.

attorney he· admitted h.is role. in the filir,igs .to the attorney. and

'filed a response to the motion to expunge in·which he

acknowledged his. role in. the matt.er cind .hi.s errors. The

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.respondent a.ppeared at' a hearing. before a judge of the bankruptcy .

court and fully.disclosed his conduct. The husband, however,·has

be.en unable to get the bankruptcy filing deleted from all of the

Credit reJ?OrtJrig agencieS 1 . recordS. . .

Sanction, · Although he relied· on· the t-e.piesentations of the.

wife,.who misled him as to her husbandr.s'intentions while· ' . . . . ..

· concealing ·from her. husband her efforts to se·ek bankruptcy . . .

protection, the ·respondent do?s not dispute ~hat he .engaged in __

the misrepresent:ations found by the board. Although he left·

telephone messages. for the husband at the numbers provided by the

·wife, the-respondent admits that he never ·spoke to or met with

·the husband before filing the bankruptcy petition-on behalf of

bot;.h the husband and the wife. · The respondent admi.ts further

that he did represent himself to be t'he hus~and, ·.both ·orally and

-iri a signed' certification to the bankruptcy court, and did

Certify-to t,he bankruptcycourt that he.had consulted wit.l;l the ·

husband,·· advised the husband as _to possible bank;ruptcy options,

·an<:l .mad~ . the. statutorily mandated disclosures to the husl:)and~ . . . . . .

well aware .that·. these statements.. 'WeJ::'e faise;

The respondent· asserts however,_ as. the boa.rd found, that his . . . . .

miS-representations. were made in a misgl,lided effort' to assist . the

wife (and her husb~nd) in an emergency situation in. order to · · . . .

avoid an imminent foreclosure_on their. home. The board noted, in

mitigation, that th_e husband was a relatively inexperienced

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attorney; at: the time of the filings Cl.t ·issue, he had been·. ·

.. :·practicin9 :law for only fi~e ·years, arid had filed 9-pproxim~tely. ·:·twelve bankruptcy petitions~ The bo.ard. emphas:Lzed, as. well;. that·

.the re Sp0hqei1t had been ~~duped II by the Wife;. WaS aCting in · a~

emergenoysituation~ did not act from self-interest, promptly and

fully admi t,ted his COndUC~ I .arid Showed remorse., ....

Review.of.attorney disciplinary proceedings is de novo, but

a reviewing court gives substantial deference to the boar~$

i-ecoinmendatioris. See Matter of. Murrav, 4s5 ·M.ass. 872, 882

( 2 01 o) . · The .. board' s . recommendations are not :Oinding, a~d ·u [W] hen

<;leciding.. what. sanction is appropriate we lo6¥= •to the dis.cipline

. imposed in comparable cases. 11 l:ri re Angwafo, 453 Mass.' 28, 34,

37 <2oo9). The sanction imposed should not produce outcomes

"markedly disp?trate" .froni the results in similar. cases. See .

·Matter of Murray,· supra at 882-883. . The offending· ·attorney 11must

receive the diSpOSitiOn mOSt appropriate· in .the circumstanCeS, II

Matter of the Discipline of an Attorney, 392.Mass. 811, 8~7

( 1984) .

As the board ·stated, deldb~rate mi~representation by an ..

·attorney to a tribunal generally warrant~ a·one-year suspensio~,

. see Matter of McCarthy, 416 Mass .. 42-3 (1993-) I . and, in s'ome

. circumstances, ~fsrepre.sentation under oath warrants a t,wo-year ' . .. . . .

suspension. Compa·re Matter of Shaw, 42'7 Mas·s, 764, 764; 768·.:.770 . . . ' . . . . .

(199-a) (two-year Stl,s.pension where. resp.orident made. false

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·stat~ments under· oath. in fe.deral criminal· .. trial, filed .'false

affidavit. in c"ivil proceeding, issued false opinion· ·letter to·· . . .

which he. ·affixe-d notarization, and. forged another attorney 1 s

·.name); Matter. ·of Bal·liro, 453 Mass: 75, 86-87 (2009} (six.-month!

.suspension w~ere a_ttorney fal~ely _testified in criminal t.rial :in.:

which she was vi.ctim witness.; substariti~~ mitigation warranted-.

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deviation from presl,lrnptive twoyear susp~nsion)~ Notwithstand:ing· . . .

the respondent 1 s int-ention to assist the couple, -the respondent.

engaged in delibe-rate and. repeated misre;presentation •to the . . . .

bankruptcy .court, on behalf oi an alleged client .·whom he had·

n:ever met. See Matter of ·:Neitlich, 413 Mas·s. 416, 420, 422

(1992) (one..:.yea:r;- suspension where false statement was "aqtive,·1i

"deliberate," and "planned") .·

In applyirig mitigating-factor$ to the presumptive sanction.~ . .

·the board emphasized that the respondent wa$ a "re-lativ~ly new .

attorney" faci'rig an "emergency situation. 1·1 The· board noted t·hat, ·

while the res;pondent.could .have pursued other alternatives to·

. re-spond tO the Wife IS emergency I li [t] h~. ability tO respond t_o an

.. emergency with flexible a~d creative. so).utiohs is one of 'the

·marks of a seasoned professional." 'l'his.conciusion is

unava-iling.. At the ti:me. of. the misconduct, tl:le respondent· had ·

been practicing for· five years. and wasnot a newly-minted

attorney. More significantl,y I . impersonating a c1ient one has·.·

·.never met is so obvious an error· that lack of experience is. not .

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mitigating~ Se~ Matter of Bryan, 411 Mass. 288, 291 (1991) .

. The board reii~d heavily on discipl.;i.nary cases where a.

three- to six-·mo~th suspen~ion was impos~d, based on mitigating . . . ' ·. . .• . . . . . .

·factors., because the misrel?res:entations were. not "material" ._and. . . . . .

did not concern "facts· at the hearti' · ot tl).e client's case. The

board noted th;;:tt the' respondent clid not misrep:resent the .

essential, dire facts of the couple's financial situation. 2 The·

misrepresentations iri the cases cited, l;l.ow~v-€lr, involved

statements such as the attorney claimirig.t6 have·a scheduling

conflict in order to obtain a continuance. See, e.g., Matter o·f

Long,_ 16. Mass. Att'Y. Disc. R .. 2-so (2000).

A false.statement that· one is the clieht,.and that one has·

met with a client one .has riever seen, · i$ not an· "immaterial"·

element of.a client's case;

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"All attorneys~ whether-those of-long standing or those recently admitted to the Massachusetts har...;_are expected to know and unders~and their professional obligation to be ·

. truthful in court.· It is a simple and unambiguous· -standard of ethical conduct, and the respondent violated it. · Notwi-thstanding tne substantial. mit:i,gating -factors in this . · case, We .cannot. condone the actionS Of an attorney in giying: false testimony under oath, irrespective of .the CirCUmStanCe&, II ..

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. See Matter o£ Balliro 1 supra ~t 88-89. The court concluded in

·that case .that the appropriate discipiinary.sanctiori was a·

2 Nonetheless, as. the board stated also, "Here, Congress has required a certificate of credit counseling as· a necessary .·.part of a bankruptcy petit;iqn. Under such circumstances~ it.must be cons ide red ·.material to the bankruptcy-. n · ·

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.six:..mqrith, ·suspension f·rom the practice o( lay;. . Id. . See alSo In . - . .

Matter. of Fi~u.;,erty, .418 Mass. 8.21 (1994) (six-month suspension . . . . .. .'

for. misrepresentation Qn·attorney's p~rsonal firiancial.statement

in.own.divorce. action).

. As the· board observed, in this case. there. were several· . .

"decision points"· at:·which the respondent had an opportunity to·:··

i~uie o~ mitigate hi~:~arlier missbe~s" and fail~d to do so.

~rtetheless, ::r: ·a.gr.ee. with· the board..:.o..th,at, in the. cirdumst:ances

. here, substantial mitigation· from the ,pr.esumpti ve one:-.· or . two­

year suspension is .warranted.

Conclusion.. Having considered tli.es:e facts and .·t.he

discipline that. has been ·imposed in comparable cases, I conclude

that the appropriate sanction in this.case is a six-month

suspension. ..

By.the Court,

··Entered: ·August 31, 2011

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