Attorneys – Suspension – Stay – IOLTA

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Where a single justice found that a lawyer should be publicly reprimanded, the appropriate discipline is instead a six-month suspension that will be stayed for a one-year probationary period.

“The sole issue on appeal is the appropriate sanction: Should [James F.] Scola receive, as the single justice concluded, a public reprimand or, as the board recommended and as bar counsel now argues, a term suspension (and if the latter, of what length)? …

“The problems with Scola’s old IOLTA account all stem from inadequate record-keeping dating back to 2004. Scola, having erroneously relied on his software package to keep the account balanced, was unaware of the fundamental problem with the account for years. Simply put, he was unknowingly using the ‘float’ on the account during this time, allowing one client’s funds to be used to meet another’s obligations. His behavior became intentional only during the last few weeks of the account’s existence, when he continued to use the account knowing that bar counsel had instructed him to close it. Even then, as the single justice noted, Scola was seeking legal counsel at this time, as closing the account at any time would inevitably result in deprivation to at least one client, and he personally gained nothing by his conduct. He did not commingle funds; he did not use client funds for his own benefit; and he committed no fraud. …

“In our judgment, neither a public reprimand nor a lengthy suspension is appropriate. A suspension of six months is warranted and would not be ‘markedly disparate’ from the sanctions imposed in comparable cases. Moreover, in light of the significant mitigating factors, we shall stay Scola’s suspension for a one-year probationary period, with the following conditions: that Scola continue to keep his current IOLTA account in balance, that he submit to an audit of his current IOLTA account after six months and again at the end of the probationary period, and that he commit no further violations of the Massachusetts Rules of Professional Conduct. On Scola’s satisfactory completion of the probationary period, the suspension shall be deemed served.”

In the Matter of Scola, James F. (Lawyers Weekly No. 10-102-11) (6 pages) (Rescript) (SJC) Constance V. Vecchione, Bar Counsel; James F. Scola, pro se (Docket No. SJC-10812) (July 15, 2011).