Attorneys – Disbarment – Suspension – Emotional issues

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Where a single justice ordered the indefinite suspension of an attorney who was convicted of witness intimidation, criminal harassment and violating a protective order, the attorney should instead be disbarred.

“Bar counsel argues that the single justice abused his discretion by not accepting the recommendation of the Board of Bar Overseers (board) that the respondent be disbarred, and by instead ordering an indefinite suspension based on his personal observations of the respondent in the court room and his conclusion that the respondent’s misconduct was mitigated by ‘unresolved emotional issues.’ …

“… In his memorandum of decision, the single justice explained the reasons for his order, stating in part: ‘There is no reason to depart from the presumptive sanction in this case. However, I had an opportunity to observe the respondent for about forty-five minutes, including about thirty minutes for his own oral argument, and I could not help but think that he has unresolved emotional issues that in all likelihood contributed to his difficulties. He was reduced to tears twice during the hearing before me. Although he did not present any evidence of mitigation to the hearing panel, I honestly believe it exists and I am not inclined to order disbarment for this reason. I also note that, although not determinative, the misconduct in this case did not occur in the course of the practice of law.’

“The single justice further ordered that the respondent’s ‘reinstatement to the practice of law … will be conditioned upon the board’s satisfaction that [he] has addressed his emotional issues.’ See S.J.C. Rule 4:01, section18(4), as appearing in 453 Mass. 1315 (2009). Bar counsel appeals, pressing her claim that the respondent should be disbarred, not indefinitely suspended. …

“… Because the respondent in this case did not plead psychological issues in mitigation, and did not present any evidence at the hearing — either through his own testimony, through an expert, or otherwise — that any psychological issues caused or contributed to his misconduct, we see no reason not to accept the board’s recommended sanction of disbarment. …

“Contrary to Rules of the Board of Bar Overseers section3.15(f), Patch did not state facts in his answer to the petition for discipline supporting a claim that his misconduct was caused by psychological issues. Under the rule, a ‘respondent shall include in the answer any facts in mitigation. … Failure to include facts in mitigation constitutes a waiver of the right to present evidence of those facts‘ (emphasis added). While the respondent’s counsel stated before the hearing panel that the respondent had serious psychological issues, he did not present any evidence at all, expert or otherwise, to support a claim that his misconduct was caused by such issues. As the single justice observed, ‘[t]he respondent presented the hearing panel with no evidence of mitigation.’ And indeed, even at the hearing before the single justice, the respondent did not claim mitigation based on psychological issues.”

In the Matter of: Patch, Thomas F. (Lawyers Weekly No. 10-183-13) (4 pages) (Rescript) (SJC) Appealed from an order by Spina, J., sitting as single justice. Nancy E. Kaufman, First Assistant Bar Counsel; Thomas F. Patch, pro se (Docket No. SJC-11144) (Oct. 21, 2013).