COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT FOR THE COMMONWEALTH. No. S.J.C IN THE MATTER OF SAMUEL J. CONCEMI

Transcription

1 COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT FOR THE COMMONWEALTH No. S.J.C IN THE MATTER OF SAMUEL J. CONCEMI ON APPEAL FROM A JUDGMENT OF THE SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY BRIEF OF THE MASSACHUSETTS CONVEYANCERS ASSOCIATION, INC. AMICUS CURIAE Statement of the Issue The Amicus Curiae wishes to present a single issue before the Court: What sanction should be imposed upon an attorney convicted by a jury of thirty-five felony counts involving fraud against his own client? Statement of Prior Proceedings This is Bar Counsel s Appeal from the judgment of a single justice imposing a three-year suspension from the practice of law. Bar counsel had recommended disbarment. For further details of the prior proceedings, we respectfully direct the Court s attention to the briefs of the parties.

2 Statement of Facts Samuel Concemi was the conveyancing attorney and settlement agent in seventeen mortgage loans which he closed on behalf of the mortgage lender, his client ComFed Savings Bank. The Bar disciplinary proceeding was based on his criminal conviction in the United States District Court where, in connection with these seventeen transactions, a jury found him guilty of thirty-five felony counts including conspiracy to defraud ComFed, seventeen counts of bank fraud, and seventeen counts of making false statements on real estate closing documents. He was sentenced to serve thirty-six months in custody, to pay a fine of $6, and to make restitution in the amount of $16, The seventeen loans which he closed went into default, thereby causing a loss to ComFed of over $500, which was paid by public funds when ComFed was taken over by the FDIC. Further factual details are presented in the brief of Bar Counsel. Standing of Amicus Curiae The Massachusetts Conveyancers Association, Inc., organized more than 100 years ago as the Massachusetts Conveyancers Association (hereinafter the "MCA"), is a bar association of over 2600 lawyers throughout the state who are engaged in the practice of real estate law. The most common transaction in which MCA members are retained is as attorney for the lender in residential mortgage closings. The MCA has a profound concern both for the integrity of the conveyancing bar and for the public interest. Argument CONVICTION OF SAMUEL CONCEMI FOR DEFRAUDING HIS CLIENT REQUIRES THAT HE BE DISBARRED The standard of review applicable to this case was set forth by the Court In the Matter of Edmund M. Hurley, 418 Mass. 649 (Mass. 1994). The standard has two parts: (1) whether or not the sanction imposed is markedly disparate from sanctions imposed in similar cases, and (2) whether or not the sanction imposed is appropriate under the facts and circumstances. Hurley had been convicted of the felony of conspiracy to defraud the Internal Revenue Service. Hurley s conduct involved dishonesty and untruthfulness in connection with his practice of law on behalf of a client. In the disciplinary

3 proceeding which followed his conviction, the single justice suspended him indefinitely from the practice of law, a result which the full Supreme Judicial Court affirmed. The Court observed that this sanction was not markedly disparate from the sanction imposed in other factually similar cases. The Court noted that, since 1983, there were fifty-five disciplinary cases involving attorneys convicted of felonies of which thirty-eight either were disbarred or resigned in lieu of disbarment. The indefinite suspension of Hurley, therefore, was a sanction more lenient than in sixty-nine percent of the cases of attorneys convicted of felonies. The MCA submits that a three-year suspension of Mr. Concemi is markedly disparate. Disbarment would have been consistent with the vast majority of cases in which the attorney had been convicted of a felony. An indefinite suspension would have been consistent with only a minority of such cases, although an indefinite suspension (as in Hurley) might be upheld. A mere three-year suspension, as imposed on Mr. Concemi, is an unprecedented lenience which should not be allowed to stand. The integrity of the Bar and the public interest demand a more severe sanction consistent with prior similar cases. The facts and circumstances of the Concemi case warrant the most severe sanction. Concemi is to be distinguished from two other kinds of felony-based disciplinary proceeding. In one, like Hurley, supra, the wrongful conduct is on behalf of the client and does not directly harm the client. In the other, the wrongful conduct is a crime committed by a person who merely happens to be a lawyer. See In the Matter of Joseph Alter, 389 Mass. 153 (1983). In Concemi, on the other hand, the felony on which the disciplinary proceeding is based consists of conduct willfully and knowingly injurious to the client whom Mr. Concemi was bound to serve rather than to harm. This goes to the heart of the lawyer-client relationship and is destructive not only of the integrity of the Bar but also of the public interest because clients must depend on the honesty and trustworthiness of their lawyers. At the hearing before the Board of Bar Overseers, Mr. Concemi presented a set of form petitions (R.App ) bearing about 500 signatures, addressed to the Court as well as the Board. Claiming personal knowledge of Mr. Concemi s character and integrity, the signers urged the Court and Board of Bar Overseers to not disbar him and to limit his suspension to his term of incarceration. Apart from our doubt that so many signers could have had sufficient familiarity with the matter to support such a position, suffice it to say, as the Court said In Matter of Keenan, 314 Mass. 544 (1943),

4 "Evidence of character or reputation from friends or acquaintances is usually subject to discount for the complacency of witnesses who are willing to be accommodating and many of whom, although sincere, may not fully appreciate the necessity of protecting the public interest." The record also indicates (R. App ) that life is now hard for Mr. Concemi. But, as Mr. Justice Qua wrote in Keenan, supra (Page 547): "The question is not whether the respondent has been punished enough. To make that the test would be to give undue weight to his private interests, whereas the true test must always be the public welfare. Where any clash of interest occurs, whatever is good for the individual must give way to whatever tends to the security and advancement of public justice." Mr. Concemi argues mitigating factors. His brief speaks of "bank policy" as if he had merely done what he was told. This is manifestly not true because he was convicted of conspiracy with a broker/developer and with the bank s loan originator to defraud the bank. His brief ignores the fact that his duty was to the institution as an entity entitled to his protective service. There is no mitigation in the fact that he committed a crime in cooperation with a bank employee rather than all by himself; rather, this fact would suggest that his conduct is even more reprehensible. This was not just a single transaction where a naive attorney made an error of judgment. There were seventeen transactions in which material facts were concealed from the lending institution. If the truth had been told, these loans would not have closed. A responsible attorney would have declined such unfaithful representation. Instead, the result was profit to the lawyer in the fees he received plus his expectation of continued business, while the harm to his client consisted of all these loans going into default at a substantial loss. Mr. Concemi s brief argues in mitigation that he is really a good person who had a good record. The MCA suggests that this is a specious argument. The privilege of practicing law is and should be dependent on honest representation of a client s interests at

5 all times. An egregious pattern of dishonesty, as in this case which resulted in a jury verdict of guilt and conviction on thirtyfive felony counts of fraud, does not suggest any basis for mitigation. There was no evidence or suggestion that he was sick or temporarily deranged, or that he was laboring under some unavoidable duress, or that he was himself deceived. He sought only his own profit with complete disregard of the client that he was bound to serve. A lawyer who would indulge himself in such criminal conduct ought to be held to have given up the privilege of practicing law. If he was so blinded by the prospect of personal gain that he chose to disregard the harm to his client, then the integrity of the Bar and the public interest demand that he should not be entrusted again with the rights and interests of anyone else. He should be disbarred. Conclusion The Court should enter a judgment of disbarment. Respectfully submitted, Robert J. Hoffman BBO# Hoffman & Hoffman 44 School Street, 6th Floor Boston, MA (617) Henry H. Thayer BBO# Rackemann, Sawyer & Brewster One Financial Center Boston, MA (617)