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In re Griffith12/9/2003
leading, or both, and by permitting Gonsalves to sign those answers under the pains and penalties of perjury. The hearing committee also found that the respondent's failure to disclose Pina's HIV condition during the hearing on his request to prove hedonic damages, particularly in light of his failure to claim a privilege, also violated DR 1-102 (A) (4) (5), and (6). In its review, the board adopted these conclusions of law. The hearing committee further determined that this same conduct did not violate S.J.C. Rule 3:07, Canon 7, DR 7-102 (A) (3), and (7), as appearing in 382 Mass. 785 (1981). The board disagreed with the latter determination, and modified the hearing committee's conclusions to find these disciplinary violations as well.
As to the appropriate sanction, the board agreed with the committee that there were relevant mitigating circumstances, including: "the 'extraordinarily contentious nature of the proceedings' and [that] the respondent's personal feelings toward the mistreatment of a fellow Cape Verdean led him to become obsessed with the case and to impugn the motives of opposing counsel; . . . that defense counsel, acting with due diligence, should have recovered the concealed information on their own; . . . that the respondent had already suffered greatly, both personally and professionally, by the [published] sanction order and its attendant publicity; and . . . that he was not motivated by personal financial interests." In addition, the board agreed with the hearing committee that the novel issues regarding the nature and scope of the statutory protection under G. L. c. 111, ยง 70F, accorded to those diagnosed with HIV "should be weighed in mitigation . . . particularly . . . where the very act of invocation [of a privilege under the statute] would have given away the game and stripped Pina of the privilege." The board disagreed with the hearing committee that "the perceived rightness of the respondent's cause in prosecuting the lawsuit," and the fact that the lawsuit benefited an under-served community, were appropriate mitigating circumstances. The board's recommendation did not turn on those factors. The board, after considering the circumstances it found mitigating, adopted the hearing committee's recommendation that the respondent receive a public reprimand.
3. We generally afford substantial deference to the board's recommended disciplinary sanction.
Matter of Foley, 439 Mass. 324, 333 (2003), and cases cited. Nonetheless, we must decide each case "on its own merits and every offending attorney must receive the disposition most appropriate in the circumstances." Matter of the Discipline of an Attorney, 392 Mass. 827, 837 (1984). If comparable cases exist in Massachusetts, we apply the markedly disparate standard in imposing a sanction. Matter of Finn, 433 Mass. 418, 423 (2001). See Matter of the Discipline of an Attorney, supra at 834. We also consider mitigating factors. Matter of Finn, supra at 424.
Bar counsel argues that a two-year suspension should be imposed, noting that a one-year suspension is the presumptive sanction for making intentional misrepresentations to opposing counsel and the court. The respondent argues that the sanction imposed by the board -- a public reprimand -- should be the sanction. In arguing their respective positions, the parties have brought several disciplinary cases to our attention. The cases are helpful, but none is determinatively comparable to the circumstances present here.
It is sufficient to say, however, that the respondent's conduct is grave enough to warrant a suspension of some duration. The respondent's material omissions, made in the course of affirmative discovery requests, constitute a
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