Privilege to Practice: Walking the line: When zealous representation turns into unprofessional conduct

Issue March/April 2018 By Richard P. Campbell

Every working day brings a dazzling array of difficult challenges to active lawyers across the entire spectrum of law practice specialties. Personal and business finance; firm organization and management; injury, illness and emotional anxiety; and family health and happiness envelop our daily lives as we also carry out our duties to our clients. This complex collage of ordinary human stressors constitutes the real world in which we carry out our daily professional lives. There is nothing easy about the practice of law, and the day-to-day pressures of ordinary life make it all the more difficult. It is against this backdrop that we examine the tightrope between zealous representation and unprofessional conduct. The disciplinary cases involving Andover criminal defense lawyer Paul A. Farina (SJC No. BD-2017-078) and Brockton plaintiff personal injury lawyer Glen R. Vasa (SJC No. BD-2016-066) are instructive.

First, let’s look again at a few seminal rules of professional conduct. Rule 1.1 mandates that a lawyer have the requisite legal knowledge, skill, thoroughness, and preparation necessary to provide competent representation to a client. Rule 1.2 (a) directs a lawyer to seek the lawful objectives of her client through reasonably available means permitted by law and the code of professional conduct. And, of course, as all active lawyers have embedded in their psyches, Rule 1.3 commands pursuit of the client’s rights and interests zealously and with reasonable diligence and promptness. For a criminal defense lawyer, the “state” (or the “government”) is anathema to her client’s interest. Similarly, for a plaintiff personal injury lawyer, “insurers” (of all types) are the perceived financial enemies of the client. As Mr. Farina and Mr. Vasa learned, however, other Rules temper blind zealotry and personal concerns.

Paul Farina represented a client in the Lawrence District Court on street drug (heroin) trafficking charges. Farina’s client pled guilty to a lesser charge of possession with intent to distribute a Class A substance. He was sentenced to probation through June 9, 2017, conditioned on four affirmative tasks: (1) he had to undergo a drug evaluation; (2) he had to seek follow-up treatment for drug-related problems; (3) he had to remain drug free as proven by random drug screening; and (4) he could not leave the commonwealth. Farina’s client did not do well.

He was arrested on Jan. 31, 2017, (roughly five months short of the termination of his probation) in New Hampshire (i.e., outside of the commonwealth) for selling a Class A substance (once again heroin) and for falsifying physical evidence. His client communicated with Farina after his arrest, thereby investing him with knowledge of the client’s physical presence out of Massachusetts, incarceration, and criminal charges on drug violations. As Justice David Lowy concluded, Farina “knew that his client’s arrest on new charges and his presence in New Hampshire violated the terms of his Massachusetts probation.” Farina formalized his knowledge of these circumstances by filing an appearance pro hac vice in the Salem, N.H., District Court on Feb. 1, 2017. 

Farina took actions on behalf of his client to orchestrate the procedural status of both the nascent New Hampshire criminal complaint and the extant Massachusetts probation. In New Hampshire, Farina caused the criminal matter to be advanced to Feb. 6, 2017, whereupon the client secured his release after posting cash bail in the amount of $20,000. On Feb. 7, 2017, Farina appeared in the Lawrence District Court and filed a written motion to terminate his client’s probation early, averring that his client was “gainfully employed and ha[d] paid all of his probation fees.” Farina brought the motion to the attention of his client’s probation officer and secured his agreement. Farina chose to remain silent on the New Hampshire criminal action.

On that same day, Farina presented the motion in open court and at sidebar represented to the court that his client was doing “very well,” was employed in the family business, and had a need to travel as part of that business. When the court directed an inquiry to the client about ongoing treatment for drug abuse issues, Farina spoke for the client and told the court that his client “took care of those issues a long time ago.” The court allowed the motion. When the probation officer learned of the New Hampshire criminal action a short time later and confronted him about it, Farina “professed surprise.” The court rescinded the order terminating probation, revoked the client’s probation, and sentenced him to jail for one year. Justice Lowy found that Farina was aware of material facts (his client’s physical presence in New Hampshire and his arraignment on serious drug charges) prior to his actions in the Lawrence District Court and knowingly concealed those facts from both the probation officer and the court. The SJC suspended Farina from practicing law for 15 months.

Farina violated Rules 3.3(a) (1), 4.1, and 8.4 (c), (d), and (h). By concealing material facts (including specifically violation of the terms of probation) from the probation officer and the district court, and by affirmatively informing the district court that his client was doing well and had put behind him his drug-related problems, Farina made “false statement(s) of material fact or law to a tribunal.” Rule 3.3 (a) (1). He also “engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation” that was “prejudicial to the administration of justice.” Rule 8.4 (c) and (d). In his profession to the probation officer of ignorance about the New Hampshire criminal action, Farina “made a false statement of material fact” (and as well “failed to disclose a material fact”) to a third person. Rule 4.1. He also engaged in conduct “that adversely reflect[ed] on his fitness to practice law.”

Glen Vasa was disbarred in part for misusing client funds. But, his conduct toward an insurance company is most relevant to this column because it involves a lawyer’s duties toward a third person who is not his client and in fact has a financial interest directly adverse to his client. Vasa represented a low-level worker for a staffing company that leased its employees to Home Depot. His client was injured on the job and, as a result, collected workers’ compensation benefits. The workers’ compensation insurer had a statutory lien on the proceeds of any monetary recovery that Vasa secured for his client. In the process of reaching a settlement for his client, Vasa negotiated a reduction of the comp lien (to $85,000). Vasa deposited the settlement proceeds in his IOLTA account and later distributed funds to his client. He chose, however, to forgo payment of the workers’ compensation insurer. Justice Geraldine Hines found that his misuse of settlement proceeds “to which a third party was entitled” violated both Rule 1.15 (b) (segregation of trust property, including funds “belonging in part to a … third party”) and Rule 8.4 (c) [conduct involving dishonesty, fraud, and deceit], (d) [conduct that is prejudicial to the administration of justice], and (h) conduct that adversely reflects on an attorney’s fitness to practice law].

What are the takeaways from the Farina and Vasa disciplinary opinions? The first might be that zealous advocacy may never blind a lawyer toward candor to a court and its officers. The second might be that a lawyer knows what he knows. Once invested with knowledge of facts and circumstances pertinent to a tribunal or a third party, a lawyer’s duty of candor and truthful communications takes hold and provides the only appropriate pathway for further actions. The last might be that a lawyer’s traditional adversaries (the “commonwealth” in criminal actions and the “insurance company” in civil actions) are entitled to honest dealing. In the end, we are officers of the court. 

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