IN RE: Albert B. WATT (1999)

Through a petition for reciprocal discipline pursuant to S.J.C. Rule 4:01, § 16, as appearing in 425 Mass. 1319 (1997), filed in the county court, bar counsel requested an order indefinitely suspending the respondent from the practice of law.   The Supreme Court of Rhode Island had suspended the respondent for a period of one year.  Matter of Watt, 701 A.2d 319 (R.I.1997).   A single justice of this court suspended the respondent from the practice of law in this Commonwealth for two years.   Bar counsel appealed to the full court.   We now affirm the order of the single justice.

 During a two year period, the respondent settled personal injury cases on behalf of ten clients and withheld from the settlement proceeds monies to pay his clients' medical providers.  Id. Rather than promptly paying the medical providers, the respondent commingled the funds with his personal funds and converted them for his own use.  Id. at 320.   However, he repaid a portion of his clients' funds prior to the commencement of the Rhode Island disciplinary investigation and completely repaid the funds before the disciplinary board conducted a hearing.  Id. at 319.   None of the respondent's clients was harmed by his misconduct, but his delay in paying their medical expenses temporarily exposed them to the possibility that the medical providers would institute collection proceedings against them.  Id. at 319, 320.   There is no indication in the record that any provider ever brought suit against a client of the respondent.   Contrast Matter of Dawkins, 412 Mass. 90, 91, 92, 587 N.E.2d 761 (1992) (attorney's failure to pay medical expenses subjected client to lawsuits and the issuance of a capias).   The Supreme Court of Rhode Island noted that the respondent's misconduct was mitigated by his unblemished record during forty five years of practice;  his sincere remorse for and embarrassment about his misconduct;  and the fact that he had borrowed money from his family to pay his clients' medical providers.   Matter of Watt, supra at 319.

  In reciprocal discipline cases such as this one, we accord deference to the judgment of a sister State, Matter of Lebbos, 423 Mass. 753, 755, 672 N.E.2d 517 (1996), but we look to Massachusetts law in determining the appropriate sanction, if any, to be imposed.   See S.J.C. Rule 4:01, § 16(3)(c), which provides that “[t]he court may impose the identical discipline unless ․ the misconduct established is not adequately sanctioned by the same discipline in this Commonwealth.”   Accord Matter of Daley, 11 Mass. Att'y Discipline Rep. 57, 59 (1995).

In determining the appropriate sanction, the single justice correctly relied on Matter of Schoepfer, 426 Mass. 183, 687 N.E.2d 391 (1997), and Matter of the Discipline of an Attorney, 392 Mass. 827, 468 N.E.2d 256 (1984) (known as the Three Attorneys case).   In Three Attorneys, supra at 836, 468 N.E.2d 256, we accepted bar counsel's proposed “ ‘standard’ sanctions” for disciplining attorneys who commingle and use their clients' funds.   According to those standards, “[i]ntentional use of clients' funds, with no intent to permanently or temporarily deprive the client, and no actual deprivation, should be punished by a term of suspension of appropriate length.”  Id. Indefinite suspension is appropriate where an attorney intentionally uses clients' funds “with intent to deprive or with actual deprivation.”  Id. In Matter of Schoepfer, supra at 187, 687 N.E.2d 391, we reaffirmed our acceptance of the standards enunciated in the Three Attorneys case.

The single justice, properly relying on the facts contained in the opinion of the Supreme Court of Rhode Island, concluded that indefinite suspension was unwarranted because there was no evidence that the respondent intended to deprive, or had actually deprived, his clients of the funds he misused.   Bar counsel maintains that by failing promptly to pay his clients' medical expenses and thereby temporarily exposing them to potential litigation, the respondent deprived his clients of the funds.   In support of its position that a delay in paying third parties amounts to a deprivation of clients' funds, bar counsel cites Matter of Sexton, S.J.C. No. BD-97-041 (Feb. 13, 1998);  Matter of Glick, 13 Mass. Att'y Discipline Rep. 234 (1997);  and Matter of Wharton, 10 Mass. Att'y Discipline Rep. 288 (1994).   However, those cases are distinguishable in that the disciplined attorneys either failed to repay converted funds or repaid a portion of the funds only after disciplinary proceedings had begun.

The respondent's repayment of a portion of his clients' funds prior to the commencement of the disciplinary investigation, coupled with his full repayment of all misused funds before his disciplinary hearing occurred, indicates that he did not intend to deprive his clients of the funds.   Moreover, the Rhode Island Supreme Court's finding that none of his clients was harmed establishes that the respondent did not actually deprive his clients of the funds.   Accordingly, the single justice correctly imposed a term of suspension rather than an indefinite suspension.  Three Attorneys, supra at 836, 468 N.E.2d 256.   Bar counsel does not argue, and we do not believe, that suspension for two years is a markedly disparate sanction from that imposed in similar cases.   See Matter of Callahan, 10 Mass. Att'y Discipline Rep. 30, 32 (1994).

The sanction imposed by the single justice is not markedly disparate from sanctions imposed in similar cases.   See Matter of Hurley, 418 Mass. 649, 653, 639 N.E.2d 705 (1994).   Accordingly, the order of the single justice is affirmed.

So ordered.

The case was submitted on briefs.

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