In the Matter of Diviacchi

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SJC-12512
IN THE MATTER OF VALERIANO DIVIACCHI.
August 23, 2018.
Supreme Judicial Court, Appeal from order of single justice.
Attorney at Law, Disciplinary proceeding, Reinstatement.
Practice, Civil, Review of interlocutory action.
Valeriano Diviacchi was suspended from the practice of law
for twenty-seven months, effective January 2, 2016. See Matter
of Diviacchi, 475 Mass. 1013, 1021 (2016). In January, 2018, he
filed a petition for reinstatement in the county court, see
S.J.C. Rule 4:01, § 18 (4), as appearing in 453 Mass. 1315(2009) which was then transmitted to the Board of Bar Overseers
(board). See S.J.C. Rule 4:01, § 18 (5). Insofar as it appears
on the record, the board has not yet held a hearing on the
petition because Diviacchi has objected to providing certain
information on the reinstatement questionnaire required by the
rules governing reinstatement. See S.J.C. Rule 4:01, § 18 (4)
(g). See also Rules of the Board of Bar Overseers § 3.63
(2009).1
A single justice of this court has denied Diviacchi's
motion to compel the board to hold a hearing and declined to
review Diviacchi's objections to the questionnaire. Diviacchi's
1 The reinstatement questionnaire is set forth in Appendix 1
of the Rules of the Board of Bar Overseers (2009).
Specifically, Diviacchi has declined to provide certain
information called for in Part II of the questionnaire
concerning his income, assets, and financial obligations during
the period of his suspension.
2
appeal from the single justice's order is now before us.2 This
appeal must be dismissed because the single justice's order is
interlocutory and, therefore, is not appealable as a matter of
right. No final appealable order or judgment disposing of the
petition for reinstatement has yet been entered. "As a general
rule, there is no right to appeal from an interlocutory order
unless a statute or rule authorizes it." Maddocks v. Ricker,
403 Mass. 592, 597 (1988).
Diviacchi has a choice. He may choose to provide the
information requested on the reinstatement questionnaire, or he
may maintain his objections to doing so. Regardless of the
choice he makes, it will be incumbent on the board to make
findings and recommendations to the court with respect to the
petition. S.J.C. Rule 4:01, § 18 (5). It may be that the board
is unable to recommend allowance of the petition if information
required by the questionnaire is not provided; that is a matter
for the board to decide, as to which we express no view at this
interlocutory juncture. Once the board makes its findings and
recommendation, the single justice then will be in a position to
decide whether Diviacchi has met his "burden of demonstrating
that he . . . has the moral qualifications, competency and
learning in law required for admission to practice law in this
Commonwealth, and that his or her resumption of the practice of
law will not be detrimental to the integrity and standing of the
bar, the administration of justice, or to the public interest."
Id. Any party aggrieved by the single justice's final decision
on the matter will be entitled to appeal at that point in
accordance with the applicable rules, and it is at that point --
after a final appealable decision on the petition has been
rendered -- that the full court will be in a position to decide
all issues regarding reinstatement, including, if it comes to
pass and remains relevant, Diviacchi's objection to providing
information required by the questionnaire. See S.J.C. Rule
4:01, § 18 (8).
Appeal dismissed.
The case was submitted on the papers filed, accompanied by
a memorandum of law.
2 Diviacchi has filed a preliminary memorandum and appendix
pursuant to S.J.C. Rule 2:23, as appearing in 471 Mass. 1303(2015). The rule is inapplicable here, since Diviacchi is not
seeking relief from a final order or judgment of a single
justice on the petition for reinstatement.
3
Valeriano Diviacchi, pro se.