Matter of Greene

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11935
MATTER OF EVAN A. GREENE.
December 2, 2016.
Attorney at Law, Disciplinary proceeding, Suspension.
The respondent attorney, Evan A. Greene, appeals from the
order of a single justice of this court indefinitely suspending
him from the practice of law.1 We affirm.
Background. Bar counsel filed an amended three-count
petition for discipline with the Board of Bar Overseers (board)
against the respondent arising out of his participation in
certain residential mortgage foreclosure "rescue transactions"
during 2005 and 2006. At the time, the respondent worked with
his father, Attorney Barry D. Greene, at a law firm specializing
in real estate transactions.2 Count one of the petition
described seven similar transactions. In each instance, a
mortgage broker referred to the Greenes a homeowner who had
either defaulted on a mortgage or was facing foreclosure, or
both, but who had substantial equity in the property. The
broker was paid a referral fee. The respondent (or his father)
arranged for financing to purchase the property, and then
entered into a purchase and sale agreement with the homeowner.
The respondent (or his father) also entered into a lease with
the former owner, whereby he or she could remain in the
1
This bar discipline appeal is subject to S.J.C. Rule 2:23
(b), 471 Mass. 1303 (2015). Pursuant to the rule, we dispensed
with oral argument, and we decide the case on the basis of the
materials filed by the respondent.
2
Barry D. Greene has been the subject of separate bar
disciplinary proceedings.
2
property, and a one-year option-to-repurchase agreement. In
most cases, the lease payments exceeded the amount of the
monthly mortgage payments. In addition, each option agreement
required the homeowner to pay a nonrefundable fee ranging from
$27,000 to $50,000. All of the homeowners defaulted on their
monthly payments; only one homeowner exercised the option to
repurchase.
According to the petition for discipline, the respondent
personally or through an associate made various
misrepresentations on mortgage applications; misrepresented the
terms of the transactions on HUD-1 settlement statements;
executed and delivered false documents to the lender; and failed
to notify the lender of the existence of the lease and option
agreements. The petition additionally alleged that, by
directing or permitting on more than one occasion an associate
attorney of his firm to represent the lender in a transaction in
which one of the Greenes was a borrower, without the lender's
consent, the respondent engaged in conflicts of interest.
Count two of the petition alleged that the respondent had
been convicted in the United States District Court for the
District of Massachusetts on twelve counts of violation of 12
U.S.C. § 2607(a) (real estate kickbacks and unearned fees)
arising from some of the same transactions.3 The twelve
convictions involved five of the seven transactions that were
the subject of count one. Count three of the petition for
discipline involved falsification of a HUD-1 statement to
include a fictitious fee.
After a hearing at which the respondent was represented by
counsel, a hearing committee of the board recommended that the
respondent be indefinitely suspended from the practice of law.
It also recommended that he be permitted to apply for
reinstatement nineteen months early, recognizing that he had
been temporarily suspended for just over nineteen months
following his criminal convictions.4 The respondent appealed to
3
Title 12 U.S.C. § 2607(a) provides, "No person shall give
and no person shall accept any fee, kickback, or thing of value
pursuant to any agreement or understanding, oral or otherwise,
that business incident to or part of a real estate settlement
service involving a federally related mortgage loan shall be
referred to any person."
4
The respondent was temporarily suspended during the period
of his incarceration, and for a number of months thereafter.
3
the board, and bar counsel cross-appealed. The board adopted
the hearing committee's report and recommendation, and filed a
corresponding information in the county court pursuant to S.J.C.
Rule 4:01, § 8 (6), as appearing in 453 Mass. 1310 (2009).
After hearing, the single justice concluded that the board's
findings were supported by substantial evidence. See id. He
ordered that the respondent be suspended from the practice of
law indefinitely, and that the respondent could "petition for
reinstatement nineteen months before he would otherwise be
entitled to apply for reinstatement under S.J.C. Rule 4:01, § 18
(2) (b)," as appearing in 453 Mass. 1315 (2009). The respondent
appeals to the full court, arguing that the sanction is too
harsh.5
Discussion. We review the disciplinary sanction imposed by
the single justice de novo, to determine whether it "is markedly
disparate from those ordinarily entered by the various single
justices in similar cases." Matter of Alter, 389 Mass. 153, 156
(1983). See Matter of Daniels, 442 Mass. 1037, 1038 (2004). We
consider the "cumulative effect of the several violations
committed by the respondent," Matter of Palmer, 413 Mass. 33, 38
(1992), and, like the single justice, we give "substantial
deference to the board's recommendation." Matter of Foley, 439
Mass. 324, 333 (2003). See Matter of Ellis, 457 Mass. 413, 415
(2010); Matter of Doyle, 429 Mass. 1013, 1013 (1999). In this
case, the board's recommendation of an indefinite suspension is
predicated primarily on the respondent's twelve criminal
convictions and his dishonesty with respect to four HUD-1 forms,
as well as on substantial aggravating factors that the board
took into account.
a. Criminal convictions. The respondent pleaded guilty to
twelve counts of violating 12 U.S.C. § 2607(a) by giving real
estate kickbacks to brokers and by giving and receiving fees to
or from individuals employed with mortgage broker entities. For
those convictions, he was sentenced to twelve months and a day
in prison, and fined $10,000. The board accepted the
committee's conclusions that the guilty pleas constituted
convictions under S.J.C. Rule 4:01, § 12 (1), as appearing in
425 Mass. 1313 (1997), and that the criminal acts "reflect[ed]
adversely on the lawyer's honesty, trustworthiness or fitness as
a lawyer in other respects." Mass. R. Prof. C. 8.4 (b), 426
Mass. 1429 (1998). It recommended a two-year suspension for the
5
In the county court, the respondent raised additional
claims that he does not press on appeal. We do not consider
them.
4
criminal conduct alone. The recommendation is warranted. The
respondent's criminal conduct occurred over the course of at
least ten months, involved twelve different transactions, and
resulted in twelve separate convictions, a prison sentence, and
a substantial fine. It is more egregious than the conduct in
Matter of Hochberg, 9 Mass. Att'y Discipline Rep. 165 (1993), a
case substantially relied on by the respondent. In Hochberg,
the respondent was convicted of a single count of accepting an
unearned fee, in violation of 12 U.S.C. § 2607(b), and was
sentenced to three years' probation. He was also required to
disgorge the $148,043.77 in kickbacks that he had received over
the course of several years. Pursuant to a stipulation, the
respondent was suspended for one year. In this case, there was
no stipulation as to sanction, and although there are certain
similarities with Hochberg, the respondent's multiple criminal
convictions, his incarceration, and the imposition of a fine
support the board's conclusion that the criminal conduct
established by the respondent's convictions was more egregious
than Hochberg's and, therefore, that a greater sanction is
appropriate.
Had the respondent's criminal misconduct been the only
basis for discipline (although, as set forth below, it was not),
we would be satisfied that a two-year suspension would be
comparable to other cases involving similar criminal
convictions. In Matter of Rendle, 5 Mass. Att'y Discipline Rep.
310 (1987), for example, the respondent was suspended for two
years following his conviction of aiding and abetting the
unlawful receipt of a gratuity, in circumstances wholly
unrelated to the practice of law. See Matter of Concemi, 422
Mass. 326, 330 (1996) (commission of criminal acts in connection
with practice of law considered in aggravation). In Matter of
Grew, 23 Mass. Att'y Discipline Rep. 232 (2007), the respondent
was suspended for one year following conviction on a single
count of misdemeanor insurance fraud, but the fraud was not
consummated and it occurred outside the practice of law. See
also Matter of Andrews, 21 Mass. Att'y Discipline Rep. 11 (2005)
(eighteen-month suspension, by stipulation, for two misdemeanor
convictions of conversion of public money); Matter of Tatel, 4
Mass. Att'y Discipline Rep. 138, 140 (1984) (imposing indefinite
suspension on attorney who pleaded guilty to three violations of
G. L. c. 268A, § 3 [a], prohibiting giving thing of value to
public official in exchange for official act).
b. HUD-1 violations. Although the respondent's criminal
convictions concerned kickbacks and unearned fees in some of the
same transactions described in count one of the petition, the
5
misconduct that is the subject of the remaining counts was
different and warrants additional discipline. The hearing
committee's findings, adopted by the board, establish that the
respondent violated multiple rules of professional conduct,
directly or through an associate attorney, by purchasing homes
from financially distressed homeowners, leasing the homes back
to the homeowners under oppressive terms, and intentionally
misrepresenting the terms of the transactions on HUD-1 forms.
The board additionally found that the respondent prepared or
caused to be prepared fraudulent documents four separate times,
and caused an associate attorney to make false certifications
three times. On account of this misconduct, the board
recommended a two-year suspension in addition to the two-year
suspension for the criminal misconduct.
Disciplinary decisions involving false or fraudulent HUD-1
statements are heavily dependent on their facts. For that
reason, attorneys have been disciplined with term suspensions
ranging from six months, Matter of Komack, 429 Mass. 1025
(1999), where a single transaction was involved, to two years,
Matter of Marks, 23 Mass. Att'y Discipline Rep. 438 (2008),
where four transactions were involved and aggravating factors
were present. In Matter of Foley, 26 Mass. Att'y Discipline
Rep. 199 (2009), an eighteen-month suspension was imposed where
the attorney and his subordinate executed false HUD-1 statements
in twenty-four transactions. We conclude that the respondent's
misconduct was more egregious than Foley's, because he was an
investor in the transactions and because the misrepresentations
were made to his firm's clients. Had the HUD-1 violations been
the only basis for discipline, we would be satisfied that a two-
year suspension is not markedly disparate from the sanctions
imposed in comparable cases.
c. Other factors. We have considered the respondent's
claims of mitigation, which include his payment of settlement
money (without an admission of wrongdoing) in an action brought
by the Attorney General; the absence of any prior record of
discipline; cooperation with bar counsel; and inexperience. For
the most part, these are the type of "typical" mitigating
circumstances that do not count in a respondent's favor. The
board correctly declined to weigh them in mitigation, and we do
as well. See Matter of Alter, 389 Mass. at 157 (typical factors
include satisfactory professional record; cooperation in
disciplinary proceedings; criminal proceedings and punishment;
and absence of resulting harm). We make two additional
observations. First, with respect to the respondent's
experience in the law, although he had been practicing law for
6
only about four years when the misconduct occurred, his
testimony was that he had seen "thousands" of closing documents
and had conducted "hundreds" of closings. He was not
inexperienced. Second, although the respondent asks that we
weigh in mitigation the payments he made to settle a lawsuit
brought by the Attorney General related to the respondent's
misconduct, we have said that payments made by a respondent
pursuant to a settlement agreement deserve little if any
consideration for bar discipline purposes. See Matter of
Libassi, 449 Mass. 1014, 1017 (2007) ("Recovery obtained through
court action 'is not restitution for purposes of choosing an
appropriate sanction'" [citation omitted]); Matter of Concemi,
422 Mass. at 330.
The board recommended a two-year suspension for the
misconduct underlying the respondent's criminal convictions
alone, and an additional two-year suspension for the multiple
HUD-1 violations. In addition, the board also took into account
the evidence of the aggravating factors in arriving at its over-
all recommendation of an indefinite suspension. With respect to
aggravating factors, the board credited the hearing committee's
findings that "the respondent's conduct . . . was 'motivated by
a desire to benefit himself financially; he took advantage of
unsophisticated, and vulnerable clients; he was experienced in
real estate law; and his testimony 'evinced a lack of candor.'"
Matter of Lupo, 447 Mass. 345, 354 (2006). These findings are
well supported by the evidence. The respondent engaged in
transactions with unrepresented homeowners on terms highly
unfavorable to them without advising them to seek independent
legal representation; failed to disclose adequately to the
homeowners the details and risks of the transactions; gave them
self-interested advice; and either failed to provide them with
the transactional documents or did not allow a sufficient time
for a meaningful review. He also failed to disclose to his
firm's lender clients his self-interest in the transactions.
The respondent, in short, abdicated his professional obligations
by engaging in "conduct that adversely reflects on his . . .
fitness to practice law." Mass. R. Prof. C. 8.4 (h). See also
Mass. R. Prof. C. 8.4 (c).
We give substantial deference the board's determination.
See Matter of Grella, 438 Mass. 47, 55 (2002). We accept the
board's recommendation of sanction in this case. Considering
all the circumstances, an indefinite suspension is appropriate
and "necessary to protect the public and deter other attorneys
from the same behavior." Matter of Concemi, 422 Mass. at 329.
See also Matter of Luongo, 416 Mass. 308, 312 (1993) (indefinite
7
suspension imposed where multiple violations involved, "two of
which standing alone call for a [term] suspension"). In the
ordinary course, a respondent who has been indefinitely
suspended may apply for reinstatement three months before the
expiration of five years from the effective date of the
suspension. See S.J.C. Rule 4:01, § 18 (2) (b). Mindful that
the respondent has already been suspended for nineteen months
(including the period when he was incarcerated), we also accept
the board's recommendation that he be permitted to apply for
readmission three years and two months from the effective date
of the indefinite suspension.
Conclusion. Not only did the respondent use his
professional training and experience to take advantage of
vulnerable homeowners in precarious financial positions, but he
also violated Federal law, concealed the nature of the
transactions from his lenders and his firm's clients out of a
self-interested motive, and engaged in repeated conflicts of
interest. Where the primary factor in attorney discipline is
"'the effect upon, and perception of, the public and the bar,'"
Matter of Kerlinsky, 428 Mass. 656, 664, cert. denied, 526 U.S.
1160 (1999), quoting Matter of Finnerty, 418 Mass. 821, 829
(1994), an indefinite suspension is the appropriate sanction.
See Matter of Crossen, 450 Mass. 533 (2008); Matter of Curry,
450 Mass. 503 (2009); Matter of Lupo, supra. The order of the
single justice indefinitely suspending the respondent from the
practice of law is affirmed. The respondent may apply for
reinstatement nineteen months before he would otherwise be
entitled to do so. See S.J.C. Rule 4:01, § 18 (2).
So ordered.
The case was submitted on the papers filed, accompanied by
a memorandum of law.
Evan A. Greene, pro se.