October 17, 2011
Authored by: Luke Lantta
In a probate court case, attorney Richard S. Weiss was sanctioned by the court. Weiss was required to resign his appointment as guardian for an elderly woman, required to forgo fees that he claimed to have earned, and required to pay certain sums to the guardianship estate. Weiss had probably hoped that was the end of the fallout from the conduct that led to the sanctions. It was not. The Massachusetts Board of Bar Overseers had not yet weighed in . . . .In In re Weiss, the Massachusetts Supreme Judicial Court considered whether the probate court sanctions against Weiss could act as a bar to disciplinary proceedings taken by the Board of Bar Overseers against Weiss. They did not.
Weiss claimed that the conduct that gave rise to the Board of Bar Overseers’ disciplinary proceeding against him was the same conduct for which he had already been penalized by a probate court judge in a case that was pending there. Thus, Weiss claimed that res judicata required dismissal of the Board of Bar Overseers’ filing in a county court an information and record of formal disciplinary proceeding before the Board.
The probate court sanctions, however, did not bar later disciplinary proceedings on the grounds of res judicata. The bar counsel was not a party to the probate court case and could not have joined the probate court case because it had no standing to do so.
While the bar counsel and a guardian ad litem appointed in the probate court case to investigate Weiss’s conduct may have had the same interests, those similar interests did not create privity between them because they were merely two parties in two different suits who happened to be interested in proving or disproving the same facts.
The question of whether Weiss’s conduct as an attorney warranted professional discipline was not for the guardian ad litem to prosecute or even for the probate judge to adjudicate. That was the province of the Board of Bar Overseers, which suspended Weiss for his conduct.