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SJC-11890

IN THE MATTER OF RICHARD S. WEISS.

March 17, 2016.

Attorney at Law, Suspension, Reinstatement.

The petitioner, Richard S. Weiss, appeals from the judgment 

of a single justice of this court denying his petition for 

reinstatement to the bar. We affirm.

After Weiss "stipulated to facts warranting the conclusion 

that he violated the applicable disciplinary rules," see Matter 

of Weiss, 460 Mass. 1012, 1013 (2011), he was suspended from the 

practice of law for one year and one day, effective May 20, 

2011. His first petition for reinstatement was denied by a 

single justice of this court in 2013, and he was given leave to 

reapply for reinstatement on or after January 1, 2014. See 

S.J.C. Rule 4:01, § 18 (8), as appearing in 453 Mass. 1315 

(2009). He filed a second petition for reinstatement on June 

25, 2013. The single justice denied the petition without 

prejudice to filing a new petition on or after January 1, 2014. 

The petition he filed thereafter, his third, is the subject of 

this appeal.

On October 23, 2014, a hearing committee of the Board of 

Bar Overseers (board) held a hearing, at which Weiss was 

represented by counsel, on his third petition. The committee 

issued a report on December 2, 2014, setting forth its findings 

and recommending that the petition for reinstatement be denied. 

On February 22, 2015, the board voted unanimously to adopt the 

report of the hearing committee and its recommendation that the 

petition be denied. A single justice of this court reviewed the 

record before the hearing committee and the board, concluded 

that there was substantial evidence to support the findings, and 
2

denied the petition for reinstatement.1 The case is now before 

us on Weiss's preliminary memorandum, pursuant to S.J.C. Rule 

2:23 (b), 471 Mass. 1303 (2015). That rule requires an 

appellant to

"set forth the relevant background and summarize the 

appellant's arguments on appeal, with citations to 

applicable authority. It is incumbent on the appellant to 

demonstrate in this memorandum that there has been an error 

of law or abuse of discretion by the single justice; that 

the decision is not supported by substantial evidence; that 

the sanction is markedly disparate from the sanctions 

imposed in other cases involving similar circumstances; or 

that for other reasons the decision will result in a 

substantial injustice."

Id. Weiss has failed to meet this burden. He has demonstrated 

none of the bases for reversal identified in the rule. The 

argument made in his memorandum is essentially that the single 

justice's probing questions of bar counsel at the hearing before 

him indicated that the single justice may have been inclined to 

grant reinstatement, yet ultimately did not do so, and that this 

somehow constitutes reversible error; alternatively, Weiss 

argues, the full court, with the single justice included, should 

review the matter anew. Neither position has merit or satisfies 

the letter or the spirit of the rule.

An attorney seeking reinstatement after suspension of more 

than one year has "the burden of demonstrating that he or she 

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." S.J.C. 

Rule 4:01, § 18 (5), as appearing in 453 Mass. 1315 (2009). See 

Matter of Hiss, 368 Mass. 447, 456, 460 (1975). See also Matter 

 

1 The single justice correctly recognized in his memorandum

of decision that the board's recommendation is entitled to 

substantial deference. The subsidiary findings of the hearing 

committee, as adopted by the board, "shall be upheld if 

supported by substantial evidence," see S.J.C. Rule 4:01, 

§ 18 (5), as appearing in 453 Mass. 1315 (2009), and the hearing 

committee's ultimate "findings and recommendations, as adopted 

by the board, are entitled to deference, although they are not 

binding on this court." Matter of Ellis, 457 Mass. 413, 415 

(2010). See Matter of Hiss, 368 Mass. 447, 461 (1975).
3

of Fletcher, 466 Mass. 1018, 1020 (2013), cert. denied, 135 

S. Ct. 80 (2014). In this case, the hearing committee, as the 

fact finder, heard the testimony, observed the witnesses 

(including the petitioner), and thoroughly considered the 

evidence. Its findings, which were amply supported by the 

evidence, were adopted by the board. Although the committee did 

"not doubt the sincerity of the petitioner's desire to return to 

practice," it was not persuaded that Weiss

"has attained a sufficient understanding of the basis for 

his discipline to support true rehabilitation, and to avoid 

repeating his misconduct. The [committee] is also 

concerned by the petitioner's inability to recollect much 

about his prior disciplinary history and patterns of denial 

concerning the disciplinary history he did remember. 

Finally, we are not persuaded that the petitioner has 

sufficiently maintained his learning in the law."

In these circumstances, duly taking into account the findings 

and recommendations of the committee and the board, the single 

justice properly denied reinstatement.

"Unlike nearly all other States, which require that 

judgment in bar discipline cases shall be by the full court, we 

in this Commonwealth use the single justice system in such 

cases." Matter of Alter, 389 Mass. 153, 156 (1983). We review 

the single justice's decision (on issues other than the initial 

choice of a sanction at the disciplinary stage) to determine 

whether there has been an abuse of discretion or clear error of 

law. See Matter of McBride, 449 Mass. 154 (2007); Matter of 

Cobb, 445 Mass. 452, 466, 475 (2005). While we share the single 

justice's stated concern in this case that bar counsel may have 

been attempting to use the reinstatement process to some extent 

"to extract further punishment for past acknowledged and 

sanctioned misconduct," which would have been improper, we find 

no error in the single justice's ultimate ruling that the 

hearing committee's and board's findings, report, and 

recommendation reflect a "careful consideration of the matter" 

and support the denial for reinstatement. The petitioner has 

not shown otherwise in his memorandum.

Further, "review by the full court, on appeal from the 

single justice's judgment, must be by a standard which promotes 

even-handed results in such cases. Accordingly, we think that 

the full court, in reviewing any disciplinary decision, should 

inquire whether the judgment is markedly disparate from those 

ordinarily entered by the various single justices in similar 
4

cases." Matter of Alter, 389 Mass. at 156. Cf. Matter of 

Cappiello, 416 Mass. 340, 343 (1993) (evaluating circumstances 

attendant to reinstatement of similarly situated attorneys); 

Matter of Allen, 400 Mass. 417, 422 (1987) (same). Where, as 

here, a petitioner has failed to demonstrate the conditions 

predicate to reinstatement, a petition for reinstatement must be 

denied. See Matter of Waitz, 416 Mass. 298, 306-307 (1993). 

Contrast Matter of Ellis, 457 Mass. 413 (2010). There was 

therefore no marked disparity in the single justice's denial of 

the petition.

As the single justice observed, this is not an easy case. 

The petitioner, who was suspended for one year and one day, has 

not practiced law since May, 2011. As the hearing committee 

recognized, he has a sincere desire to return to practice. The 

focus of reinstatement proceedings, however, is on the 

"integrity and standing of the bar, the administration of 

justice, [and] the public interest," S.J.C. Rule 4:01, § 18 (5), 

rather than on a petitioner's private interests. See Matter of 

Fletcher, 466 Mass. at 1020. Neither the hearing committee, nor 

the board, nor the single justice was satisfied that those 

interests would adequately be protected if the petitioner were 

reinstated, on this record, at this time.

Judgment affirmed.

The case was submitted on briefs.

Richard S. Weiss, pro se.