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SJC-12132

IN THE MATTER OF BARRY D. GREENE.

May 31, 2017.

Attorney at Law, Disciplinary proceeding, Suspension.

The respondent attorney, Barry D. Greene, appeals from the 

order of a single justice of this court suspending him from the 

practice of law for two years.1 We affirm.

Background. Bar counsel filed a petition for discipline, 

which was twice amended, with the Board of Bar Overseers (board) 

against the respondent arising out of his participation in seven 

residential mortgage foreclosure "rescue transactions" during 

2005 and 2006. At the time, the respondent worked with his son, 

attorney Evan A. Greene, at a law firm specializing in real 

estate transactions.2 See Matter of Greene, 476 Mass. 1006 

(2016). We previously described those transactions, and do not 

repeat that discussion here.3 Id.

 

1 This bar discipline appeal is subject to S.J.C. Rule 

2:23 (b), 471 Mass. 1303 (2015). Pursuant to the rule, we 

dispense with oral argument, and decide the case on the basis of 

the materials filed by the respondent.

2 Evan A. Greene was the subject of separate bar 

disciplinary proceedings. See Matter of Greene, 476 Mass. 1006 

(2016). We concluded in that case that an indefinite suspension 

was appropriate, based in part on twelve criminal convictions 

that are not here at issue.

3 We acknowledge the respondent's argument concerning the 

fact that the same assistant board counsel assisted the board's 

hearing committee at the disciplinary hearings conducted for him 
2

After a hearing, a hearing committee of the board concluded 

that the respondent made misrepresentations on mortgage 

applications in three matters, and falsely certified the 

accuracy of incomplete and misleading HUD-1 closing statements 

in four matters, in violation of Mass. R. Prof. C. 1.4 (a) and 

(b), 426 Mass. 1314 (1998); and Mass. R. Prof. C. 8.4 (c), 426 

Mass. 1429 (1998). In addition, the hearing committee concluded 

that by inducing an associate attorney to falsely certify the

accuracy of HUD-1 closing statements, the respondent violated 

Mass. R. Prof. C. 8.4 (a), 426 Mass. 1429 (1998); and he 

directly or indirectly caused false documents to be delivered to 

his lender clients and failed to notify the lenders of the 

leases and option agreements, in violation of Mass. R. Prof. C. 

1.4 (a) and (b), and Mass. R. Prof. C. 8.4 (a) and (c). The 

hearing committee also concluded that, by placing his own 

interests ahead of his lender clients' interests, and by 

assigning associate attorneys to close transactions affected by 

his own or his son's conflicts of interest, the respondent 

violated Mass. R. Prof. C. 1.7 (b), as amended, 430 Mass. 1301 

(1999), and Mass. R. Prof. C. 8.4 (a). In addition, the hearing 

committee concluded that the respondent's withholding of 

relevant information from one client and his failure to follow 

the client's closing instructions violated Mass. R. Prof. C. 

1.1, 426 Mass. 1308 (1998); Mass. R. Prof. C. 1.2 (a), 426 Mass. 

1310 (1998); and Mass. R. Prof. C. 1.3, 426 Mass. 1313 (1998). 

The hearing committee also determined that the respondent 

violated Mass. R. Prof. C. 8.4 (c) by "exploit[ing], through 

dishonest and deceitful means, vulnerable and uninformed 

individuals who were desperate to save their homes." Finally, 

the hearing committee found that, by commingling personal and 

trust funds, the respondent violated Mass. R. Prof. C. 1.15 (b), 

as appearing in 440 Mass. 1338 (2004).

The hearing committee declined to weigh in mitigation of 

sanction payments made in settlement of threatened litigation,

the absence of prior discipline over a substantial legal career,

 

and the separate disciplinary proceedings involving his son. 

The board found that the respondent waived any objection by 

failing to raise it before the hearing committee. Moreover, the 

respondent has not identified any evidence suggesting that 

assistant board counsel's presence influenced the hearing 

committee or prejudiced the respondent in any way, and he does 

not contend that the hearing committee's findings, which were 

adopted by the board, are not supported by substantial evidence. 

We do not address this argument further.
3

and the absence of harm to his own lender clients. It weighed 

in aggravation its finding that the respondent's conduct was 

motivated by pecuniary gain at the expense of vulnerable and 

unsophisticated individuals, and the breadth and scope of the 

transactions. It recommended that the respondent be suspended 

from the practice of law for two years. 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). The 

single justice ordered that the respondent be suspended for two 

years. The respondent appeals to the full court, arguing that 

the sanction is too harsh.4

Discussion. Because the respondent does not contest the 

misconduct, the only issue before us is whether the sanction 

imposed by the single justice "is markedly disparate from those 

ordinarily entered by the various single justices in similar 

cases." Matter of Alter, 389 Mass. 153, 156 (1983). Where, as

here, an attorney's misconduct spans multiple false HUD-1 

closing statements, the sanctions imposed generally have ranged 

between eighteen months and two years. See Matter of Alberino, 

27 Mass. Att'y Discipline Rep. 1 (2011) (stipulation to 

eighteen-month suspension for conduct involving three false HUD1 documents, with aggravating and mitigating factors);; Matter 

of Foley, 26 Mass. Att'y Discipline Rep. 199, 201-202 (2010) 

(eighteen-month suspension for false HUD-1 documents in twentyfour closings that were part of one large transaction in single 

day); Matter of Coppo, 26 Mass. Att'y Discipline Rep. 113 (2010) 

(stipulation to eighteen-month suspension, for preparation of 

three false HUD-1 documents and conflict of interest); Matter of 

Marks, 23 Mass. Att'y Discipline Rep. 438 442 (2007)

(stipulation to two-year suspension for misconduct in four 

transactions). In this case, the respondent's misconduct 

additionally involved multiple conflicts of interest motivated 

by self-interest or selfish motive. See, e.g., Matter of Pike, 

408 Mass. 740, 745 (1990) (six-month suspension for attorney who 

had "direct financial interest" in transaction, with resulting 

prejudice to client); Matter of Tobin, 7 Mass. Att'y Discipline 

Rep. 290, 294-295 (1991) (one-year suspension for "glaring" 

conflict of interest involving assisting client to perpetuate 

fraud and take advantage of unsophisticated homeowner). We 

consider the misconduct in this case to be more egregious than 

 

4 Although the respondent appeared and argued at a hearing 

before the single justice, he did not file a brief. We do not 

consider on appeal issues or arguments that were not raised 

before the single justice.
4

in Matter of Foley, supra, because multiple transactions were 

involved over a substantial period of time, the transactions

gave rise to conflicts of interest motivated by pecuniary selfinterest, the respondent "was an investor in the transactions[,] 

and . . . the misrepresentations were made to his firm's 

clients." Matter of Greene, 476 Mass. at 1009 ("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"). In addition, 

the board found that he commingled personal funds with client 

trust funds. In the circumstances, the single justice's 

determination that a two-year suspension is appropriate is not 

markedly disparate from the sanctions imposed in comparable 

cases.

Like the single justice, the board, and the hearing 

committee, we have considered the factors proposed in mitigation 

or aggravation of sanction. We agree that the respondent's age 

and the absence of prior discipline are "typical" mitigating 

circumstances that do not weigh in mitigation of sanction. See 

Matter of Alter, 389 Mass. at 157. Likewise, although the 

respondent may have obtained favorable results for the one 

homeowner who exercised the repurchase option, that is, as the 

single justice concluded, an "ordinary result expected of a 

reasonably competent attorney," not a factor to be considered in 

mitigation. Finally, making payments in settlement of 

threatened litigation after the commencement of these 

disciplinary proceedings neither evidences remorse nor, in these 

circumstances, factors into determining the appropriate 

sanction. 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]).

Conclusion. 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). In this case, the respondent used his considerable 

experience in the practice of law to implement a series of 

transactions designed to take advantage of vulnerable homeowners 

in precarious financial positions, concealed the nature of the 

transactions from his lender clients out of a self-interested 

motive, and engaged in multiple conflicts of interest. Giving 

"substantial deference to the board's recommendation," Matter of 

Foley, 439 Mass. 324, 333 (2003), we conclude that a two-year 
5

suspension from the practice of law is warranted. The order of 

the single justice is therefore affirmed.

So ordered.

The case was submitted on the papers filed, accompanied by 

a memorandum of law.

Barry D. Greene, pro se.