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revision and are superseded by the advance sheets and bound 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 twoyear 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 overall 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.