No. 23-8019

In RE: JAMES HAYES,

Respondent.

ON ORDER TO SHOW CAUSE WHY RECIPROCAL DISCIPLINE SHOULD NOT BE IMPOSED

Before

Barron, Chief Judge, Thompson and Gelpí, Circuit Judges.

Edward R. Wiest for respondent.

August 13, 2024 Per Curiam. On June 30, 2020, Massachusetts Bar Counsel filed a four-count petition for discipline with the Massachusetts Board of Bar Overseers (the "Board") against attorney James Hayes. The petition accused Hayes of "fraud," "violation of court orders," "mishandling and misusing client funds," and "additional dishonest conduct," in connection with his representation of a former client who, to avoid paying child support, had concealed funds that he obtained by purchasing a winning lottery ticket.

The petition was referred to a hearing committee of the Board. The hearing committee found that each count had merit and recommended that Hayes be disbarred from the practice of law before Massachusetts state courts. Hayes appealed that ruling to the Board, which affirmed the hearing committee's conclusions. A single justice of the Massachusetts Supreme Judicial Court ("SJC") issued a decision agreeing with the Board and disbarring Hayes. Hayes thereafter appealed the single justice's decision. The SJC affirmed. In re Hayes, 220 N.E.3d 573, 582 (Mass. 2023).1

Upon receiving the judgment of disbarment from the SJC, this Court ordered Hayes to show cause why we should not order his disbarment in our Court as reciprocal discipline. Hayes responded and requested a hearing, which we granted. Hayes appeared through counsel. Cf. In re Williams, 398 F.3d 116, 119 (1st Cir. 2005)

1 Hayes then filed a motion for reconsideration, which was denied. In turn, the matter at the state level was closed.

- 2 - (per curiam) ("In addition to considering the state court record, this court will ordinarily afford the respondent attorney a hearing, if requested."); see also Fed. R. App. P. 46(b)(3) ("The court must enter an appropriate order after the member responds and a hearing is held, if requested.").

Hayes contends that less serious discipline than the SJC imposed in state court is warranted in our Court. He contends that, at most, a term suspension is warranted.

In assessing Hayes's position, we must "undertake an 'intrinsic consideration of the state record,'" although the "state court's substantive findings ordinarily are entitled to a high degree of respect." In re Williams, 398 F.3d at 118-19 (quoting Selling v. Radford, 243 U.S. 46, 51 (1917)). "[T]he ultimate decision of the state court as to the type and kind of discipline meted out is 'not conclusively binding' on this court." Id. at 118 (quoting In re Ruffalo, 390 U.S. 544, 547 (1968)). But, "[a]s a general rule, discipline similar to that imposed in the state court will be imposed in a reciprocal proceeding." In re Oliveras López de Victoria, 561 F.3d 1, 3 (1st Cir. 2009) (per curiam) (quoting In re Williams, 398 F.3d at 119). That is not the case, however, if we are persuaded:

1. that the procedure used by the other court was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

- 3 - 2. that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that this Court could not, consistent with its duty, accept as final the conclusion on that subject; or

3. that the imposition of substantially similar discipline by