                                                                    Supreme Court




       In the Matter of Sean M. McAteer.                    No. 2017-126-M.P.



                                       ORDER

       This attorney disciplinary matter comes before us pursuant to Article III, Rule

6(d) of the Supreme Court Rules of Disciplinary Procedure for Attorneys. On April 4,

2018, the Disciplinary Board of the Supreme Court (the board) forwarded to us a decision

finding that the respondent, Sean M. McAteer, had violated the Supreme Court Rules of

Professional Conduct. The board has recommended that we impose a public censure as a

sanction for that misconduct. We directed the respondent to appear before the Court at its

conference on April 26, 2018, to show cause, if any, why he should not be disciplined.

Having heard the representations of the respondent, his attorney, and this Court’s

Disciplinary Counsel, we determine that cause has not been shown.

       The relevant facts, as presented to the board per an agreed statement of facts, are

as follows. In August 2015, Paul and Erin Ruggieri (the Ruggieris) entered into a

purchase and sale agreement to buy a parcel of real estate in Bristol, Rhode Island, owned

by the Sylvia E. Bray Revocable Trust. The property had been listed for sale with the

William Raveis real estate agency, and Teresa Pedro-Matrone (Matrone) was the

managing broker of the agency. The Ruggieris had provided a deposit in the amount of

$15,000, which had been deposited into the agency’s escrow account.


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        For reasons that are not germane to this disciplinary proceeding, the Ruggieris

decided not to proceed with the sale, and sought return of their deposit. When the deposit

was not forthcoming, the Ruggieris retained respondent, a member of the bar of this state,

to attempt to recover the deposit on their behalf.

        On October 17, 2015, respondent filed a civil action in the Providence County

Superior Court seeking recovery of the deposit. The named defendants in that action

were Sue Reynolds and Elaine Grady, co-trustees of the Sylvia E. Bray Revocable Trust,

and Matrone. 1 On November 6, 2015, the Ruggieris and the sellers entered into a

settlement agreement. Pursuant to that settlement agreement, the $15,000 deposit was

released from the William Raveis account and returned to the Ruggieris. As part of the

settlement agreement, respondent prepared a “Release of All Claims,” pursuant to which,

in return for receipt of the funds, the Ruggieris released any and all claims they may have

regarding the sellers and “their agents[,] employees, partners, representatives, successors,

businesses, heirs and assigns” from any and all claims that were the subject of the

litigation. The Ruggieris executed the release, and received their funds, less respondent’s

legal fee of $5,000. Matrone was aware of the settlement, but was not a signatory to the

release.

        The Ruggieris did not feel they had been fully compensated, as they had incurred

a legal fee to obtain the return of their deposit. They discussed with respondent what

further actions may be available to them to secure complete recovery of their funds. It

was at this point that respondent began a course of conduct that directly led to these

disciplinary proceedings.


1
 The William Raveis agency was not named as a defendant, even though the deposit was being held in the
agency escrow account.
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       Matrone had not filed an answer in the civil action. Well aware that the $15,000

deposit had been returned, and even though respondent had prepared the settlement

release which applied to the sellers and their agents (Matrone was at all times acting as

the sellers’ agent), respondent sought and obtained a default judgment against Matrone

on November 12, 2015. On December 18, 2015, he filed a motion for an oral proof of

claim, with a hearing date of January 22, 2016.           However, in his pleading he

misidentified Matrone, and the notice was forwarded to the wrong address. Matrone did

not receive the motion or notice of the hearing date.

       On January 22, 2016, respondent and Paul Ruggieri appeared before a hearing

justice on the scheduled motion. Matrone was not present. At the beginning of the

hearing the justice specifically inquired of the respondent: “Are the defendants in

default?” The respondent did not advise the court that his clients had previously received

the return of their deposit. Rather, he responded: “Yes, your honor. There’s only one we

are seeking relief against here.”

       The court heard the testimony of respondent’s client. The respondent elicited

testimony that Matrone did not refund the $15,000 deposit. However, he did not ask his

client if the deposit had been returned by anyone else. He further asked his client: “[A]re

you asking this Court for the entry of default judgment against her for that amount,

$15,000, plus interests and costs?” The client answered: “Correct.”

       Unaware that the $15,000 deposit had been returned, the hearing justice entered a

judgment against Matrone for return of the $15,000, plus statutory interest, costs, and an

attorneys’ fees award. Matrone became aware of the judgment when she was served with

an execution. On her behalf, the William Raveis agency obtained legal counsel, and on

March 31, 2016, respondent consented to an order vacating the judgment against
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Matrone. On October 7, 2016, the civil action against Matrone was voluntarily dismissed

with prejudice, and with no judgment, interest or costs.

       On January 6, 2017, Matrone filed a complaint with Disciplinary Counsel. The

respondent was fully cooperative with counsel’s and the board’s investigation. The board

filed formal charges against respondent, which he did not contest. After a hearing, the

board concluded that respondent had violated several of the Rules of Professional

Conduct in his pursuit of a judgment against Matrone after his clients had executed a

release of all claims and received the return of their deposit. We will address each of

those findings in the sequence presented by the board.

       First, the board concluded that respondent violated Rule 3.1, entitled “Meritorious

claims and contentions.” That rule provides, in pertinent part: “A lawyer shall not bring

or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in

law and fact for doing so that is not frivolous, which includes a good faith argument for

an extension, modification or reversal of existing law.” The respondent was or should

have been well aware that any claims his clients may have had against Matrone were

extinguished upon the negotiated settlement, the return of the Ruggieris’ deposit, and the

execution of the release. The respondent had no good-faith basis for pursuing further

actions against Matrone, and his actions were frivolous.

       Second, the board concluded that respondent violated Rule 3.3, entitled “Candor

toward the tribunal.”    Specifically, respondent’s conduct was in violation of Rule

3.3(a)(1) which provides: “A lawyer shall not knowingly * * * make a false statement of

fact or law to a tribunal * * *.” The hearing justice inquired of respondent whether the

defendants were in default, and he falsely answered “Yes,” when he knew that the deposit


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had been returned. The respondent’s qualification that the Ruggieris were only seeking

default against Matrone did not cure that misrepresentation.

       Additionally, the hearing before the justice was an ex parte proceeding, as

Matrone was not present. The Rules of Professional Conduct do not allow an attorney to

take advantage of an absent party by being less than truthful with a court. Section (d) of

Rule 3.3 provides: “In an ex parte proceeding, a lawyer shall inform the tribunal of all

material facts known to the lawyer that will enable the tribunal to make an informed

decision, whether or not the facts are adverse.” The respondent clearly owed a duty of

zealous representation to his client. However, he also had a duty to inform the court in an

ex parte proceeding of all material facts, even those adverse to his clients. In this matter,

the court was clearly misled to believe that the Ruggieris had not received a refund of

their deposit, when that was not the case.

       The board found many mitigating factors that impacted the severity of the

recommended sanction. The respondent has been a member of the bar for 27 years. He

has appeared before virtually all of the tribunals in this state, and this is his first

disciplinary infraction. He has performed a significant amount of pro bono and reduced-

fee work for clients with the need, but without the means, for legal services. He has a

reputation for honesty and courtesy in his dealings with the courts and with his peers.

Additionally, he was fully cooperative in the disciplinary proceedings, recognized his

misconduct, and accepted the consequences for his actions. After considering the agreed

statement of facts and the significant mitigating factors, the board recommended that a

public censure is appropriate in these proceedings.

       After review of the board’s findings and recommendation, we concur with the

board. We are deeply troubled by the respondent’s lack of candor in this matter. We
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have previously suspended attorneys from the practice of law for making

misrepresentations to a court. See In re Vigue-Thurston, 143 A.3d 1080 (R.I. 2016)

(sixty-day suspension); In re Gelfuso, 108 A.3d 208 (R.I. 2015) (thirty-day suspension).

However, we believe the respondent has presented sufficient mitigating factors to warrant

a departure from the severity of sanctions imposed in similar cases. In addition, we

believe that the respondent is truly remorseful for his conduct, and that he is not likely to

engage in similar acts in the future.

       Accordingly, the respondent, Sean M. McAteer, is hereby publicly censured.



       Entered as an Order of this Court this 17th day of May, 2018.



                                                      By Order,



                                                      ____________/s/________________

                                                                   Clerk




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STATE OF RHODE ISLAND AND                                      PROVIDENCE PLANTATIONS



                        SUPREME COURT – CLERK’S OFFICE

                                 ORDER COVER SHEET

Title of Case                        In the Matter of Sean M. McAteer.
                                     No. 2017-126-M.P.
Case Number
                                     May 17, 2018
Date Order Filed
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices                             Indeglia, JJ.

                                     N/A
Source of Appeal
                                     N/A
Judicial Officer From Lower Court

                                     For Petitioner:

                                     Barbara Margolis
Attorney(s) on Appeal
                                     Office of Disciplinary Counsel

                                     For Respondent:

                                     Joseph J. Altieri, Esq.




SU-CMS-02B (revised November 2016)
