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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.
