Sorry I spoiled the ending of the Netflix docuseries in the headline, but…screw it.

If you haven’t seen the show by now, “American Nightmare” is about a young couple who experience a home invasion one night. The boyfriend wakes up with goggles taped over his eyes and his girlfriend is missing.

Over the next few days there is a media frenzy claiming the boyfriend killed her. Then the media craze turns on the girl and claims she staged her kidnapping.

She returns seemingly unscathed but tells this elaborate story about how she was kidnapped by a rather polite kidnapper who then repeatedly sexually assaulted her.

Neither the media, nor the cops, believed her…Anyway, turns out she was telling the truth.

A Harvard-educated ex-lawyer in California named Matthew Muller, had snuck into multiple women’s homes and sexually assaulted them in the weeks and months leading up to this kidnapping.

With some women, he’d back out mid assault and apologize for causing any trauma…

So, he was… comparatively a very polite sexual assailant. Not that that says anything.

On the Massachusetts sexual registry board he’d certainly be classified as a level 3 offender (the highest.)

And, I wouldn’t be surprised if MA tried to have him committed indefinitely as a “sexually dangerous person.”

Why Was Matthew Muller Disbarred?

Now I know many questions were left unanswered in this show, but obviously the top question on everyone’s mind is… “why was Muller disbarred?”

I mean they just mention that he was disbarred but the show never explores in detail the actual reasons that he was disbarred!

So I’ll tell you.

But first, let me start with some background.

Lawyer Ethics

Lawyers are bound to ethical rules. Generally, most states model their ethics rules after the ABA’s model rules.

Some states vary slightly in the rules, for example in MA you can’t approach someone who “reasonably needs a lawyer” – (e.g. someone who just got into a car accident on the highway) and hand them your card. It’s called “solicitation.” But in PA you can do things like that – a more realistic example would be searching for people who recently got into accidents on social media and privately messaging them.

So every state is different.

The rules really just say be honest, be prompt, don’t steal, don’t lie, and don’t solicit business.

There are so many nuances in the rules though, that… it’s really hard to remember every little provision and comment and revision, etc.

But most lawyers have a sense of when to check the rules.

If a client has inquired about something and you encounter an issue that seems a tad sketchy, then you check the rules…

Legal Punishment

If you do something wrong as a lawyer, you can get disbarred.

Keep in mind, being disbarred is the WORST punishment, it’s like the death sentence to being a lawyer.

There are many different forms of punishment that will come before the Board of Bar Overseers will consider disbarment (depending on the facts.) The BBO, or the Board of Bar Overseers, in Massachusetts… is a volunteer group that serves as a tribunal (or a court), where prosecutions for legal misconduct brought by the Office of the Bar Counsel are heard. In Connecticut, there is a similar structure, with different names.

But there are probably thousands of potential infractions every day. The Board can’t enforce everything and the Board doesn’t want to enforce everything. They’ve even said themselves that the rules do leave some reasonable leeway for the average blunders of real life. Meaning, lawyers aren’t perfect, and the Board isn’t going to just go around disbarring people for making honest mistakes where the public doesn’t benefit from seeing a lawyer’s life ruined.

Before even issuing any punishment at all, the BBO will consider many alternatives including a diversionary program, or lawyer probation.

Admonitions (like a criminal infraction)

Then, if the misconduct is serious enough, the BBO will consider an admonition, which doesn’t affect a lawyer’s right to practice but… declares his conduct as improper.You can read about all the BBO’s admonitions here.

Some examples include run of the mill negligence – missing court deadlines, not informing clients of certain issues, etc..

Conduct that definitely could piss a client off but nothing that would serve the public interest by disbarring the lawyer.

Admonitions aren’t nothing though, they may increase your cost of malpractice insurance, and they are considered aggravating factors if you ever have another complaint brought against you in the next 8 years.

Public Reprimand (kind of like a misdemeanor)

A step above that is a public reprimand where the BBO posts a public statement on the lawyer’s misconduct. This is bad for a lawyer, it goes on the internet and can ruin your reputation.

Suspension (jail time)

If a lawyer commits serious misconduct, he may get suspended for a period of time. MA diverts from the ABA model rules that recommend suspensions to last 3 – 6 months. In MA, the BBO is allowed to issue suspensions that are shorter than 3 months.

A lawyer can also get a “stayed” suspension which is basically like being on probation. You get to practice law, but if you screw up then you get suspended.

Disbarment (like the death sentence)

If the BBO recommends disbarment to the SJC and they agree, you’re career as a lawyer is over for at least the next decade.

Things that get people disbarred are stealing, lying, etc.

In MA, a big focus is on the issue of theft and fraud. Many disbarments come from intentional and fraudulent theft of client funds.

Disbarment lasts a minimum of 8 years, then you can try and get reinstated, sometimes with conditions.

OK, so what about Matt Muller?

Count 1
Matt Muller was charged with violating California ethic rule 3-110(A): “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence”

In MA, we don’t have this rule specifically, but we have a similar one 1.1: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

Typically in MA questions of competence are coupled with other complaints. A diligent attorney who tries hard and attends to affairs but makes a mistake will likely not receive discipline. Perhaps because of the scarcity of discipline based solely on Rule 1.1, neither the Board of Bar Overseers (BBO) nor the SJC has articulated a presumptive sanction for misconduct related to lack of competence. Many charges are coupled with neglect and other misconduct, and most have resulted in public reprimands.

In California, the competence rule Muller was charged with was definitely more serious than rule 1.1 in MA. Firstly, it specifies “intent” and “repeatedly.” Which makes it a more serious offense.

Muller had been hired by John Fitzgerald to get a green card for his minor son Thomas. Apparently Muller never acted on this.

Count 2

Rule 3-700(D)(2): Promptly refund any part of a fee paid in advance that has not been earned. This provision is not applicable to a true retainer fee which is paid solely for the purpose of ensuring the availability of the member for the matter.

Fitzgerald paid Muller $1,200. No work was done and he was never refunded.

In MA a similar rule would be 1.16(d), where lawyers have an obligation to refund an unearned fee.

Count 3

Business and Professions Code, section 61 Moral Turpitude:

This is a California law that prevents dishonesty in business.

Muller had lied to his client and told him that he filed for the greencard when he allegedly knew he did not.

Count 4

Business and Professions Code, section 6068(i)
[Failure to Cooperate in State Bar Investigation]

Muller failed to cooperate in the State Bar investigation, which is a violation of the rules.

Put it all together

If this happened in MA, and Muller did cooperate with the BBO, I don’t know if he’d be disbarred.

It’s his first offense, and though it involved some issues of dishonesty… I’m not sensing his conduct rose to the level of disbarment. Maybe, they’d suspend him for a long time, or maybe if he answered and had a defense they’d discover that he wasn’t intentionally misrepresenting to his client but there were other reasons based on common negligence.

But since he didn’t even cooperate, that is a big mitigating factor. It’s kind of like a big “eff you” to the bar.

If you need a lawyer call (860) 913 0210 or email dresslerjake@gmail.com