Joseph P. Reilly

COMPLAINT
Joseph P. Reilly filed a complaint against Gwynne G. Zisko, Esq., on or about April 8, 2016. Reilly asserts that Zisko violated the Rules of Professional Conduct by serving a subpoena on his employer, the Plymouth County Sheriff’s Department. The details of the case relating to the subpoena will be discussed further on in this report. Within the complaint, Reilly alleges that Zisko has violated Mass.R.Prof.C. 3.4, as well as 4.4.
FACTS
The facts surrounding this case were obtained from both Reilly, and Zisko. It should be noted that Reilly failed to explain in his complaint how he was connected to the probate matter for which Zisko subpoenaed his employment records. The underlying matter that this complaint is related to is the “post-divorce case Elaine C. Menice vs. Jeffrey L. Menice, Plymouth Probate & Family Court Docket No. PL11D2044JP.”
On June 19, 2014, Zisko assisted her client, Jeffrey L. Menice in filing a Complaint for Modification. In reference to the Complaint for Modification, Reilly asserts that on or about September 14, 2015, Zisko served a subpoena on the Plymouth County Sheriff’s Department which was “frivolous and made in bad faith.” The subpoena, which Reilly provided with his complaint, demands “any and all employment records of your employee, JOSEPH

REILLY, deputy sheriff; including but not limited to: payroll/wage information including number of hours worked, hourly rate, bonuses, profit sharing and other compensation, employment benefits, health/dental/vision insurance, W-2 forms, personnel file including any evaluations, recommendations, disciplinary actions and reasons therefore, and employments applications from June 1, 2014 through the present.”
On September 18, 2015, General Counsel for the Sheriff’s Department Patrick Lee, Esq. informed Zisko that the Department would not comply with the subpoena; the grounds for objection are that “the material encompasses personnel/personal information because such is not subject to disclosure pursuant to G.L. c. 4 § 7(26)(a)(c); G.L. c. 66, § 10; G.L. c. 66A, § 2(c)(k); and G.L. c. 214, § 1B. As a result of Attorney Lee’s letter, the subpoenaed information was never provided to Zisko.
On April 26, 2016, bar counsel sent a page 6 letter to Zisko requesting that she respond to Reilly’s claim regarding the subpoena.

Zisko asserts that Reilly failed to mention to bar counsel that he is currently married to Elaine Menice, therefore due to the nature of their relationship she did have a right to obtain the requested records from the Sheriff’s Department. The post-divorce matter was in reference to child support, and was resolved shortly after the subpoena was issued. As a result of the matter being resolved Zisko didn’t obtain a court order to further pursue Reilly’s employment records. Zisko’s response will be discussed in more detail further on in this

report.
RESPONDENT’S ANSWER
According to Zisko the information she sought with the subpoena was relevant for several reasons. Zisko maintains that during the course of the case Reilly and Elaine Menice denied their new marriage on February 20, 2015, and failed to include Reilly on the financial statement forms under the “contributions from household member(s)” portion of the form. Zisko states “The income and assets of one spouse are relevant to the ability of the other spouse to use his or her own income and assets to satisfy a support obligation. See O’Meara v. Doherty, 53 Mass. App. Ct 599, 604 (2002).” As part of her page 6 response, Zisko included the financial statements, which are unsigned, but according to Zisko a properly executed copy was signed and provided to the court. At this time the documents are impounded, but Zisko felt it was essential to her defense to provide them to bar counsel. She has requested that they be shredded once our investigation is complete.
Additionally, Zisko reports that Reilly had exhibited odd behavior in the court, which led her to “question his fitness to act as the Menice children’s stepfather.” Therefore she felt compelled to also subpoena documentation from employment records that would shed light on Reilly’s personality. Zisko maintains that during one particular court date Reilly wore his sheriff’s uniform without his jacket, clearly showing his sidearm while in court and allegedly flexing his muscles, as well as glaring at Zisko’s client. In reference to this concern, Zisko explains that in these situations the best interest of the children should be examined, therefore “the best interests calculus must include an examination of the child’s relationship with both his legal and de facto parent.” (emphasis added) E.N.O. vs. L.M.M., 429 Mass. 824, 829 (1999).”
Zisko explains, “I thought his employment records would shed light on Joseph Reilly’s personality; and that his payroll information would indicate whether he should be considered a contributing member of the Plaintiff’s household. And this is why I sent the subpoena.”
DISCUSSION
Reilly failed to mention his relationship with Menice, and even went as far as to refer to himself as a “disinterested third party” in his complaint. I think it is fair to say that his representation of the facts is disingenuous. During the course of the investigation we were able to confirm that Reilly and Menice were in fact married on February 20, 2015; this date is well before Zisko subpoenaed Reilly’s employment records on September 14, 2015.
On August 8, 2016, bar counsel sent a letter to Reilly, allowing him the opportunity to explain his relationship with Menice; it was requested that Reilly respond to the inquiry by August 24, 2016. Although I think it is important to wait for Reilly’s response to bar counsel’s letter, it seems to me that this case should ultimately be closed, as his complaint doesn’t appear to have merit.
RESPONDENT’S HISTORY WITH THE OFFICE OF THE BAR COUNSEL
Attorney Zisko was admitted to the bar on December 21, 1987. In addition to this investigation, Zisko has two closed cases, and three ACAP calls. Once ACAP call is in reference to this investigation, and the other is in reference to one of the closed case. The third ACAP call appears to be a caller complaining about Zisko pursuing information via a subpoena and deposition. The caller believed that the behavior was harassment, and although the court appointed an attorney to be an intermediary between both parties that more should be done. It was recommended that the caller try to resolve this issue via the court since it was already an issue that was being addressed.
The two other cases also involved divorce matters as well, and one of the two involved allegations regarding the use of subpoenas. In that particular complaint, subpoenas had been issued for bank records, and depositions of the complainant’s family. While Zisko was unable to obtain bank records it appears that the she was within her right to interview the family members as the complainant had been uncooperative, and untruthful in his financial statements provided to the court.
It is concerning that several people have reached out regarding Zisko’s use of subpoenas; however it doesn’t appear as if there is evidence to support that she has violated the Massachusetts Rules of Professional Conduct in these situations. It is possible that the complaints are merely due to the fact that emotions run high in divorce cases.