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Commonwealth of Massachusetts

No. BD-2000-028

IN RE: BARRY R. WEENER

S.J.C. Order of Term Suspension entered by Justice Spina on June 30, 20001

SUMMARY2

The respondent was suspended for a year and a day for his conduct in three unrelated matters.

Count One of the petition for discipline arose from Bar Counsel's receipt in September 1997 of a notice of dishonored check from the bank in which the respondent maintained his IOLTA account. The respondent in fact held very little by way of client funds and, during the period in question, the IOLTA account was used fairly minimally for the deposit of retainers and advances for costs. However, the respondent did not keep track of receipts or disbursements, did not maintain individual client ledgers, did not do the arithmetic in the check register or maintain a running balance, and did not reconcile the account. He also occasionally paid costs from the IOLTA account that were unsupported by advances from clients and it was this practice that caused the return of the check that was reported to Bar Counsel. In addition, the respondent failed in late 1997 to respond to Bar Counsel's inquiries in this matter, necessitating the issuance of a subpoena in January 1998 to compel his appearance.

The respondent's inadequate record keeping in Count One was conduct in violation of DR 9-102(A) and (B)(3). The respondent's failure to cooperate was conduct in violation of Supreme Judicial Court Rule 4:01, §3, Mass. R. Prof. C. 8.4(d) and Canon One, DR 1-102(A)(5).

The other two cases involve neglect of clients' cases. In Count Two, the respondent was retained to represent a father in a custody matter. The client had temporary custody of his daughter but the matter was scheduled for review in Probate Court. The respondent did not appear for the court date on February 1998 and the judge ordered that custody be returned to the mother at the end of the school year. Despite promises to the client that he would attempt to return the matter to court, the respondent never filed a motion for reconsideration or otherwise took any action to correct his error. By April 1998 when nothing had been done, the client sought return of his file. The respondent did return the file in May 1998, after a complaint had been filed with Bar Counsel in late April 1998 and Bar Counsel directed the respondent to provide the file to the client. However, the respondent did not otherwise answer the complaint or reply to Bar Counsel's inquiries until after the Supreme Judicial Court upon petition by Bar Counsel entered an order of administrative suspension. After the answer was received, the respondent was reinstated to practice.

The respondent's neglect of the client's legal matter in Count Two, his failure to act with promptness and diligence in completing his undertaking on behalf of his client, his failure to communicate adequately with the client, and his failure to timely return the client's file is conduct in violation of Mass. R. Prof. C. 1.3, 1.4, and 1.16(e). The respondent's failure to cooperate with Bar Counsel is conduct in violation of Supreme Judicial Court Rule 4:01, §3 and Mass. R. Prof. C. 8.4(d).

In Count Three, the respondent was paid by a mother in 1997 to pursue a name change for a child. He filed the necessary Probate Court complaint and served the citation as required. However, despite repeated inquiries from the client in 1997 and 1998, he failed to return the citation to the Court. During this time period, the respondent moved his office on several occasions and the client's file remained in a moving box. A year later, the client filed a complaint with Bar Counsel. The respondent again did not respond to Bar Counsel's inquiries until after a subpoena issued. The respondent appeared pursuant to the subpoena in April 1999. Thereafter, he located the client's file, filed the return of service, and obtained the issuance of an order of name change on May 7, 1999. The matter thus was not finally completed until May 1999, two years after the respondent was hired.

The respondent's neglect of the client's legal matter in Count Three, his failure to act with promptness and diligence in completing his undertaking on behalf of his client, and his failure to communicate adequately with the client is conduct in violation of Mass. R. Prof. C. 1.3 and 1.4 and Canon Six, DR 6-101(A)(3). The respondent's failure to cooperate with Bar Counsel is conduct in violation of Supreme Judicial Court Rule 4:01, §3, Mass. R. Prof. C. 8.4(d) and Canon One, DR 1-102(A)(5).

In aggravation, the respondent has been disciplined twice previously. A 1996 admonition, like two of the current cases, arose from neglect of a client matter and failure to cooperate with Bar Counsel. An earlier informal admonition from 1992 involved failure to cooperate with Bar Counsel, as well as failure to obey a court order for payment of a small claims judgment against him such that a capias issued. In both prior disciplinary cases, like the current matters, the respondent had to be subpoenaed by Bar Counsel before he replied to the complaints.

The petition for discipline was filed with the Board of Bar Overseers on February 18, 2000. The respondent failed to answer the petition as required and the allegations were therefore deemed admitted pursuant to Supreme Judicial Court Rule 4:01, §8(3) and Sections 3.15(e) and (f) of the Rules of the Board of Bar Overseers. On May 8, 2000, the Board voted to recommend to the Court that the respondent be suspended for a year and a day. The respondent assented to the Board's recommendation on June 21, 2000 and the Court ordered the respondent suspended for a year and a day on June 30, 2000.

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 Compiled by the Board of Bar Overseers based on the record before the Court.



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