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Commonwealth of Massachusetts

NO. BD-2002-031

IN RE: DEMETRIOS G. KAFKAS

S.J.C. Order of Contempt entered by Justice Spina on May 9, 2007.1

FINDINGS AND RULINGS ON BAR COUNSEL'S PETITION FOR CONTEMPT

Bar counsel filed a petition requesting that the respondent, Demetrios G. Kafkas, be adjudged in contempt of the order of this court, entered June 10, 2002, suspending him from the practice of law for a period of two years. Bar counsel alleges that the respondent engaged in the practice of law after he was suspended and before he was reinstated. Under paragraph one of the June 10, 2002, order, the respondent was ordered not to "accept any new retainer or engage as lawyer for another in any new case or legal matter of any nature." Bar counsel also asks that I find that the respondent has violated Supreme Judicial Court Rule 4:01, § 17 (3), (7), by engaging in the practice of law, or by performing paralegal work, while he was suspended and before being reinstated to the practice of law.

The parties agreed that the seventeen (17) exhibits filed by the respondent on May 3, 2007, and exhibits B, C, and D attached to bar counsel's petition for contempt, would become exhibits in the trial on the contempt petition. There is no question as to the terms on May 3, 2007, and exhibits B, C, and D attached to bar counsel's petition for contempt, would become exhibits in the trial on the contempt petition. There is no question as to the terms of the order of suspension entered June 10, 2002, or that the respondent had been notified of that order for purposes of the contempt trial. Two witnesses testified at the trial, namely, the respondent, and Nikolas Mastorogiannakis. After trial, I find the following facts.

The respondent was suspended from the practice of law by order entered June 10, 2002. Paragraph one of that order prohibits the respondent from accepting any new retainer or engaging as lawyer for another in any new case or legal matter of any nature. In addition, S.J.C. Rule 4:01, § 17 (3), (7), prohibits a lawyer suspended from the practice of law from engaging in the practice of law or performing paralegal work until such time as he is reinstated to the practice of law, or, in the case of paralegal work, until he shall have served a certain portion of his suspension and has been authorized by the court to perform paralegal work. The respondent, at all material times, knew of the terms of the court order suspending him from the practice of law, and he knew of the terms of Rule 4:01, § 17 (3), (7). He had applied for, but was denied, leave to be employed as a paralegal. He has not been reinstated to the practice of law.

On or about January 27, 2005, the respondent prepared, in his own handwriting, a complaint for divorce, a motion to file marriage certificate late, and a motion to vacate the marital home, to be signed and filed pro se by Nikolas Mastorogiannakis in the Probate and Family Court for Norfolk County. He prepared these papers for Mr. Mastorogiannakis.

The respondent's actions in preparing these documents constitute the practice of law. See Lowell Bar Ass'n v. Loeb, 315 Mass. 176, 183 (1943); Opinion of the Justices, 289 Mass. 607, 612 (1935) ("preparation of pleadings, process, and other papers incident to" proceedings in court lies within practice of law). See also In re Bonarrigo, 282 B.R. 101 (D. Mass. 2002) ("petition preparers" who advised clients as to relevant chapters of Bankruptcy Code assisted clients in categorizing debts and electing exemptions, and defining legal concepts for clients were engaged in practice of law). It is immaterial that the respondent may or may not have charged a fee, or that he was assisting a friend by ghostwriting his divorce papers. Matter of Ponn, 3 Mass. Att'y Disc. R. 171, 172 (1983). He became engaged as lawyer for another in a new matter after June 10, 2002. His actions also constitute the performance of paralegal work.

In order to establish contempt, bar counsel must show by a preponderance of the evidence the respondent's "clear and undoubted disobedience of a clear and unequivocal command." Nicholas v. Dowd, 342 Mass. 462, 464 (1961). Bar counsel has met her burden. The respondent engaged in the practice of law by preparing the three divorce papers for Mr. Mastorogiannakis. He became engaged as lawyer for another in a new matter after June 10, 2002, while he was under a court order specifically directing him not to do so. His actions were in clear and undoubted disobedience of a clear and unequivocal command.

In addition, the respondent's preparation of the three divorce papers for Mr. Mastorogiannakis violated rule 4:01, § 17 (3), (7), because such work constituted the practice of law while he was under an order of suspension and before he was reinstated, as well as the performance of paralegal work while under an order of suspension and without court approval.

Pursuant to the terms of S.J.C. Rule 4:01, § 17 (8), the respondent is hereby disqualified from reinstatement until after the expiration of at least two times the term of his suspension, measured from the date of this order. Stated otherwise, the respondent may not be reinstated until May 9, 2011.


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



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