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Commonwealth of Massachusetts

NO. BD-2002-037

IN RE: KENNETH F. D'ARCY

S.J.C. Order of Term Suspension entered by Justice Spina on July 26, 2002, with an effective date of August 25, 2002.1

SUMMARY2

In 1985, the respondent was appointed in the Suffolk Superior Court, pursuant to Superior Court Rule 53, to represent an 18-year-old defendant charged with kidnapping, rape, assault and battery with a dangerous weapon, and armed robbery. The client maintained his innocence of the charges against him.

The trial of the client’s case occurred in April 1986 and resulted in a verdict of guilty on all charges. On the day after the verdict, the judge imposed a sentence of 16 to 25 years in state prison. The respondent did not file a notice of appeal of the client’s conviction, nor did he file a withdrawal of his appearance on behalf of the client.

On August 9, 1990, the client wrote to the respondent from prison. In the letter, the client stated, “I am writing in regard to appealing my conviction in which you represented me back in 1985. At the present time I do not have a lawyer to represent me, seeing that you were appointed by the court to represent me back in 1985. I need to know if you filed for my appeal and transcripts so I can get this case moving forward.” This letter put the respondent on notice that the client wanted to appeal his conviction.

The respondent failed to take any steps to assist the client in pursuing an appeal. Instead, the respondent wrote to the client on September 6, 1990, stating: “I will be in position to go over my file with your new attorney who will be processing hopefully any appeal that you think you might have. Have him call to set up an appointment.” On December 7, 1990, the client wrote, “As I stated to you in my last letter, I do not have an attorney to represent me, and furthermore, I ask you again, if you filed my appeal and for my transcripts. . . . I would greatly appreciate it if you would contact me concerning what’s going on with my appeal and transcripts.” Although the respondent knew the client wanted to appeal his conviction and that no appeal had been filed, the respondent did not inform the client of that fact, nor did he take any steps to reinstate the appeal, order the transcripts of the client’s trial, or arrange for another attorney to be appointed to handle the client’s appeal.

In May 1991, the stenographic notes of the client’s trial were destroyed pursuant to S.J.C. Rule 1:12 because no one had requested that a transcript be prepared or that a court order the notes preserved. In 1996, the Committee for Public Counsel Services appointed a new lawyer to represent the client in his efforts to obtain an appeal of his conviction. Because the stenographic notes of the client’s trial had been destroyed in 1991, the new lawyer was unable to reconstruct what had occurred at the client’s trial, severely handicapping her ability to pursue an appeal on the client’s behalf.

The hearing committee found that the respondent violated Canon Six, DR 6-101(A)(2) (lawyer shall not handle a legal matter without adequate preparation), by failing to appreciate that the stenographic notes of the client’s trial would be destroyed six years after the trial pursuant to S.J.C. Rule 1.12 if a transcript had not been ordered. The respondent also violated Canon Six, DR 6-101(A)(3) (lawyer shall not neglect legal matter), and Canon Seven, DR 7-101(A)(3) (lawyer shall not intentionally prejudice or damage client during course of professional relationship), by failing to take any action to preserve the client’s appellate rights after receiving notice that the client wanted to appeal his conviction. For this misconduct, the committee recommended that the respondent be suspended from the practice of law for six months.

The Board of Bar Overseers adopted the report of the hearing committee and its recommendation for discipline. On July 26, 2002, the Court (Spina, J.) issued an order suspending the respondent from the practice of law for six months.

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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