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Commonwealth of Massachusetts

NO. BD-2002-061

IN RE: WILLIAM H. SHAUGHNESSY

S.J.C. Order of Contempt and Increased Suspension entered by Justice Sosman on June 30, 2005.

MEMORANDUM OF DECISION AND ORDER ON BAR COUNSEL'S PETITION FOR CONTEMPT

Bar Counsel has petitioned for an order of contempt on the ground that respondent, William H. Shaughnessy, engaged in the practice of law subsequent to the imposition of his suspension. For the following reasons, I find that the respondent has engaged in the practice of law during the time of his suspension; I therefore find him in contempt; and I order that he may not be reinstated until one year and two days from the date of this Order pursuant to S.J.C. Rule 4:01, §17 (8).

On June 10, 2003, respondent William Shaughnessy was ordered suspended from the practice of law for a period of one year and one day. At Shaughnessy's request, the effective date of the suspension was extended from July 10 to August 2, 2003. Shaughnessy appealed from the order, and the court vacated the original suspension order, directing that the term of suspension be six months and one day. Matter of Shaughnessy, 442 Mass. 1012 (2004). On August 27, 2004, judgment entered ordering a suspension of six months and one day, retroactive to August 3, 2003. To date, Shaughnessy has not satisfied the requirements for reinstatement (as he has not received a passing grade on the Multi-State Professional Responsibility Examination). See S.J.C. Rule 4:01, § 18(1) (b).

Bar Counsel's petition (supported by uncontested affidavits and exhibits) alleges that, subsequent to his suspension, Shaughnessy continued to hold and receive funds as a fiduciary; that he continued to represent a client (Deborah Hussey) in a medical malpractice claim and engaged in legal work in connection with that claim; and that he continued to represent another client (Patricia Clement) in connection with the resolution of a lien on proceeds that had previously been recovered.

It is undisputed that there was significant activity in Shaughnessy's IOLTA account for a protracted period after the effective date of his suspension. While this failure to close the account and finalize the disbursement of funds unquestionably constitutes a failure to comply with the court's order of suspension, the record is unclear as to precisely what these funds were, why they were not disbursed in a timely manner, etc.1 Moreover, unlike the other allegations in the petition for contempt, the mere holding of fiduciary funds beyond the deadline set by the suspension order would not automatically constitute the practice of law, and thus would not necessarily implicate the penalties prescribed by S.J.C. Rule 4:01, § 17 (8). Because the other violations established by the petition and supporting documentation do involve the practice of law and therefore trigger the § 17 (8) penalties, I need not separately address the allegations concerning Shaughnessy's failure to disburse and account for funds and failure to close fiduciary accounts within the time prescribed by the suspension order.

Shaughnessy began representing Deborah Hussey sometime prior to the June 10, 2003, order of suspension.2 By letter dated June 6, 2003, he requested her medical records from Winchester Hospital. The June 10, 2003, order of suspension required Shaughnessy to notify all clients of his disqualification, to advise them of the need to seek new counsel, and to advise them of any urgent matter affecting the case. It is apparent that Shaughnessy did not provide any such notice to Ms. Hussey.3 Instead, he proceeded to obtain her medical records; had correspondence in September and October, 2003, with Ms. Hussey concerning the records he received; made further record requests on Ms. Hussey’s behalf in December, 2003; sent them to an expert (a nurse practitioner) to obtain an opinion with respect to whether the standard of care was met; and communicated with Ms. Hussey in March, 2004, concerning the expert's preliminary opinion that the care had been substandard, asking Ms. Hussey for further information that the expert wished to have to further refine that opinion. Meanwhile, the statute of limitations on Ms. Hussey’s malpractice claim continued to tick, and no civil action had yet been filed. It is apparent from these materials that Shaughnessy was continuing to represent Ms. Hussey throughout this time, investigating and preparing her malpractice case as her lawyer. This is indisputably the practice of law in violation of the order of suspension.4

Long prior to his suspension, Shaughnessy had represented Patricia Clement in a personal injury matter, and had successfully obtained judgment and execution in the amount of $93,099 in October, 2002, with the defendant paying that judgment in full by January, 2003. However, during the pendency of the action, the Workers' Compensation Trust Fund (WCTF) had filed a notice of its $92,718 lien on the proceeds. For reasons that are unclear on this record, Shaughnessy, despite notice of that lien, had done nothing to satisfy it or resolve it for the next six months after he had collected on the underlying judgment. In July, 2003, shortly prior to the effective date of his suspension, Shaughnessy belatedly attempted to convince counsel for the Industrial Accident Board (Board) to agree to settle the $92,718 lien for $30,033, and sent the Board a check for that amount. By letter dated July 28, 2003, counsel for the Board rejected Shaughnessy's proffered check, indicating that they needed a written settlement agreement to review and approve. On July 31, 2003, Shaughnessy sent a proposed agreement, again accompanied by a check. On August 5, 2003 (three days after the effective date of his suspension), Shaughnessy sent Ms. Clement copies of his correspondence with counsel for the Board.5 His cover letter enclosing that correspondence was on stationery identifying him as an attorney ("Law Offices of William H. Shaughnessy"). Although Ms. Clement still needed ongoing legal services in connection with the resolution of the outstanding lien, Shaughnessy apparently did not notify her of his suspension.6 Again using his law office letterhead, Shaughnessy sent a telefax to another attorney for the Board on August 13, 2003, enclosing the correspondence he had previously sent with regard to the lien. On August 27, 2003, counsel for the WCTF notified Shaughnessy that it rejected his proposed settlement of the outstanding lien, and again returned his check. On October 14, 2003, Shaughnessy sent Ms. Clement a new settlement agreement, asking her to sign and return it to him. On October 24, 2003, counsel for the WCTF sent Shaughnessy further correspondence concerning the lien and a copy of a complaint against the original defendant with respect to the recovery of benefits. Shaughnessy forwarded these materials to Ms. Clement on October 27, 2003, asking her to review them and "give me your comments." The lien was ultimately resolved (it is not clear when or by whom). These efforts by Shaughnessy to resolve the lien constituted the rendering of legal services, and those services continued to be rendered well past the date of Shaughnessy's suspension.

Shaughnessy contends that, to the extent he still rendered legal services on behalf of Ms. Hussey and Ms. Clement, he did so because he had already spent time on their respective matters, and that they would have been harmed if he had turned those matters over to someone else who was unfamiliar with them. This is not a legitimate defense to the petition for contempt. Whenever a suspension or disbarment order issues, an attorney in active practice faces the same predicament identified by Shaughnessy, i.e., it tends to inconvenience existing clients who must, of necessity, take their active matters to new counsel. The attorney's ostensible desire to continue representing his clients lest they suffer that inconvenience does not justify flouting the order of suspension.

Shaughnessy also argues that, even if he has engaged in the practice of law during his suspension, the penalties of S.J.C. Rule 4:01, § 17 (8) would be unduly harsh in his case because he has "already been effectively suspended from the practice of law for two years and the imposition of an additional one-year suspension would be markedly disparate from discipline imposed in similar cases." The automatic extension of the period of suspension called for by § 17 (8) has nothing to do with whether the total suspension thereby obtained would be "markedly disparate." Instead, it operates as its own penalty for the distinct infraction of engaging in the practice of law in violation of the suspension order.

In a similar vein, Shaughnessy contends that the penalty imposed by § 17 (8) would be harsh in his case because he had, prior to the receipt of the full court's opinion, already served a longer suspension than that ultimately imposed by order of the full court on appeal. This argument ignores the fact that, at the time Shaughnessy committed these violations, he was suspended from the practice of law under either the original order of suspension or the reduced order of suspension that later issued. Moreover, without regard to the fact that the full court ordered his term of suspension reduced from one year and one day down to six months and one day, Shaughnessy is still not eligible for reinstatement, as he has not satisfied the requirements of S.J.C. Rule 4:01, § 18 (1) (b). Where, as here, he has engaged in legal work while under suspension, nothing in § 17 (8) permits the court to modify the calculation of the penalty. With respect to a lawyer who is under a term suspension, § 17 (8) provides that the lawyer "may not be reinstated until after the expiration of at least two times the term of the suspension, measured -from the date of the order finding that the lawyer has violated the provisions of this rule." The penalty is not adjusted to address perceived inequities in the total period of suspension that results from the imposition of that penalty.

Finally, Shaughnessy protests that the § 17 (8) penalty will impose undue financial hardship on himself and on members of his family who depend on him. I do not doubt that Shaughnessy's personal circumstances make his suspension particularly difficult to bear. Again, however, § 17 (8) imposes a mandatory penalty for engaging in the practice of law while suspended, and nothing in that section permits me to modify that penalty based on a suspended attorney's personal circumstances.

ORDER

I therefore ALLOW the Petition for Contempt and ORDER that William H. Shaughnessy may not be reinstated until the expiration of one year and two days from the date of this Order pursuant to Supreme Judicial Court Rule 4:01, § 17 (8).

Martha B. Sosman
Associate Justice
June 30, 2005

FOOTNOTES:

1 The record consists of various bank records, and lengthy correspondence between Bar Counsel and Shaughnessy as Bar Counsel sought to ascertain what was happening with Shaughnessy's various accounts. In that correspondence, Shaughnessy ultimately proffered various explanations for the ongoing activity in his accounts and the receipt and disbursement of what appeared to be client funds (e.g., difficulty finding clients to whom funds were owed). Assuming (without deciding) that Shaughnessy was genuinely and sincerely attempting to wind up these accounts but was confronted with various pragmatic difficulties in doing so, he did not take the precaution of keeping Bar Counsel advised of what was transpiring. Bar Counsel's repeated requests and inquiries of Shaughnessy, and his repeated requests for more time to respond to those inquiries, appear more in the nature of "pulling teeth" than of genuine and sincere attempts at compliance.

2 Shaughnessy sent Ms. Hussey his form contingency fee agreement on June 6, 2003, and asked her to return a signed copy.

3 In his Supplemental Affidavit of Compliance submitted on October 10, 2003, Shaughnessy listed Ms. Hussey among the clients to whom he had sent notice of his suspension. However, in her subsequent complaint to Bar Counsel, Ms. Hussey stated that she had not been notified. Shaughnessy's continued correspondence with Ms. Hussey and his continued work on her case are consistent with Ms. Hussey's contention that she was not notified of Shaughnessy's suspension.

4 The violation appears to be further compounded by the fact that, as the statute of limitations deadline approached, with Shaughnessy still not reinstated, he belatedly handed her case over to another lawyer without Ms. Hussey's knowledge. It appears that, because no case had been filed in court as of the date of his suspension, Shaughnessy anticipated that he might be reinstated in time to file the case and continue to represent Ms. Hussey, without having to notify her of his suspension, thereby keeping the case (and its potential fee) for himself.

5 His cover letter indicates in its first sentence that he is also enclosing Ms. Clement's "remaining payment." However, in a handwritten notation on the same letter, Shaughnessy indicates that the payment was "already sent." Given that the WCTF lien was essentially identical to the gross proceeds received from the third-party defendant, it appears that Shaughnessy disbursed funds, in derogation of the known lien, prior to resolving that lien.

6 Shaughnessy's Supplemental Affidavit of Compliance, submitted October 10, 2003, does not list Ms. Clement among the clients who were allegedly notified of his suspension.



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