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Commonwealth of Massachusetts

NO. BD-2002-069

IN RE: HENRY F. OWENS, III

S.J.C. Order of Reinstatement entered by Justice Greaney on October 28, 2005.

HEARING PANEL REPORT

INTRODUCTION

The Petitioner, Henry F. Owens, III (Petitioner), was admitted to the Bar of the Commonwealth in November, 1967. He was suspended from the practice of law for two years by order of the Supreme Judicial Court (Greaney, J.) entered March 19, 2003, effective April 18, 2003. The suspension was entered following a hearing before a Special Hearing Officer (SHO) of the Board of Bar Overseers, who found that Petitioner had engaged in misconduct relating to three matters. First, he had made a series of false statements and misrepresentations to HUD and a federal district court concerning money he had taken from settlement proceeds (presumably of a client’s case) and deposited in his operating account, claiming they were payment for legal services he had performed, in order to avoid repaying the money, and filed an affidavit signed by the client which improperly characterized the funds in question as a “non-contingent, non-refundable retainer.”1

Second, the SHO found that the Petitioner misled the court and opposing counsel into believing that funds in an escrow account were intact and available, when apparently they had been taken by the Petitioner as legal fees. The SHO did not believe the Petitioner’s apparent testimony that he was unaware the money had been taken as fees. Furthermore, the Petitioner refused to return any part of the monies, and the client had to sue to recover.

Finally, the Petitioner was found to have failed to segregate fees constituting a retainer, but had taken and spent the unearned funds. The Board recommended that the Petitioner be suspended for a period of three years. Justice Greaney, in part in consideration of the petitioner’s long and distinguished career, imposed a two-year suspension. The matter was not appealed to the full bench.

A hearing on the Petitioner’s Petition for Reinstatement was held on June 29, 2005 before a panel of the Board of Bar Overseers comprised of Constance L. Rudnick, Esq., chair, James B. Re., Esq., and Linda R. McKenzie. The panel heard from six witnesses, including the Petitioner and two members of the public, and 7 exhibits were introduced.

FINDINGS OF FACT

1. Prior to his suspension, the Petitioner had been a member of the Bar of the Commonwealth for 36 years.

2. Over the course of those 36 years, the Petitioner’s practice was dominantly comprised of: difficult and complex criminal defense cases (including more than 50 court-appointed murder cases); civil rights cases, in which he frequently represented minorities whose civil rights had allegedly been violated by government officials; and representing minority businesses in commercial matters, including developing inner city real estate.

3. Many of the criminal and civil rights cases were taken pro bono or for a reduced fee.

4. The Petitioner characterized his legal career as one involving “helping people and trying cases.”

5. Additionally, he tried to be a role model for other minority lawyers, and he “tried to lead by example.”

6. By all accounts, the Petitioner was an esteemed, respected and successful attorney. He introduced many letters (Exh. 1) written on his behalf, most from attorneys who are well-known, successful and respected members of the bar in their own right (inter alia Max Stern, Esq., Jeffrey Denner, Esq. James Dilday, Esq., [former judge] Margaret Burnham, Esq., [former judge] Rudolph Pierce, Esq., Walter Prince, Esq.). Without exception, all commended the selfless manner in which the Petitioner accepted cases, the quality of the legal services he provided, particularly to those who could not advocate for themselves, and the asset he was to the Bar of the Commonwealth and the Massachusetts legal community. Each effusively advocated in favor of his reinstatement.

7. Additionally, prior to his suspension, Petitioner was an active member of the community, particularly the legal community, having been: President of the Boston Chapter of the NAACP; a founder and President of the Massachusetts Black Lawyers’ Association; a City Councilor and Vice-Mayor of the City of Cambridge; and Falmouth’s representative on the Cape Cod Commission.

8. The Petitioner testified, and we credit his testimony, that he acknowledges his wrongdoing, and accepts the findings of the SHO and Justice Greaney concerning the wrongfulness of his conduct, that he “made mistakes,” has “learned from [his] mistakes,” and he “will never be in this situation again.”

9. He testified, and we credit his testimony, that following his suspension, “his whole world fell apart.” During the period of time he was suspended, he was employed by a boat yard/marina in Falmouth, which he owned at the time. He also spent considerable time with his family, particularly a grandson, who is apparently in need of adult support and assistance (Q’aire, p. 10).

10. He also enrolled in and completed a culinary arts course, during which time he served as an unpaid intern in a kitchen, an experience he said gave him a new perspective on his life (p. 10).

11. Although he declined to identify those community causes to which he has continued to make voluntary contributions, presumably of time and/or money, except to say that he has continued to help out people in need and to assist churches, because he did not perform those services for notoriety, we credit his testimony that he has continued to serve the community while on suspension from the practice of law.

12. The Petitioner offered the testimony of three attorneys, Raymond Sayeg, Esq., James Dilday, Esq., and Andrew Good, Esq. in support of his reinstatement. Attorney Sayeg, a partner in the firm of Denner/O’ Malley, LLP testified that he has known the Petitioner since he was a District Attorney, when he litigated cases against the Petitioner in District Courts in the Commonwealth. Thereafter, they both practiced at Lane & Altman (which became Lane Altman & Owens when the Petitioner joined the firm). Mr. Sayeg testified that he had personal knowledge of the Petitioner’s competence as an attorney, having worked with him on several pieces of litigation, and that the Petitioner was a very effective attorney. The Petitioner assisted Mr. Sayeg in the defense of an extremely difficult aggravated rape case in Norfolk County without compensation, helping Attorney Sayeg obtain “not guilty” verdicts on all 12 counts. Mr. Sayeg helped the Petitioner in defending a products liability case in federal court after Lane Altman dissolved. He testified, and we credit his testimony, that he is aware of the basis for the Petitioner’s suspension, that the Petitioner has the moral qualifications to be an attorney, and that his reinstatement to the practice would not be a detriment to the public’s perception of the bar.

13. James Dilday, Esq. testified he has known the Petitioner since the late ‘60s, when the Petitioner and his brother were partners in the practice of law. Attorney Dilday is a former President of the Massachusetts Black Lawyers’ Association, has been active in the New England Bar Association and the Massachusetts Bar Association, and is currently a member of the House of Delegates of the American Bar Association. Mr. Dilday testified, and we credit his testimony, that the Petitioner is a “skilled attorney,” one of the better litigators he has known. When Mr. Dilday was retained to represent the family of Reverend Accelyne Williams, who passed away after members of the Boston Police Department stormed his apartment with a search warrant that erroneously listed Rev. Williams’ residence as a place to be searched, he thought immediately of the Petitioner because he had had much success in civil rights cases involving police misconduct. Mr. Dilday ultimately brought the Petitioner into the case, and secured a positive settlement for the Williams family. Attorney Dilday testified, and we credit his testimony, that he spoke to the Petitioner several times about the latter’s suspension, that he is familiar with the basis for the discipline, and that, in his opinion, the Petitioner has the moral qualifications to be an attorney, and his reinstatement would not adversely affect the public’s perception of the bar.

14. Attorney Andrew Good also testified on behalf of the petitioner. Attorney Good, who recently ended his term as President of the Massachusetts Association of Criminal Defense Lawyers, has known the Petitioner since shortly after becoming a lawyer in 1972. He was employed as an associate in the Petitioner’s office for three years, and worked with the Petitioner on a variety of matters, including representing Roxse Homes (the client in Count I of the disciplinary case). He was also co-counsel with the Petitioner in representing co-defendants in the case of Commonwealth v. Soares, in which he and the Petitioner were successful in establishing new law in the Commonwealth on the issue of a prosecutor’s use of race-based peremptory challenges. Attorney Good, who also submitted a letter in Exh. 1, was effusive in his praise for the Petitioner’s extensive pro bono work. He remarked that the Petitioner “helped people in vital ways at personal sacrifice.” Mr. Good was enthusiastic in his praise for the Petitioner, saying that the bar will be adversely affected if the Petitioner is NOT reinstated.

15. All three witnesses testified that the suspension had negatively affected the Petitioner greatly. Mr. Dilday said the Petitioner was depressed, and that his recently completed culinary arts course aided him in getting back into the world; Mr. Good said the Petitioner was “embarrassed,” “humiliated” and “mortified at what he had brought on himself.” And Mr. Sayeg, who was also concerned about the Petitioner’s mental health after the suspension went into effect, said the Petitioner had expressed remorse to him during their frequent conversations.

16. The Petitioner testified, and we credit his testimony, that he was less attentive than he should have been to the financial aspects of his practice, particularly the need for written fee agreements, the management of client funds and record keeping of business and client trust accounts. Although in his testimony he may have excessively attributed his misconduct to “poor recordkeeping,” he stated that if reinstated, he will not go into sole practice, but will only associate with a firm under an agreement that the firm’s administrative staff will take care of the financial aspects, including books and records of client and office accounts.

17. The Petitioner testified he has an agreement with Attorney Jeffrey Denner to become of counsel to that firm if he is reinstated. If allowed to resume the practice of law, the Petitioner wishes to confine his practice both in time and scope, practicing law less than 50% of the year, representing General Motors in the defense of their products liability cases, and resuming his court-appointed murder cases. He will carry malpractice insurance, as he always has. Although all the terms of the agreement have not been worked out, the Denner firm will supply all support for the financial aspects of his practice, including use of their IOLTA account as well as their bookkeeping. This testimony was corroborated by Attorney Sayeg, a member of that firm, as well as a letter from Mr. Denner in Exh. 1.

18. One of the letters of support is from Kenneth Guscott, General Partner of the Long Bay Management Company, who met the Petitioner when Mr. Guscott was President of the Boston Chapter of the NAACP and the Petitioner came in to volunteer his time. Mr. Guscott detailed the Petitioner’s work with the minority business community as well as his involvement with the NAACP. The Petitioner has spoken to Mr. Guscott about resuming a volunteer affiliation with this organization if he is reinstated.

19. While he was suspended, the Petitioner subscribed to Lawyers Weekly, read advance sheets, attended an MCLE program on tort law and a preparation course prior to taking the MPRE, in which he received a passing score.

20. In response to questions from Assistant Bar Counsel, the Petitioner demonstrated that, although he was not knowledgeable about all the recent changes to Mass. R. Prof. C. 1.15 and had not taken any course to familiarize himself with the changes in that rule, he is generally familiar with his record keeping and client funds obligations.

21. Two members of the public testified against the Petitioner’s reinstatement. The first, Ella Herbert, is a resident of Cambridge. She testified that the Petitioner represented her husband in their divorce sometime in the 1970s. Although she was unclear as to the specifics, she believes that the divorce papers were “fraudulent,” or there were misstatements in the petition for divorce, created apparently by one or more members of her family who were employed by her then-attorney. She did not testify that the Petitioner had anything to do with the fraud or misstatements, or even knew about them. A decree nisi entered in the late 1970s. In the late 1990s, her ex-husband fell ill, and wished to spend his final days with her. Given the reconciliation, she wished to set aside the fraudulently obtained divorce so they could resume being husband and wife in his dying days. She testified that she went to the Petitioner for assistance, but was told that he could not deal with her, that her husband, who had been the client, had to come to see him. Additionally, she believed she was put off by the Petitioner’s secretary. While we certainly understand Ms. Herbert’s unhappiness with what clearly was a painful situation, nothing in it reflects adversely upon the Petitioner’s fitness to practice law, in our view.

22. The second public witness was Victor Cromie, an architect from Cambridge, who had been employed by the Petitioner on a number of projects, involving both residential and commercial property owned by the Petitioner.

23. Mr. Cromie and the Petitioner appear to have developed a friendly relationship over the course of their business dealings, but became embroiled in a dispute over whether the former is owed additional fees by the latter for services Mr. Cromie rendered on the Petitioner’s current residence in Falmouth. That project began in 1995, and extended over the next several years. Mr. Cromie’s eventual Request for Investigation by the Office of Bar Counsel dated September 13, 2002, and various correspondence concerning the project that was submitted to the Office of Bar Counsel with the Request for Investigation, comprise hearing Exhibit 3. The Petitioner testified, without contradiction, that he responded to Mr. Cromie’s complaint to the Office of Bar Counsel on November 1, 2002, and that on November 16, 2002, the Office of Bar Counsel closed the case, regarding it as a private civil dispute. Indeed, that is what it appears to us to be.2

24. Mr. Cromie testified credibly that he feels the Petitioner did not honor what Mr. Cromie perceives to have been an agreement that he and the petitioner had reached under which the petitioner would pay him an additional $10,000 for services performed. However, a review of the underlying documentary evidence (Exh. 3) does not demonstrate that a mutual agreement had been achieved in the business dispute between the two men. Rather, in the series of letters between them that are part of Exhibit 3, it appears that after some dispute in which Mr. Cromie complained of non-payment and the Petitioner complained of non-performance, the Petitioner offered Mr. Cromie $10,000 in settlement of the dispute. See Petitioner’s letter dated November 4, 1999 (which is dated erroneously 1998). Mr. Cromie rejected the offer, demanding $15,000 instead. See Mr. Cromie’s letter dated November 15, 1999. The correspondence does not reflect that the dispute was ever resolved. Although Mr. Cromie eventually said that he would accept $10,000, his purported acceptance came months after he already had rejected the offer, and the Petitioner refused to renew the offer. In sum, the situation is a simple business dispute, which we do not count against the Petitioner in considering his reinstatement petition. Of course, our view on this point has no bearing whatever upon the prospect that Messrs. Owens and Cromie may yet resolve their differences or that Mr. Cromie may seek a civil remedy if a negotiated peace proves elusive.

25. Mr. Petruzziello, the client whose escrow funds were the basis of the allegations in Count II of the Petition for Discipline, submitted a letter (Exh. 4) advocating that the Petitioner’s request for reinstatement be denied. The letter reflects Mr. Petruzziello’s claim that he gave certain funds to the Petitioner in trust, that the Petitioner abused that trust, and arrogated the funds for himself. In the letter, Mr. Petruzziello states, and we find this as true: that he sued the Petitioner in 1997 to recover the funds; he settled that case for $26,250 during the late 1990s; despite having settled his case years before, he later filed a claim with the Clients Security Board, which awarded him $5000.00; and he received that additional payment directly from the Petitioner.3 We expressly decline to find that the Petitioner owes Mr. Petruzziello any additional monies, notwithstanding the latter’s position that the former should not be reinstated until he pays the remaining $17,000 of the alleged debt.

RULINGS OF LAW

26. On a Petition for Reinstatement, the petitioner has the burden of proving that he: has the moral qualifications, competency and learning in law required for admission to practice in this Commonwealth, and that his…resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice or to the public interest. S.J.C. Rule 4:01, § 18(5). The Petitioner has met that burden.

27. In reaching that conclusion, we note that Bar Counsel did not oppose the Petitioner’s Reinstatement. Rather he suggested that if it were to be granted, it be under certain conditions, which we recommend in modified form, infra.

28. We find that the Petitioner has demonstrated he has the requisite moral qualifications to resume the practice of law. We reach this conclusion based upon the following:

a) Prior to his suspension, the Petitioner was a well-respected, capable member of the bar, who devoted much of his professional life to representing individuals who would otherwise have no advocate in the legal system; that he frequently did so for a reduced fee or pro bono;

b) Prior to his suspension, he served the community in a variety of ways, in mentoring young attorneys, representing minorities in complicated and serious criminal and civil rights cases, and in serving in leadership capacities in professional groups and associations designed to advance minority groups;

c) The fact that if reinstated, the Petitioner wishes to continue to take court- appointed murder cases and thereby serve a sector of society that frequently gets overlooked by the legal system.

d) Though both were sincere in their beliefs that they had been wronged by the Petitioner, neither Ms. Herbert nor Mr. Cromie offered evidence that whatever the Petitioner did or didn’t do respecting their claims, he breached any duty to them, or acted in a way that adversely bears on his character.

e) On the other hand, all of the witnesses who testified on his behalf were unreserved in their praise for the Petitioner’s character, and they all testified he had the moral qualifications to be readmitted to the practice.

f) The Petitioner readily accepted the findings of the SHO and Justice Greaney, he admitted he had made errors in judgment, and he vowed the circumstances “would never happen again” and we have credited this testimony.

29. We find that the Petitioner has demonstrated he has the requisite learning in the law. In addition to his many years of able practice, while under suspension, he read advance sheets, subscribed to Lawyers Weekly, took an MPRE review and an MCLE in tort law.

30. We also find that his reinstatement will not be detrimental to the integrity and standing of the bar, the administration of justice or to the public interest. The evidence adduced by the Petitioner overwhelmingly supports this finding. While we do not minimize in any way the wrongfulness of his conduct that gave rise to the discipline, particularly the lack of candor with persons and tribunals, we view that conduct in the overall context of more than thirty years of dedication to the public and the profession.

31. During the hearing, Assistant Bar Counsel took issue with the Petitioner’s lack of complete mastery of the new Massachusetts Rule Prof. C. 1.15, as well as his apparently imperfect understanding of the meaning of the term “of counsel,” a title that he expects to have when he affiliates with the Denner firm. Both gaps in information are easily filled, however, by a modest amount of reading. Therefore, we recommend that the Petitioner’s request for reinstatement be granted under the condition that he certify in writing to Bar Counsel that he has read articles authored by Bar Counsel, available on the BBO website, concerning the meaning and ramifications of the term “Of Counsel” and the two articles and the booklet on IOLTA accounts that are listed in the introduction to the copy of Rule 1.15 that appears on the BBO website.

CONCLUSION

We recommend that the Petitioner’s Petition for Reinstatement be granted, under the conditions reflected in Paragraph 31, supra.

FOOTNOTES:

1 The description of the underlying offenses can be found in Matter of Owens, 19 Mass. Att’y Disc. R (2003). Because neither the SHO’s findings, nor the decision of the Appeal Panel of the BBO were produced at the reinstatement hearing, we rely in relating the facts solely on the Single Justice’s Order, which is very brief and does not go into great detail,. An Appeal Panel of the BBO affirmed the decision, in the main, making slight changes to the SHO’s findings and rulings which are not relevant here.

2After the record closed, Mr. Cromie submitted a letter elaborating on his testimony in this respect. Acting sua sponte pursuant to the Rules of the Board of Bar Overseers, Section 3.60, we reopened the matter to receive the letter, which we admitted de bene.

3 Counsel for the Petitioner represented that when he was told of the CSB’s award, he arranged to have the Petitioner send a check directly to the CSB, which would then forward it to Mr. Petruzziello. That way, CSB did not have to make a payment and then seek reimbursement from the Petitioner. See Exh. 5



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