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Commonwealth of Massachusetts

NO. BD-2002-069

IN RE: HENRY F. OWENS

S.J.C. Order (two year suspension) entered by Justice Greaney on March 19, 2003, effective April 18, 2003. 1

MEMORANDUM AND ORDER

This bar discipline matter is before me on an Information and Record of Proceedings with the Vote and Recommendation of the Board of Bar Overseers, all as filed by the Board on October 25, 2002. I have reviewed the record and the transcript and heard the arguments of counsel. For the reasons set forth below, I conclude that the appropriate sanction to be imposed on the respondent is a two year suspension from the practice of law.

I find convincing evidence in the record to support the conclusion reached by the special hearing officer and affirmed by the Appeal Panel with respect to count 1, that the respondent made a series of false statements and misrepresentations to the Department of Housing and Urban Development (HUD) and to a Federal district court, some under oath, that $50,000 he had taken from the United States Mineral Products (USMP) settlement proceeds and deposited to his operating account was payment for prior legal services, in an effort to avoid repaying the money, and so violated Mass. R. Prof. C. 3.3 (a), as appearing in 426 Mass. 1383 (1998), and Mass R. Prof. C. 8.4 (c), (d), and (h), as appearing in 426 Mass. 1429-1430 (1998). I do not agree with the Board’s recommendation that the Appeal Panel Report should be amended by striking references suggesting that the respondent drafted the 1993 affidavit signed by the chairman of the board of Roxse Homes, Inc. (Roxse) . The inference, drawn by both the special hearing officer and the Appeal Panel, is warranted by the respondent's own testimony at the disciplinary hearing describing the affidavit as part of his strategy, on behalf of his client, to avoid having to turn the USMP settlement proceeds over to HUD. In any case, it is clear that the respondent filed the affidavit and that he was aware that the document characterized Roxse's payment to him as a "non-contingent, nonrefundable retainer . . . for past, present, and future legal representation on behalf of Roxse Homes.”

With respect to count 2, the evidence supports the determination of the special hearing officer that the respondent intentionally misled the court and opposing counsel into believing that the funds from the escrow account were intact and available. Although the respondent testified at the disciplinary hearing that he was unaware that the $48,500 had come from the rent escrow account, the special hearing officer found that testimony was contradicted by other credible witnesses, by contemporaneous documentation, and by the respondent's own prior testimony in connection with Petruzziello's civil suit against the respondent to recover the $48,500. The respondent's testimony was simply not credible. See Matter of Saab, 406 Mass. 315, 328 (1989) . The respondent's subsequent refusal to repay his client on the false premise that the funds were a fee was further evidence of dishonesty supporting the determination that he violated DR 1-102 (A) (4) (5) and (6), as appearing in 382 Mass. 79 (1981) . The violations were the same as those charged in the petition, and the fact that they were based on a theory different from that originally presented does not implicate the respondent's due process rights. See Matter of Abbott, 437 Mass. 384, 391-392 (2002).

The Appeal Panel permissibly added a violation of DR 7-101 (A) (3), as appearing in 382 Mass. 784 (1981), to the special hearing officer's report. That Petruzziello initially may have been willing to give the respondent time for repayment does not diminish the prejudice that accrued to him when the respondent was unable to repay the money when needed and he was forced to sue the respondent to secure its return. Conduct causing prejudice or damage to a client suffices to constitute a violation of DR 7-101 (A) (3), regardless of the client's acquiescence in the conduct.

With respect to count 3, the respondent concedes that his failure to segregate funds as required constituted a violation of DR 9-102, but maintains that, because his failure was the result of ignorance and not intentional misconduct, it cannot also constitute a violation of DR 1-102 (A) (4). I disagree. The special hearing officer determined that, although the respondent believed that he was permitted to take the $5,000 retainer as a fee immediately so long as subsequent legal services were provided), the respondent, in his confirming receipt of the retainer, failed to disclose to Coleman that the money, which he previously had characterized as a retainer against which fees would be drawn, had already been spent. This was dishonest, deceptive, and misleading conduct and was a violation of DR 1-101 (A) (4).

I now consider the appropriate sanction, mindful of the difficulty inherent in any attempt to categorize particular circumstances of an individual case in order to achieve a result not "markedly disparate" from judgments in comparable cases. See Matter of Neitlich, 413 Mass. 416, 421 (1992). I reject the respondent's suggestion that the violations of which he is guilty would be sufficiently redressed by a public reprimand and a five year term of probation. Past decisions of this court have established that the appropriate sanction for a violation of obligation of being truthful to the court and opposing counsel is a term of suspension from the practice of law. See Matter of McCarthy, 416 Mass. 423, 431 (1993) (one year suspension); Matter of Neitlich, supra (one year suspension). Here, the respondent’s conduct involved repeated instances of misrepresentations, some made under oath. See Matter of Shaw, 427 Mass. 764 (1998) (two year suspension). Although this marks the first time that the respondent has been the subject of disciplinary proceedings of any kind, the respondent's unethical conduct encompassed three separate representations over the course of seven years. See Matter of Saab, supra at 327 (eighteen months suspension). In addition, the respondent stood to benefit personally from his dishonesty —all three of the counts involve the respondent's improper taking of client funds for his own use. See Matter of Schoepfer, 426 Mass. 183, 187 (1997) (indefinite term of suspension).

The matter of the appropriate term of suspension presents a close choice. On the one hand, some deference is owed the board's recommendation that the respondent be suspended from the practice of law for a term of three years. Examination, however, of cases involving three year suspensions indicates that many of them are predicated on the respondents' convictions for crimes. See, e.g., Matter of Daniels, 14 Mass. Att'y Disc. R. 195 (1998) (pleaded guilty of conversion of ERISA funds and Federal income tax evasion); Matter of Siniscalchi, 9 Mass. Att'y Disc. R. 304 (1993) (pleaded guilty to possession of marijuana [in quantity of over fifty pounds and less than two hundred pounds]) . See also Matter of Tobin, 417 Mass. 81, 89 n.8 (1994), and cases cited. Others involve conduct demonstrating "a pattern of neglect and deceit or misuse[] [of] substantial sums of clients' funds." Id. The misconduct involved here, while serious, is civil in nature and, in view of the respondent's heretofore clean disciplinary record, cannot fairly be deemed a "pattern of . . .deceit." After considering the entire record and the respondent's distinguished legal career, including his dedication to pro bono work and civil rights causes, I conclude that a suspension from the practice of law for a term of two years is the appropriate sanction.

A judgment shall enter in accordance with this memorandum.

Entered:

______________________________
John M. Greaney
Associate Justice

March 19,2003

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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