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Commonwealth of Massachusetts

NO. BD-2003-067

IN RE: JOHN MOLLOY

S.J.C. Order of Term Suspension entered by Justice Spina on November 5, 2003, with an effective date of December 5, 2003.1

SUMMARY2

In August 1998, the office in which the respondent was an associate was retained to represent a client in a motion to revise or revoke the client’s two and one-half year sentence to a house of correction. The respondent was assigned the task of handling the motion.

On August 28, 1998, the respondent met with the client at the Norfolk County House of Correction. The respondent told the client that the rules of criminal procedure required affidavits to be filed in support of a motion to revise and revoke. The respondent and the client discussed the contents of the motion and the supporting affidavit.

On September 1, 1998, the respondent drafted a motion to revise or revoke the client’s sentence. In support of the motion, the respondent drafted his client’s affidavit. The respondent either signed the client’s name to the affidavit or directed another to sign the client’s name to the affidavit.

On September 1, 1998, the respondent mailed the motion and the affidavit to the Wareham District Court. The respondent did not notify the court or opposing counsel that the client had not signed the affidavit. The respondent did not send the client a copy of the motion and the affidavit.

On October 13, 1998, the client’s motion was denied without a hearing. The respondent failed to inform his client that the motion had been denied.

On December 14, 1998, the client wrote to the principal of the respondent’s law firm that he had not received any paperwork regarding the motion to revise or revoke. The respondent was directed to send the client copies of the work he had done on the client’s matter.

On December 23, 1998, the respondent sent the client a copy of the motion to revise or revoke endorsed with the judge’s denial of the motion. The respondent did not send the client a copy of the supporting affidavit.

On April 19, 1999, the client wrote to the respondent to request a copy of the affidavits filed in support of the motion to revise or revoke. By this time, the respondent was no longer associated with the office, and the principal of the firm sent the client a copy of the affidavit.

On October 26, 1999, the client filed a request for investigation with the Office of the Bar Counsel. The client complained that the respondent had signed his name to the affidavit that had been filed in support of the motion to revise or revoke his sentence without the client’s authority.

On December 8, 1999 and December 18, 1999, the respondent wrote to bar counsel that he had not signed the client’s name to the affidavit and did not know who had done so. The respondent’s responses to bar counsel were deceptive, false, and misleading, as the respondent knew that the client had not signed the affidavit and that either he or someone acting under his direction had signed the affidavit.

By signing, or directing someone to sign, the client’s name to the affidavit and by filing the affidavit with the court, the respondent violated Mass. R. Prof. C. 3.3(a)(1) (lawyer shall not knowingly make a false statement of material fact to a tribunal) and Mass. R. Prof. C. 8.4 (c), (d), and (h) (lawyer shall not engage in conduct involving fraud, deceit, or misrepresentation; conduct prejudicial to the administration of justice; or any other conduct that adversely reflects on his fitness to practice law) By failing to obtain his client’s signature on the affidavit submitted in support of the client’s motion to revise or revoke his sentence, the respondent violated Mass. R. Prof. C. 1.3 (lawyer shall act with reasonable diligence and promptness in representing a client). By failing to advise his client that the motion to revise or revoke had been denied and by failing to provide the client with a copy of the affidavit upon the client’s request, the respondent violated Mass. R. Prof. C. 1.4(a) and (b) (lawyer shall keep a client reasonably informed about the status of a matter and explain a matter to the client to permit the client to make informed decisions). By making deceptive and misleading responses to bar counsel concerning the signature on the affidavit, the respondent violated Mass. R. Prof. C. 8.1(a) and (b) (lawyer shall not make a false statement of material fact in connection with a disciplinary matter and shall not fail to disclose a fact necessary to correct a misapprehension to have arisen in a bar discipline matter) and Mass. R. Prof. C. 8.4 (c), (d), and (h).

In mitigation, the respondent had been admitted to the bar two years before the events in question. The respondent received scant supervision, and was directed to prepare and file the motion and the affidavit shortly before the expiration of the sixty-day time limit for filing motions to revise or revoke as established by the rules of criminal procedure.

On September 11, 2003, the parties submitted a stipulation to the Board of Bar Overseers. The parties recommended that the respondent be suspended from the practice of law for three months. On October 20, 2003, the Board of Bar Overseers voted to accept the stipulation of the parties and recommend that the respondent be suspended from the practice of law for three months.

On November 5, 2003, the Supreme Judicial Court for Suffolk County ordered that the respondent be suspended from the practice of law for three 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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