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Commonwealth of Massachusetts

NO. BD-2005-038

IN RE: BARRY E. O’CONNOR

S.J.C. Order of Term Suspension entered by Justice Sosman on June 6, 2005, with an effective date of July 6, 2005.1

SUMMARY2

The respondent engaged in professional misconduct by neglecting two cases that he was handling on behalf of unrelated clients, making negligent misrepresentations to the client in one of the matters as to the status of her case, and making intentional misrepresentations to bar counsel as to the status of the other matter.

In the first matter, the respondent was retained in 1991 to represent a client in a worker’s compensation claim that was resolved with a lump sum settlement in 1993. At the same time, the respondent referred the client to another attorney in his office for representation in connection with a related Social Security claim. In 1991, the client applied for Social Security disability insurance benefits, but her claim was denied. The client pursued this claim at all stages before the Social Security Administration, but without success. The client also filed a second claim for disability insurance benefits shortly before her insured status for disability insurance benefits expired. In December 1993, the client filed a complaint in U.S. District Court seeking review of the disallowance of her initial claim. Throughout these proceedings, the client was represented by the other attorney in the respondent’s office.

In January 1994, the respondent changed law firms and the client elected to have both of her Social Security claims transferred to the respondent’s new firm. The attorney at the old firm who had been handling the Social Security claims sent the client’s file to the respondent at his new firm, along with an original notice of withdrawal and a copy of the procedural order issued by the U.S. District Court, indicating that “the parties shall file appropriate motions to affirm or reverse the [Secretary’s] decision and supporting legal memoranda on or before April 14, 1994.” In March 1994, the respondent filed his notice of appearance and prior counsel’s notice of withdrawal. However, he thereafter failed to file any motion or supporting legal memorandum, any response to the defendant’s motion for an order seeking affirmance of the Secretary’s decision, or any request for an extension of time to file a motion or memorandum at a later time. In August 1994, the court entered judgment for the defendant.

The respondent did not advise his client that she had lost her case in U.S. District Court. The client received a notice of unfavorable action from the Social Security Administration in August 1994 and called the respondent. He had no recollection of the details of the matter, and negligently misrepresented to the client that he had never received any paperwork from her previous counsel. The respondent advised the client that he and his current associate would look into the matter and assist her in pursuing her claims. However, the respondent never filed a motion to vacate the judgment entered in U.S. District Court or did anything further to pursue this claim.

The respondent earlier had also failed to file a further appeal in the client’s second claim for benefits, which had been denied after reconsideration and become final in May 1994. In July 1995, the respondent’s associate filed a request with the Social Security Administration for a hearing and pursued this claim without success until January 1997. From 1994 until 1998, the client made repeated inquiries of the respondent concerning the status of her Social Security disability insurance benefit claims. During this period, the only actions being taken by the law firm on the client’s behalf were those by the respondent’s associate relative to the client’s second claim. Despite this, the respondent repeatedly and negligently misrepresented to the client between 1994 and 1998 that both of her claims for disability insurance benefits were active. In 1998, the client began investigating the matter herself and discovered that her Social Security disability insurance benefit claims were no longer pending in any forum.

The respondent’s failure to file a motion and supporting legal memorandum seeking reversal of the Secretary’s decision or to request an extension of time to file these pleadings; his failure to apprise the client that her complaint in U.S. District Court on her first claim had been dismissed; his failure to take action to vacate the judgment and reinstate the matter in August 1994; and his subsequent negligent misrepresentations to the client from 1994 through 1998 that both of her Social Security claims remained pending, were in violation, prior to January 1, 1998, of Canon Six, DR 6-101(A)(3), and Canon Seven, DR 7-101(A)(1)(2) and (3), and after January 1, 1998, of Mass. R. Prof. C. 1.2(a), 1.3 and 1.4.

In the second matter, the client retained the respondent in July 1997 to represent him in a worker’s compensation claim arising out of an automobile accident that occurred during the course of his employment. In 1999, the respondent submitted a demand package to other driver’s insurance carrier, and in June 1999, the insurance carrier extended an offer of $11,000 to settle the client’s claim, which he accepted. In September 2000, the respondent sent a petition for approval of settlement, pursuant to G.L. c. 152, § 15, to the insurance carrier for signature.

In October 2000, the respondent filed a civil complaint in the district court and then filed the executed petition for approval of settlement with the court. In January 2001, a judge denied the petition without prejudice because it lacked the signature of the defendant or his attorney. The respondent never obtained either of these signatures, and in March 2002, the court entered a judgment of dismissal. The respondent did not seek at that time to vacate the judgment of dismissal.

In December 2000, the client filed a complaint with bar counsel. The respondent intentionally misrepresented to bar counsel in October 2002 and again in March 2004 that he had filed the client’s petition for approval of settlement with the Department of Industrial Accidents as an alternative to seeking approval by a district court judge. The respondent never filed a petition for approval of settlement with the Department of Industrial Accidents. In early 2005, after bar counsel indicated that he was filing a petition for discipline, the respondent finally filed a second petition for approval of settlement with the district court, and in March 2005, a judge approved the petition, and the client received his settlement check.

The respondent’s failure to conclude the client’s matter in district court in 2001; his allowing the matter to be dismissed by the court in 2002; and his failure to take action to resolve the matter until 2005 is conduct in violation of Mass. R. Prof. C. 1.2(a) and 1.3. The respondent’s intentional misrepresentations to bar counsel on two occasions concerning filings with the Department of Industrial Accidents on behalf the client is conduct in violation of Mass. R. Prof. C. 8.4(c) and (h).

The respondent was admitted to practice in 1986. In aggravation, he received an admonition in 1996 for neglecting a legal matter, failing to represent a client zealously, causing prejudice or damage to the client in the course of the representation, and failing to cooperate with bar counsel’s investigation. AD No. 96-34, 12 Mass. Att’y Disc. R. 654 (1996).

The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation for a six-month suspension. On May 9, 2005, the Board voted to accept the stipulation and to recommend the agreed-upon disposition to the Supreme Judicial Court. The Court so ordered on June 6, 2005.

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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