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Commonwealth of Massachusetts

NO. BD-2005-074

IN RE: J. THOMAS BABCOCK

S.J.C. Judgment of Disbarment entered by Justice Greaney on January 26, 2007. 1

SUMMARY2

This matter came before the Supreme Judicial Court for Suffolk County on an information and recommendation for the respondent’s disbarment.

Bar counsel filed a petition for discipline on August 26, 2006. The respondent failed to answer and was defaulted pursuant to Section 3:15(e)-(h) of the Rules of the Board of Bar Overseers. The facts established are as follows.

Count I. The respondent was admitted to the Massachusetts bar in June 2000 and administratively suspended from practice in the Commonwealth, pursuant to S.J.C. Rule 4:01, § 3(2), on August 24, 2005. The respondent received timely notice of the suspension order but did not comply or seek reinstatement within 30 days. As a result, on September 23, 2005, the respondent became subject to provisions of the order and S.J.C. Rule 4:01, § 17, that required him to withdraw all of his court appearances and notify all his clients and opposing counsel in pending matters of his suspension; refund all unearned fees; close all trust accounts; distribute properly and document his distribution of all client and fiduciary funds entrusted to him; and file an affidavit of compliance and specified documentation with the county court and bar counsel.

The respondent was notified of those obligations but did not comply. From August 2005 through the spring of 2006, the respondent continued to appear for clients in the district and superior courts and to engage in other legal work without disclosure of his suspension to his clients, the courts in which he appeared, or the opposing counsel. In addition, he failed to refund a $10,000 unearned fee (see Count II, below), and he continued to handle trust funds through his IOLTA account,

In March 2006, bar counsel filed a contempt petition in the county court arising from the respondent’s post-suspension practice in the district court and failure to refund the $10,000 fee. Bar counsel was then unaware of the respondent’s continued representation of a client in the superior court, his legal work in other matters, or his continued handling of trust funds. In April 2006, the respondent failed, despite notice, to appear for a hearing on the contempt petition. He was adjudicated in contempt, and a capias was issued to secure his appearance.

Under threat of arrest, the respondent appeared before the county court on May 1, 2006 and represented that he would comply in full with the suspension order within one week. On May 10, 2006, the respondent filed an affidavit of purported compliance in which he intentionally misrepresented to the county court and bar counsel that he had no clients or matters pending. The respondent intentionally concealed his ongoing representation in the superior court case. The county court entered an order recalling the capias and purging the respondent of contempt that same day. The respondent never complied in full with the suspension order.

By practicing law after his administrative suspension, disobeying the orders of the county court, and failing to comply with the terms of his administrative suspension, the respondent violated Mass. R. Prof. C. 1.16(a)(1) (requiring withdrawal if continued representation would result in disciplinary rule violation) and (d) (requiring a lawyer to take reasonable steps to protect a client’s interests upon termination of representation, including the refund of any advance fee payment not earned); Mass. R. Prof. C. 3.4(c) (knowing disobedience of obligation under rules of a tribunal except for open refusal based on assertion that no valid obligation exists); Mass. R. Prof. C. 5.5(a) (prohibiting unauthorized practice); Mass. R. Prof. C. 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), (d) (conduct prejudicial to administration of justice), and (h) (other conduct adversely reflecting on fitness to practice); and S.J.C. Rule 4:01, § 17(1)(a) and (c)-(g), (5) and (6) (post-suspension compliance requirements).

By his knowing concealment of his ongoing violations of the orders and his intentional misrepresentations in his affidavit on compliance, the respondent violated Mass. R. Prof. C. 3.3(a)(1) (knowing false statement of material fact to tribunal); Mass. R. Prof. C. 8.1(a) and (b) (knowing false statement or omission of material fact in connection with disciplinary matter); and Mass. R. Prof. C. 8.4(c), (d) and (h).

Count II. In February 2004, the respondent was hired by an incarcerated client who had been convicted of operating a motor vehicle under the influence of intoxicating liquor (OUI), fifth offense, among other charges. For a flat fee of $10,000, paid by the client in advance, the respondent agreed to challenge the prior OUI convictions, seek to have one or more of the old convictions vacated, and thereby get the current sentence reduced under the “lifetime look back” provisions of G.L. c. 90, § 24. The respondent had insufficient experience and expertise to pursue this relief. He never moved to vacate the prior convictions or performed any other work of substance on the case. As a result, the fee charged was unearned and clearly excessive.

During 2004, the client repeatedly asked the respondent about the status and progress of the matter. The respondent intentionally misrepresented to the client that he was working on the case. In November 2004, the respondent further misrepresented that he would file a motion to revise and revoke the current sentence in the expectation of having the client released by January 1, 2005. Thereafter the respondent did not reply to any communications from the client.

In March 2005, the client discharged the respondent, sought a fee refund, and filed a request with bar counsel for investigation of the respondent’s conduct. Bar counsel forwarded the request for investigation to the respondent and asked for a reply. In addition, in April 2005, an attorney representing the client made demand on the respondent to account for the fee payment. The respondent did not reply to any of those communications until late May 2005, when he answered the bar discipline grievance under threat of administrative suspension. Thereafter the respondent failed without good cause to reply to bar counsel’s further inquiries, leading to his administrative suspension in August 2005.

In December 2005, the client sued the respondent in the district court to recover the fee payment. A default judgment for $10,000 was entered against the respondent in January 2006, followed by an execution. The respondent made no payment on the judgment.

At the contempt hearing in the county court on May 1, 2006, the respondent was warned by the single justice that he would face incarceration unless, as part of his compliance obligations, he refunded the client’s fee payment by May 8, 2006. The respondent then sent $10,000 to the client at the house of corrections in the form of two checks for $5,000 each. One of those checks, drawn on a money market account of the respondent’s, could not be accepted under the regulations of the institution and was returned to the respondent. Despite subsequent demand by the client’s attorney, the respondent had not replaced the returned check or remitted the remaining $5,000 by August 2006, when bar counsel filed the petition for discipline.

The respondent failed to provide competent representation to the client in violation of Mass. R. Prof. C. 1.1, failed to pursue the client’s lawful objectives in violation of Mass. R. Prof. C. 1.2, and failed to act with reasonable diligence and promptness on the client’s behalf in violation of Mass. R. Prof. C. 1.3. The respondent violated Mass. R. Prof. C. 1.4(a) and (b) by failing to keep the client reasonably informed about the status of the matter. His collection of a clearly excessive fee, failure to refund the unearned fee after his discharge and suspension, and failure to replace the returned $5,000 refund check violated Mass. R. Prof. C. 1.5(a) (collecting a clearly excessive fee), 1.16(d), 3.4(c), and 8.4(d) and (h) and S.J.C. Rule 4:01, § 17(1)(f) (requiring refund of unearned fees after suspension).

The respondent’s intentional misrepresentations violated Mass. R. Prof. C. 8.1(a) and 8.4(c), (d), and (h). His non-cooperation in the investigation violated Mass. R. Prof. C. 3.4(c), 8.1(b) (knowing failure to respond to disciplinary authority’s lawful demand for information), and 8.4(g) (non-cooperation without good cause) and (h) and S.J.C. Rule 4:01, § 3(1), providing that a lawyer’s failure to respond to bar counsel’s requests for information constitutes misconduct and grounds for discipline.

Count III. From 2003 through at least March 2006, the respondent used his IOLTA account as a combined repository for trust funds and personal or business accounts and thereby commingled his own funds with trust funds in the account. The respondent did not keep complete records for his IOLTA account. After July 1, 2004, the respondent failed to make or maintain check registers, individual client and bank charge records, and reconciliation reports as required by amended Mass. R. Prof. C. 1.15.

In late March 2006, the respondent, in the course of his post-suspension representation of clients in a proposed real estate transaction, issued and delivered to the prospective seller a $200,000 check drawn on his IOLTA account. The respondent knew when he issued that check that there were no supporting funds on deposit in the IOLTA account. The check was dishonored and returned for insufficient funds the next day. The respondent knowingly and without good cause failed to reply to bar counsel’s subsequent inquiries about the dishonored check.

By issuing and delivering an IOLTA check knowing that he had no funds on deposit to support it, the respondent violated Mass. R. Prof. C. 1.15(f)(1)(C), as effective July 1, 2004 (prohibiting disbursement of funds from a trust account that would create a negative balance as to any individual client), and Mass. R. Prof. C. 8.4(c) and (h). By commingling trust funds with his own funds in the IOLTA account, the respondent violated Mass. R. Prof. C. 1.15(a) and (d), as in effect through June 30, 2004, and Mass. R. Prof. C. 1.15(b)(2) starting on July 1, 2004 (requiring segregation of trust funds and prohibiting deposits of non-trust funds to trust accounts other than funds reasonably sufficient to pay bank charges). By failing to keep complete trust account records, the respondent violated Mass. R. Prof. C. 1.15(a), as in effect through June 30, 2004, and Mass. R. Prof. C. 1.15(f)(1) from and after July 1, 2004.

By using his IOLTA account and handling trust funds after September 23, 2005, in violation of the administrative suspension order, the respondent violated Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h) and S.J.C. Rule 4:01, § 17(1)(g). By failing to cooperate in bar counsel’s investigation of the dishonored check and IOLTA transactions, the respondent violated Mass. R. Prof. C. 3.4(c), 8.1(b), and 8.4(g) and (h) and S.J.C Rule 4:01, § 3(1).

Count IV. The respondent became a member of the Massachusetts Bar Association’s Lawyer Referral Service (LRS) in September 2000. As the respondent was then aware, he was required by the LRS rules to carry malpractice insurance with coverage of at least $250,000/$500,000, provide a certificate of insurance, and notify the LRS immediately upon any reduction or termination of his coverage. The respondent agreed to abide by those rules when he became an LRS member.

In March 2001, the respondent renewed his LRS membership through March 2002 and submitted an insurance certificate showing his existing malpractice policy. That policy expired on August 1, 2002. The respondent did not renew that policy or secure another one until December 2002, and he knew he had no coverage in the interim. The respondent did not, however, notify the LRS that his malpractice coverage had terminated.

In April 2002, the respondent again renewed his LRS membership, this time for the period ending March 31, 2003. For that renewal, the respondent completed, signed and sent to the LRS a renewal form in which he intentionally misrepresented that he then had malpractice coverage with an expiration date of August 1, 2002 and that he met all the requirements, including the insurance requirement, for continued membership. Moreover, the respondent fabricated an insurance certificate purporting to confirm his coverage and submitted it with his renewal form to deceive or mislead the LRS about the status of his malpractice coverage and his eligibility for referrals. The LRS subsequently learned of the lapse of the respondent’s coverage from other sources and terminated his membership.

By intentionally misrepresenting his coverage and compliance with the LRS rules in the April 2002 renewal form, creating or causing the creation of the fictitious certificate, and submitting the fictitious certificate, the respondent violated Mass. R. Prof. C. 8.4(c) and (h).

Matters on Aggravation and Disposition. In September 2006, bar counsel filed a second contempt petition based on, among other things, the respondent’s failure to repay the remaining $5,000 due his client. By then, the client’s attorney had started supplementary process against the respondent, and the district court had issued a capias for the respondent’s arrest after he failed to appear for a hearing. The respondent was brought before the district court on the capias, at which time he finally made the remaining payment in late September 2006.

In October 2006, the respondent failed to appear in the county court for a hearing on the second contempt petition. On October 4, 2006, he was again adjudged in contempt, and another capias was issued. That capias was subsequently returned unexecuted by order of the county court.

In November 2006, the Board of Bar Overseers voted to recommend the respondent’s disbarment and filed an information in the county court. On December 15, 2006, the single justice issued an order of notice directing the respondent to file a response within 30 days. The respondent was served with the notice but failed to reply. The single justice entered a judgment of disbarment on January 26, 2007, effective immediately.

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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