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Commonwealth of Massachusetts

NO. BD-2006-050

IN RE: DENNIS M. O’DRISCOLL

S.J.C. Order of Indefinite Suspension entered by Justice Ireland on November 8, 2006.1

SUMMARY2

The respondent was indefinitely suspended for misuse of trust funds and other violations.

On June 19, 2002, the respondent deposited into his IOLTA account a settlement check in the amount of $11,200.00 received on behalf of a client. On July 19, 2002, the respondent wrote to the client, accounting for the proceeds. The respondent in his accounting deducted $3,811.00 in legal fees and costs. The respondent withheld $847.07 to satisfy a hospital lien and promptly paid that amount to the hospital. The respondent further withheld a total of $2,952.20 to satisfy a Medicare lien and other unpaid medical bills but did not thereafter pay the providers. The respondent enclosed with the accounting a check in the amount of $3,589.73 payable to the client and drawn on his IOLTA account. The client received the check, but never negotiated it. Thus, a total of $6,541.93 of the client’s funds remained in the respondent’s account.

In October 2002, the balance in the respondent’s IOLTA account fell below the amount due to the client and the funds were gradually depleted until, as of February 20, 2003, the account balance was $311.17. On May 18, 2004, the account was closed by the bank and charged off because the respondent had a negative balance of $95.33.

On March 12, 2004, the client’s son contacted the respondent on his father’s behalf and asked for a replacement for the stale check. The respondent did not respond to this request or to numerous other requests from the son over the next seven months.

In the summer of 2005, the respondent contacted the son and informed him that the IOLTA account has been closed and that he was waiting for funds from an unrelated matter. On August 5, 2005, the respondent paid the sum of $508.43 from a personal account in full satisfaction of the Medicare lien. The respondent did not, however, reimburse the father or the son the difference between the amount that he paid ($508.43) and the amount that had held back in July 2002 ($2,952.20).

Despite repeated demands for payment, the respondent never reimbursed either the father or the son for the stale check in the amount of $3,589.73, nor for the excess amount held for the Medicare lien or other service providers. The client remains deprived of funds to which he is entitled in the total amount of $6,033.50.

In February 2006, a complaint was filed with bar counsel. The respondent further never replied to bar counsel’s inquiries or provided bar counsel with any explanation either of his use of the funds or his failure to make restitution. As a result, the respondent was administratively suspended by the Supreme Judicial Court on June 14, 2006 pursuant to Supreme Judicial Court Rule 4:01, § 3. He thereafter failed to comply with the terms of the suspension.

The respondent’s misuse of client funds, with actual deprivation resulting and continuing, is conduct in violation of Mass. R. Prof. C. 1.15(a) as appearing in 426 Mass. 1301, 1363 (1997) and effective 1/1/98 through 6/30/04 and of Mass. R. Prof. C. 8.4 (h). The respondent’s failure to cooperate with bar counsel, or to comply with the terms of the administrative suspension, is conduct in violation of Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01, §3. In aggravation, in January 2005, the respondent received an admonition for commingling personal funds in his IOLTA account.

On July 5, 2006, bar counsel filed a petition for discipline against the respondent. The respondent failed to file an answer to the petition as required and did not participate in the proceedings. Pursuant to S.J.C. Rule 4:01, § 8(3), the allegations were therefore deemed admitted. On October 16, 2006, the Board of Bar Overseers voted to recommend to the Court that the respondent be indefinitely suspended and, on November 8, 2006, the Supreme Judicial Court for Suffolk County so ordered.

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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