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Commonwealth of Massachusetts

NO. BD-2007-004

IN RE: KEVIN J. MACDONALD

S.J.C. Order of Term Suspension with Probationary Conditions entered by Justice Cordy on February 27, 2007, with an effective date of March 29, 2007.1

MEMORANDUM AND ORDER

This case came before me on an information filed by the Board of Bar Overseers (board) , with a recommendation of the board that the respondent, Kevin J. MacDonald, be suspended for six months from the practice of law with probationary conditions. I have reviewed the entirety of the record and the filings in this case, and held a hearing on February 13, 2007. Upon consideration of these materials, I concur with the board's recommendation.

1. Background. MacDonald was admitted to practice in Massachusetts on December 16, 1998. He immediately commenced a busy solo practice, taking on a number of cases in a variety of areas. As a newly admitted attorney engaged in solo practice, MacDonald quickly found himself incapable of meeting the demands of his practice, and, in 2000 and 2001, neglected to act with the level of diligence required by the Rules of Professional Conduct. In representing two individual clients, MacDonald failed to make certain filings within their time requirements, causing his clients' matters to be time-barred or dismissed. He also failed to return client telephone calls or respond to written requests for information about the status of these matters. In an effort to reactivate his clients' cases, MacDonald made false statements in affidavits he submitted to the United States District Court and to the Massachusetts Labor Relations Commission (MLRC) and backdated two documents he submitted to the MLRC.

Bar Counsel filed a petition for discipline on January 11, 2005. MacDonald did not contest the allegations of misconduct, and requested a hearing on mitigation to determine the appropriate sanction. In mitigation, MacDonald offered evidence that he suffered from depression and was severely sleep deprived during the relevant time period. The years preceding his legal career were fraught with personal challenges and his family life was particularly important to him. MacDonald’s youngest child was born in October, 2000 and some of the incidents that gave rise to this disciplinary action occurred at that time and during the months immediately following.2 During this period, MacDonald rented space in an office with three attorneys and one secretary. Only one of those attorneys had any experience with litigation and MacDonald was unsupervised in his work with minimal support available to him. MacDonald contacted the Boston Bar Association and the Massachusetts Bar Association in an attempt to find a more experienced attorney to serve as a mentor but was unable to establish a mentoring relationship. He also sought assistance from Lawyers Concerned for Lawyers, and met with a psychiatrist who prescribed medication that MacDonald took for a few weeks, but abandoned because of its side effects, and a belief that it was not helping.

A Special Hearing Officer found that, by missing filing deadlines, by failing to serve the defendants in one action, and by failing to return client telephone calls and written requests for information about the status of a case, MacDonald failed to act with the reasonable diligence required by Mass. R. Prof. C. 1.2 (a), 1.3, and 1.4 (a).3 By knowingly making false statements of fact to two tribunals and backdating two documents he submitted to the MLRC, MacDonald violated Mass. R. Prof. C. 3.3 (a) (1) and 8.4 (c), (d) & (h).4 The hearing officer also found that MacDonald was depressed and sleep deprived during the relevant period but credited testimony that MacDonald was functioning adequately in other areas of his legal practice and in his role as a parent. The hearing officer further credited testimony that, subsequent to the events giving rise to this action, MacDonald voluntarily limited his practice to a narrower range of cases, focused in criminal matters, where he had earned a favorable reputation handling court appointments. The hearing officer also found that MacDonald showed remorse for his conduct, and credited testimony that at the time MacDonald made the statements in affidavits, he did so in an effort to resurrect his clients' appeal rights, believing his actions were in his clients' best interests, and was not motivated by self interest or a desire for personal gain.

The hearing officer recommended that MacDonald be suspended from the practice of law for six months, with three of those months suspended for a one-year period of probation, on conditions that: (1) his practice be restricted to criminal law unless and until he enters into a mentoring situation satisfactory to the board so that his civil practice will be properly supervised; (2) he enter into and continue a psychotherapeutic relationship and remain in it for at least one year; and (3) he actively participate in an appropriate program with Lawyers Concerned for Lawyers, or an alternative program suggested by that organization.

On appeal to the Appeal Panel of the board, bar counsel sought a suspension of one year and one day. The Appeal Panel recommended that the board adopt the hearing officer's findings and conclusions, almost in their entirety,5 but recommended that MacDonald be suspended from practice for six months to be followed by a period of probation on the conditions set forth by the hearing officer. It also recommended that MacDonald be required to take a course offered by the Office of Bar Counsel entitled, "How to Make Money and Stay Out of Trouble." The board adopted the Appeal Panel's findings and recommendations.6

2. Discussion. To determine whether the sanction imposed in this case is appropriate, I must decide whether the board's recommendation "is 'markedly disparate' from the sanction imposed in other similar cases." Matter of Brown, 12 Mass. Att'y Discipline R. 23, 27 (1996), quoting Matter of Alter, 389 Mass. 153, 156 (1983) . Although deference is to be accorded the board's recommendation, each case must be decided "on its own merits." Matter of the Discipline of an Attorney, 392 Mass. 827, 837 (1984).

Absent aggravating or mitigating factors, a public reprimand is the presumptive sanction in cases where an attorney has failed to act with reasonable diligence. Matter of Kane, 13 Mass. Att'y Discipline Rep. 321, 324 (1997). Such a sanction is particularly appropriate for a newly admitted attorney where inexperience may be considered a mitigating factor. For perpetrating a fraud on the court by knowingly submitting false statements, sanctions have ranged from a public reprimand to a term suspension depending upon the circumstances of the case. Compare Matter of Cross. 15 Mass. Att'y Discipline Rep. 157 (1999) (public reprimand where attorney made knowing misrepresentation to United States District Court in filing return of service) with Matter of Kerlinsky. 428 Mass. 656, 664 (1999) (three-year suspension for pattern of improper behavior including filing false and misleading affidavits and interrogatory answers).

As in Matter of O'Donnell, ___ Mass. Att'y Discipline Rep. ___ (2007),7 I am troubled that MacDonald responded to his own negligence by making false statements to two judicial tribunals to cover his errors. Even with the best of intentions, such conduct is cause for grave concern. "An effective judicial system depends on the honesty and integrity of the lawyers who appear before its tribunals." Matter of McCarthy, 416 Mass. 423, 431 (1993). The conduct warrants a meaningful sanction. Suspensions of one year have often been deemed appropriate. See Matter of McCarthy, supra (one-year suspension where attorney elicited false testimony, introduced false documents, and failed to correct the record when given the opportunity); Matter of Neitlich, 413 Mass. 416, 423 (1992) (one-year suspension where attorney actively misrepresented terms of client's pending real estate transaction in postdivorce proceeding).

The board likened the misconduct here to that found in Matter of Long, 16 Mass. Att'y Discipline Rep. 250 (1999), where, to receive a continuance of a pretrial conference, the lawyer made deliberate misrepresentations to a court official that he was scheduled to appear elsewhere. The lawyer, who also failed to act with the diligence required by the Rules in his representation of two clients, was suspended for three months followed by three years probation on certain conditions. Like MacDonald, the lawyer in Long was attempting to help his client after the lawyer neglected the client and his case. But MacDonald did more than lie to court staff in an effort to reschedule a conference; he submitted false affidavits to two separate tribunals and backdated documents. Although the board is correct that the misrepresentations made by MacDonald did not pertain to substantive matters, as they related to filing dates and service of process,8 I cannot overlook the fact that he engaged in deception on more than one occasion and that the misrepresentations were made under oath. See Matter of Shaw, 427 Mass. 764 (1998) (two-year suspension where attorney made false statement under oath, filed false affidavit, and issued false and misleading letters signed under oath to which he forged the notarization of another attorney); Matter of Saab, 406 Mass. 315, 326-327 (1989) (cumulative effect of multiple offenses should be considered).

MacDonald argues that he should be given a short suspension, suspended, with a period of probation and relies upon Matter of Guinane, 20 Mass. Att'y Disc. Rep. 191 (2004) (one-month suspension appropriate where lawyer filed an affidavit with a forged client signature that could have precluded client from testifying); and Matter of Regan, 2 Mass. Att'y Disc. Rep. 180 (1980) (public censure where attorney neglected a case and lied about it to clients, bar counsel, and under oath to Hearing Committee). The first case is distinguishable: MacDonald engaged in more than one act of deception to more than one tribunal in an effort to cover up his own neglect. I decline to rely on the latter case decided more than twenty-six years ago. Absent mitigating circumstances, bar counsel's recommendation of a suspension of one year and one day would be fully warranted.

However, in light of the mitigating circumstances established by MacDonald, which I weigh heavily in the balance in this case, I agree that the board's recommendation is reasonable, proportionate, and will protect the public. The circumstances which gave rise to MacDonald's misconduct have, to some significant measure, been corrected. At the time of his misconduct, MacDonald was an inexperienced attorney with a busy solo practice. He has since chosen to restrict his practice to court-appointed representation of criminal defendants in Dorchester District Court, where he has established a good reputation for competence. He is receiving mental health counseling and taking prescribed medication to treat his depression.

It is therefore ORDERED AND ADJUDGED that respondent be, and he hereby is, suspended from the practice of law for six months, and that he thereafter be subject to the following probationary terms and conditions for one year:

  1. MacDonald limit his practice to criminal law, unless he enters into a mentoring situation before that period concludes that satisfies the Office of Bar Counsel that his civil practice will be properly supervised;
  2. MacDonald continue with mental health counseling, if his mental health professional deems it appropriate;
  3. MacDonald participate in an appropriate program with Lawyers Concerned for Lawyers, such as the Law Office Management Program presently being created; and
  4. MacDonald take the course offered by the Office of Bar Counsel entitled "How to Make Money and Stay Out of Trouble" if it is offered during that period or as soon as practicable thereafter if it is not.

FOOTNOTES:

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.
2 During this time, Kevin J. MacDonald failed to return telephone calls to one of his clients and missed a deadline to request review of a decision made by the Massachusetts Labor Relations Commission.
3 Mass. R. Prof. C. 1.2 (a), 426 Mass. 1310 (1998), provides, in part: "A lawyer shall seek the lawful objectives of his or her client through reasonably available means permitted by law and these rules." Mass. R. Prof. C. 1.3, 426 Mass. 1313 (1998), provides: "A lawyer shall act with reasonable diligence and promptness in representing a client. The lawyer should represent a client zealously within the bounds of the law." Mass. R. Prof. C. 1.4 (a), 426 Mass. 1314 (1998), requires a lawyer to "keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."
4 Mass. R. Prof. C. 3.3 (a) (1), 426 Mass. 1383 (1998), provides that "A lawyer shall not knowingly make a false statement of material fact or law to a tribunal." Rule 8.4, 426 Mass. 1429 (1998), states that it is "professional misconduct for a lawyer to ... (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; ... or (h) engage in any other conduct that adversely reflects on his or her fitness to practice law."
5 The Appeal Panel of the Board of Bar Overseers found that findings of a violation of Mass. R. Prof. C. 8.4 (h) were unnecessary because each instance of misconduct fits squarely within one of the specific Rules and need not be classified under the "catch-all" provision of Rule 8.4 (h). The Board of Bar Overseers (board) adopted the Appeal Panel's findings and this issue is not before me.
6 The board modified the requirement that MacDonald see a psychotherapist to require that he "consult with a mental health professional and, if the professional deems it appropriate, that he receive mental health counseling for at least one year."
7 In the Matter of O'Donnell, __ Mass. Att'y Discipline Rep. __ (2007), the attorney was charged with, among other things, the misuse of client funds. Once the misuse was uncovered, the attorney lied under oath repeatedly about her actions and fabricated conversations with a client that she claimed justified them. The discipline imposed by the Single Justice was disbarment.
8 See Matter of Sherman, 17 Mass. Att' y Discipline Rep. 510, 521 (2001), aff'd 437 Mass. 1006 (2002) (distinguishing cases where attorney made misrepresentations regarding scheduling, settlement authority, and return of service from those that "went to the heart of a substantive matter" such as the identity of an expert witness and his proposed testimony).



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