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Commonwealth of Massachusetts

NO. BD-2007-083

IN RE: DANIEL A. McCARTHY, JR.

S.J.C. Order of Term Suspension entered by Justice Cordy on October 3, 2007.1

SUMMARY2

This matter was before the Court on a stipulated recommendation for suspension based three counts of misconduct, as follows.

Count I. The respondent was admitted to the Massachusetts bar in 1991. In February 2005, the respondent closed his law office and began full-time, nonlegal employment. Thereafter the respondent conducted his remaining law practice from his home. He failed to notify the Board of Bar Overseers of the change in his office address and failed timely to register with the Board or pay his annual registration fee.

On December 13, 2005, the respondent was administratively suspended from practice for failure to register pursuant to S.J.C. Rules 4:02(1) and 4:03(3). The respondent received timely notice of his suspension but failed to effect his reinstatement. On January 12, 2006, thirty days after his suspension, the respondent became subject to provisions of S.J.C. Rule 4:01, § 17, requiring him, among other things, to file notices of withdrawal of all his court appearances; give notice of his suspension to all his clients and opposing counsel or parties in pending cases, informing the clients that they should promptly obtain other counsel and calling to their attention any urgency arising from the circumstances; make available to the clients all papers and other property to which they were entitled; close all trust accounts; refund all unearned fee payments; and submit an affidavit of compliance to the Court and bar counsel.

When he was administratively suspended, the respondent represented clients in three pending matters including the matters described in Counts II and III. After his suspension, the respondent failed to give timely notice of or otherwise disclose his suspension to those clients. In one case, the respondent continued to appear for the clients and file pleadings for them in the housing court until July 2006. The respondent failed timely to withdraw his appearance and knowingly engaged in the practice of law in that case in violation of the suspension judgment and S.J.C. Rule 4:01, § 17, and he misrepresented his status as an attorney to the court, the opposing counsel and his clients. The respondent also violated the judgment and Rule 4:01, § 17, by failing timely to close his IOLTA account and file the required affidavit of compliance.

Between June and November 2006, bar counsel directed the respondent to comply with the administrative suspension judgment and warned him that failure to comply could lead to contempt proceedings against him. The respondent acknowledged his obligations but intentionally and without good cause failed to comply. In November 2006, bar counsel filed a contempt petition against the respondent in the Supreme Judicial Court. In December 2006, the respondent stipulated to an adjudication of contempt and represented to the Court and bar counsel that he would immediately bring himself into compliance. The Court entered a contempt judgment and ordered the respondent to comply by December 29, 2006. The respondent knowingly and without good cause failed to comply by that date.

The Court ordered the respondent to appear for a hearing on January 24, 2007, and answer for his failure to comply. Despite notice, the respondent failed to appear for the hearing. As a result, the Court ordered the immediate issuance of a capias to compel his appearance. The respondent was arrested that evening and held overnight on the capias. He was brought before the Court the next morning, released from custody, and ordered to be in full compliance by February 13, 2007. On that date, the respondent appeared in Court, documented his compliance, and filed his affidavit of compliance. The Court subsequently vacated the contempt judgment.

By knowingly and without good cause failing to provide his change of address to the Board, register, and pay the required fee, the respondent violated Mass. R. Prof. C. 3.4(c). By practicing law after his administrative suspension, the respondent violated Mass. R. Prof. C. 5.5(a). By intentionally misrepresenting his status as an attorney to his clients, opposing counsel, and the housing court, the respondent violated Mass. R. Prof. C. 1.4(a) and (b), 3.3(a)(1), 4.1(a), and 8.4(c) and (d). By intentionally disobeying the Court’s judgments and orders in contempt of the Court, the respondent violated Mass. R. Prof. C. 3.4(c) and. 8.4(c) and (d). By his knowingly failure without good cause to withdraw his appearances, give notice, make available all client papers, close his IOLTA account, and file an affidavit of compliance timely after his administrative suspension, the respondent violated Mass. R. Prof. C. C. 1.4(a) and (b), 1.16(a)(1), (d) and (e), 3.4(c), and 8.4(d) and S.J.C. Rule 4:01, §§ 17(1), (5) and (6).

Count II. In November 2004, a client who owned land in New Hampshire and a trailer in a New Hampshire trailer park hired the respondent to transfer the land to the client’s daughter and the trailer to the client and the daughter as joint owners. The client paid the respondent, who was not admitted to the New Hampshire bar, a flat fee of $150 for those services. The respondent never told the client that he was not licensed in New Hampshire, that he was not familiar with New Hampshire law, and that the client should consult a New Hampshire attorney for the transfers. After February 2005, the respondent did not notify the client that he had closed his law office.

The transfer of the trailer required the approval of the owner of the trailer park. The respondent prepared deeds for the transfers but never obtained the park owner’s approval or took other action of substance after March 2005 to complete the transfer of either the trailer or the land. The respondent did not earn the fee paid by the client.

During 2005, the respondent failed to reply to the client’s repeated inquiries about the transfers and requests for return of his papers and fee payment. In March 2006, the client filed a complaint against the respondent with bar counsel. Between March and June 2006, bar counsel asked the respondent to answer the complaint and reminded the respondent of his obligation to return the client’s papers and refund the unearned fee. In June 2006, the respondent represented to bar counsel that he would comply promptly, but he failed to return the client’s papers or refund the fee until February 2007 and failed to answer the complaint until March 2007. By then, the client had hired other counsel who effected the transfers.

By failing to inform the client that he was not admitted in New Hampshire and that the client should consult New Hampshire counsel, the respondent violated Mass. R. Prof. C. 1.4(b). By failing to provide competent representation, seek the client’s lawful objectives, and act with reasonable diligence and promptness in the matter, the respondent violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. By failing to keep the client reasonably informed, reply to the client’s inquiries and disclose his administrative suspension timely to the client, the respondent violated Mass. R. Prof. C. 1.4(a) and (b). By his knowing failure without good cause to terminate the representation, refund the client’s fee payment, and return the client’s papers timely after his administrative suspension, the respondent violated Mass. R. Prof. C. 1.16(a)(1), (d) and (e), 3.4(c), and 8.4(d) and S.J.C. Rule 4:01, § 17(1). By knowingly and without good cause failing to cooperate in bar counsel’s investigation, the respondent violated Mass. R. Prof. C. 3.4(c), 8.1(b), and 8.4(g) and S.J.C. Rule 4:01, § 3(a).

Count III. In January, 2000, a five-year-old kindergartner was injured at a public school in Massachusetts when a heavy steel door lacking a hydraulic closer or other safety device slammed shut on her hand and amputated the tip of her ring finger. In the fall of 2002, the child’s parents were referred to the respondent by another lawyer who had obtained her medical records and made timely presentment of a claim on their behalf against the municipality under the Massachusetts Tort Claims Act. The respondent took over representation and executed a contingent fee agreement with the parents. Thereafter the respondent did not investigate the circumstances of the injuries; ascertain who was responsible for the design, specification, construction, installation, inspection or maintenance of the door; put any other potentially liable party or insurer on notice of the claims; or take other action of substance to advance the claims.

In January 2003, the respondent started suit in the superior court by filing a complaint for the child’s mother, as next friend, against the municipality and the architect and general contractor for the school project. The respondent alleged negligence by the municipality in failing to supervise the child’s classroom and various theories of liability against all the defendants arising from the design, construction or installation of the door. The respondent knew when he filed the action that it was subject to dismissal under applicable time standards unless the defendants were served within 90 days. The respondent never made service on any defendant, and the action was dismissed without prejudice in March 2004. The respondent was aware of the dismissal by about May 2004 but did not move to vacate it or take other action to restore the case.

During 2003 and 2004, the respondent failed to answer the referring lawyer’s inquiries about the status of the case. The respondent never disclosed to the referring lawyer or the clients that the suit had been dismissed and that he had made no effort to restore it. In the spring of 2005, the referring lawyer learned that the respondent had closed his law office, asked the respondent again about the case, and inquired whether the respondent could still handle it in light of his employment. The respondent intentionally misrepresented to the referring lawyer that the case was in suit and that he was and would be continuing to pursue it.

Between about the summer of 2005 and the fall of 2006, the referring lawyer and the clients made further inquiries to the respondent about the case. On some occasions, the respondent failed to reply. On others, the respondent promised to meet with them and then failed to arrange or keep appointments. The respondent subsequently failed to comply with the referring lawyer’s requests to return the clients’ file. In January 2007, the clients filed a complaint with bar counsel against the respondent. The respondent knowingly and without good cause failed timely to return the file, and he did not answer the complaint until March 2007.

By intentionally misrepresenting the status of the case to the referring lawyer, the respondent violated Mass. R. Prof. C. 8.4(c). By failing to provide competent representation, seek the clients’ lawful objectives, and act with reasonable diligence and promptness, the respondent violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. By failing to keep the clients and the referring lawyer reasonably informed, reply to their inquiries, and make timely disclosure to them of his administrative suspension, the respondent violated Mass. R. Prof. C. 1.4(a) and (b). By failing timely to terminate the representation and return the clients file after his administrative suspension, the respondent violated Mass. R. Prof. C. 1.16(a) (1), (d) and (e). By knowingly and without good cause failing timely to cooperate in bar counsel’s investigation, the respondent violated Mass. R. Prof. C. 3.4(c), 8.1(b) and 8.4(g) and S.J.C. Rule 4:01, § 3(a).

The respondent had no history of discipline. In aggravation, the respondent engaged in multiple disciplinary violations, and those violations, with the respondent’s noncooperation and violation of court orders, evinced a pattern of misconduct. Further, the respondent’s misconduct caused substantial damage or prejudice to the clients in the third count, whose rights of recovery were likely extinguished or severely limited by operation of the six-year statute of repose, G.L. c. 260, § 2B. The respondent has paid no compensation to those clients and did not have malpractice coverage for any claims against him.

The matter came before the Board on a stipulation of facts and rule violations and a joint recommendation for an eighteen-month suspension retroactive to the date of the respondent’s compliance with the terms of his administrative suspension, February 13, 2007. The Board voted to accept the stipulation and recommendation. On October 3, 2007, the Court ordered the respondent’s disciplinary suspension for eighteen months retroactive to February 13, 2007.


FOOTNOTES:

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 Supreme Judicial Court.



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