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Commonwealth of Massachusetts

NO. BD-2008-018

IN RE: BRIAN J. DOBIE

S.J.C. Order Requiring a Petition for Reinstatement and Reinstatement Hearing entered by Justice Botsford on July 31, 2009.1

MEMORANDUM AND ORDER ON THE RESPONDENT’S MOTION FOR REINSTATEMENT

In 2008, I imposed an order of reciprocal discipline against the respondent, Brian J. Dobie, pursuant to S.J.C. Rule 4:01, § 16. The disciplinary sanction was a six-month suspension from the practice of law in Massachusetts; that six-month period ended on December 12, 2008. Under rule 4:01, § 18 (1) (a), the respondent was entitled to seek automatic reinstatement "by filing with the court and serving upon the bar counsel an affidavit stating that the lawyer (i) has fully complied with the requirements of the suspension order, (ii) has paid any required fees and costs, and (iii) has repaid the Clients' Security Board any funds awarded on account of the lawyer's misconduct." The rule further provides that if the required affidavit is filed, reinstatement is automatic ten days after the filing, unless bar counsel files a notice of objections within that ten-day period; if bar counsel does so, then the court is to hold a hearing and determine whether the respondent should be required to file a complete petition for reinstatement and be subject to a reinstatement hearing as prescribed by rule 4:01, § 18 (4) & (5). Finally, the rule states that for a respondent to be entitled to automatic reinstatement under § 18 (1) (a), he or she must file the required affidavit within three months after the end of the term of suspension, and if the affidavit is not filed within this period, the lawyer must file a full petition for reinstatement under rule 4:01, § 18 (4). See rule 4:01, § 18 (1) (d).2

The respondent did not file the affidavit required by rule 4:01, § 18 (1) (a), within three months after his six-month suspension was completed, due to a mistake or misunderstanding of the requirement. I permitted the respondent to file the affidavit late, on the understanding that bar counsel, of course, would be free to file a notice of objections, which she did. After hearing on bar counsel's objections, and in consideration of those objections as well as the affidavit filed by the respondent and his arguments in opposition to bar counsel, I conclude that the respondent should be required to file a petition for reinstatement under § 18 (4). As bar counsel notes, the respondent has not actually practiced law on any type of regular basis in Massachusetts for a good number of years. Moreover, when he was most recently practicing law in the Commonwealth, he did so as an Assistant District Attorney; and thus was working with other attorneys in a public office. The difficulties that the respondent had in Oregon, which became the basis for the reciprocal discipline imposed in Massachusetts, occurred while he was in private practice in that State, and the respondent has indicated that his intention is to engage in the private practice of law in Massachusetts when he is reinstated. In all the circumstances, I agree with bar counsel that it is appropriate to require the respondent to take and pass the professional responsibility examination - which he must do as part of the reinstatement process under rule 4:01, § 18 (4) & (5) - and to demonstrate his competency and learning in Massachusetts law.3

ORDER

For the foregoing reasons, it is ORDERED pursuant to S.J.C. Rule 4:01, § 18 (1) (c), that the respondent, Brian J. Dobie, be required to file a petition for reinstatement and have a reinstatement hearing as set forth in rule 4:01, § 18 (4) & (5).


FOOTNOTES:

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 The rule, SJ.C. Rule 4:01, § 18 (1) (d), as appearing in 430 Mass. 1329-1330 (1999), makes reference to the need to file a petition for reinstatement under § 18 (2), rather than § 18 (4), which is in fact the subsection that concerns the petition for reinstatement. I take the reference to § 18 (2) to be a scrivener's error in the publication of the rule, and that the intended reference is to § 18 (4).

3 In so stating I do not intend to suggest in any manner that the respondent will not be able to do so, or will have difficulty doing so.



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