Mass.gov
   
Mass.Gov home Mass.gov  home get things done agencies Search Mass.Gov


Commonwealth of Massachusetts

NO. BD-2008-053

IN RE: DANIEL HYNES

S.J.C. Order of Term Suspension and Reinstatement entered by Justice Gants on December 14, 2009.1

ORDER OF TERM SUSPENSION AND REINSTATEMENT

This matter came before the Court, Gants, J., on a Petition for Reciprocal Discipline pursuant to S.J.C. Rule 4:01, sec. 16, filed by bar counsel on November 17, 2009, and a Petition for Automatic Reinstatement pursuant to S.J.C. Rule 4:01, sec. 18 (1)(b) filed by the respondent lawyer on December 3, 2009.

The lawyer is admitted to the practice of law in New Hampshire and the Commonwealth. On May 21, 2008, the New Hampshire Supreme Court entered an interim order temporarily suspending the lawyer from the practice of law, effective July 1, 2008. On June 6, 2008, this court entered an order of immediate temporary suspension. Both courts' orders arose from the lawyer's conviction in New Hampshire, subsequently affirmed in State v. Hynes, 159 N.H. 187 (2009).

On November 6, 2009, the New Hampshire Supreme Court suspended the lawyer from the practice of law for a period of two (2) years, with the first year of the suspension to run retroactively from the date of his July 1, 2008 interim suspension to July 1, 2009, and the second year of the suspension to be stayed for a period of two (2) years, subject to conditions set forth in a stipulation signed by the lawyer and the New Hampshire disciplinary counsel. (See attached copies of September 25, 2008 Stipulation As To Rule Violations and Sanction ("Stipulation") and November 6, 2009 New Hampshire Supreme Court Order ("Order") marked Exhibits A and B respectively, and hereby incorporated by reference). Because the first year of his suspension expired on July 9, 2009, the lawyer was eligible to be reinstated in New Hampshire once he demonstrated that he had passed the Multistate Professional Responsibility Examination and had completed a class in professional responsibility. The lawyer provided proof that he had met these requirements and on November 19, 2009, was reinstated to the practice of law in New Hampshire subject to the terms and conditions set forth in paragraphs 22-34 of the Stipulation, as accepted and modified by the New Hampshire Supreme Court in its November 6, 2009 Order. (See Exhibits A and B) .

After bar counsel filed a Petition for Reciprocal Discipline in this court on November 17, 2009, an Order of Notice issued directing the lawyer to inform the Court within thirty (30) days of service why the imposition of the identical discipline imposed by the New Hampshire Supreme Court, if imposed in the Commonwealth, would be unwarranted. On December 3, 2009, the lawyer filed a response assenting to the imposition of the same discipline in the Commonwealth, as well as a Petition for Automatic Reinstatement. Bar counsel assented to reinstatement so long as the lawyer is subject to the same conditions regarding his practice of law in Massachusetts that he is subject to in New Hampshire.

Upon consideration thereof, it is ORDERED and ADJUDGED that DANIEL P. HYNES be, and hereby is, suspended from the practice of law for a period of two years, with the first year of the suspension to run retroactively from the date of his June 6, 2008 temporary suspension to June 6, 2009, and the second year of the suspension to be stayed for a period of two (2) years, subject to the same terms and conditions regarding his practice of law in Massachusetts as set forth in paragraphs 22-34 of the Stipulation as accepted and modified by the State of New Hampshire Supreme Court in its November 6, 2009 Order. (See Exhibits A and B heretofore incorporated by reference); and

It is FURTHER ORDERED and ADJUDGED that the lawyer be, and hereby is, reinstated as a member of the bar of the Commonwealth subject to the same terms and conditions set forth in paragraphs 22-34 of the Stipulation as accepted and modified by the State of New Hampshire Supreme Court in its November 6, 2009 Order. (See Exhibits A and B heretofore incorporated by reference).

If the lawyer violates any of the terms and conditions of his reinstatement during the two (2) year period of his suspension, bar counsel may petition this court to impose the remaining term of his suspension.

EXHIBIT A

NEW HAMPSHIRE SUPREME COURT PROFESSIONAL CONDUCT COMMITTEE

Hynes., Daniel P.
advs.
Attorney Discipline Office
#07-001

STIPULATION AS TO RULE VIOLATIONS AND SANCTION

Respondent, Daniel P. Hynes, Esq., and the Attorney Discipline Office, by and through Disciplinary Counsel, Landya McCafferty, Esq., hereby submit this Stipulation as to Rule Violations and Sanctions in the above captioned case.

  1. The parties filed a Stipulation to the Facts with this Committee on August 1, 2008, wherein Mr. Hynes admitted to the material facts in this matter. At the time that Stipulation was filed, the parties had not reached an agreement with respect to rule violations and sanction. The Stipulation of the Facts is incorporated herein and attached as Exhibit A.
  2. The parties have now reached agreement with respect to the appropriate rule violations and sanction and respectfully request that the Committee approve and adopt the rule violations and proposed sanction.
  3. I. Stipulation as to Rules Violated Rule 8.4(a): Attempt to Commit a Criminal Act

  4. The facts as set forth in Exhibit A are incorporated by reference.
  5. RSA 637:5 provides in pertinent part, as follows:
    637:5 Theft by Extortion. -
    I. A person is guilty of theft if he obtains or exercises control over the property of another by extortion and with a purpose to deprive him thereof.
    II. As used in this section, extortion occurs when a person threatens to: ... (i) Do any other act which would not in itself substantially benefit him but which would harm substantially any other person with respect to that person's health, safety, business, calling, career, financial condition, reputation, or personal relationships.
  6. By sending the "cease and desist/demand" letters to hair salons in New Hampshire under the aforementioned circumstances, Mr. Hynes engaged in acts constituting a substantial step towards the completion of the crime of extortion.
  7. Specifically, Mr. Hynes drafted these "cease and desist/demand" letters on behalf of no client, and Mr. Hynes stood to receive no substantial benefit himself from his demanded changes in hair-cutting price structures and his threatened lawsuits.
  8. Further, Mr. Hynes sent the letters with a purpose to threaten the salons in order to gain leverage in his scheme to obtain money from these salons.
  9. Mr. Hynes sent the letters with the knowledge that the threatened lawsuit against the hair salons would cause substantial harm to the business and financial condition and/or reputation of each of the hair salons, as well as harm to the careers of the salon's principals.
  10. Mr. Hynes sent the letters with the understanding that the hair salons might desire to avoid the harm to their business from a lawsuit by meeting his financial demands.
  11. Mr. Hynes utilized his license as an attorney to carry out his extortionist scheme.
  12. Mr. Hynes' extortionist scheme, as outlined in more detail in the Stipulation to the Facts, reflects adversely on his fitness as a lawyer.
  13. Mr. Hynes' numerous attempts (at least 18 in number) to extort money from hair salons in New Hampshire, constitute clear and convincing evidence that he attempted to commit criminal acts in violation of N.H. R. Prof. Conduct 8.4(a).
  14. Rule 8.4(b): Commit a Criminal Act

  15. The facts as set forth in Exhibit A are incorporated by reference.
  16. By sending the "cease and desist/demand" letter to Claudia's Hair Salon and accepting $500.00 as settlement of the demand, as described in more detail in the Stipulation to the Facts, Mr. Hynes engaged in conduct constituting a criminal act, in violation of RSA 637:5(II)(i).
  17. Specifically, Mr. Hynes drafted the "cease and desist/ demand" letter to Claudia's on behalf of no client and Mr. Hynes stood to receive no substantial benefit himself from the demanded changes in Claudia's hair-cutting price structures and threatened lawsuit.
  18. The threatened lawsuit against Claudia's Hair Salon, as described in Mr. Hynes' letter, would have caused substantial harm to Claudia's business, financial condition and/or reputation, as well as to the careers of Claudia's principals.
  19. Mr. Hynes utilized his license as an attorney to carry out his extortionist scheme.
  20. Mr. Hynes' extortionist scheme, as outlined in more detail in the Stipulation to the Facts, reflects adversely on his fitness as a lawyer.
  21. Mr. Hynes' acceptance of $500.00 to settle the demands and threats he asserted against Claudia's in the cease and desist/demand letter he wrote to Claudia's, constitutes clear and convincing evidence of a violation of N.H. R. Prof. Conduct 8.4(b).
  22. Rule 8.4(a): General Rule

  23. Because there exists clear and convincing evidence that Mr. Hynes violated the above rules, there is necessarily clear and convincing evidence of a violation of N.H. R. Prof. Conduct 8.4(a).
  24. Rule 8.4(c): Fraud and Deceit

  25. As part of this stipulated agreement, Disciplinary Counsel recommends to the Professional Conduct Committee that it dismiss the Rule 8.4(c) charge currently pending in the Notice of Charges.
  26. II. Stipulation as to Sanction

  27. The term of the sanction agreed to under this Stipulation shall be for two (2) years and shall begin to run upon the entry of an order of the Professional Conduct Committee adopting this Stipulation.
  28. Mr. Hynes enters into this Stipulation freely, intelligently and voluntarily, and he understands the consequences of this Stipulation.
  29. In entering into this Stipulation, Mr. Hynes has sought and received the advice of counsel.
  30. The parties jointly propose that Mr. Hynes be suspended from the practice of law for twelve months. Six months of the twelve month suspension shall be imposed, and Mr. Hynes shall be given retroactive credit for the time he has already served under the Court's temporary suspension in LD 2008-0004. The remaining six months of the twelve month suspension shall be stayed for two years on the following terms and conditions:
    1. Mr. Hynes shall comply with the terms of this Stipulation, as described below.
    2. Mr. Hynes agrees to take and successfully complete Russell P. Hilliard's professional responsibility class at Franklin Pierce Law Center in the Fall of 2008.
    3. Mr. Hynes must show proof to Disciplinary Counsel that he has successfully completed Mr. Hilliard's class on or before January 1, 2009.
    4. Mr. Hynes understands that he must take and pass the Multistate Professional Responsibility Examination before he can be reinstated to the practice of law.
    5. Mr. Hynes agrees to find an experienced member of the Bar to act as a mentor to Mr. Hynes during the two-year term of this stay. Disciplinary Counsel must first approve Mr. Hynes's selection of a mentor.
    6. Mr. Hynes agrees to consult with his mentor on at least a monthly basis about his case load and any contemplated lawsuits.
    7. Mr. Hynes will not file lawsuits or threaten to file lawsuits on behalf of his clients (or participate as counsel in any other litigated matter) unless Mr. Hynes: (a) has first discussed the lawsuit or other litigated matter with his mentor; and (b) received an informal opinion from his mentor that the mentor believes the lawsuit(s) or other litigated matter is not frivolous.
    8. Mr. Hynes agrees that, in the event his mentor believes the contemplated lawsuit(s) or other litigated matter is or may be frivolous, Mr. Hynes will not pursue that lawsuit(s) or participate in such litigated matter.
    9. Mr. Hynes shall provide to Disciplinary Counsel every six months an affidavit attesting to the following:
      1. Mr. Hynes has consulted with his mentor on a monthly basis;
      2. Mr. Hynes has filed no lawsuit(s) and has not participated as counsel in any other litigated matter that his mentor believes is, or may be, frivolous;
      3. Mr. Hynes has complied with the Rules of Professional Conduct, including Rule 1.17 (if applicable), and all conditions of this Stipulation during the preceding six months;
    10. The affidavit shall also include notification to Disciplinary Counsel of:
      1. any address change;
      2. any civil claim asserted against Mr. Hynes;
        and
      3. any civil judgment entered against Mr. Hynes.
  31. Disciplinary Counsel shall monitor Mr. Hynes's compliance with the terms of this stipulation and shall be authorized at any time to communicate with Mr. Hynes's mentor regarding Mr. Hynes's performance.
  32. In the event that Disciplinary Counsel determines that, in her opinion, Mr. Hynes may have violated a term or condition of this Stipulation, Disciplinary Counsel may conduct such further investigation that she deems appropriate. Mr. Hynes shall have the right to provide Disciplinary Counsel with any additional information regarding the alleged violation.
  33. If Disciplinary Counsel concludes that, in her opinion, the alleged violation is a material violation, she may file a motion with the Professional Conduct Committee requesting that the Committee impose the stayed six-month suspension. Mr. Hynes shall have the right to respond in writing to Disciplinary Counsel's motion, to request an evidentiary hearing thereon, and to request oral argument before the Committee. The Committee shall rule upon any request for an evidentiary hearing and for oral argument. Following an evidentiary hearing (if requested), or the denial of a request for such hearing, the Committee shall determine whether the motion requesting imposition of the stayed six-month suspension should be granted or denied. Unless waived, oral arguments will be conducted to allow Disciplinary Counsel and Mr. Hynes ten (10) minutes to address the issue of imposition of the stayed suspension. The Committee's decision shall be final.
  34. In any proceeding under paragraph 28 of this Stipulation to impose the stayed six month suspension based upon information reported by Disciplinary Counsel, the burden of proof that Disciplinary Counsel must meet is as follows: Disciplinary Counsel must establish by a preponderance of the evidence that Mr. Hynes's alleged conduct is either a material breach of the terms of this stipulation or constitutes a violation of the N.H. Rules of Professional Conduct,
  35. If the Attorney Discipline Office receives a complaint against Mr. Hynes that arises out of events that pre-date adoption of this Stipulation by the Professional Conduct Committee, that complaint will be processed in the ordinary course of business. Any finding of a violation of the Rules of Professional Conduct that may result from that complaint will not be a basis for imposition of the stayed six-month suspension in this case, but the existence of this stipulation, as approved by the Professional Conduct Committee, may be considered by the Hearings Committee and Professional Conduct Committee in disposing of such other complaint.
  36. If the Attorney Discipline Office receives a complaint against Mr. Hynes during the period of the two year stay that arises out of events post-dating adoption of this Stipulation by the Professional Conduct Committee, but occurring within the period of the two year stay, that complaint will be processed by the Attorney Discipline Office on an expedited basis. Any final adjudication of a violation of the Rules of Professional Conduct that may result from that complaint may provide a basis for a request by Disciplinary Counsel that the Professional Conduct Committee impose the stayed six month suspension in this case. If Disciplinary Counsel makes such a request, Mr. Hynes shall be entitled to an evidentiary hearing and review by the Professional Conduct Committee.
  37. At the conclusion of the two-year period described in paragraph 25 hereof, the stayed six-month suspension shall be permanently stayed, provided that there are no complaints or motions pending pursuant to paragraphs 28 or 31 of this Stipulation. If such complaints or motions are filed during the two year period, they can provide a basis for seeking imposition of the stayed six month suspension even if the proceedings on such complaints or motions are concluded after the expiration of the two year period of the stay. Any request for imposition of the stayed suspension that is based upon a complaint under paragraph 31 hereof must be initiated within 30 days of final disposition of that complaint.
  38. In any proceeding to impose the stayed six-month suspension, the Professional Conduct Committee has the discretion to impose a suspension of less than six months if it finds that such lesser suspension is appropriate under the facts presented.
  39. If the approved mentor elects to terminate his mentor relationship with Mr. Hynes, Mr. Hynes shall notify Disciplinary Counsel immediately. In the event of such termination, Mr. Hynes shall be responsible for finding a new mentor, subject to Disciplinary Counsel approval, within 30 days of such termination. If no mentor is selected within that 30-day time-frame, Disciplinary Counsel shall notify the Professional Conduct Committee and Mr. Hynes's failure in this regard shall be treated as a material violation and grounds for imposition of the stayed suspension.
  40. III. Stipulation as to Costs

  41. Mr. Hynes agrees to pay the expenses incurred by the Professional Conduct Committee in the investigation and prosecution of this matter, as well as in connection with any process required to implement and enforce the conditions of this stipulation.
  42. IV. Effect of Stipulation

  43. Mr. Hynes understands that by signing this Stipulation, he is hereby bound to the facts as stipulated. In the event that the Professional Conduct Committee does not agree with the Stipulation as to Rule Violations and Sanction, Mr. Hynes is nonetheless hereafter bound to the facts and rule violations as stipulated.

EXHIBIT B

THE STATE OF NEW HAMPSHIRE SUPREME COURT

In Case No. LD-2009-0003, In the Matter of Daniel P. Hynes, the court on November 6, 2009, issued the following order:

On April 1, 2009, the Professional Conduct Committee (PCC) filed a petition for two-year suspension of Attorney Daniel P. Hynes from the practice of law, with one year of the suspension stayed for two years. The petition arises out of Attorney Hynes' conviction for theft by extortion. On April 3, 2009, the respondent filed an answer to the petition, stating that he assented to the petition but reserved his right to seek review of this matter if his conviction were reversed by this court. The PCC notified the court that it did not object to Attorney Hynes' reservation of rights. In an opinion issued on August 5, 2009, we affirmed the respondent's conviction.

In the petition, the PCC alleged that Attorney Hynes violated the following Rules of Professional Conduct:

  1. Rule 8.4(a), by attempting to commit a criminal act and by violating the Rules of Professional Conduct; and
  2. Rule 8.4(b), by committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness.
The court accepts the PCC's rulings as to the rules violations.

The PCC recommended that Attorney Hynes be suspended for a period of two years, with the first year of the suspension to run retroactively from the date of Attorney Hynes' interim suspension by the court on July 1, 2008 to July 1, 2009. It requested that the second year of Attorney Hynes' suspension be stayed for a period of two years during which period Attorney Hynes would be permitted to resume the practice of law subject to certain conditions agreed upon by the parties, including supervision by a mentor and the filing of regular reports with the Attorney Discipline Office.

Having reviewed the petition, Attorney Hynes' answer, and the parties' stipulations, the court accepts the PCC's recommendation as to the sanction that should be imposed in this case. Therefore, the court orders that Attorney Daniel P. Hynes be suspended from the practice of law in New Hampshire for a period of two years, with the first year of the suspension to run retroactively from the date of Attorney Hynes' interim suspension by the court on July 1, 2008 to July 1, 2009, and the second year of the suspension to be stayed for a period of two years.

The court also accepts the PCC's recommendation that Attorney Hynes be permitted to resume practice upon the expiration of the first year of his suspension, subject to the conditions agreed upon by the parties in the "Stipulation as to Rule Violations and Sanction." Paragraphs 25 through 34 of the stipulation, which outline the conditions and the procedure for enforcing any breach of the conditions, are hereby incorporated by reference into this order, but any references in these paragraphs to a suspension for 12 months are deemed to be replaced by a suspension for two years.

Because the first year of his suspension expired upon July 1, 2009, Attorney Hynes shall be reinstated to practice, subject to the conditions set forth in the stipulation, once he has met all of the conditions set forth in the PCC's decision. Upon certification by the PCC or disciplinary counsel that Attorney Hynes has met the conditions necessary for reinstatement, an order reinstating Attorney Hynes to the practice of law will be issued.

The parties agreed and the PCC approved a process for imposing the second year of the suspension in the event of a violation of the stipulation. As provided in the stipulation, if disciplinary counsel establishes a violation of the stipulation or of the Rules of Professional Conduct, the PCC may impose the second year of the suspension, and its decision shall be final. If the PCC imposes any portion of the second year of the suspension, it shall notify the court. At the conclusion of the two year stay, either party may request that the stay of the remaining suspension be made permanent.

Attorney Hynes is hereby assessed all expenses incurred by the Professional Conduct Committee in the investigation and prosecution of this matter. See. Rule 37(19).

So ordered.


FOOTNOTES:

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



BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.