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Commonwealth of Massachusetts

NO. BD-2008-057

IN RE: JOHN F. CULLEN

S.J.C. Judgment of Reinstatement entered by Justice Cordy on July 16, 2010.1

MEMORANDUM AND ORDER ON THE RESPONDENT'S MOTION FOR RELIEF

In 2008, I imposed an order of term suspension against the respondent, John F. Cullen, pursuant to S.J.C. Rule 4:01, § 8 (3), as amended (2009). The disciplinary sanction was a one-year suspension from the practice of law in Massachusetts; that one-year period ended on August 7, 2009. Under S.J.C. Rule 4:01, § 1-8 (1) (b), as amended (2009), 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 taken the Multi-State Professional Responsibility Examination during the period of suspension and received a passing grade as established by the Board of Bar Examiners, (iii) has paid any required fees and costs, and (iv) has repaid the Clients' Security Board any funds awarded on account of the lawyer's misconduct." The rule further states that if the respondent files the required affidavit, reinstatement is automatic ten days after the filing, unless bar counsel files a notice of objections within that ten-day period. In the event that bar counsel files a notice of objections, then the court will hold a hearing to decide whether to require that the respondent file a full petition for reinstatement and be subject to a reinstatement hearing pursuant to S.J.C. Rule 4:01, § 18 (4) & (5), as amended (2009). Finally, the rule provides that for a respondent to qualify for automatic reinstatement under § 18 (1) (b), the respondent must file the required affidavit within six months after the term of suspension ends, and if the respondent does not file the affidavit within this period, the respondent must file a full petition for reinstatement under S.J.C. Rule 4:01, § 18 (4), as amended (2009). See S.J.C. Rule 4:01, § 18 (1) (d), as amended (2009).

The respondent did not file the affidavit required by § 18 (1) (b) within six months after his one-year suspension had ended, due to a medical condition which prevented him from passing the Multi-State Professional Responsibility Examination (MPRE) during his term of suspension, a precondition for automatic reinstatement. The respondent filed a motion for relief from the six-month filing requirement on May 27, 2010, after the six-month period had passed on February 7, 2010. Bar Counsel filed an opposition to the respondent's motion for relief, contending that this Court must require the respondent to file a full petition for reinstatement, and proceed through the reinstatement process as prescribed by S.J.C. Rule 4:01, § 18 (4)-(6), as amended (2009).

The respondent took the MPRE several times during his term of suspension and failed to receive a passing score. At the time, the respondent suffered from a medical condition diagnosed as "inflammatory myositis with scleritis" of the extraorbital muscles of the eye, for which he took a daily immunosuppressant medication called Cellcept. The respondent's physician, Dr. Russell G. Vasile, M.D., filed an affidavit stating that the respondent's medical condition and the side effects from Cellcept adversely affected the respondent's cognitive ability and mental functioning, thereby impairing the respondent's ability to take the MPRE. By January 2010, the respondent's medical condition had significantly improved, and his ophthalmologist discontinued Cellcept. The side effects relating to the medical condition and Cellcept abated, and the respondent took and passed the March 2010 MPRE.

This Court has inherent equitable authority to waive the requirements of S.J.C. rules. Matter of Tocci, 413 Mass. 542, 546 (1992); see also In Re: Dobie, Mass. State B. Disciplinary Bd., No. BD-2008-018 (July 31, 2009) (permitting the respondent to file a late affidavit for automatic reinstatement due to a mistake or misunderstanding of the filing deadline). In balancing the harm to the attorney against the public interest in preventing harm to future clients, I conclude that in this instance the six-month deadline for filing the required affidavit should be waived. The respondent had good cause for missing the filing deadline on account of his medical condition. Because the respondent's medical condition has improved, there is no indication that the respondent's condition would compromise his ability to practice.

After a hearing on Bar Counsel's objections, and in consideration of those objections as well as the affidavits filed by the respondent and his arguments in opposition to bar counsel, I conclude that the respondent's motion for relief from the six-month filing requirement should be granted, and that respondent is entitled to automatic reinstatement under S.J.C. Rule 4:01, § 18 (1) (b), as amended (2009).

For the foregoing reasons, Cullen's motion for relief from the six-month deadline for filing an affidavit of compliance in order to be entitled to automatic reinstatement is ALLOWED, and it is ORDERED that the respondent be reinstated to the bar in the Commonwealth of Massachusetts.


FOOTNOTES:

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



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