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


Commonwealth of Massachusetts

NO. BD-2008-067

IN RE: DAVID RYAN O’DESKY

S.J.C. Judgment of Disbarment entered by Justice Cowin on September 11, 2008.1

SUMMARY2

The respondent was disbarred for his conduct in the following matters.

  1. In early 2004, the respondent was representing a woman pro bono in a modification action seeking custody of the woman’s son. Although the respondent did no work of substance on the client’s case, he misrepresented to the client that he had filed a complaint for modification on her behalf. The respondent also misrepresented to the client on three separate occasions that the court had scheduled and then rescheduled hearings on her complaint. The respondent’s neglect of his client’s case and his failure to file a complaint for the client violated Mass. R. Prof. C. 1.1 (competence), 1.2(a) (lawyer shall seek lawful objectives of client), and 1.3 (diligence). The misrepresentations to his client violated Mass. R. Prof. C. 1.4 (lawyer shall keep client informed about status of case and explain matter to extent necessary to enable client to make informed decisions about case), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation).
  2. In 2005, a client retained the respondent to represent her in a divorce case. The respondent failed to perform any work of substance on the client’s behalf. The respondent misrepresented to the client that he had filed a complaint for divorce. By failing to file the complaint for divorce, the respondent violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. By misrepresenting to the client that he had filed her complaint for divorce, the respondent violated Mass. R. Prof. C. 1.4 and 8.4(c). The respondent also charged the divorce client and another client in an unrelated matter for work he had not performed in violation of Mass. R. Prof. C. 1.5(a) (clearly excessive fee).
  3. The respondent failed to cooperate in bar counsel’s investigation of these matters. That conduct violated S.J.C. Rule 4:01, § 3(1)(b) (lawyer required to respond to requests for information by bar counsel made in the course of processing a complaint), and Mass. R. Prof. C. 3.4(c) (lawyer shall not disobey obligation under the rules of a tribunal), 8.1(b) (lawyer shall not knowingly fail to respond to lawful demand for information from disciplinary authority), and 8.4(g) (lawyer shall not fail without good cause to cooperate with bar counsel).
  4. In March 2007, the respondent represented a client in a proceeding for assessment of damages after the client’s prior lawyer withdrew from the case. When the respondent was retained, he was required simply to mark the case for a hearing on damages. The respondent failed to file an appearance for the client and mark the case for hearing.
  5. The respondent misrepresented to the client that he was working on the client’s case. At the end of May 2007, the court dismissed the client’s claim for failure to prosecute the case. In July 2007, the respondent misrepresented to the client that the defendant was willing to settle the case for $15,000 and falsely claimed that he needed $280 to pay costs in connection with the settlement. In reliance on this promise, the client paid the respondent $280, which the respondent converted to his own use.

    The respondent violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3, by his failure to take any action of substance to advance the client’s case and by permitting the case to be dismissed. By abandoning the case without notice to the client and failing to return the unearned portion of the fee, the respondent violated Mass. R. Prof. C. 1.16(d) (lawyer required to return unearned fees upon termination of representation). By making misrepresentations to the client and converting $280 in purported costs, the respondent violated Mass. R. Prof. C. 8.4(b) (lawyer shall not commit criminal act) and (c).

  6. In November 2006, a client retained the respondent to contest a claim by Massachusetts Department of Revenue (“MDOR”) for child support payments for the client’s child. The client paid the respondent in full for his anticipated services. After he received the payment, the respondent performed little or no work of substance on the client’s behalf. The respondent misrepresented to the client that the court had scheduled a hearing in the child support matter for December 1 when he knew that MDOR had not filed a complaint against the client. On December 1, the respondent told the client that the hearing had been rescheduled. On four separate occasions after December 1, the respondent misrepresented to the client that a hearing had been scheduled in his case and then, at the last moment, told the client that the hearing had been canceled or rescheduled.
  7. In March 2007, the client learned that child support proceedings had been commenced against him in Missouri. The respondent intentionally misrepresented to the client that he needed $610 to pay filing fees in connection with the Missouri proceedings. The client gave the respondent a check for $610, which the respondent cashed and converted to his own personal use.

    In July 2007, the mother of the child asked the client if he would be willing to relinquish his parental rights so that her new husband could adopt the child. After conferring with the respondent, the client agreed to relinquish his rights, and the respondent agreed to inform the mother and file the papers necessary to accomplish this in Missouri. The respondent misrepresented to the client that the mother demanded that the client pay filing fees of $485 for the child’s adoption as a precondition to her dropping the child support proceeding. The client gave the respondent $485, which the respondent converted to his own use. The respondent took no action on the client’s agreement to relinquish his parental rights.

    The client discharged the respondent in August 2007 and requested a refund of his unearned retainer and the money he had advanced fort costs. The respondent failed to account for his use of the client’s funds and failed to return the file or any money to the client.

    The respondent violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3 by failing to take any action of substance to represent the client’s interests in the child support matter. The respondent violated Mass. R. Prof. C. 1.4 and 8.4(c) by misrepresenting to the client the status of his case and the amount of work he had performed on the client’s behalf. The respondent violated Mass. R. Prof. C. 1.4, and 8.4(b) and (c) by falsely telling the client he needed additional funds to pay costs and expenses in connection with the client’s case and by converting the funds the client gave him as a result of those false representations. The respondent violated Mass. R. Prof. C. 1.5(a), 1.15(c) and (d), and 1.16(d) by charging an excessive fee and failing after he was discharged to return the client’s file and the unearned portion of the fee.

  8. In April 2007, a client paid the respondent a $1,500 retainer to represent him in a custody matter. In September, after the client told the respondent that he was concerned for his child’s safety, the respondent recommended that they file a motion for temporary custody and retain a guardian ad litem to investigate the child’s living situation. The respondent misrepresented to the client that he needed $1,700 to pay the guardian ad litem to start an investigation immediately. In reliance on this misrepresentation, the client gave the respondent $1,700, which the respondent converted to his own use.
  9. The respondent misrepresented to the client that he had prepared and filed a motion for temporary custody; that the court had scheduled a hearing on the motion; that the hearing had been rescheduled; and that the court had awarded the client temporary custody of the child. The respondent then prepared a motion for temporary custody and a fraudulent certificate of service; fabricated a proposed order, which he falsely endorsed with a judge’s name and the word “allowed;” and gave the fabricated court order to the client. The client brought the fake “order” to the child’s school to show that he had been awarded custody of the child. After the school authorities contacted the court to confirm the authenticity of the order, a judge conducted a hearing to determine how the order had been created. During the hearing, the respondent misrepresented to the court how the motion came to be endorsed and falsely represented that he had not told the client that the court had awarded him temporary custody.

    The client discharged the respondent immediately after the hearing and demanded the return of his $1,700. The respondent gave the client $800 in cash and a check for $900 that was drawn on an account the respondent knew he had closed in 2006. When the client confronted the respondent about the check, the respondent gave the client $900 in cash.

    By misrepresenting to the client that he needed $1,700 to pay a guardian ad litem and then converting those funds to his own use, the respondent violated Mass. R. Prof. C. 1.4, 1.15(b)(1) and 8.4(b) and (c). By failing to file a motion for temporary custody for the client, the respondent violated Mass. R. Prof. C. 1.1, 1.2, and 1.3. By misrepresenting to the client that he had filed a motion for temporary custody and that the court had awarded him temporary custody and by fabricating a purported court order, the respondent violated Mass. R. Prof. C. 1.4, and 8.4(c), (d), and (h). By intentionally making misrepresentations to the court, the respondent violated Mass. R. Prof. C. Mass. R. Prof. C. 3.3(a)(1) and (4) and 8.4(c) and (d). By failing after he was discharged to return unused costs the client had advanced, the respondent violated Mass. R. Prof. C. 1.15(c) and 1.16(d). By giving the client a check drawn on an account the respondent knew was closed, the respondent violated Mass. R. Prof. C. 8.4(b) and (c).

  10. In November 2007, a client retained the respondent to represent her in juvenile court in an effort to regain custody of her child from DSS. The client gave the respondent a check for $1,600 provided by her grandmother. The client did not authorize the respondent to speak to her grandmother about the client’s case. The respondent performed little or no work of substance to advance the client’s case. Between October 4 and November 8, 2007, the respondent repeatedly asked the client’s grandmother for additional funds to pay costs and fees he falsely asserted were necessary for the case. In reliance on these false claims, the grandmother gave to the respondent cash and checks totaling $13,180, which the respondent then converted to his own personal and business use.
  11. By taking no action of substance to advance the client’s case, the respondent violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. By discussing the client’s case with the grandmother without the client’s knowledge and consent, the respondent violated Mass. R. Prof. C. 1.6(a) and 1.8(f). By misrepresenting the status of the client’s case to the grandmother, the respondent violated Mass. R. Prof. C. 4.1(a) and 8.4(c). By obtaining funds from the grandmother under false pretenses and converting the funds to his own use, the respondent violated Mass. R. Prof. C. 4.1(a) and 8.4(b) and (c).

    The respondent was admitted to the Bar of the Commonwealth on September 17, 2001. Bar counsel filed and served a four-count petition for discipline against the respondent on September 25, 2007. The respondent filed an answer to the petition on October 15, 2007.

    On January 15, 2008, while disciplinary proceedings were pending, bar counsel filed an amended petition for discipline adding four additional counts to the existing petition. The respondent filed an unsigned answer to the amended petition on April 17, 2008.

    On May 15, 2008, the respondent submitted an Affidavit of Resignation to the Board of Bar Overseers, pursuant to S.J.C. Rule 4:01, § 15. In the affidavit, the respondent admitted that the allegations in the amended petition for discipline could be proved by a preponderance of the evidence. Bar counsel requested that the affidavit of resignation be accepted and that a judgment of disbarment enter.

The Board voted on June 16, 2008, to accept the affidavit of resignation and to recommend to the Court that the respondent be disbarred for the misconduct described in the amended petition for discipline. On September 11, 2008, the Supreme Judicial Court for Suffolk County (Cowin, J.) entered an order of immediate disbarment against the respondent.


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 filed with the Supreme Judicial Court.



BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2005. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.