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Commonwealth of Massachusetts

NO. BD-2008-080

IN RE: JAMES P. DEVLIN

Order (Petitioner need not state he that he has taken and passed the MPRE in his petition for reinstatement) entered by Justice Gants on May 10, 2010

MEMORANDUM OF DECISION

After being charged with driving a motor vehicle under the influence of alcohol (second offense), negligent operation of a motor vehicle, and illegally crossing marked lanes in June 2008, the petitioner, James P. Devlin (Devlin), recognizing what he characterized as an alcohol addiction, informed Bar Counsel that he was willing voluntarily to transfer to disability inactive status. An Order of Disability Inactive Status under Supreme Judicial Court Rule 4:01, § 13 (2) entered on August 19, 2008. Devlin now intends to petition for reinstatement under Supreme Judicial Court Rule 4:01, § 18, and moves for an order either declaring that his petition need not state that he has taken and passed the Multi-State Professional Responsibility Examination (MPRE), or waiving that requirement.

An attorney may be placed on disability inactive status where the court concludes that the attorney is "incapacitated from continuing to practice law" because of a physical or mental condition. Supreme Judicial Court Rule 4:01, § 13(4)(e) & §13(2). Under Supreme Judicial Court Rule 4:01, § 16(a), "[r]einstatements from disability inactive status shall be subject to the provisions of section 18 of this rule ...."

Supreme Judicial Court Rule.4:01, § 18(4), sets forth what must be stated in a petition for reinstatement. Among these requirements, section 18(4)(e) provides that the petition "shall state that the petitioner has taken the [MPRE] after entry of the order of suspension, disbarment, or acceptance of resignation, and has received a passing grade as established by the Board of Bar Examiners." It does not require the petitioner to state that he has taken and passed the MPRE after entry of an order of disability inactive status. I conclude that this omission is material and intended. Section 18(4)(a) recognizes that an attorney seeking reinstatement may have been subject to an order of disability inactive status, but this category of order is omitted from section 18(4)(e). The apparent reason for this omission is that no finding of ethical wrongdoing is required or implicit in an order of disability inactive status; the only finding required is that the attorney has become incapacitated to practice law as a result of a mental or physical condition. Because the attorney's ethics were not at issue in the order of disability inactive status, passing a professional responsibility examination is not a prerequisite to applying for reinstatement.

Devlin's motion for a declaration that he need not state that he has taken and passed the MPRE in his petition for reinstatement, therefore, is ALLOWED. The allowance of this motion does not suggest that Devlin's burden to obtain reinstatement under Supreme Judicial Court Rule 4:01, § 13(6)(e) has been diminished. To obtain reinstatement, he must still meet his burden of demonstrating that his physical or mental condition no longer adversely affects his ability to practice law and that he "has the competency and learning in law required for admission to practice." If the Board were to conclude that, despite his twenty-two years of practice in the law, he cannot meet his burden of demonstrating his knowledge and understanding of the rules of professional responsibility without passing the MPRE, nothing in this Order precludes the Board from conditioning his reinstatement on passing that examination.


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.



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