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Commonwealth of Massachusetts

NO. BD-2009-002

IN RE: BARRY E. O’CONNOR

S.J.C. Order of Term Suspension entered by Justice Ireland on March 26, 2009, with an effective date of April 27, 2009.1

BOARD MEMORANDUM

The respondent, Barry E. O’Connor, appeals from a hearing committee’s recommendation that he be suspended for a year and a day for neglecting a case, violating the terms of a 2005 suspension, and negligently certifying his compliance with the order of suspension. Oral argument was held before the full board at its November 10, 2008 meeting. For the reasons set forth below, we adopt the hearing committee’s findings of fact, conclusions of law, and recommendation for discipline.

We summarize below the hearing committee’s findings relevant to the respondent’s appeal.

Count One

Around November 7, 2002, John Smith2 retained the respondent as defense counsel. A complaint filed by the plaintiff, Jane Doe, alleged that she had only recently recovered memories of Smith sexually abusing her when they were children. Doe had already scheduled Smith’s deposition.

The respondent agreed to the deposition, and he told Smith that he would call if there were any developments in the case. Smith rarely contacted the respondent after that first meeting, and throughout the case he frustrated the respondent’s efforts to obtain his cooperation.

Around December 2002, the respondent notified Smith of a new deposition date in January, and he served -- but did not file -- Smith’s answer to the complaint.

Smith failed to appear at the deposition; Doe moved for sanctions. The respondent notified Smith of the motion but neither opposed it nor attended the hearing. On March 13, 2003, the court defaulted Smith for failing to appear at his deposition, failing to appear at the hearing on the motion for sanctions, and failing to file an answer to the complaint. The court also ordered him to pay costs and attorney’s fees.

The respondent notified Smith of the order, obtained relief from the default judgment and filed Smith’s answer to the complaint. Meanwhile, the respondent’s staff advised him that they were unable to get Smith to respond to their efforts to reach him. The respondent spoke to Smith’s relatives, but he could not reach him in person.

Smith attended a rescheduled deposition in early April 2003. The next day, Doe filed a motion to assess damages for Smith’s failure to appear for his January deposition. The respondent notified Smith of the motion but did not serve an opposition or attend the hearing. The respondent considered the motion unwinnable, yet he believed the court would not grant the amount of sanctions Doe had requested. He also believed that an adverse decision would motivate his client to cooperate. On April 22, 2003, the court forbade Smith to conduct discovery until he paid a $470 sanction. Smith, notified of the sanction, never paid it.

On July 31, 2003, Doe served interrogatories; the respondent sent a copy to Smith. When Smith did not provide answers, the respondent tried to reach him personally, even driving to Smith’s house. On October 6, 2003, the respondent wrote to Smith, urging him to take the case seriously and to call the office immediately.

On January 5, 2004, Doe served an application for judgment pursuant to Mass. R. Civ. P. 33(a) based on Smith’s failure to answer interrogatires. The respondent did not reply, and his office did not send Smith a copy of the application. The respondent again went to Smith’s house, but was unable to obtain the interrogatory answers.

On March 5, 2004, the court granted Doe’s application for judgment against Smith on liability. The respondent did not move to vacate the judgment and he did not notify Smith of it. Doe then filed a motion to assess damages and for final judgment. The respondent did not notify Smith of the motion. He did not oppose it or appear at the hearing. The court assessed damages of $150,000, plus interest, costs and fees. The respondent notified Smith of the damages award. The court issued final judgment, but the Smiths did not receive a copy.

Smith retained successor counsel to set aside the underlying judgment. After the court denied Smith’s motion, Smith settled with Doe for less than one-tenth of the judgment.

The hearing committee found that the respondent’s failure to oppose Doe’s motion for sanctions and her motion to assess damages on the judgment of liability violated Mass. R. Prof. C. 1.2(a) (seeking client’s lawful goals through reasonably available means) and 1.3 (diligence). It found that he violated Mass. R. Prof. C. 1.3 by failing to file Smith’s answer until after the court had defaulted Smith. It also found that when the respondent’s office failed to send Smith copies of the application for judgment, the judgment of liability, the motion to assess damages, and the final judgment, he unintentionally violated Rules 1.4(a) and (b).

Counts Two, Three, and Four

On June 6, 2005, the Supreme Judicial Court suspended the respondent from the practice of law for six months, effective July 6, 2005. The order required that within two weeks and before his suspension became effective the respondent file notices of withdrawal in all pending cases, close every trust account, and to transfer all trust funds.

The respondent delegated these tasks to members of his staff. They reviewed files, sent form letters to some two hundred clients informing them of the respondent’s suspension, and sent notices of withdrawal to various courts. The office was chaotic while the staff attempted to complete these assignments, and many clients were difficult to locate.

Unbeknownst to the respondent, in fourteen of his thirty-one pending cases his staff succeeded in filing the notices only after his suspension became effective. In fourteen others the courts never received and docketed the required notices of withdrawal. In addition, the respondent’s bookkeeper (his wife) did not comply with his instruction to close his IOLTA account. Instead, she transferred most of the money out of the account while retaining a balance to cover outstanding checks. After some checks had cleared, she left about $10,500 in the account without telling the respondent. From then until January 24, 2006, neither the respondent nor his staff used the IOLTA account.

On June 30, 2005, the respondent sent bar counsel an affidavit representing that he had complied with the suspension order. He believed the affidavit was true.

For the next six months, the respondent did not return to the office or call in. When his staff received notices from a court, they replied with notices of the respondent’s suspension and withdrawal and advised the court of new counsel, if any. One district court stayed a case on learning of the respondent’s suspension.

The respondent resumed practice in early January 2006in the mistaken belief that he could do so without an order of reinstatement because six months had passed since his suspension. Around January 19, 2006, the respondent learned that he had not yet been reinstated. The next day, he prepared, signed, and mailed to the Supreme Judicial Court his affidavit representing that he had complied with the order of suspension. The respondent believed this affidavit was true.

Three days later, the respondent represented a client at his deposition. The respondenet knew that he was still suspended. Around that same day, his staff started using his IOLTA account, and they processed several transactions in it before the respondent’s reinstatement became effective on February 8, 2006. By January 26, 2006, the respondent had negotiated two checks drawn on the IOLTA account, and he knew it was again in use.

The hearing committee found that by representing a client during a deposition and using his IOLTA account after learning he was still suspended, the respondent violated Mass R. Prof. C. 3.4(c) (knowing disobedience of the rule of a tribunal), and 8.4(d) (conduct prejudicial to the administration of justice), and 5.5(a) (unauthorized practice of law). It found that the respondent’s two unintentional false affidavits of compliance and his unintentional failure to file timely notices of withdrawal violated Mass. R. Prof. C. 8.4(d). It also found that his negligent resumption of practice in early January 2006 and his office’s renewed use of the IOLTA account before his reinstatement constituted unauthorized practice of law, in violation of Rule 5.5(a), and violated Rule 8.4(d).

Aggravation and Mitigation

The respondent received an admonition in 1996 for allowing a case to be dismissed after concluding it lacked merit and that a counterclaim was likely to succeed. AD-96-34, 12 Mass. Att’y Disc. R. 654 (1996). The respondent’s six-month suspension in 2005 resulted from neglecting two cases, making negligent misrepresentations to a client about the status of a case, and making intentional misrepresentations to bar counsel. Matter of O’Connor, 21 Mass. Att’y Disc. R. 525 (2005). The hearing committee also considered in aggravation the respondent’s substantial experience at the time of his misconduct.

Discussion

Primarily, the respondent objects to the sanction the committee recommended.3

We need not linger over his suggestion that he receive a public reprimand. Standing alone, his intentional misconduct under count two warrants a suspension. Cf. S.J.C. Rule 4:01, § 17(8) (attorney suspended for a term who is found to have engaged in practice before reinstatement may only petition for reinstatement after period of time equal to two times the original suspension from the date of the order finding the violation); ABA Standards for Imposing Lawyer Sanctions, § 6.22 (1992) (“suspension is appropriate when a lawyer knows that he is violating a court order or rule, and there is injury or potential injury to a party, or interference with a legal proceeding”).

To determine the appropriate length of the respondent’s suspension, we consider his intentional violations of the order of suspension together with his neglect of Smith’s case, his failure to notify Smith of important developments in the case, his unintentional misrepresentations to bar counsel and to the Court, and the extended, albeit unintentional, violation of his suspension order before January 2006. Matter of Saab, 406 Mass. 315, 326-327, 6 Mass. Att'y Disc. R. 278, 289-290 (1989) (cumulative effect of multiple violations a factor in choosing appropriate sanction). Similar combinations of violations have resulted in suspensions ranging from six months to a year and a half. Matter of McCarthy, 23 Mass. Att’y Disc. R. 462 (2007) (eighteen month suspension for unauthorized practice after suspension, failure to comply with order of suspension resulting in contempt finding, and neglect, plus misrepresentation and harm to the client); Matter of Solmonson, 21 Mass. Att’y Disc. R. 623 (2005) (year-and-a-day suspension for neglect and failure to comply with order of suspension, plus failure to return file, to promptly remit funds, and to cooperate with bar counsel, with mitigation); Matter of Knowles, 20 Mass. Att’y Disc. R. 292 (2004) (six-month suspension for neglect and practice after suspension, plus commingling and use of unearned retainer, with mitigation).

We also consider in aggravation the respondent’s prior discipline. Matter of Dawkins, 412 Mass. 90, 96, 8 Mass. Att'y Disc. R. 64, 71 (1992); ABA Standards, supra § 9.22 (a) (1992). The strong resemblance between the respondent’s current violations and his prior misconduct, including multiple neglect and negligent misrepresentation, adds “great weight” to the prior discipline as a factor in determining the appropriate sanction. Matter of Shaughnessy, 19 Mass. Att’y Disc. R. 410, 418-19, modified on other grounds, 442 Mass. 1012, 20 Mass. Att'y Disc. R. 482 (2004). The respondent’s misconduct and disciplinary history warrant a suspension substantially longer than the six month term he received in 2005.

A term significantly exceeding one year is not warranted. Cf. Matter of Long, 17 Mass. Att’y Disc. R. 384 (2001) (declining to impose additional suspension under S.J.C. Rule 4:01, § 17(8), and allowing reinstatement where attorney unintentionally violated suspension order by resuming practice after short suspension but before reinstatement, and leaving the issue for further disciplinary proceedings).

We agree with the hearing committee that the respondent should be suspended for a year and a day, which requires him to petition for reinstatement. In deference to the prerogatives of any panel assigned to hear such a petition, we do not adopt the committee’s recommendation that the respondent under go an audit by the director of the Law Office Management Assistance Program. Doing so, however, would go far in proving at a reinstatement hearing that he has taken constructive steps to improve his office practices.

Conclusion

For the foregoing reasons, we adopt the hearing committee’s findings of fact and conclusions of law. An Information shall be filed with the Supreme Judicial Court recommending that the respondent, Barry E. O’Connor, be suspended from the practice of law for a year and a day.


FOOTNOTES:

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

2 We use pseudonyms in our discussion of Count One.

3 The respondent also objects to the committee’s subsidiary finding that inadequate supervision of his staff caused his affidavits to be unintentionally false. Although none of the committee’s ultimate conclusions turn on this point. Further, by signing easily verifiable affidavits that were largely false, the respondent was at least negligent, the respondent was at least negligent by signing easily verifiable affidavits that were largely false. The respondent cannot complain that the committee inferred passive where, in addition: the respondent’s office was in turmoil; he delegated compliance with the order of suspension to his staff while apparently doing little to review the staff’s work, Tr. I:82-87; the staff failed to file timely withdrawals in the vast majority (twenty-eight out of thirty-one) of the respondent’s pending cases; and his staff failed to ensure that Smith received notice of important case developments.



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