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Commonwealth of Massachusetts

NO. BD-2009-077

IN RE: BERYL W. COHEN

S.J.C. Order of Term Suspension entered by Justice Cordy on June 14, 2010, with an effective date of March 17, 2010.1

MEMORANDUM AND ORDER

Beryl W. Cohen (respondent) is before the court on an Information filed by the Board of Bar Overseers (board) recommending that he be suspended for one year and one day. At a hearing on June 8, 2010, the respondent urged that such a sanction be effective as of the date of his administrative suspension, that is, retroactive to August 24, 2009. Bar counsel initially argued that it should take effect upon entry and not be retroactive. At the conclusion of argument, bar counsel suggested a compromise, that the suspension take effect on March 17, 2010, the date bar counsel agreed that the respondent had begun actively cooperating in the resolution of this matter. I adopt bar counsel's recommendation.

Background. The respondent was admitted to practice in Massachusetts on November 10, 1959. Beginning in 1983, he began having sporadic, but serious, contact with bar counsel.2 A common theme in the respondent's disciplinary history is a failure to cooperate with bar counsel.

In 2007, the respondent was retained by a former client of his. His task, for which he accepted a retainer fee of $7,500, was to accomplish the sealing of the client's criminal records. The respondent never pursued his client's objective despite repeated requests for information from the client over the next two years. In February, 2009, the client demanded a refund of $7,000 of the retainer and terminated the respondent's representation. However, the respondent never followed up or refunded any of the retainer.

On June 22, 2009, the client filed a complaint with bar counsel. The respondent received service of the complaint on July 1, 2009. He did not respond to the complaint, nor did he respond to subsequent letters from bar counsel. Due to his lack of cooperation, on August 24, 2009, the respondent was placed on administrative suspension by this court at the request of bar counsel. S.J.C. Rule 4:01, §3(2). Again, the respondent did nothing to respond.

The respondent, as bar counsel now agrees, was ill, having undergone serious surgery in July, 2009, shortly after the original complaint was filed.3 Bar counsel learned of the respondent's circumstances in late September, and approached him in person and by telephone. As a result of those conversations, the respondent filed a response to the client's complaint on October 9, 2009. The response, however, was marred with apparent misrepresentations. For example, the respondent claimed to have received permission from his client to pursue pardons in lieu of sealing his criminal records. However, pardons would not have been available as the client's records did not contain convictions, but merely charges placed "on file." Bar counsel notified the respondent that his response was insufficient to constitute cooperating with bar counsel's investigation and demanded further compliance. The respondent did not respond.

On January 8, 2010, bar counsel filed a two-count petition for discipline. The first count relates to the complaint filed against the respondent by his former client. The second count relates to the respondent's failure to cooperate with bar counsel.

The respondent did not answer the petition within twenty days. He therefore forfeited the right to contest its contents or to present mitigating evidence. Bar counsel recommended an eighteen month suspension be imposed by the board. In support of her recommendation, bar counsel recounted the respondent's history of suspension and censure. See note 1, supra. The respondent subsequently submitted a letter in reply in which he discussed his health struggles and how they bore on his ability to cooperate with bar counsel in 2009. He did not contest the allegations made against him. On April 12, 2010, the board voted to suspend the respondent for one year and one day, and on April 20, 2010, the board transmitted its recommendation to this court.4

Bar counsel and the respondent appeared at a hearing before the court on June 8, 2010, at which, as noted, the respondent requested that any suspension be applied retroactively to include the approximately nine months that he had been administratively suspended. He expressed a sincere desire to comply with all prerequisites of reinstatement, asked the court to take notice of his long and diligent history of pro bono representation, and suggested that a retroactive suspension would allow him to apply for reinstatement around the time that his health rebounds.5

Discussion. "Suspension for a year and a day is warranted where a lawyer's failure to participate in the disciplinary process aggravates neglect and incompetence, abandonment of the client, and failure to refund unearned fees." Matter of Young, S.J.C. No. BD-2009-008 (April 17, 2009). The respondent's conduct thus warrants such a sanction.

It is uncontested that the respondent's representation of his client fell below the standards of competence, Mass. R. Prof. C. 1.1, 426 Mass. 1308 (1998), diligence, Mass. R. Prof. C. 1.3, 426 Mass. 1313 (1998), and communication, Mass. R. Prof. C. 1.4 (a), 426 Mass. 1314 (1998). He failed to pursue his client's objectives, Mass. R. Prof. C. 1.2 (a) , 426 Mass. 1310 (1998), and failed to respond adequately to his client's desire to terminate representation and to obtain a warranted refund, Mass. R. Prof. C. 1.16 (d) , 426 Mass. 1369 (1998). Respondent was less than honest with bar counsel, and he impeded an investigation into his misconduct. Mass. R. Prof. C. 8.4 (c)-(d), (g)-(h), as amended, 429 Mass. 1301 (1999). Compounding these infractions is the respondent's history of similar ethical lapses. Matter of Dawkins, 412 Mass. 90 (1992) (record of discipline factors into selection of discipline).

A suspension of one year and one day is appropriate in this case because the respondent will be required to satisfy the significant requirements of reinstatement contained in S.J.C. Rule 4:01, § 18 (2) (c) and (4). For example, he will be required to demonstrate that he has made restitution to his former client and that he has obtained a passing score on the Multi-State Professional Responsibility Examination. The respondent will not be permitted to apply for reinstatement until three months prior to the expiration of his suspension.

Because the respondent's misconduct is not ongoing — indeed, bar counsel acknowledges that he has begun cooperating — imposing the respondent's suspension retroactively is not inappropriate. Matter of Grella, S.J.C. No. BD-2006-021 (August 9, 2006) ("There are circumstances when retroactivity, back to the date of a prior suspension, has been properly considered and allowed. Those include when the prior suspension was for the same matter as the disbarment . . . and when the terms of the prior suspension were complied with").

Disposition. In light of bar counsel's oral recommendation, and as a matter of discretion, a judgment shall enter suspending the respondent from the practice of law in the Commonwealth for one year and one day, effective March 17, 2010. The respondent may petition for reinstatement beginning on December 18, 2010, three months prior to the expiration of his suspension. S.J.C. Rule 4:01, § 18 (2) (c) .


FOOTNOTES:

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

2 The respondent was censured publicly in 1983 for neglect and failure to cooperate with bar counsel. In 1988, he received a suspended suspension for various acts of misconduct, including neglect and misrepresentation. Three years later, in 1991, the respondent was censured publicly again, this time for negligent misuse of client funds. In 2007, he was suspended for three months after he charged and failed to refund a clearly excessive fee. Around the same time, the respondent's problems with the client at the center of the present proceedings commenced.

3 The respondent was not ill during the two years that he neglected his client's matter.

4 Around the same time, it came to bar counsel's attention that the respondent had appeared before the Department of Developmental Services on behalf of two individuals. Bar counsel filed a petition for contempt on April 26, 2010, arguing that the respondent was violating the terms of his administrative suspension. After a hearing on May 25, 2010, the court issued an order clarifying the terms of the respondent's suspension, precluding him from participating in any agency proceedings. See Matter of Shanahan, S.J.C. No. BD-2001-055 (March 9, 2010). Bar counsel withdrew-her petition for contempt.

5 Due to his failure to respond to the petition for discipline, the respondent was unable to include mitigating evidence in the record of his case. However, in his letter in response to bar counsel's memorandum on disposition to the Board of Bar Overseers, as well as orally at the hearing on June, 8, 2010, the respondent referenced his thirty-five year pro bono representation of a class of disabled Massachusetts residents. I recognize his laudable service in this regard.



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