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Commonwealth of Massachusetts

NO. BD-2009-098

IN RE: PAUL GERARD FOSTER

S.J.C. Order of Disbarment entered by Justice Gants on February 2, 2010.1

MEMORANDUM OF DECISION

This matter came before the Court, Gants, J., on an Information and Record of Proceedings pursuant to S.J.C. Rule 4:01, sec. 8(4), with the Vote and Recommendation of the Board of Bar Overseers filed by the Board on October 28, 2009. At a hearing held on November 20, 2009, attended by assistant bar counsel and the respondent, Paul Gerard Foster, Foster argued that he was denied due process by the Board because, after filing his Motion for Default Removal on July 31, 2009, he never received notice of (1) the Board's Order on Motion for Relief from Default, dated August 20, 2009, (2) the letter from the Board advising that his hearing before the Board was scheduled for October 10, 2009, dated September 2, 2009, or (3) Bar Counsel's Memorandum of Disposition, dated September 15, 2009. He also argued that he did not receive notice of the Board's vote, upon default, to file an information with the Supreme Judicial Court, until he received notice of the November 20, 2009, hearing by the Clerk of the Supreme Judicial Court for Suffolk County. The court file reflects that he was sent notice of each of these documents by mail, but there is no document reflecting his receipt of any of these documents.2

On November 20, 2009, I ordered a stay of proceedings as to the Information until January 8, 2010, to permit Foster, by that date, to file with the Board a renewed motion, supported by memorandum and appropriate affidavits, for relief from default and for reconsideration of the Board's finding of default. I directed that "[a]ny such motion, at a minimum, shall include: (1) a proposed answer to the petition for discipline, conforming to the Rules of the Board, § 3.15(d); (2) an affidavit regarding his claimed lack of notice, including an explanation of why he did not receive mail sent to his law office, and (3) a separate affidavit setting forth why, if the default were vacated, the Board, after hearing, should reach a recommendation different from disbarment." I also directed that, "[i]f a copy of such motion is not filed with the Clerk of this Court by January 8, 2010, this Court shall terminate the stay and decide the appropriate sanction based on the Information."

Foster has failed to comply with the directives in my November 20, 2009, Order. He filed two statements with the Clerk of the Supreme Judicial Court for Suffolk County on January 8, 2010, one signed by him and another by Brad Davis; he failed to certify that he had served these statements with the Board. Although these statements are described as affidavits, neither is signed under the pains and penalties of perjury. The Davis affidavit is not notarized. Neither is responsive to the issues that Foster raised at the November 20, 2009, hearing, and nothing in either affidavit would justify relief from default or reconsideration of the Board's recommendation.

Having failed to comply with the directives in my November 20, 2009, Order, and having further failed to cooperate with the Board after that Order or to timely file the affidavit of compliance required by the Order of Temporary Suspension, I see no reason further to delay acting on the Board's Information and its recommendation of disbarment. I conclude that disbarment is the appropriate sanction for Foster's misconduct. I therefore ORDER that a judgment of disbarment issue forthwith against Foster.


FOOTNOTES:

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

2 The Board letter dated September 2, 2009 was sent certified mail, but the name on the receipt is not Foster's. He admits that the address to which all were sent was his law office.



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