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Commonwealth of Massachusetts

NO. BD-2010-020

IN RE: KATHLEEN E. KILKENNY

S.J.C. Order of Term Suspension entered by Justice Gants on May 25, 2010, with an effective date of July 9, 2010.1
(S.J.C. Judgment of Reinstatement entered by Justice Gants on October 14, 2010.)

MEMORANDUM OF DECISION

At the direction of the Board of Bar Overseers (the Board), Bar Counsel has filed an information seeking disciplinary action against attorney Kathleen E. Kilkenny. Kilkenny, while she disagrees with the factual findings of the Hearing Panel that were adopted by the Board, concedes that the factual findings are adequately supported by the evidence and does not challenge them here, so the question before me is the appropriate disciplinary sanction for her misconduct. The Hearing Panel recommended that she be suspended from the practice of law for six months and one day; the Board recommended a public reprimand. I conclude that the appropriate disciplinary sanction for her misconduct is that she be suspended from the practice of law for three months.

The Board found that Kilkenny committed three acts of misconduct, all related to her divorce proceeding. First, she made handwritten suggested revisions to a letter to her husband's attorney drafted by her employer, William Hammett, which caused Hammett to revise an accurate description of her compensation arrangement with him (that they had a verbal agreement by which he would pay her, over and beyond her weekly draws, fifty percent of the net fees she generated) to an inaccurate description (that, apart from her weekly draws, she may receive bonuses in his discretion, and that there was no specific method of determining how much he would pay her in bonuses). Second, the financial statement she filed in her divorce action left blank the line where she was asked to state her gross yearly income in 2003. As a result, she failed to reveal that her gross income had increased from $55,302.58 in 2002 to $126,365.40 in 2003.2 Third, despite this material omission, when asked by the judge at the hearing in the Probate and Family Court on February 10, 2004, whether she had "accurately and completely" stated her income, expenses, assets, and liabilities on the financial statement, she answered under oath, "To the best of my knowledge, yes." When she was then asked whether she had "fully and completely disclosed [her] financial circumstances and resources to [her], husband," she again replied, "To the best of my knowledge, yes."3

While the Board's recommendation is entitled to substantial deference, a public reprimand is insufficient where, as here, an attorney misrepresented her assets to the Probate and Family Court during a contested divorce proceeding. See Matter of Finnerty, 418 Mass. 821., 830 ( 1994). "An effective judicial system depends on the honesty and integrity of lawyers who appear in their tribunals.". Id. at 829.

"When deciding what sanction is appropriate we look to the discipline imposed in comparable cases." Matter of Angwafo. 453 Mass. 28, 37 (2009). The misrepresentation of assets to the Probate and Family Court here is less egregious than in Matter of Finnerty, where we ordered a six month suspension, and does not have the compelling mitigating circumstances present in Matter of Angwafo, where we ordered a one month suspension. I conclude that a misrepresentation of assets to a court by an attorney, even where the attorney is acting as a client and not an attorney, warrants a suspension from the practice of law, and that the appropriate balance between the seriousness of the conduct and the mitigating circumstances in this case is a three months suspension from the practice of law.

Therefore, an order shall issue forthwith suspending Kilkenny from the practice of law for three months.


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, found that her attorney in the divorce action chose not to disclose her 2003 annual gross income on the financial statement because he was concerned about the accuracy of the spreadsheet that showed the income she received in 2003. While this mitigates the omission, the fact remains that the omission had the effect of concealing from her husband that her gross income had more than doubled in 2003.

3 When then asked whether there was any doubt in her mind, she answered, "No."



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