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Commonwealth of Massachusetts

NO. BD 1983-017

IN RE: JOHN P. DONOVAN

S.J.C. Order of Indefinite Suspension entered by Justice Ireland on June 9, 2000.1

SUMMARY2

The respondent John P. Donovan was admitted to the bar of the Commonwealth on November 28, 1975. On May 23, 1983, the respondent was temporarily suspended in Matter of Donovan, 3 Mass. Att'y Disc. R 56 (1983). On June 28, 1985, the Supreme Judicial Court for Suffolk County found that the respondent had misused client funds, produced to bar counsel an altered bank record to conceal the misuse, and neglected the case of another client. The Court terminated the suspension due to mitigating factors. Matter of Donovan, 4 Mass. Att'y Disc. R 28 (1985).

The respondent resumed the practice of law following his reinstatement. By 1987, the respondent had no reliable means of receiving telephone calls and letters from his clients or other correspondents. He also failed to respond to letters and messages of telephone calls that he did receive.

On May 7, 1987, the respondent was administratively suspended from the practice of law for failure to pay his registration fee. By no later than January 5, 1988, the respondent had actual notice of his suspension, and he knew that his registration fee had not been paid by no later than November 22, 1987. The respondent was not reinstated within thirty days of his administrative suspension. Nevertheless, he did not comply with the notification provisions of S. J. C. Rule 4:01, § 17.

The respondent engaged in the practice of law and otherwise held himself out as a practicing lawyer during his administrative suspension. Between December 30, 1986, and August 10, 1988, he appeared for the defendant in Commonwealth v. Tufts in the Norfolk Superior Court. He never notified his client, the court, or opposing counsel of his administrative suspension. In addition, he accepted retainers and undertook to represent one client in a post-divorce modification hearing, another client to reform a deed, and a third client in a domestic relations case. He did not advise any of these clients of his administrative suspension. The respondent's conduct in holding himself out as a lawyer and in failing to comply with the notice requirements of the administrative suspension violated S. J. C. Rule 4:01, § 17; S.J.C. Rule 4:02, § 1; S.J.C. Rule 4:03, § 3; Canon One, Disciplinary Rules 1-102(A)(4)-(6), and Canon Three, DR 3-101(B).

The respondent failed to respond to his clients' requests for information. He also failed to carry out his contract of employment with these clients and failed to return the retainers paid to him until after complaints were filed with bar counsel. In one of these cases, the respondent falsely advised bar counsel that he had refunded the retainer to the client. His actual refund came three years later. In another one of these cases, the respondent falsely represented to bar counsel that he had been unable to contact the client because her telephone was out of order.

The respondent's failure to maintain reasonable communications with his clients and his neglect of their cases violated Canon Six, DR 6-101(A)(3). His failure to carry out his contract of employment violated Canon Seven, DR 7-101(A)(1), and his failure promptly to return the retainers to the clients violated Canon Two, DR 2-110(A)(3), and Canon Nine, DR 9-102(B)(4). The respondent's misrepresentations to bar counsel violated Canon One, DR 1-102(A)(4) and (6).

In August 1987, the respondent was asked by another lawyer to serve as the guardian of the person and the estate of an elderly and mentally ill woman. The respondent knew that the other lawyer thought the respondent was in good standing, but the respondent did not tell this lawyer of his failure to register and that he was not likely authorized to practice law. Instead, the respondent furnished to the probate court his business card identifying himself as a practicing lawyer. This conduct violated Canon One, DR 1-102(A)(4) and (6), and Canon Three, DR 3-101(B).

The respondent was appointed guardian on September 3, 1987. He did not file an inventory of the ward's estate, and his only service to the ward was to marshal her assets, place her in a nursing home, and pay her bills. The respondent charged his legal rate of $120 per hour for all his services, even those which were purely administrative in nature and required no legal skill; his total bill for services amounted to $12,914.16. The respondent did not maintain sufficient or accurate records of his receipt, maintenance, and disposition of the ward's funds, and he did not keep contemporaneous time records of the services he performed. The respondent's failure to maintain adequate records of his maintenance of the guardianship estate violated Canon Nine, DR 9-102(B)(3). The respondent's failure to file an inventory and account violated Canon One, DR 1-102(A)(5) and (6), and Canon Six, DR 6-101(A)(3). His fee was clearly excessive in violation of Canon Two, DR 2-106(A).

The ward died in November 1988, leaving a will which appointed another attorney as executor of her estate. After his appointment on December 15, 1988, the executor made numerous demands on the respondent to turn over the funds and property and to produce an accounting. When the respondent failed to comply with these demands, the executor secured an order from the probate court to compel the respondent to file an inventory and account. The respondent intentionally evaded service of the order. The respondent's failure promptly to turn over the guardianship assets to the executor and his intentional evasion of service violated Canon Nine, DR 9-102(B)(4), and Canon One, DR 1-102(A)(5) and (6).

On June 20, 1989, the respondent was transferred to disability inactive status in Matter of Donovan, 6 Mass. Att'y Disc. R 96 (1989). On July 24, 1989, the respondent finally turned over $15,052.22, the remaining estate assets, to the executor. He also produced a document as his accounting. The document was neither accurate nor comprehensible. In August 1994, the respondent filed in the probate court a guardianship inventory and account which were not in proper form and contained contradictory and inaccurate information regarding the amounts received and expended on behalf of the ward. The respondent's conduct in filing inaccurate accounts constituted a violation of Canon One, DR 1-102(A)(5) and (6), and Canon Six, DR 6-101(A)(3).

The executor filed an objection to this account, but the respondent was unable to produce an accurate account due to his failure to keep adequate records. In June 1997, the surety company that had furnished the bond in the guardianship paid $10,000 to the executor to settle the dispute.

On February 3, 2000, the Court transferred the respondent from disability status and entered an order of temporary suspension. On April 14, 2000, bar counsel filed a petition for discipline. The respondent filed an answer admitting to the allegations of the petition for discipline, and the parties stipulated that an indefinite suspension retroactive to February 3, 2000, was the proper sanction. On May 8, 2000, the Board of Bar Overseers voted to adopt the parties' stipulation and recommendation for discipline. On June 9, 2000, the Court entered an order of indefinite suspension retroactive to February 3, 2000.

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 before the Court.



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