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Commonwealth of Massachusetts

NO. BD-84-15

IN RE: RONALD A. MCINTYRE

S.J.C. Order of Reinstatement entered by Justice Ireland on January 10, 2001. 1
HEARING PANEL REPORT

I. INTRODUCTION

The Petitioner, Ronald A. McIntyre, was suspended for two years from the practice of law by order entered by the Supreme Judicial Court on August 21, 1996 retroactive to April 13, 1984, the date of his temporary suspension. The Petitioner appealed the single justice decision. The full Court affirmed the Order of the single justice. Matter of McIntyre, 426 Mass. 1013 (1998). The hearing on the Petition for Reinstatement was held on February 14, 2000 before a panel consisting of Steven P. Sabra, Chair, John O. Mirick and David Rind. The panel heard testimony from five witnesses, including the Petitioner, and received into evidence after hearing two exhibits as follows:

1. An authenticated copy of Petitioner's passing grade on the multi-state professional examination; and

2. Copies of the Petitioner's 1998 Federal Tax Return as well as confirmation from the Commonwealth of Massachusetts as to the Petitioner's timely filing of his 1998 State Tax return.

In consideration of the testimony, exhibits and arguments, the panel recommends the Petition for Reinstatement be allowed subject to the conditions set forth herein.

II. FACTS - DISCIPLINARY BACKGROUND

The Petitioner was admitted to the Bar of the Commonwealth on April 26, 1971. Between 1971 and 1972, the Respondent briefly engaged in the private practice of law and in 1972 became an Assistant District Attorney for Suffolk County. In June 1975, Anna Rallis, a 79 year old widow, met the Petitioner in the Dorchester District Court and retained him in connection with an eviction proceeding. Mr. McIntyre represented Mrs. Rallis in connection with those proceedings for approximately a year. Mrs. Rallis was Mr. McIntyre's only private client during his tenure with the District Attorney's Office. Mrs. Rallis delivered to the Petitioner in 1978 and 1979 cash, checks, and stocks with a total value of some $160,000. At the time of the transfer, however, Mr. McIntyre did not advise Mrs. Rallis to obtain independent legal advice in connection with the transfer, he did not segregate her funds from his own, he did not maintain adequate records of the disposition of her funds, and he failed to return the property on demand.

Bar Counsel filed a petition for discipline against Mr. McIntyre in July 1983. Prior to the institution of disciplinary proceedings, Mr. McIntyre settled with Mrs. Rallis's estate, and therefore no order of restitution was issued as part of the disciplinary proceedings. Mr. McIntyre throughout the disciplinary proceedings and before the Hearing Committee at his reinstatement hearing described himself as an active alcoholic who became sober in or about October 1984. Petitioner testified credibly that his drinking began as a student at Boston College from which he graduated in 1963 and substantially accelerated while he served in Panama with the U.S. Army for three years. The Petitioner continued to drink through his time at Suffolk Law School from which he graduated in 1969 and thereafter when he became an assistant district attorney. From 1979 through 1984 the Petitioner's drinking was excessive and his family life deteriorated.

The original Petition for Discipline in this matter was filed with Bar Counsel in July 1983. After the hearing committee received evidence that the Petitioner was unable to assist in his defense, Bar Counsel moved, and a single justice of this Court ordered Petitioner be suspended temporarily pending completion of the disciplinary hearing. An order of temporary suspension was issued on April 13, 1984. That suspension remains in effect. Ultimately, the Court found:

(a) the Respondent's actions with respect to the transfer of funds showed a considerable lack of awareness of the legal and ethical obligations imposed on a lawyer in private practice, in violation of DR 1-102(A)(6);

(b) the Respondent failed, when Mrs. Rallis demanded return of her funds, immediately to sever his relationship with her and restore her property in violation of DR 2-110(B)(4);

(c) the transfer took place within an attorney-client relationship, without proper advice or disclosure to Mrs. Rallis, in violation of DR 5-104;

(d) the transfer was not an unconditional or completed gift; Mrs. Rallis retained an interest in the property because the funds were to be used for her benefit and therefore the respondent's failure to segregate the funds violated DR 9-102(A)(1);

(e) the respondent failed to keep accounting records of the funds in violation of DR 9-102 (B)(3); and

(f) the respondent failed to return Mrs. Rallis’ property promptly on demand, in violation of DR9-102(B)(4).

The Court imposed upon the Petitioner a two year suspension retroactive until April 13, 1984 citing in particular mitigating factors that Mr. McIntyre was an active alcoholic during the time in question and had no experience in handling client funds due to the nature of his public sector practice. III. CONCLUSIONS

On a petition for reinstatement, the Petitioner has the burden of proving he has the moral qualifications required for admission to practice law; that he has the competency in learning in law required for admissions; and that his resumption of practice will not be detrimental to the integrity or standing of the bar, the administration of justice or the public interest. SJC Rule 4:01, Section 18 (5); Matter of Cappiello, 416 Mass. 340, 9 Mass. Att'y. Disc. R. 47 (1993); Matter of Waitz, 416 Mass. 298, 9 Mass. Att'y. Disc. R. 336 (1993). In evaluating a petition for reinstatement, the true test must always be the public welfare. Matter of Waitz, supra. The panel specifically does not reach the issue raised in the Petitioner's closing memorandum as to whether or not a less demanding standard should apply when an attorney has been given a term suspension as opposed to disbarment or indefinite suspension.

A. Moral Qualifications

The original offense for which Mr. McIntyre was disciplined, as noted by the original hearing committee and upheld in all subsequent proceedings, did not involve dishonesty, fraud, deceit or misrepresentation nor was it conduct prejudicial to the administration of justice. As noted above, the Court imposed the two year suspension citing mitigating factors that Mr. McIntyre was an active alcoholic during his relationship with Mrs. Rallis and further, that his “legal practice, exclusively in the public sector, had provided him with no experience in handling client funds so that he might have been unaware of ethical requirements regarding proper use of client funds.” Matter of McIntyre, 426 Mass. 1012, 1015 (1998).

The evidence presented at the hearing also establishes Mr. McIntyre's rehabilitation. Mr. McIntyre became sober in 1984 and has remained sober for some 16 years. He regularly attends meetings of Alcoholic Anonymous. Mr. McIntyre has sought and received counseling from Ron James at STEP, Inc. and has attended meetings of Lawyers Concerned for Lawyers. Specifically, Ron James, a substance abuse counselor for many years, testified that he has known Mr. McIntyre for some 15 years. Mr. James confirmed Mr. McIntyre's regular attendance at AA meetings and has counseled Mr. McIntyre throughout his recovery from alcoholism. Mr. James has no hesitancy in recommending the Petitioner's reinstatement to the bar of the Commonwealth. Letters of support attesting to Mr. McIntyre's recovery are attached to his Petition for Reinstatement from Maria Falzon, M.D. (Exhibit C), Professor Raymond G. Helmick, S.J. (Exhibit G), Attorney Bradford Swing (Exhibit I) and Tom Stall (Exhibit N).

The record also raises two issues with regard to rehabilitation. The first is regarding tax returns and the second, child support obligations. Mr. McIntyre acknowledges that he did not file his 1998 Federal Tax return until February 2000 due to a misunderstanding regarding an extension. However, the Massachusetts State Tax return was filed on time and the Federal tax returns were filed once the Petitioner learned that the extension had expired. Mr. McIntyre did not then or does not now owe any tax payments. On the issue of child support obligations, there appears to be an arrearage of approximately $4,000.00. Said arrearage is subject to Motions before the Probate Court and the panel is satisfied Mr. McIntyre is facing his obligations in this area as best as possible.

The panel also notes that Mr. McIntyre was suspended for two years. Mr. McIntyre has been out of the practice of law for approximately 16 years and during that time he has been sober, been involved in activities with the Roman Catholic Church, and has demonstrated a commitment to assist others who are attempting to become and remain sober. All of the above makes evident to this panel that Mr. McIntyre is rehabilitated.

B. Competency and Learning in Law

Mr. McIntyre testified at the hearing that he has taken numerous MCLE courses, studied bar review materials, and regularly reads Massachusetts Lawyers Weekly and the Advance Sheets. In this regard, Vincent Mannering, Executive Director of the Boston Water & Sewer Commission (“BWSC”) testified on behalf the Petitioner. According to Mr. Mannering, Mr. McIntyre worked on title, easement and other complex land use issues and did so competently and professionally. The BWSC twice renewed Mr. McIntyre's six month contract with the agency. Mr. Mannering further testified that Mr. McIntyre got along well with his co-workers. In addition, Attorney Edward Kirby, for whom Mr. McIntyre worked as a paralegal, has come forward by letter to attest to Mr. McIntyre's ability, character and his efforts to maintain his learning in the law from MCLE courses and reading legal publications.

C. Integrity of the Bar and Public Interest

The Massachusetts Bar Association, the Boston Bar Association and the attorney for the estate of the complainant in this matter were all notified of Mr. McIntyre's Petition for Reinstatement and no one has come forward to oppose the Petition. Three members of the Bar testified on Mr. McIntyre's behalf at the hearing. In addition, letters of recommendation from eight other members of the bar are also in the record. See Petition at Exhibit A (Edward L. Kirby), Exhibit B (James T. McDonough), Exhibit D (James R. DeGiacomo), Exhibit H (Owen L. O'Malley), Exhibit I (Bradford Swing), Exhibit J (Bonita M. Gottschalk), Exhibit K (David R. Hegarty), Exhibit L (Robert M. LaMara), Exhibit M (Henry C. Luthin). In addition, Thomas E. Dwyer, Jr., President of the Boston Bar Association, writing in his individual capacity, also submitted a letter dated February 11, 2000 supporting the reinstatement of Mr. McIntyre.

There seems to be an undercurrent of concern by Bar Counsel with regard to Mr. McIntyre's psychiatric history. However, the only medical testimony comes from a letter dated May 27, 1993 by Martin Kelly, M.D. of the Brigham and Women's Hospital in which he indicates that Mr. McIntyre “does not have a psychiatric condition or condition of substance abuse which would interfere with his capacity to practice law at this time.” Any psychological difficulty is very remote in time. Therefore, the panel feels that the recommendations proposed herein adequately protect the integrity of the bar, the administration of justice, and the public interest.

IV. RECOMMENDATION

The Petitioner has not practiced law for 17 years. Therefore, the panel recommends that Petitioner be reinstated to the Bar, subject to the following conditions:

1. The Petitioner shall attend the next Annual Practical Skills Program and take 12 hours of legal education courses in each of the next two years.

2. Petitioner's legal practice shall be monitored by a suitable attorney subject to Bar Counsel's prior approval after timely notice.

3. The Petitioner and the monitoring attorney shall meet as often as the monitor deems necessary but not less than once per month during the first six months and thereafter once every two months for one year. The Petitioner's cases and practice is to be reviewed by the monitoring attorney to insure that the Petitioner is not in violation of any law, rule, regulations, canon of ethic or otherwise.

4. The Petitioner shall give the monitoring attorney full and free access to his records and files.

5. The Petitioner shall maintain a list of all of his cases, with the name, address, and telephone number of each client, and a description of each case by type. This list shall be updated prior to each meeting between the Petitioner and the monitoring attorney.

6. The monitor shall randomly examine the Petitioner's case files, review at least three cases at each meeting, to insure progress notes are being entered, documentation is organized, financial records are in order, court dates are being met, and clients are contacted as appropriate. All cases are to be reviewed by the monitor before they are closed.

7. The Petitioner shall maintain master ledgers of deposits to and disbursements from both his clients' account and office account. Each deposit or disbursement shall be identified clearly as to purpose and client. No funds derived from sources other than the practice of law shall be deposited to either account, except that the Petitioner's personal funds may be deposited in the office account to the extent necessary to maintain sufficient funds therein to operate his law office.

8. The Petitioner shall maintain individual ledgers for each case, showing deposits of all monies received on behalf of the client(s), the source of the funds deposited and all disbursements of such funds. The Petitioner shall attach to each ledger photocopies of all checks or drafts evidencing the deposits and disbursements.

9. The monitoring attorney shall make quarterly reports to Bar Counsel as to the Petitioner's legal practice. He also shall forthwith report to Bar Counsel any material violation of these terms or conditions or any event which may render the Petitioner incapable of fulfilling his ethical or professional responsibilities.

10. Should the monitoring attorney become unwilling or unable to serve during this period, the Petitioner shall notify Bar Counsel forthwith and shall propose promptly a substitute monitor subject to Bar Counsel's approval.

11. The Petitioner is to maintain malpractice insurance at all times.

HEARING PANEL

Steven P. Sabra, Chair
John O. Mirick
David Rind, M.D.

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



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