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Commonwealth of Massachusetts

NO. BD-1990-006


S.J.C. Order Denying Reinstatement entered by Justice Greaney on July 8, 19991


I. Introduction

The petitioner, Locksley H. Bryan, Sr., filed a petition for reinstatement with the Court on April 8,1998, from a judgment of disbarment entered by the Supreme Judicial Court on February 25, 1992. Matter of Bryan, 411 Mass. 288,7 Mass. Att'y Disc. R. 24 (1991).2 The petitioner filed his reinstatement questionnaire on September 16,1998 (Ex. 1), and subsequently filed an amended answer to question 14 (Ex. 2). A hearing was held on the petition on December 16, 1998 and January 6, 1999, before a Hearing Panel consisting of Robert V. Costello, Chair, Robert J. Guttentag, and Ernest B. Murphy. The petition was opposed by Bar Counsel. The Clients' Security Board filed an opposition on the ground that the petitioner owed $54,977.59 in restitution for claims paid to the petitioner's former clients (Ex. 12). The petitioner, appearing pro se, testified on his own behalf and called one witness. Seventeen exhibits were admitted into evidence and an additional exhibit was admitted post-hearing.3 After considering the evidence and testimony, the Panel recommends that the Petition for Reinstatement be denied.

II. Disciplinary Background

The petitioner was disbarred based on the finding that "over a two and one-half year period, [he] had engaged in a pattern of intentionally commingling and converting clients' funds.... In two instances, clients were deprived of their funds for a period of time. In two other instances, [he] intentionally deprived his clients of their funds." 411 Mass, at 288-289, 7 Mass. Att'y Disc. R. 26-27. The petitioner engaged in "persistent wrongdoing involving more than twelve clients, knowing misappropriations of funds for the attorney's benefit, and the conversion (intentional deprivation) of client funds." 411 Mass, at 291, 7 Mass. Att'y Disc. R. 28-29. At the time of his disbarment, the respondent still owed $24,000 to one of his former clients, who had been a subject of the disciplinary proceeding. Id. In choosing between indefinite suspension and disbarment as a sanction for the petitioner's misconduct, the Court specifically stated that the attorney's failure to make restitution was a factor, as was his failure, despite a contempt adjudication, to comply with the terms of his temporary suspension, which necessitated the appointment of a commissioner to protect the interests of his clients. 411 Mass, at 292, 7 Mass. Att'y Disc. R. 29.

III. Subsequent Proceedings

After the petitioner's disbarment, the Clients' Security Board paid claims to six of the petitioner's former clients for his misappropriation of their funds (Ex. 12). Five of these claims were paid to former clients who had not been part of the disciplinary proceeding (Ex. 12; Tr. 1:52). The claims paid totaled $56,117.22 (Ex. 12). The Clients' Security Board informed the petitioner of the amounts paid to his former clients (Ex. 12). In August, 1991, the Clients' Security Board received $1,139.63 in restitution from the commissioner appointed by the Court (Ex. 12). This sum represented a portion of fees due the petitioner (Ex. 12). In the subsequent seven years since that payment, the petitioner failed to make any other restitution payment to the Clients' Security Board (Ex. 12; Tr. 1:54).

In October, 1993, in connection with the petitioner's misappropriation of funds belonging to one of his former clients, Paulette Henry (one of the claimants paid by the Clients' Security Board), a criminal complaint issued against the petitioner in Boston Municipal Court charging him with larceny of property worth over $250, in violation of G.L. c. 266, § 30, and with uttering a forged receipt with intent to defraud, in violation of G.L. c. 267, § 5. Commonwealth v. Bryan, Boston Municipal Court Docket No. 93-CR-9029 (Ex. 13). In February, 1996, the petitioner pleaded guilty to the charges (Ex. 13). He was placed on probation for two years, until February 11,1998 and was ordered to pay restitution in the amount of $18,660 (Ex. 13).4 On November 12, 1998, because of the petitioner's failure to pay restitution, his probation was extended for an additional two years, and he was ordered to pay restitution in the same amount originally ordered (Ex. 13). The petitioner claims that he paid $700 during the initial two-year probationary period, but does not dispute that he failed to make any regular or substantial payments in restitution (Tr. 1:58-59).

IV. Conclusions and Recommendation

The petitioner bears the burden of demonstrating that he has the moral qualifications, the competency, and the learning in the law necessary to its practice, and that his resumption of practice would not be detrimental to the integrity and standing of the bar, the administration of justice or the public interest. S.J.C. Rule 4:01, § 18(6).

Because we conclude that the petitioner's failure to make virtually any restitution is determinative of this petition, we decline to reach any of the other relevant issues. Other than the small amount paid in 1991 on his behalf by the commissioner to the Clients' Security Board (Ex. 12), and perhaps a small amount paid to the Boston Municipal Court (Tr. 1:58), the petitioner has made no restitution payments. The petitioner still owes more than $54,000 in restitution, $24,000 of which he owed prior to his disbarment in 1992. 411 Mass, at 291, 7 Mass. Att'y Disc. R. at 28. In addition, the petitioner remains on probation as a result of his failure to make restitution (Ex. 13). Under these circumstances, we cannot recommend his reinstatement. A recommendation of reinstatement in the absence of at least a concerted effort at restitution and a realistic plan for payment of the remainder would contravene long-standing precedent. See, e.g., Matter of Dawkins, SJC No. BD-91-16 (November 23, 1998) (Lynch, J.) (factor in denial of reinstatement was failure to make restitution); Matter ofHeffernon, SJC No. BD-91-030 (February 10, 1998)(Abrams, J.) (denial of reinstatement "until some monies have been paid on the malpractice judgments against him and a realistic plan for full payment of both judgments is proposed"); Matter of Wynn, 1 Mass. Att'y Disc. R. 316 (1991) (lack of restitution to wronged clients "posefd] substantial impediment to a finding that reinstatement would be in the interests of the bar and the public"); Matter ofWaitz, 7 Mass. Att'y Disc. R. 320 (1989) (denial of reinstatement based in part on lack of sufficient attempts at restitution).

We conclude that the petitioner has not met his burden here and that his failure to make restitution, as well as his continued probationary status, establish that he presently lacks the moral qualifications necessary to practice law and that his reinstatement, at this point, would be detrimental to the integrity and standing of the bar and the public interest. We recommend that the petition for reinstatement filed by Locksley H. Bryan, Sr. be denied.

Respectfully submitted,
Robert V. Costello, Chair
Robert J. Guttentag
Ernest B. Murphy

Dated: March 8, 1999

FOOTNOTES: 1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County. 2 The petitioner was temporarily suspended from the practice of law in May, 1990. Id. 3 The exhibits are referred to as "Ex. _" and the transcripts are referred to as 'Tr." followed by the volume number and the page number. 4 This was essentially the same amount paid to Paulette Henry by the Clients' Security Board ($18,667.00) (Ex. 12). Under the subrogation agreement routinely obtained by the Clients' Security Board as a condition of making payment to claimants, any restitution paid by the petitioner under this order would be paid to the Clients' Security Board.

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