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Commonwealth of Massachusetts

NO. BD-91-50

IN RE: JOHN R. JENNINGS

S.J.C. Order Denying Reinstatement entered by Justice Cowin on October 12, 2001. 1
HEARING PANEL REPORT

I. Introduction.

The Petitioner, John R. Jennings ("Jennings"), seeks reinstatement after his suspension for a term of 18 months on June 25, 1993, 9 Mass. Att'y Disc. R. 174 (1993), which resulted from his guilty plea to an indictment for willful evasion of federal income taxes. The order of suspension was retroactive to September 20, 1991, the date of his temporary suspension. See 7 Mass. Att'y Disc. R. 126 (1991).

Jennings petitioned for reinstatement in November, 1993. At that time, he lived in Maine. After a hearing in 1994, while those proceedings were pending, one of the references withdrew his support, and made allegations concerning Jennings which were investigated by Bar Counsel. While that investigation was proceeding, Jennings relocated from Maine to South Carolina.

After Bar Counsel had completed the investigation, the petition for reinstatement was scheduled for further hearing. Jennings moved for an indefinite postponement because he could not travel to Massachusetts for the hearing. The motion was allowed.

In 1999, Jennings asked to proceed on his petition for reinstatement. A new hearing panel was appointed. Jennings filed a new reinstatement questionnaire.

On July 23, 1999, a hearing was held before a panel consisting of John O. Mirick, Esq., Chair, Cynthia J. Cohen, Esq. and Robert J. Guttentag. Jennings was represented by Gregory R. Barison, Esq. Bar Counsel was represented by Terence M. Troyer, Esq.

The hearing panel received in evidence one exhibit consisting of eight letters of recommendation, and a second exhibit consisting of various tax returns. The hearing panel also had available the new reinstatement questionnaire, the transcript and exhibits from the earlier hearing on the petition for reinstatement, and the report of the hearing panel on the petition for discipline which resulted in the 18 month suspension. Jennings testified. There were no other witnesses called.

II. Findings.

Jennings was admitted to the Bar in 1965. His practice primarily consisted of criminal trial work and domestic relations, including five years as an Assistant District Attorney in Norfolk County and two years with the Public Defender Program in Dukes County. His private practice was as a sole practitioner or with one of his brothers. He last practiced law in Massachusetts in 1989, when he moved to Florida. At the time of his move, he was in the process of getting divorced and wanted “to leave things behind.” He did not practice law in Florida.

In 1991, Jennings was indicted for tax evasion. The indictment charged that Jennings had attempted to evade federal income taxes due for the years 1980 through 1986 by depositing income from his law practice into his clients' funds account which he then used for personal and household expenses, by endorsing checks for legal fees to his wife, and by instructing clients to pay fees in cash or merchandise. Jennings pleaded guilty to the indictment on August 15, 1991. He was sentenced to six months in a halfway house, community service, and two years probation.

Following his conviction, Jennings was temporarily suspended. 9 Mass. Att'y Disc. R. 174 (1993). After a hearing, he was suspended for 18 months, retroactive to the date of his temporary suspension. 7 Mass. Att'y Disc. R. 126 (1991).

Jennings completed his sentence and his probation. The Internal Revenue Service holds a judgment against Jennings for approximately $85,000 in back taxes. Jennings testified that, after an audit, the Internal Revenue Service determined that he did not have the financial ability to pay the judgment, but that the Internal Revenue Service is monitoring his tax returns until such time as he shows a financial ability to pay taxes. Jennings does not know what is owed to the Department of Revenue in Massachusetts. Jennings does not believe that the Department of Revenue holds a judgment against him.

During his suspension, Jennings has held a series of non-legal jobs including bagging groceries, selling shoes, and working as a bartender. Approximately four years ago, he started working for a South Carolina company which operates golf courses and hotels. He has advanced from the position of courier, to the position of internal investigator, and most recently has received a position in one of the hotels as Director of Security. In that position he will have employees working under his direction, and will be responsible for the internal and external security of the hotel. His employer supports the petition for reinstatement.

Jennings testified that he does not intend to resume the practice of law, although there is a possibility that he could become involved with a South Carolina mediation association. Reinstatement would add to his credibility with his employer. Primarily, Jennings wants to remove the cloud over him, and make his family proud of him again. His father was the head of the Boston detective bureau. Two of his brothers and a nephew are attorneys.

Jennings has not practiced law since 1989, approximately two years before his temporary suspension. He took a course in ethics at the University of Maine around the time when he petitioned for reinstatement. He has not taken any continuing legal education courses. From time to time, he has looked up legal issues on free sites on the Internet, and has read about issues in the newspaper. He does not have a subscription to Lawyers Weekly, does not read the decisions of the Supreme Judicial Court or the Appeals Court, and does not read anything to keep up to date on Massachusetts law. He sometimes discusses legal issues with his brothers. He is willing to take the Massachusetts Bar Examination as a condition of his reinstatement.

Jennings is involved in civic and charitable organizations in South Carolina, and is the current President of the South Carolina Board of the Ancient and Honorable Order of Hibernians.

III. Conclusions and Recommendation.

Pursuant to Supreme Judicial Court Rule 4:01, §18(6), Jennings has the “burden of demonstrating that he . . . has the moral qualifications, competency and learning in the law required for admission to practice law in this Commonwealth, and that his . . . resumption of the practice of law will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest.” See also Board of Bar Overseers Rules, Section 3.64. Factors to be considered include the nature of the original offense, the petitioner's character, maturity and experience at the time of the original offense, the petitioner's occupation and conduct following his suspension, the time lapse since the suspension, and the petitioner's present competence in legal skills. Matter of Cappiello, 416 Mass 340, 343 (1993); Matter of Gordon, 385 Mass. 48, 52 (1982); Matter of Hiss, 368 Mass. 447, 460 (1975).

The panel concludes that Jennings has not met his burden of demonstrating the required competency and learning in the law required for admission to practice law. He has not practiced at all since 1989. While he sometimes discusses legal issues with members of the family who are attorneys, and while he sometimes reads articles on legal issues which are in the newspaper or on the Internet, he does not subscribe to any legal journals or newspapers, and has no regular or systematic program of maintaining proficiency in Massachusetts law. Contrast Cappiello, supra at 344-345.

While Jennings states that he is willing to accept as a condition of reinstatement that he take and pass the Massachusetts Bar Examination, the panel concludes that reinstatement conditioned upon passing the bar exam is contrary to what is set forth in Rule 4:01, §18(6). A petitioner for reinstatement has the burden of establishing that he is competent in the law, not that he will become competent in the law. The panel recognizes that there is some precedent for reinstatement conditioned upon passage of the Massachusetts Bar Examination, Matter of Masuck, 3 Mass. Att'y Disc. R. 135 (1982), Matter of Hetnick, 8 Mass. Att'y Disc. R. 97 (1992). It is not clear from the reports of those cases what those petitioners had done to maintain competency during their suspensions. The panel concludes that the more appropriate procedure in the present case, in which Jennings had ceased the practice of law two years before his suspension, and has not maintained his competency, is for Jennings to take and pass the bar exam to demonstrate his learning and competency in the law before a decision is made on his petition for reinstatement.

To the extent that Jennings has suggested that the standard of learning and competency should be relaxed for a petitioner who does not intend to practice law, the panel rejects that suggestion. Learning and competency is a requirement for admission. Once an attorney is admitted, the attorney may practice in Massachusetts, and may apply for admission to other states. There are no provisions for an admission which will not involve the practice of law. While members of the Bar may elect inactive status if they cease to practice law, Supreme Judicial Court Rule 4:02(4)(a), they must first have demonstrated learning and competency for their admission. In addition, a member of the Bar on inactive status may resume active status and practice law simply by requesting reinstatement to the active rolls and paying the applicable fee. Supreme Judicial Court Rule 4:02(4)(b).

Jennings submitted a series of letters from his various non-legal employers in North Carolina, and from other persons outside of Massachusetts who know Jennings and support his petition for reinstatement. Without passing on the sufficiency of those communications to establish the fitness of Jennings for the practice of law, the panel suggests that, if Jennings takes and passes the Massachusetts Bar Examination and files a new petition for reinstatement, it would be helpful to the hearing panel appointed at that time if Jennings obtained recommendations from Massachusetts lawyers and laypeople, as well as recommendations from residents in other states.

Finally, again without passing on the sufficiency of the evidence offered by Jennings, the panel notes that Jennings has not made payments against the judgment obtained by the Internal Revenue Service, and was uncertain about the status of his obligation to the Commonwealth of Massachusetts. The panel recognizes that tax liabilities are a matter to be adjusted by the appropriate tax authorities. In the event that Jennings takes and passes the Massachusetts Bar Examination and files a new petition for reinstatement, a clear statement of those obligations, and plans for addressing those obligations, should be submitted to the hearing panel appointed at that time.

The panel recommends that the petition for reinstatement be denied, without prejudice to the filing of a new petition for reinstatement if Jennings takes and passes the Massachusetts Bar Examination.

THE HEARING PANEL

John O. Mirick, Chair
Cynthia M. Cohen, Esq.
Robert J. Guttentag

Date: November 1, 1999

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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