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Commonwealth of Massachusetts

NO. BD-91-053

IN RE: DOUGLAS J. ROWE

S.J.C. Order of Reinstatement with Conditions entered by Justice Greaney on December 3, 1999.1

HEARING PANEL REPORT

I. Introduction.

The Petitioner, Douglas J. Rowe ("Rowe"), seeks reinstatement following a judgment dated September 10, 1991, accepting his resignation (effective July 18, 1991) in lieu of further disciplinary proceedings. See Matter of Rowe, 7 Mass. Att'y. Disc. R. 253 (1991). As set forth below, Rowe's misconduct arose from his conversion of substantial amounts of client funds and his neglect of client matters during a period in his life when he seriously abused alcohol.

Rowe filed his petition for reinstatement on November 9, 1998. A hearing on the petition was held on June 22, 1999, before Cynthia J. Cohen, Chair and Mitchell H. Kaplan and Robert J. Guttentag, Panel Members. The panel heard testimony from five witnesses, including the Petitioner, and received documentary evidence including letters from Marshall A. Gould on behalf of the Athol-Clinton Co-operative Bank; Bonnie Waters, Executive Director of Lawyers Concerned for Lawyers ("LCL"); and Dr. Jeffrey Fortgang of the LCL Addictions/Mental Health Staff.

At the hearing and in a post-hearing submission, Assistant Bar Counsel informed the panel that the Office of Bar Counsel neither supports nor opposes Rowe's petition for reinstatement. However, Bar Counsel requests that if Rowe is reinstated, he be placed on probation for a period of three years under conditions of probation attached hereto as Exhibit "A." Rowe does not object to the proposed conditions of probation.

For the reasons that follow, the panel recommends that the petition be allowed, subject to the conditions of probation set forth in Exhibit "A."

II. Background Facts.

Rowe was admitted to the Bar of the Commonwealth in 1968. He began his career as an assistant district attorney for Middlesex County. After a few years, he entered private practice where he concentrated on criminal defense, real estate and other general civil matters.

Between 1984 and 1991, Rowe was involved in several instances of professional misconduct which gave rise to the disciplinary proceedings against him:

A. Conversion of Client Funds -- Athol-Clinton Cooperative Bank.

In November, 1989, Rowe was retained by the Athol-Clinton Co-operative Bank ('the bank") to represent it at a foreclosure sale of property on which the bank held the first mortgage. At the foreclosure sale, which was held in March, 1 990, the property was sold for $166,000.00, which Rowe transmitted to the bank.

The following month, Rowe prepared an accounting which showed that there was a surplus of $69,948.21 after payment of the first mortgage to the bank. The bank gave this money to Rowe and directed him to file an interpleader action to determine the rights of various junior lienholders. Notwithstanding several inquiries by the bank about the status of the interpleader, Rowe never filed the action. Instead, he converted the surplus funds to his own use.

Eventually, the bank retained other counsel, and the matter was investigated. Thereafter, on February 28, 1991, Rowe repaid the sum of $73,000.00, the amount of the converted funds plus additional expenses and interest.

B. Conversion of Client Funds - Nunges, Chabot and Hill Estates.

In 1988 and 1989, Rowe converted approximately $41,000.00 from three estates which he represented. In each case, Rowe used estate funds which he had deposited in his clients' funds accounts to pay personal and business expenses. In July, 1989 and again in January, 1990, Rowe caused personal funds to be deposited in his client funds accounts in order to repay the monies which he had converted.

C. Neglect of Will Contest Case.

Rowe was hired in March, 1984, by two siblings who wished to contest the will of their late sister. He accepted a $500.00 retainer but did no work on the case for over a year and failed to respond to his clients' inquiries. When the clients secured substitute counsel, Rowe failed to return their retainer and their file.

In February, 1986, the clients brought a small claims action against Rowe and obtained a default judgment in the amount of $1 200.00 as reimbursement for the retainer and the fees which they paid to successor counsel. Rowe failed to pay the judgment until a capias was issued. The judgment ultimately was satisfied in May, 1986.

D. Failure to Cooperate with Bar Counsel.

Rowe failed to reply to Bar Counsel's inquiries regarding the will contest matter as well as a subsequent complaint. It was only after a series of subpoenas issued and contempt proceedings were brought in the Supreme Judicial Court that Rowe provided the information sought by Bar Counsel and paid costs associated with his failure to cooperate.

E. Abandonment of Client Matter.

In the spring of 1986, Rowe was retained by the trustees of a real estate trust to represent them in connection with their plans to acquire 30 acres of property, secure necessary clearances and approvals and resell it for residential development. Between June and November, 1986, Rowe drafted various documents and represented the trustees in ongoing negotiations with respect to the contemplated transactions. However, subsequent to November, 1986, the trustees began to negotiate directly with the other parties to the transactions. At that point, Rowe ceased active involvement on their behalf but did not give adequate notice to the trustees that he considered himself to have withdrawn from further representation.

Thereafter, on several occasions the trustees called and wrote to Rowe requesting his further assistance. When Rowe failed to reply to these inquiries, the trustees filed a complaint with Bar Counsel. Rowe did not cooperate in this investigation until Bar Counsel issued a subpoena to compel his appearance and testimony.

Each of the above matters was cited in Bar Counsel's seven-count amended petition for discipline. With respect to the conversion of client funds, Bar Counsel alleged in each instance that Rowe acted "with the intent to temporarily deprive and with actual deprivation" resulting {emphasis supplied), because, in each instance, the money already had been repaid.

Rowe admitted the allegations of the amended petition for discipline, and, on July 18, 1991, submitted an affidavit of resignation in lieu of suspension. On August 12, 1991, the Board voted to accept the affidavit of resignation, but recommended to the Supreme Judicial Court that the resignation be accepted in lieu of disbarment. On September 10, 1991, the Supreme Judicial Court, Greaney, J., accepted Rowe's resignation "in lieu of further disciplinary proceedings."

Throughout the period of his misconduct, Rowe was drinking heavily on a daily basis. In addition to affecting his practice, Rowe's drinking resulted in four arrests for operating under the influence of alcohol and the revocation of his driver's license for three years. In 1997, he served approximately six months in the Worcester County House of Correction and an additional two months in a probationary bracelet program on account of a February, 1995 DUI arrest.

It was immediately after his 1995 arrest that Rowe came to the realization that he was an alcoholic. He ceased drinking at that time and obtained help to remain sober. Rowe became involved with Alcoholics Anonymous ("AA"). He obtained counseling during his incarceration and later through his health plan. Since February, 1998, he has been active in Lawyers Concerned for Lawyers ("LCL") and regularly attends the twice-monthly meetings of LCL's Professional Conduct Group for lawyers involved with the disciplinary process and the twice-weekly support group meetings for attorneys with chemical dependency. In addition, he attends AA meetings two to three times per week.

Since his resignation, Rowe has been employed in his family's radio station business. He is winding down the business and intends to sell or close the last of his family's radio stations in the near future. Should he be reinstated, it is Rowe's intention to share office space with his wife, who is a lawyer, but to maintain a separate practice concentrating in business law involving small companies, appearances before municipal boards and perhaps some criminal law.

III. Findings and Conclusions Pertaining to the Reinstatement Petition.

On a petition for reinstatement, the petitioner bears the burden of proving that he has the moral qualifications required for admission to practice law; that he has the competency and learning in law required for admission; 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. S.J.C. Rule 4:01, § 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 concludes that, in this case, the petitioner has met his burden on each of the requisite criteria.

A. Moral Qualifications.

Rowe is the first to admit that when he was drinking he suffered from impaired judgment and made bad decisions. Nevertheless, he does not blame alcohol for his mistakes and accepts a high degree of responsibility for his own actions.

Since February, 1995, Rowe has recognized and acknowledged that he is an alcoholic and has stopped drinking completely. He draws support from LCL and AA and is committed to remaining active in these organizations in the future. His work with LCL is particularly noteworthy, since, in addition to attending support meetings, he has devoted numerous hours of his free time to help LCL with its recent move and to make himself available whenever LCL needs his assistance with another attorney or with various office projects. Furthermore, as noted by Dr. Jeffrey Fortgang, his clinician at LCL, he recognizes the seriousness of the behavior that triggered BBO discipline and shows ongoing interest in professional ethics.

The panel is persuaded that Rowe has learned from his mistakes, that he is committed to long-term sobriety and that he has a heightened awareness of the professional responsibilities of an attorney. We therefore conclude that he has the moral qualifications to resume the practice of law.

B. Learning in the Law.

Throughout the period of his resignation, Rowe regularly read Lawyers Weekly and other legal periodicals and journals. After his release from confinement in early 1 998, he obtained a limited driver's license which enabled him to attend continuing legal education courses. Since then, he has taken two courses offered by the Massachusetts Bar Association and at least ten MCLE courses, including the three-day MCLE Practical Skills Program, for a total of forty-four and one half hours of continuing legal education. He passed the Multistate Professional Responsibility Examination ("MPRE") during the summer of 1998 and intends to take a minimum of 1 5 credit hours of continuing legal education annually in the future. Rowe's personal experiences during the period of his resignation also kept him abreast of legal developments in the bankruptcy area, since he oversaw bankruptcy proceedings involving his family's radio stations.

The panel finds that Rowe has demonstrated sufficient competency and learning in the law to warrant readmission to practice.

C. Standing of the Bar and Public Interest.

All clients who were the original complainants against Rowe were notified of his intention to seek readmission to the bar, and none has objected. The victim of the largest conversion, the Athol-Clinton Cooperative Bank, submitted a letter in which it noted that it had been fully repaid and stated that it "neither supports nor opposes the reinstatement of Mr. Rowe."

At the reinstatement hearing, four character witnesses gave credible testimony that Rowe has turned his life around and is well-respected in the community: Attorney George Desmond, a former Board of Bar Overseers hearing committee member; Susanne Leeber, the President and CEO of the Marlborough Regional Chamber of Commerce; Timothy McCoy of the Federal Emergency Management Agency; and Robert McCabe, former chairman of the board of Massachusetts Electric, Narragansett Electric, Granite State Electric and Nantucket Electric. Each of these individuals is well-acquainted with Rowe from various contexts, and each whole-heartedly supports Rowe's reinstatement.

Significantly, Rowe made full restitution of all converted funds prior to his resignation and therefore the charges against him were for temporary rather than permanent deprivation. Thus, in keeping with comparable cases, had Rowe litigated the disciplinary charges to a conclusion instead of resigning, it is likely that he would have been indefinitely suspended rather than disbarred. See Matter of Bryan, 411 Mass. 288, 292, 7 Mass. Att'y. Disc. R. 24, 29 (1991). Furthermore, had Rowe recognized his alcoholism at that time and asserted it in mitigation of the charges against him, it may well be that he would have received a term suspension. See Matter of Schoepfer, 426 Mass. 183, 187, 13 Mass. Att'y. Disc. R. 679, 685 (1997); Matter of Martin, 5 Mass. Att'y. Disc. R. 238 (1988). Viewed in that context, Rowe's eight-year period of resignation is more than sufficient to vindicate the interests of the public and the bar in lawyer discipline.

In short, in light of all of the above factors, we are persuaded that Rowe's reinstatement would not be detrimental to the integrity of the bar, the administration of justice or the public interest.

IV. Ultimate Conclusions and Recommendation.

For the foregoing reasons we conclude that the Petitioner, Douglas Rowe, has the moral qualifications required for admission to practice law; that he has the competency and learning in law required for admission; 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. We recommend reinstatement subject to the probationary conditions attached hereto as Exhibit "A."

Respectfully submitted.

Cynthia J. Cohen
Mitchell H. Kaplan
Robert J. Guttentag

Dated: September 17, 1999


EXHIBIT A

BAR COUNSEL'S PROPOSED CONDITIONS OF PROBATION

Part One - Required Accounts

1. Immediately upon entry of the order of reinstatement and prior to undertaking the representation of any person or entity, the Petitioner shall open and maintain, in a bank in Massachusetts, a trustee account or accounts in which all funds entrusted to the Petitioner's care shall be deposited in conformance with Supreme Judicial Court Rule 3:07, Mass. R. Prof. C. 1.15. Within ten days of the opening of the IOLTA account, the Petition shall furnish to Bar Counsel evidence that the account has been opened as required.

A. All trustee accounts shall be separate from any business and personal accounts and from any fiduciary account that the Petitioner may maintain as executor, guardian, trustee, or receiver, or in any other fiduciary capacity.

B. All trustee accounts shall be maintained in the Petitioner's own name, or in the name of a partnership of attorneys of which the Petitioner is a member, or in the name of the professional corporation of which the Petitioner is a member, or in the name of the attorney or partnership of attorneys by which the Petitioner is employed.

C. All trustee accounts shall be one of the following three types:

(1) IOLTA Account. All client funds which in the judgment of the Petitioner are nominal in amount or are to be held for a short period of time shall be deposited in an IOLTA account in conformity with S.J.C. Rule 3:07, Mass. R. Prof. C. 1.15.

(2) Conveyancing Account. The Petitioner may maintain a non-interest-bearing trust account in a lending bank, provided that the account is used exclusively for depositing and disbursing funds in connection with that bank's loan transactions.

(3) Individual account. All other client funds shall be deposited in an individual trustee account, with the interest payable as directed by the client Each individual trustee account shall contain only funds belonging to a single client or group of related clients.

D. All trustee accounts of whatever type, whether general or specific, as well as all deposit slips and checks drawn thereon, shall be prominently designated as an attorney trust account An additional descriptive designation may be used for a specific trust account.

2. In addition to, and separate from, all trust accounts, the Petitioner shall maintain a business account or accounts into which all funds received for professional services shall be deposited.

Part Two - Trust Account Transactions

1. All funds which the Petitioner receives in connection with a representation and in which a client or third person has an interest shall be deposited intact in a trust account. The deposit slip shall be sufficiently detailed to identify the source of each deposited item, the person on whose behalf it is received, and the client whom the Petitioner is representing.

2. No funds belonging to the Petitioner or law firm shall be deposited in any trust account unless a client or third person also has an interest in the funds, except that funds reasonably sufficient to pay bank charges may be deposited.

3. All trust account withdrawals shall be made only by authorized intrastate or interstate bank transfer or by check payable to a named payee and not to cash. All checks shall contain sufficient information, by memorandum or otherwise, to identify the client whose funds are being disbursed. Only an attorney admitted to practice in Massachusetts shall be an authorized signatory for trust account withdrawals.

4. The Petitioner shall promptly withdraw from any trust account any fee which becomes due and any other funds which belong exclusively to the Petitioner, except that any disputed funds shall be treated in the manner provided by S.J.C. Rule 3:07, Mass. R. Prof. C. 1.15(d}(2).

5. Whenever any fees or other funds belonging to the Petitioner are withdrawn from a trust account, the withdrawal shall be made only by check payable to the Petitioner, to the partnership or professional corporation of which the Petitioner is a member, or to the attorney or partnership of attorneys by which the Petitioner is employed. Each such check shall identify the matter it is related to and shall be used only for fees and expenses related to a single client or group of related clients.

Part Three - Required Records

1. The Petitioner shall maintain complete records of the handling, maintenance, and disposition of all funds in each trust account and preserve such records for a period of six years as required by S.J.C. Rule 3:07, Mass. R. Prof. C. 1.15(a). At a minimum, such records shall include all of the documents specified in paragraphs 2 and 3, below.

2. The Petitioner shall maintain the following bookkeeping records:

A. Receipts and Disbursements Journal for each trust account containing a chronological record of all deposits in, withdrawals from, and charges to that account, specifically identifying the date, source, and description of each item deposited as well as the date, payee, and purpose of each disbursement or charge. If a running balance is not maintained, a trial balance shall be computed at least monthly by taking the beginning balance, adding the total amount deposited, and deducting the total of all disbursements and charges.

B. An appropriate ledger book for each trust account, having at least one single page for each separate trust client, showing the date and amount of each deposit and withdrawal, the source of all funds deposited in each account, the names of all persons for whom the funds are or were held, the amount of such funds, the charges or withdrawals from each account, and the names of all persons to whom funds were disbursed. If a running balance is not maintained, a trial balance shall be computed at least monthly by taking the beginning balance, adding the total amount deposited on behalf of the client, and deducting the total of all disbursements and charges made on behalf of the client.

3. The bookkeeping records specified in the preceding paragraph may be maintained by computer provided they otherwise comply with the requirements of the paragraph and provided further that printed copies which comply with the requirements of the paragraph can be made on demand.

4. The Petitioner shall include in the records maintained as required by S.J.C. Rule 3:07, Mass. R. Prof. C. 1.15(a), at least the following:

A. All checkbooks and check stubs, bank statements, cancelled checks (which shall be prenumbered), and duplicates of all deposit slips.

B. Copies of all retainer and compensation agreements with clients.

C. Copies of all statements to clients showing the disbursement of funds to them or on their behalf.

D. Copies of all bills rendered to clients.

E. Copies of all records showing payments to attorneys, investigators or other persons, not in the Petitioner's employ, for services rendered or performed.

F. Copies of those portions of each client's file reasonably necessary for a complete understanding of the financial transactions pertaining thereto.

Part Four - Periodic Reconciliation

1. At least once in every calendar quarter, the Petitioner shall cause a reconciliation to be made for every trust account of the cash balance derived from the Receipts and Disbursements Journal totals, the checkbook balance, the bank statement balance, and total of the client trust ledger sheet balances. The Petitioner shall provide Bar Counsel with a copy of the reconciliation no later than 10 days from the date of its receipt

Part Five - Malpractice Insurance

1. The Petitioner shall maintain malpractice insurance with liability limits of at least $300,000/$500,000, with a deductible not to exceed ten thousand dollars throughout the duration of his probation.

Part Six- Accountant

1. The Petitioner shall retain, at his own, expense, an accountant acceptable to Bar Counsel. Not later than six months after the entry of the order of reinstatement, and thereafter on the fifteenth days of January, the fifteenth day of May, and the fifteenth day of September for the term of probation, the accountant shall certify to Bar Counsel:

A. That he has conducted an examination of the Petitioner's trust accounts in conformity with generally accepted accounting principles and practices, including examination of backup documents and records in appropriate cases.

B. That he has made a reconciliation for each trust account of the cash balance derived from the Receipts and Disbursements Journal totals, the checkbook balance, the bank statement balance, and total of the client trust ledger sheet balances, and the balance actually in the account is adequate to defray the obligations which are shown in the client trust ledger sheets.

C. That the Petitioner is maintaining his trust accounts and records in a timely manner and in conformity with generally accepted accounting principles and practices.

D. That the Petitioner is conforming with the requirements of order of reinstatement

Part Seven - Counseling

1. The Petitioner shall continue to receive counseling at Lawyers Concerned for Lawyers ("LCL"), or at a comparable agency and/or service agreeable to Bar Counsel, during the period of probation set forth below.

2. The Petitioner agrees to execute all documents necessary to provide Bar Counsel with all relevant information relating to the respondents counseling whether at LCL or any other agency and/or service.

3. The Petitioner shall notify Bar Counsel, in writing, no less then thirty (30) days prior to terminating his counseling at LCL and shall state in his letter the basis for his leaving LCL and identify the agency and/or service where he proposes to continue to receive counseling.

Part Eight - Termination of Probation

1. The Petitioner's probation will terminate three years from the date of the entry of the order of reinstatement.



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