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Commonwealth of Massachusetts

NO. BD-1994-032

IN RE: JAMES L. MCINTYRE

S.J.C. Order of Reinstatement entered by Justice Cowin on October 13, 2000.1

HEARING PANEL REPORT

I. Introduction

The Petitioner, James L. McIntyre, was indefinitely suspended from the practice of law by order entered by the Supreme Judicial Court on September 13, 1994, retroactive to June 29, 1992, the date of his temporary suspension. The Petitioner filed a reinstatement questionnaire on December 1, 1999 and a second reinstatement questionnaire on March 7, 1999. A hearing on the Petition was held on April 10, 2000 and May 8, 2000 before a panel consisting of Mitchell H. Kaplan, Chair, Naomi Gordon and Steven Sabra. The panel heard testimony from six witnesses, including the Petitioner, and received into evidence six exhibits. After the close of evidence, the Petitioner moved, without opposition, to reopen the record to introduce a letter from David I. McIntyre, the Petitioner's brother. In consideration of the testimony, exhibits and arguments, the Panel recommends that the Petition be allowed subject to the conditions set forth herein.

II. Facts

A. Disciplinary Background

The Petitioner was admitted to the bar in November 1980. He practiced primarily in the area of real estate and conveyancing, and also engaged in the business of real estate development as a principal. He had no disciplinary record prior to the matter that gave rise to his suspension. On April 4, 1989, the Petitioner was responsible for a motor vehicle accident in which Stephen Martin died. In connection with this accident, the Petitioner was convicted of manslaughter, motor vehicle homicide, and causing bodily injury while operating a vehicle recklessly and negligently under the influence of alcohol. He was ultimately sentenced to a period of incarceration of 3 to 5 years, 5 years probation and 3,000 hours of community service. The case is reported in Commonwealth v. McIntyre, 36 Mass. App. Ct. 193 (1994). During Petitioner's reinstatement hearing, he acknowledged that he was drunk at the time of the accident.

Petitioner was convicted in 1990. He appealed his conviction and remained free on bond during the pendency of the appeal, which was decided in May 1994. During this period, the Petitioner was convicted in Rhode Island of possession of cocaine on November 17, 1992 and again on December 21, 1992. These convictions resulted in sentences of periods of probation. On January 20, 1994, again as a result of cocaine possession, Petitioner was found to be in violation of the terms of his probation and sentenced to serve six months in an adult correctional institute in Rhode Island.

As a consequence of these convictions, Petitioner was indefinitely suspended from the practice of law. Although a temporary order of suspension did not enter until 1992, the Petitioner ceased to practice law a few months after the fatal accident, and has not practiced law since.

B. The Period From Incarceration To The Present

Petitioner was first incarcerated in a Rhode Island correctional institution in January 1994. In July 1994, he was transferred to the custody of the Massachusetts Department of Corrections and was confined in various Massachusetts correctional institutions continuously until January 1997.

After release, Petitioner completed his sentence by performing 2,500 hours of community service cleaning floors at Sturdy Memorial Hospital.1 He continued to do this work on a voluntary basis for some months following the completion of his required service. Upon his release, Petitioner was also on probation both with respect to his Massachusetts and Rhode Island sentences. His Massachusetts probationary term terminated on June 8, 1999, and his Rhode Island probation, which was at all times unsupervised, terminated on December 27, 1999.

Also as a result of the April 1989 accident, Petitioner was sued by the Estate of the decedent, Stephen Martin, as well as other injured passengers in the decedent’s automobile. All such suits were settled by payments made by Petitioner’s automobile insurance carrier.

Prior to the 1989 accident, Petitioner had engaged in binge-drinking, in which, on occasion, he would drink to a state of drunkenness, although apparently this did not occur so frequently as to impair his ability to practice law. Petitioner’s binge drinking increased after the accident. Also, prior to the accident, Petitioner had “dabbled” with cocaine, but after the accident, he began regularly to abuse cocaine. While incarcerated, Petitioner participated in the alcohol and substance abuse programs available to him in the correctional institutions. These included a drug awareness program, NA and AA meetings, and twelve step programs. Upon release, Petitioner sought counseling from the substance abuse program at the Attleboro Clinic of Community Care Services, Inc. He continues to meet with a counselor from this clinic on a monthly basis. He also attends AA meetings, generally on a twice weekly basis. Petitioner has not used cocaine since his initial incarceration in Rhode Island. He had a drinking episode in July 1997, which he reported to his counselor, but has not had another episode since that time.

While in correctional institutions, he read advance sheets and Lawyer’s Weekly when available. Since his release, Petitioner passed the MPRE exam. He has taken continuing legal education courses in real estate, conservatorship and practical skills, and also a computer course. He subscribes to Lawyer’s Weekly.

Since his release, Petitioner has lived with his father, now age 92, in Attleboro. During the course of the Hearing, Petitioner testified that, if reinstated, his plan was to practice as a sole practitioner in the Attleboro area. After the close of evidence, Petitioner submitted a letter from his brother, David I. McIntyre, Esq., an attorney practicing in Attleboro, in which Mr. McIntyre represented that, if reinstated, he will offer Petitioner a position as an associate in his office and is prepared to supervise his work.

III. Conclusions

On a petition for reinstatement, the petitioner has 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.

Given the facts of the present case, it is also important to note that the Supreme Judicial Court has held that there is no offense so grave that a “disbarred attorney is automatically precluded from attempting to demonstrate through ample and adequate proofs . . . that he has achieved a present fitness.” In the Matter of Allen, 400 Mass. 417, 422, 5 Mass. Att’y. Disc. R. 10, 19 (1987). The question in this regard is whether the disbarred or suspended attorney has reformed and proven that he or she has rehabilitated him or herself from the character flaws that caused the events giving rise to the prior misconduct. Id. at 425 and 23.

A. Moral Qualifications

In the present case, the felony convictions which gave rise to Petitioner’s indefinite suspension did not emanate from his practice of law, nor from a purposeful intent unlawfully to profit from his wrong doing -- but rather from substance abuse. This, of course, does not minimize, or in any sense excuse, the injury inflicted on the deceased Stephen Martin, the other passengers in Mr. Martin’s car, nor Mr. Martin’s family, by Petitioner’s wanton act of drunk driving. It does, however, to some extent focus this Panel’s inquiry on whether Petitioner has demonstrated adequately acceptance of responsibility for his action, contrition and, most importantly, the capacity to maintain his sobriety.

The record suggests that it took some time for Petitioner to achieve a sufficient degree of self-awareness of his substance abuse problem. Based upon the testimony presented, this Panel believes that Petitioner has finally done so. He experienced a lengthy period of incarceration. His remorse appears genuine. He has participated in drug and alcohol counseling and continues to see his counselor, Francis McGuire, regularly. The Panel credits Mr. McGuire’s testimony that Petitioner is sincere and dedicated to his program of recovery. While it is impossible to guarantee that Petitioner will not backslide, Mr. McGuire testified that he was aware of no evidence that Petitioner would not be able to manage the stress of practice without reverting to substance abuse.

Nonetheless, mindful that Petitioner was only released from correctional institutions in January 1997 and had an episode of drunkenness in July 1997, the Panel has recommended conditions to reinstatement that will require Petitioner to continue appropriate counseling.

B. Competency and Learning in Law

Petitioner has been suspended from the practice of law for eight years, but, in fact, ceased practicing eleven years ago. As he was admitted to the bar in 1980, he has not practiced for a period longer than he was actually engaged in the practice of law. By taking continuing legal education courses and subscribing to Lawyer’s Weekly, he has sought to maintain or renew his knowledge and competency. While the record does not reflect any lack of competency in Petitioner’s practice before 1989, the Panel, nonetheless, has some concern for Petitioner’s current knowledge base and practical skills.

The Panel acknowledges that Petitioner’s brother, a practicing lawyer, has offered him an associate’s position in his firm and supervision. The Panel, however, believes that more formal assurances that Petitioner has adequate knowledge and skills as he resumes practice is necessary, and therefore has conditioned Petitioner’s reinstatement on his obtaining supervision and mentoring.

C. Integrity of the Bar and Public Interest

Three members of the deceased Stephen Martin’s family testified in opposition to this petition. Their testimony recounted the grief and loss Petitioner’s drunken driving caused their family. The Panel credits their testimony and takes seriously their views. The Panel’s role is, however, not to mete out additional punishment2 but rather to determine whether Petitioner has met his burden of proving the criteria for reinstatement identified by the Supreme Judicial Court. That some members of the public may be understandably grieved by Petitioner’s reinstatement is not the standard. Petitioner has served his sentence, performed his community service, and appears to be attempting to reconstruct his life, while acknowledging the severity of his past misconduct. The Panel believes that his reinstatement will not do injury to the integrity of the bar or the public welfare. See Matter of Allen, 400 Mass, at 425.

IV. Recommendation

The Panel therefore recommends that Petitioner be reinstated to the bar subject to the following conditions:

1. Petitioner enter into and fulfill a two-year LCL sobriety monitoring contract; and

2. Petitioner shall be monitored for a period of two years by a lawyer-monitor acceptable to Bar Counsel; this may be Petitioner’s brother. Petitioner shall meet with the lawyer-monitor at least once every two months to review his cases and manner of practice. Petitioner shall have the duty to respond candidly to any of the monitor’s questions. On a quarterly basis, the monitor shall report to Bar Counsel that he/she has met with Petitioner and is satisfied that Petitioner is adequately handling his clients’ matters.

Respectfully submitted,

Mitchell H. Kaplan, Chair
Naomi Gordon
Steven Sabra

FOOTNOTES:

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

2 Petitioner’s original sentence of 3,000 hours of community service was reduced to 2,500 hours on motion granted by the Superior Court. 3 The Martins express concern that because Petitioner was a lawyer and from a respected Attleboro family, he received a more lenient sentence than others who committed similar offenses have received, or other special considerations. The Panel found no evidence of that.



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