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Commonwealth of Massachusetts

NO. BD-96-052

IN RE: WESLEY PREVOST

S.J.C. Order of Reinstatement entered by Justice Greaney on January 10, 2002.1

HEARING PANEL’S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION

On May 15, 1998, the Supreme Judicial Court for Suffolk County entered an order suspending the Petitioner from the practice of law for three years retroactive to November 19, 1996, the date of the Petitioner's temporary suspension from the practice of law. Matter of Prevost, 14 Mass. Att'y Disc. R 577 (1996). On November 22, 1999, the Petitioner filed a Petition for Reinstatement with the Supreme Judicial Court. The Petition for Reinstatement was referred to the Board of Bar Overseers for further proceedings. At the Petitioner's request, hearing on this matter was deferred so that the Petitioner could take the MPRE.

On July 26, 2001, a hearing was held on the Petition before the undersigned Hearing Panel. The Petitioner was represented by Attorney Benjamin D. Entine. The Bar Counsel was represented by Assistant Bar Counsel Robert I. Warner. The Panel received as Petitioner's Exhibit 1 the Petition for Reinstatement; as Exhibit 2, letters of recommendation; as Exhibit 3, letters from Health and Education Services, Inc. (“HES”); as Exhibit 4, a letter from the Addiction Services at Addison Gilbert Hospital; as Exhibit 5, 11/4/00 Offer in Compromise and letter from IRS accepting offer; as Exhibit 6, the Petitioner's MPRE score; as Exhibit 7, a letter from the Essex County Bar Association regarding a CLE course attended by the Petitioner; and as Exhibit 8, an MCLE program credit. The panel received as Bar Counsel's Exhibit 9 the respondent's change of plea in the Essex County Superior Court and as Exhibit 10, a summary of the Petitioner's disciplinary proceeding in 14 Mass. Att'y Disc. R 577 (1996).

On September 20, 2001, Bar Counsel advised the Board's General Counsel that he would not oppose the Petitioner's reinstatement, provided that the Petitioner participate in Lawyers Concerned for Lawyers until he is satisfactorily discharged from that program, and that Petitioner abide by the terms and conditions of a Peer Review Agreement entered into on September 4, 2001, a copy of which is attached hereto.

The following constitute the Hearing Panel's Findings of Fact, Conclusions of Law and Recommendation with respect to the Petition.

FINDINGS OF FACT

1. In 1984, the Petitioner graduated cum laude from Suffolk University. (Tr. 67) In 1987, the petitioner graduated from the New England School of Law. (Tr. 67) The Petitioner was admitted to the Bar of the Commonwealth of Massachusetts on June 15, 1988. (Tr. 68) Since his admission to the Bar the Petitioner has concentrated his practice in criminal defense as a sole practitioner. (Tr. 80) From 1988 to 1996 Petitioner's practice included participation in the Essex County Bar Advocate's Program, administered by the Committee for Public Counsel Services.

2. On October 27, 1995, the Gloucester Police executed a search warrant for the Petitioner's house. (Ex. 9) As a result of the search, methadone, percocet, and xanax were found. (Ex. 9) The Petitioner was arrested and charged with conspiracy to violate the Massachusetts controlled substance act and possession with intent to distribute these drugs. (Ex. 9)

3. On November 9, 1995, the Petitioner entered the Discovery program at the Addison Gilbert Hospital in Gloucester. (Tr. 73; Ex. 4) The Discovery program is a two-week in-patient program involving group and individual counseling for people with substance abuse problems. (Tr. 73) On November 22, 1995, the Petitioner completed the program and was discharged. (Tr. 73; Ex. 4)

4. On May 30, 1996, the Petitioner took delivery through the mail of percocets, percodans, and valiums. (Ex. 9) The Petitioner was arrested that same day and charged with conspiracy to violate the controlled substance act and possession with intent to distribute these drugs. (Ex. 9)

5. On August 14, 1996, the Petitioner entered into a plea agreement with the Essex County District Attorney's office wherein he pled guilty to three counts of possession with intent to distribute a Class B substance, in violation of G.L. c. 94c, § 31; two counts of conspiracy to violate the controlled substance act; and one count of possession of a Class B substance, in violation of G.L. c. 94c, § 31. (Ex. 9) The Petitioner was sentenced to three years probation, concurrent on all charges. (Ex. 9) As special conditions of probation, the Petitioner was to attend drug counseling and to submit to random urinalysis. (Tr. 68)

6. As a result of the Petitioner's plea of guilty, he was temporarily suspended from the practice of law on November 19, 1996, pending further disciplinary proceedings. Matter of Prevost, 12 Mass. Att'y Disc. R 460 (1996). (Ex. 10)

7. In or about September 1996, the Petitioner, his wife, and his three sons relocated to Florida. (Tr. 68) The Petitioner's probation was transferred to Florida. (Tr. 8) While in Florida, the Petitioner sold cars and worked for a marketing firm. (Tr. 70-71)

8. The Petitioner remained in Florida for three years. (Tr. 74) During this time, the Petitioner attended Alcoholic Anonymous and Narcotics Anonymous programs. (Tr. 74)

9. On May 15, 1998, the Petitioner was suspended from the practice of law for three years retroactive to the date of his temporary suspension from the practice of law. Matter of Prevost, 14 Mass. Att'y Disc. R 577 (1996). The suspension was ordered based on the judgments of convictions and was assented to by the Petitioner. (Ex 10)

10. In August 1999, the Petitioner and his family returned to Massachusetts. (Tr. 70) On or about August 14, 1999, the Petitioner was discharged from probation. (Tr. 68)

11. In December 1999, the Petitioner started work as a longshoreman in the Gloucester fishing industry. (Tr. 71) The Petitioner continued to work in the fishing industry until January 2001. (Tr. 72) In January 2001, the Petitioner took a job raising money for the Revere police and fire departments by organizing charity basketball and hockey games. (Tr. 72) The fund-raising job was seasonal, and in April 2001, the Petitioner started his current job, selling cars for a dealership in Haverhill. (Tr. 72)

12. In September 2000, the Petitioner began attending substance abuse counseling and a 12-step program at Health and Education Services, Inc. (Ex. 3) At the time, Sharon Egbert was the Petitioner's counselor. (Tr. 54; Ex. 3) Egbert is a licensed mental health counselor who worked at HES until December 2000. (Tr. 54; Ex. 3) During Egbert's tenure, the Petitioner worked “hard” in counseling and “fully recognize[d] ....that alcohol and drugs” seriously interfered with his ability to practice law. (Ex. 3)

13. In December 2000, Egbert left HES and Peter Stades took over as the Petitioner's counselor. (Tr. 54) Stades is an individual and group therapist currently working at HES who has a master's degree in counseling and specializes in counseling individuals with substance abuse problems. (Tr. 47 - 48) Stades currently sees the Petitioner for individual counseling every other week, and the Petitioner attends a 12-step program at HES on a weekly basis. (Tr. 55) The Petitioner is “very stable in recovery” and “very motivated” to continue that recovery. (Tr. 51-52).

14. Joseph Papetti is an attorney admitted to the Bar of the Commonwealth of Massachusetts in 1978. (Tr. 8) Papetti has known the Petitioner since 1985. (Tr. 18) Since the Petitioner's return to Massachusetts, Papetti has had weekly contact with the Petitioner, during which time they have discussed the Petitioner's counseling and attendance at AA and NA meetings. (Tr. 10)

15. Papetti is aware of the Petitioner's criminal convictions and is aware of the suspension of the Petitioner's license to practice law. (Tr. 9) Papetti stated that the Petitioner has “always behaved in a competent and professional manner” in the practice of law and that he was not aware of any “negative comments about [the Petitioner's] professional life[.]” (Tr. 11) Papetti believes that the Petitioner's resumption of the practice of law “would not be detrimental” to the integrity of the bar and would “benefit the administration of justice.” (Tr. 16)

16. Armond C. Columbo, Jr. is an attorney admitted to the Bar of the Commonwealth of Massachusetts in October 1988. (Tr. 34) Columbo attended law school with the Petitioner and has known him since 1987. (Tr. 42)

17. Columbo is aware of the Petitioner's criminal convictions and is aware of the suspension of the Petitioner's license to practice law. (Tr. 35) While the Petitioner was suspended from the practice of law, Columbo would talk with him about once a month. (Tr. 35)

18. Columbo stated that the Petitioner “was a very good lawyer when he practiced, and that [he] would not anticipate any change in that” should the Petitioner be readmitted to the practice of law. (Tr. 40) Columbo believes that the Petitioner possess “high moral character” and that the Petitioner's resumption of the practice of law “would not be detrimental” to the bar or “against the public interest.” (Tr. 41)

19. Attorney Salvatore J. Frontiero submitted a letter to the Hearing Panel in which he wrote that the Petitioner's reinstatement to the practice of law “would be an asset to the bar.” (Ex. 2) Attorney Brian S. McCormack submitted a letter to the Hearing Panel in which he wrote that the Petitioner would “be a credit to the Massachusetts Bar” should he be readmitted to the practice of law. (Ex. 2) Attorney Theodore V. Mullice submitted a letter to the Hearing Panel in which he wrote that the Petitioner had “characteristics of honesty ...and a love of the law” that would make him an asset to the Bar of the Commonwealth. (Ex. 2)

20. While suspended from the practice of law, the Petitioner read the Massachusetts Lawyers Weekly. (Tr. 76) On May 5, 2000, the Petitioner attended a training session sponsored by Essex County Bar Association pertaining to issues in representing juveniles in criminal matters. (Ex.7) In August 2000, the Petitioner took and successfully passed the Multistate Professional Responsibility Examination. (Ex. 7) On September 19, 2000, the Petitioner attended a MCLE seminar titled “Trying Identification Cases.” (Ex. 8) Petitioner reviewed continuing legal education tapes provided by the Essex County Bar Advocates, on Evidentiary Hearings; One Trial System; and Practical Skills. Petitioner read and reviewed pertinent continuing legal education materials at the Essex County Bar Advocate's office. During the past year, Petitioner has reviewed case law materials and the Massachusetts Rules of Criminal Procedure at the Essex County Bar Library in Salem.

21. If readmitted to the Bar, the Petitioner intends to concentrate his practice in the area of criminal defense. (Tr. 79) In addition, the Petitioner has agreed to enter into a mentoring relationship with another attorney. (Tr. 79)

22. On September 20, 2001, Bar Counsel informed the Board's General Counsel that Bar Counsel did not oppose the Petitioner's reinstatement on condition that he abide by a peer review agreement and he be monitored by Lawyers Concerned for Lawyers. The peer review agreement provides that Attorney Papetti monitor the Petitioner's resumption of the practice of law and that he provide Bar Counsel with quarterly reports regarding the Petitioner's activities. The Lawyers Concerned For Lawyers agreement provides that the Petitioner shall participate in a monitor probation program for a period of two years.

CONCLUSIONS OF LAW

1. The Petitioner has the burden of demonstrating that he has “the moral qualifications, competency and learning in law required for admission to practice law ...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.” Supreme Judicial Court Rule 4:01, § 18(6).

2. The Petitioner has shown that he currently possess the “competency and learning in law required for his” readmission to the bar. The Petitioner was a competent lawyer prior to his suspension. There is no evidence that his substance abuse affected his representation of his clients. He has regularly read the Massachusetts Lawyers Weekly since his suspension and taken two continuing legal education courses in preparation for his resumption of the practice of law. In addition, the Petitioner has successfully passed the MPRE and has educated himself as to the professional duties imposed on him by his profession.

3. The Petitioner has demonstrated that he has the “moral qualifications” for reinstatement. Five attorneys have attested to their belief that the Petitioner's reinstatement to the practice of law would be beneficial to the Bar and to the public. No one appeared to oppose the Petitioner's reinstatement.

4. Petitioner has met the requisite burdens and demonstrated he has the “moral qualifications, competency and learning in law required for admission to practice law ... 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.” Supreme Judicial Court Rule 4:01, §18(6).

RECOMMENDATION

The Hearing Panel recommends that the Petitioner be reinstated, subject to the conditions described in the Peer Review Agreement attached to this Report.

THE HEARING PANEL

Richard M. Zielinski, Esq., Chair
Patricia Bobba Donovan, Esq.
Robert J. Guttentag

Dated: October 30, 2001

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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