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No. BD96-076

 

IN RE: JAMES E. COSTELLO

Last known address:
214 Trapelo Rd.
Belmont, MA 02178

ORDER OF INDEFINITE SUSPENSION

 

This matter came before the Court, Lynch, J., on an Information and Record of Proceedings including the vote and Recommendation of the Board of Bar Overseers filed by the Board on January 9, 1999. Upon consideration thereof, it is ORDERED that:

1. JAMES E. COSTELLO is hereby suspended from the practice of law in the Commonwealth of Massachusetts for an indefinite period retroactive to January 16, 1997.

It is FURTHER ORDERED that:

2. the lawyer shall be permitted to file a Petition for Reinstatement up to six months prior to the date he would be eligible to be reinstated.

By the Court (Lynch, J.)

Entered: June 28, 1999

SUMMARY1

The respondent admitted misconduct in two unrelated matters. In the first matter, the respondent represented a client in a tort case as well as in divorce proceedings. In order to secure the payment of support arrearages and the wife's counsel fees in the divorce, the Probate and Family Court entered a restraining order that explicitly prohibited both the respondent and his client from disbursing the proceeds from an anticipated settlement in the tort case. When the tort case was settled, the respondent violated the order by using the proceeds to pay only the counsel fees but not the support arrearage, then paying himself a fee and disbursing the balance to his client. The board found that these actions constituted conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5) and disregard of a ruling of a tribunal in violation of DR 7-106(A).

The second matter involved the handling of a personal injury matter, on behalf of an inmate in an Arizona prison. Without authority from the client, the respondent signed the client's name to a release and then to a settlement check in the amount of $10,600. In doing so, he tried to imitate the client's handwriting. He deposited the check to his IOLTA account. Over a two-week period commencing about a month after making the deposit, the respondent withdrew $34,450 from the account by writing 26 checks to himself or his firm without making any attribution to a client. Six months after making the deposit, the balance in the IOLTA account had fallen to less that fifty dollars. Thus, the client was actually deprived of the use of his funds. The respondent eventually replaced the converted funds, but restitution was made more than a year after the misappropriation began. The Board found that the respondent had engaged in dishonesty, fraud, deceit, and misrepresentation in violation of DR 1-102(A)(4) and (6), had commingled and failed to safeguard and account for client funds in violation of DR 9-102(A) and (B), and had failed to represent a client zealously in violation of DR 7-101(A)(1) and (3).

The Board considered the fact that the respondent had made restitution and recommended indefinite suspension retroactive to the date of the respondent's temporary suspension rather than disbarment. The Court imposed an indefinite suspension.

1 Compiled by the Board of Bar Overseers based on the on the record submitted to the Supreme Judicial Court.

 



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