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Commonwealth of Massachusetts

NO. BD-97-014

IN RE: WILLIAM J. TIERNEY

S.J.C. Order of Reinstatement entered by Justice Sosman on March 12, 2001. 1
HEARING PANEL REPORT

I. Introduction.

On March 27, 1997, the Petitioner, William J. Tierney, was suspended from the practice of law for two years by order of the Supreme Judicial Court. Matter of Tierney, 13 Mass. Att'y. Disc. R. 768 (1997). On May 14, 1999, Petitioner filed the petition for reinstatement (the “Petition”) now before this Panel. In August 1999, he filed a Reinstatement Questionnaire. The Petition was originally scheduled for hearing on December 13, 1999. It was continued at the Petitioner's request to permit him to take the Multistate Professional Responsibility Exam (the “MPRE”), which he took on March 12, 2000. Petitioner supplemented his Questionnaire on July 21, 2000. A hearing on the Petition was convened on July 24, 2000, before a panel consisting of Mitchell H. Kaplan (Chair), John O. Mirick, and Maryanne Frangules. The Panel heard testimony from six witnesses and received into the record two exhibits. On October 6, 2000, Petitioner and Bar Counsel both filed proposed Findings of Fact and Conclusions of Law. In his post-hearing pleading, Bar Counsel recommended that the Petition be denied. In consideration of the testimony, exhibits, arguments of counsel and post-hearing submissions, the Panel recommends that the Petition be allowed.

II. Facts.

A. Background Facts and Prior Disciplinary Proceedings.

Petitioner served in the United States Marines and is a Vietnam veteran. After his discharge, he enrolled in Northeastern University and, upon graduation in 1975, served in the State House working for the House of Representatives Committee on Government Regulations and, subsequently Committee on Ways and Means. While so employed, he attended Suffolk University Law School graduating in 1983. He was admitted to the Bar in December of that year, but continued to work for the Ways and Means Committee until 1986, when he entered private practice on a full-time basis. The two incidents which gave rise to the disciplinary proceedings which led to his term suspension occurred during the period 1992 to 1994.

The facts underlying the Petitioner's violations of the Canons of Ethics are set out in Matter of Tierney, 13 Mass. Att'y. Disc. R. 768 (1997). Briefly stated, the violations involved (1) forging a probate judge's signature to a petition for appointment of his client as administratrix of her mother's estate, when he had neglected the matter and never filed the petition, and (2) neglecting a matter in which he was retained by a decedent's husband to recover the contents of a safe deposit box. Circumstances involving Petitioner's care of his elderly parents, ill wife and young child were also noted in the Opinion as facts in mitigation of the Petitioner's disciplinary violations.

Complaints were filed against the Petitioner by his clients in 1995. Petitioner initially failed to cooperate with Bar Counsel in the investigations, but ultimately did so, stipulating to the facts and violations that gave rise to the two year term suspension.

B. The Petitioner's Conduct Since His Suspension.

Upon closing his practice, Petitioner obtained a position at the Office of the Secretary of State of the Commonwealth. In applying for that position, he was candid in explaining the circumstances of his suspension. Petitioner began employment on March 4, 1997, as an entry level clerk. He distinguished himself in his employment and was promoted to assistant supervisor and, subsequently, supervisor of annual reports. Petitioner's supervisor, who testified on his behalf at the hearing, credited Petitioner's efforts in the improved efficiency of the office.

Each of the witnesses who appeared on behalf of the Petitioner testified that the events giving rise to the disciplinary action were uncharacteristic of the Petitioner, who was viewed in the workplace and community as a person of sound moral character. Each witness also testified that Petitioner had disclosed to them that he had forged the name of a judge to a legal document, was visibly shaken by his ethical lapse, and exhibited genuine remorse. During the hearing, Petitioner offered no justification for his unethical conduct and accepted full responsibility for his actions.

Since his suspension, Petitioner has coached youth sports in Dedham, participated annually in the Dedham Boy Scouts' food drive and Veterans' Christmas toys and clothes drive, and assisted a disabled neighbor in daily living activities.

Petitioner has continued to read Lawyers Weekly on a regular basis. He also periodically reviews the Massachusetts Law Reporter and Advance Sheets for new cases in areas of the law that interest him, in particular the law of Massachusetts business organizations, which has become of interest to him through his work in the Secretary of State's office. He has taken and passed the MPRE.

Petitioner testified that, if reinstated, his preference was to stay with the Secretary of State's office in a capacity that would allow him to use his legal training. He also acknowledged that, if other alternatives did not arise, he would consider returning to private practice.

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.

Bar Counsel bases his opposition to the Petition only on the contention that Petitioner does not currently have the competency and learning in law required for admission. We will address that element of Petitioner's case last.

With respect to “moral qualifications,” the record establishes that Petitioner fully comprehends the gravity of his ethical lapse and has conducted himself both in the workplace and community in a manner that satisfies the Panel that he “has become a person proper to be held out by the Court to the public as trustworthy.” Waitz, 9 Mass. Att'y. Disc. R at 342. As to the effect of reinstatement on the integrity of the Bar, while Petitioner's ethical violation was very serious, he has worked productively while serving his suspension and the Panel finds that neither the integrity of the Bar nor the public interest would be adversely affected by his reinstatement.

Turning to the issue of competency and learning in the law, the Panel finds that Bar Counsel's concerns are not supported by the record. The two ethical violations that gave rise to Petitioner's suspension arose from inattention to his cases, and, with respect to the more serious violation, a deception to conceal his inattentiveness. Neither involved a lack of competency to assist clients in the administration of rather simple estates. During his suspension, Petitioner demonstrated a continued interest in the law, reading Lawyers Weekly each week, staying abreast of recent decisions, and availing himself of the law library at Ashburton Place, generally twice a week. Indeed, during his suspension, Petitioner developed and pursued an interest in corporate law through his work at the Secretary of State's office. The Panel finds Bar Counsel's reliance on Waitz, in which the Petitioner was seeking reinstatement for the fifth time after having been suspended for ten years, misplaced. The Panel believes that the record demonstrates that Petitioner has established that he has the competency and learning in the law required for readmission.

IV. Recommendation.

For the foregoing reasons, the Panel recommends that the Petitioner be reinstated to the Bar of the Commonwealth.

Respectfully submitted, Mitchell H. Kaplan, Chair
Maryanne Frangules
John O. Mirick, Esq.

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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