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Commonwealth of Massachusetts

NO. BD-98-0005

IN RE: CHARLES S. KELLY

S.J.C. Order of Reinstatement entered by Justice Spina on January 17, 2002.1

HEARING PANEL REPORT

INTRODUCTION

The Petitioner, Charles S. Kelly (hereinafter "Petitioner" or "Kelly"), was suspended from the practice of law for a period of two years, effective August 11, 1998. On or about April 13, 2001, Kelly filed a Petition for Reinstatement in accordance with Supreme Judicial Court Rule 4:01, Section 18. A hearing was held on July 25, 2001, before a Hearing Panel consisting of Board Members Janet Kenton-Walker (Chair), Robert J. Guttentag and Mitchell H. Kaplan. This Report contains the Panel's Findings of Fact, Conclusions of Law and Recommendation to the Board and the Supreme Judicial Court.

FINDINGS OF FACT

1. The Petitioner resides at 706 Sea Street, Quincy, Massachusetts.

2. Kelly was admitted to the Massachusetts bar on February 17, 1977.

3. Kelly served as a J.A.G. officer in the United States Marine Corps from 1977 through 1981.

4. After leaving the military, Kelly entered the private practice of law, working in small firms, including firms where he was a partner, until his suspension. His primary practice area was in litigation.

5. In 1986 the Petitioner sold a piece of real estate to two buyers and falsely reported to the buyers' lender and in the HUD 1-A Settlement Statement, that the buyers had made a $20,000 deposit. He later represented one of the buyers in a 1989 fire insurance claim involving the same property in which he knew that the circumstances surrounding the purchase and sale of the property were at issue. In addition, Kelly knew that he was a potential witness against his client. During the course of that litigation, the Petitioner testified falsely at a deposition that he had received a $20,000 deposit from the buyers. Shortly after the deposition, Kelly admitted to the insurer's counsel that he had not been truthful at the deposition and that he had never received the deposit money.

6. The events and circumstances that resulted in the Petitioner's suspension are described more fully in Exhibit 1, the Hearing Committee's Report and Recommendation dated August 22, 1997; Exhibit 2, the Board Memorandum dated January 12, 1998; and Attachment 1 to Petitioner's questionnaire, the Single Justice Memorandum dated August 11, 1998, reported at 14 Mass. Att'y Disc. R. 346 (1998).

7. Kelly has not practiced law during the suspension period. Beginning in August 1998, the Petitioner was employed as a loan officer by Northern Financial Associates, Inc., a mortgage brokerage firm, until September 2000. He also began a masters degree program in business administration at Suffolk University. Kelly left his employment in September 2000 in order to attend school on a full time basis and earned his Masters in Business Administration in May 2001. While attending school full-time, Kelly interned at Trudeau & Trudeau, a mergers and acquisition consulting firm. Following receipt of his degree, the Petitioner returned to full time employment with Northern Financial Associates, Inc.

8. The Petitioner has periodically read Lawyer's Weekly during his suspension and recently began reading the Massachusetts Advance Sheets. While at Suffolk University, he researched and wrote a paper on the electronic signatures act and conveyancing. As required, Kelly took and passed the Multi-State Professional Responsibility Exam. The allowable passing score in Massachusetts is 85, and he received a score of 137 out of a possible 150. Kelly has not taken any formal continuing legal education courses while on suspension.

9. The Petitioner owns a four-family building in Boston and has been involved in litigation involving his tenants. Between 1999 and 2001, in two eviction actions commenced by Kelly, counterclaims were raised based on the condition of the premises. Following inspections by the Boston Inspectional Services Department, Kelly was ordered to make repairs. On three occasions, criminal charges were filed against Kelly when the repairs were not made in a timely fashion. Kelly completed all necessary repairs and the criminal charges were dismissed.

10. Kelly is generally of good moral character and the behavior that led to his suspension appears to have been an aberration, for which he has expressed considerable remorse.

11. Kelly intends to remain in business utilizing his recently acquired MBA. If reinstated, the Petitioner has not decided if he will return to the practice of law. Should he decide to do so, he intends to join a small firm that handles primarily debt collection and conveyancing work.

12. In addition to the testimony of the Petitioner, letters of recommendation were introduced as exhibits.

13. Bar Counsel has no objection to Kelly's reinstatement and recommends that the petition be granted with conditions.

CONCLUSIONS OF LAW

1. Kelly is now eligible to apply for reinstatement pursuant to Supreme Judicial Court Rule 4:01, Section 18(2)(c).

2. In reinstatement proceedings, the Petitioner has the burden of proving that he has the moral qualifications, competence and learning in the law required for admission to practice law in the Commonwealth of Massachusetts, and that his reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice or to the public interest.

3. Based on the foregoing findings of fact and on the testimony, exhibits and other evidence in the record, this Hearing Panel concludes that Petitioner has the moral qualifications, competence and learning in the law required for admission to practice law in the Commonwealth of Massachusetts and his reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice or to the public interest.

4. Kelly has fully complied with all the terms and conditions of the order imposing suspension and has fully completed the term of suspension.

5. No costs were assessed against Kelly by the court pursuant to Supreme Judicial Court Rule 4:01, Section 23.

6. No restitution was required to be made by Kelly as a result of his misconduct.

CONCLUSION

The Hearing Panel recommends that Kelly's Petition for Reinstatement be allowed, with the condition that should he return to the practice of law that he take a continuing education course(s) relevant to his anticipated practice area(s) within one year of his reinstatement and resumption of practice, and provide proof of such attendance to Bar Counsel.

Janet Kenton-Walker, Esq. (Chair)
Robert J. Guttentag
Mitchell H. Kaplan, 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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