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Commonwealth of Massachusetts

NO. BD-98-0047

IN RE: JOHN L. KOWALSKI

S.J.C. Order of Reinstatement entered by Justice Ireland on July 9, 2001.1
HEARING PANEL REPORT

I. Introduction.

On August 31, 1999, the Petitioner, John L. Kowalski, was suspended from the practice of law for eighteen months, retroactive to October 2, 1998, the effective date of his temporary suspension. On January 5, 2001, Petitioner filed the Petition for Reinstatement (the “Petition”) now before this Panel. A hearing on the Petition was convened on April 9, 2001, before a panel consisting of Mitchell H. Kaplan (Chair), Steven P. Sabra, and Bettie H. Kornegay. Petitioner was represented by Thomas R. Kiley, Esq. and the Office of Bar Counsel, by Assistant Bar Counsel, Nancy E. Kaufman, Esq. The Panel heard testimony from five witnesses including the Petitioner, and received into evidence one exhibit. At the conclusion of the evidentiary hearing, Assistant Bar Counsel stated that Bar Counsel was not opposing the petition. After consideration of the evidence presented, statements of counsel, and Petitioner's post hearing submissions, the Panel recommends that the Petition be allowed.

II. Facts.

A. Prior Disciplinary Proceedings.

Petitioner was admitted to the Bar of the Massachusetts Supreme Judicial Court in December, 1994 at the age of 54. For some time prior to his admission, and thereafter, Petitioner served as an Assistant Clerk-Magistrate in the Dedham Division of the District Court Department. As an Assistant Clerk-Magistrate Petitioner was not permitted to practice law. See, S.J.C. Rules 3:02(2) and 3:12. He therefore requested exemption from the annual registration fee required of active members of the bar and that he be assigned “clerk” status.

During the period 1993 through 1996, Petitioner acted as a Bail Magistrate for the purposes of setting bail during such times as the Dedham District Court was closed. He received compensation for each bail determination that he made. In the aggregate, those payments exceeded $30,000. Although Petitioner reported this income to the Chief Justice of the Massachusetts Superior Court in accordance with M.G.L. c. 276, § 61, he did not report it on his state or federal income tax returns. On October 24, 1997, indictments were returned to the Superior Court charging Petitioner with filing false tax returns for the years 1993-1996. That same day, he was suspended without pay from his Assistant Clerk-Magistrate position.

On August 13, 1998, Petitioner appeared in the Superior Court and admitted to sufficient facts with respect to each count of the indictment. The Court continued the matter without a finding of guilt until August 13, 2000, ordering Petitioner to pay $3,000 in costs and to perform 300 hours of community service. Petitioner was subsequently permanently removed from the office of Assistant Clerk-Magistrate.

Petitioner satisfied the conditions imposed by the Superior Court and the indictment was dismissed on August 18, 2000.

After being suspended from his magistrate's position in October 1997, Petitioner engaged in the practice of law without first having his bar status changed to “active” and paying the requisite fees.

Having admitted to sufficient facts to prove the matters alleged, the disposition of Petitioner's indictment constituted a “conviction” of a serious crime under S.J.C. Rule 4:01, §12. Accordingly, the Office of Bar Counsel instituted disciplinary proceedings against Petitioner. Petitioner and Bar Counsel jointly recommended an eighteen month suspension as the appropriate disciplinary sanction. The Board approved the recommendation and on August 31, 1999 the Supreme Judicial Court entered an order suspending Petitioner for a term of eighteen months, retroactive to the effective date of temporary suspension.

B. Background Facts and Conduct Since His Suspension.

The witnesses who testified on Petitioner's behalf had dealt with Petitioner when he was the Assistant Clerk-Magistrate and were also familiar with his standing in the community. They commented on his reputation for integrity and fairness in performing the functions of an Assistant Clerk-Magistrate. The testimony established that Petitioner was known for his willingness to assist new members of the bar and for the gracious manner in which he dealt with the public. Both before and after his suspension, Petitioner frequently engaged in civic and charitable endeavors in his community.

Petitioner had discussed the conduct that led to his indictment and suspension with each of the witnesses and expressed contrition. While Petitioner has not admitted that he intended to withhold tax payments due the Commonwealth, he accepts full responsibility for his conduct and blames no one but himself for his present situation. Petitioner and the witnesses that he called testified that they thought it extremely unlikely that Petitioner would again engage in conduct that would bring censure on himself or the bar. The Panel credits that testimony. Bar Counsel called no witnesses and no one opposed the petition for readmission.

Although Petitioner practiced law only briefly, his position as Assistant Clerk-Magistrate involved him regularly in criminal, juvenile and family law matters, areas in which he hopes to practice.

Since his suspension Petitioner has taken and passed the Massachusetts Professional Responsibility Examination. He has also attended the MCLE Practical Skills Program and MCLE seminars on “hanging out a shingle” and handling operating under the influence cases. He subscribes to Lawyers Weekly and reads it each week. Petitioner has also visited the Barnstable County Law Library and sought to familiarize himself with computerized research tools.

If reinstated, Petitioner hopes to take CPSC training courses and accept criminal appointments. He would also like to work in the area of juvenile and family law. As noted above, these are areas with which Petitioner has familiarity by virtue of his former position. Petitioner has made arrangements to share the resources of a Dedham-based law firm, if reinstated, where he can also receive mentoring and practical advice.

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.

As noted above, the Office of Bar Counsel has not opposed this Petition. This Panel also finds that Petitioner has established each of three elements necessary for reinstatement. While Petitioner's conduct in failing to report and pay taxes on the income he received as a Bail Clerk on his income tax returns was egregious, the Panel finds that petitioner understands the seriousness of his error and is contrite. He fulfilled the terms imposed upon him by the Court as a condition of his continuance without a finding. He has maintained his learning in the law. He has also continued service to his community. His readmission will not diminish the integrity of the bar or adversely effect the public interest.

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
Steven P. Sabra
Bettie H. Kornegay

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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