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NO. BD 98-047

IN RE: JOHN L. KOWALSKI

Last known address:
45 Greenhouse Rd.
Forestdale, MA 02644

ORDER OF TERM SUSPENSION

This matter came before the Court, Wilkins, C.J., on an Information and Record of Proceedings and the Vote and Recommendation of the Board of Bar Overseers filed by the Board on August 31, 1999. Upon consideration thereof, it is ORDERED that:

1. JOHN L. KOWALSKI is hereby suspended from the practice of law in the Commonwealth of Massachusetts for a period of eighteen months retroactive to October 2, 1998, the effective date of his temporary suspension.

It is FURTHER ORDERED that:

2. Within fourteen (14) days of the date of entry of this Order, the lawyer shall:

a) file a notice of withdrawal with every court, agency, or tribunal before which a matter is pending, together with a copy of the notices sent pursuant to paragraphs 2(c) and 2(d) of this Order, the client's or clients' place of residence, and the case caption and docket number of the client's or clients' proceedings;

b) resign all appointments as guardian, executor, administrator, trustee, attorney-in-fact, or other fiduciary, attaching to the resignation a copy of the notices sent to the wards, heirs, or beneficiaries pursuant to paragraphs 2(c) and 2(d) of this Order, the place of residence of the wards, heirs, or beneficiaries, and the case caption and docket number of the proceedings, if any;

c) provide notice to all clients and to all wards, heirs, and beneficiaries that the lawyer has been suspended; that he is disqualified from acting as a lawyer; and that, if not represented by co-counsel, the client, ward, heir, or beneficiary should act promptly to substitute another lawyer or fiduciary or to seek legal advice elsewhere, calling attention to any urgency arising from the circumstances of the case;

d) provide notice to counsel for all parties (or, in the absence of counsel, the parties) in pending matters that the lawyer has been suspended and, as a consequence, is disqualified from acting as a lawyer;

e) make available to all clients being represented in pending matters any papers or other property to which they are entitled, calling attention to any urgency for obtaining the papers or other property;

f) refund any part of any fees paid in advance that have not been earned; and

g) close every IOLTA, client, trust or other fiduciary account and properly disburse or otherwise transfer all client and fiduciary funds in his possession, custody or control.

All notices required by this paragraph shall be served by certified mail, return receipt requested, in a form approved by the Board.

3. Within twenty-one (21) days after the date of entry of this Order, the lawyer shall file with the Office of the Bar Counsel an affidavit certifying that the lawyer has fully complied with the provisions of this Order and with bar disciplinary rules. Appended to the affidavit of compliance shall be:

a) a copy of each form of notice, the names and addresses of the clients, wards, heirs, beneficiaries, attorneys, courts and agencies to which notices were sent, and all return receipts or returned mail received up to the date of the affidavit. Supplemental affidavits shall be filed covering subsequent return receipts and returned mail. Such names and addresses of clients shall remain confidential unless otherwise requested in writing by the lawyer or ordered by the court;

b) a schedule showing the location, title and account number of every bank account designated as an IOLTA, client, trust or other fiduciary account and of every account in which the lawyer holds or held as of the entry date of this Order any client, trust or fiduciary funds;

c) a schedule describing the lawyer's disposition of all client and fiduciary funds in the lawyer's possession, custody or control as of the entry date of this Order or thereafter;

d) such proof of the proper distribution of such funds and the closing of such accounts as has been requested by the bar counsel, including copies of checks and other instruments;

e) a list of all other state, federal and administrative jurisdictions to which the lawyer is admitted to practice; and

f) the residence or other street address where communications to the lawyer may thereafter be directed. The lawyer shall retain copies of all notices sent and shall maintain complete records of the steps taken to comply with the notice requirements of S.J.C. Rule 4:01, Sect. 17.

4. Within twenty-one (21) days after the entry date of this Order, the lawyer shall file with the Clerk of the Supreme Judicial Court for Suffolk County:

a) a copy of the affidavit of compliance required by paragraph 3 of this Order;

b) a list of all other state, federal and administrative jurisdictions to which the lawyer is admitted to practice; and

c) the residence or other street address where communications to the lawyer may thereafter be directed.

By the Court, (Wilkins, C.J.)

Entered: August 31, 1999

SUMMARY1

The respondent was admitted to the bar of the commonwealth on December 20, 1994. Since his admission, the respondent claimed exemption from paying a registration fee based on his employment as an Assistant Clerk-Magistrate in the District Court Department, Dedham Division.

On October 24, 1997, the respondent was indicted by a Suffolk County Grand Jury on four counts of filing a false tax return in violation of G.L.c. 62(C), Sect. 73(A). Following his indictment, the respondent was notified by the First Justice of the Dedham District Court that he was suspended without pay from his duties as an Assistant Clerk-Magistrate. The respondent never resigned nor was discharged from that position.

Between October 24, 1997, and October 2, 1998, the respondent engaged in the practice of law and represented various clients in Massachusetts. The respondent never requested that the registration division of the Board of Bar Overseers change his status from clerk to active and never paid the registration fee required of active attorneys.

On June 4 and June 23, 1998, Chief Justice Samuel Zoll directed the respondent to cease practicing law until the respondent obtained an opinion from the S.J.C.'s Committee on Professional Responsibility for Clerks of Court that his practice of law did not violate the Court's rules governing clerk-magistrates. The respondent continued to practice law without seeking an opinion. On July 17, 1998, the Secretary to the Committee on Professional Responsibility for Clerks directed the respondent's attention to S.J.C. Rule 3:02(2) and Canon Three, 3:12, which both prohibited clerk-magistrates from engaging in the practice of law. In response to the respondent's questioning whether these rules applied to a clerk who had been involuntarily suspended without pay from his position, the Committee advised the respondent by letter dated August 13, 1998, to seek an opinion from the Advisory Committee on Ethical Opinions for Clerks of Court. The respondent did not seek an opinion. The respondent was temporarily suspended from the practice of law on October 2, 1998.

Whether or not the respondent was prohibited from practicing law by S.J.C. Rule 3:02(2) or Canon Three, 3:12, the respondent never registered as an active attorney with the Board of Bar Overseers. His practicing law under these circumstances was a violation of Canon One, DR 1-102(A)(5) and (6), and Canon Three, DR 3-101. The respondent also violated Mass. R. Prof. C. 5.5(a) and 8.4(d) by practicing law after January 1, 1998, when the new rules of professional conduct took effect.

On August 13, 1998, the Suffolk Superior Court found sufficient facts that the respondent did willfully make and sign false tax returns for tax years 1993-1996 in violation of G.L.c. 62C, Sect. 73(f). The court continued the case without a finding for two years on each of the four counts, ordered the respondent to perform 300 hours of community service, and required the respondent to pay $3,000 in court costs. A finding of sufficient facts constitutes a conviction for the purposes of S.J.C. Rule 4:01, Sect. 12, and the crimes are "serious" as defined by S.J.C. Rule 4:01, Sect. 12(3). The respondent's conduct violated Canon One, DR 1-102(A)(4) and (6).

Bar Counsel served a petition for discipline on the respondent on November 18, 1998. Notice was provided to the respondent that his answer was due within twenty days and that failure, without good cause, to file an answer would be deemed an act of misconduct. The respondent failed to file a timely answer or to request an extension. The respondent's conduct violated S.J.C. Rule 4:01, Sect. 8(3), and B.B.O. rules Sect. 3.15(c), and therefore violated S.J.C. Rule 4:01, Sect. 3(1)(c), and Mass. R. Prof. C. 8.4(d), (g), and (h).

The parties filed a stipulation of facts and a joint request for an eighteen-month suspension retroactive to the date of the respondent's temporary suspension. A special hearing officer recommended to the Board of Bar Overseers that the respondent be suspended for eighteen months effective October 2, 1998. The Board adopted the special hearing officer's report and recommendation for discipline. On August 31, 1999, the Supreme Judicial Court for Suffolk County entered an order suspending the respondent for eighteen months, retroactive to October 2, 1998.

1 Compiled by the Board of Bar Overseers based on the record before the Court.



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