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Commonwealth of Massachusetts

NO. BD-1992-022

IN RE: GEORGE K. McCARTHY

S.J.C. Judgment Denying Reinstatement entered by Justice Sosman on January 23, 2007.1

MEMORANDUM AND ORDER

This matter came before the court on the petition of the respondent, George McCarthy, for reinstatement pursuant to Rule 4:01, Section 18(5). A hearing panel, after holding an evidentiary hearing, recommended that McCarthy not be reinstated. The Board of Bar Overseers voted to adopt the hearing panel's recommendation.

The principal (although not the sole) reason for the negative recommendation of the hearing panel was McCarthy's failure to make restitution to his victims (or to reimburse the Client Security Board for the amounts it paid out). McCarthy's underlying misconduct consisted of multiple instances of using client funds for his own purposes, taking a total of approximately $950,000 from several different clients. He was convicted of embezzlement and larceny in connection with these events and was ordered, as a condition of his probation, to make restitution. The client victims had received $600,000 from McCarthy's malpractice insurance carrier (for which they executed releases in favor of McCarthy), and had recovered approximately $160,000 from the Client Security Board. Of the $ 190,000 remaining, McCarthy paid approximately $ 11,000 over a period of seven years of probation.2 During the years since the end of his probation in November, 2002, McCarthy has not made any further payments to his victims.3

The making of restitution, or arrangements for restitution, is an important consideration on an application for reinstatement. Matter of Pool, 401 Mass. 460, 466 (1988). Without probing the details of McCarthy's financial disclosures, it is apparent that he has not been able to afford anything approaching full restitution. What is troublesome, however, is McCarthy's failure to pay anything in the absence of any court order (or other form of compulsion) requiring him to do so. He has taken the attitude that, since the victims signed a release, they are not legally entitled to anything further from him. The issue is not whether McCarthy has an enforceable legal obligation to reimburse his victims - he does not - but whether he recognizes that he still has a moral obligation to do so. For purposes of reinstatement, making restitution is not simply a matter of making clients whole, but is an outward sign of the recognition of one's wrongdoing and the awareness of a moral duty to make amends to the best of one's ability. Failure to make restitution, and failure to attempt to do so, reflects poorly on the attorney's moral fitness. McCarthy apparently treats his former clients as a debt that has been legally erased (along with other debts that were discharged in his bankruptcy). He does not appreciate his ongoing moral duty to make his victims whole. Voluntary payments, even in small amounts that a petitioner can afford, speak well of a petitioner's moral fitness. Failure to make any payments, merely because one is no longer required to, leave doubt on the issue of moral fitness. Where it is petitioner's burden to demonstrate his moral fitness, Matter of Pool, supra at 464, quoting Matter of Keenan, 313 Mass. 186, 219 (1943), the Board committed no error in concluding that he failed to meet that burden.

Other facts adduced at the hearing support this result. On McCarthy's petition for reinstatement, he attempted to obscure the situation regarding restitution by claiming: "All payments due were made in a timely manner during the term of probation. The unpaid portion of the restitution was remitted upon the termination of probation." Payments could not have been timely made, as McCarthy’s probation was repeatedly extended because of the lack of restitution. And, the claim that the "unpaid portion" was "remitted" falsely suggested that some form of lump sum payment was made at the end of the term of probation, when no payment whatsoever occurred. Obfuscation of what he knew to be a critical issue in his reinstatement does not reflect well on the petitioner.

The hearing panel also concluded that McCarthy had not maintained his learning and competence in the law in the area of his professed specialty, trusts and estates. Since his disbarment in 1992, he has remained current in the law of taxation, as he has worked in the tax field during the intervening years. I do not, however, accept his assertion that knowledge of tax law is all that one really needs to practice in the area of trusts and estates. While taxation issues are common in the drafting of wills and trusts, and frequently loom large in the administration of estates, there are other legal issues - both substantive and procedural - involved in such a practice. With a hiatus in practice of some fourteen years, it was incumbent on McCarthy to demonstrate that he was nevertheless current in his chosen field of law. He did not do so.

ORDER

Therefore, it is ORDERED that the petition for reinstatement be denied.

FOOTNOTES

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 His probation was extended in an effort to obtain further restitution, but it was ultimately terminated despite the significant amount still owing.

3 He claims to have made some small payment - either to victims or to the Client Security Board - sometime after the Board's decision on his petition. That is not before me.



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