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NO. BD 99-035

IN RE: DAVID PAUL BABINSKI

Last known address:
595 Rock Beach Road #5
Irondequoit, NY 14617

JUDGMENT OF DISBARMENT

This matter came before the Court, Lynch, J., on a Petition for Reciprocal Discipline filed by Bar Counsel on May 13, 1999. Upon consideration thereof, it is ORDERED and ADJUDGED that:

1. DAVID PAUL BABINSKI is hereby disbarred from the practice of law in the Commonwealth of Massachusetts and the lawyer's name is stricken from the Roll of Attorneys. In accordance with S.J.C. Rule 4:01, Sect. 17(3), the disbarment shall be effective thirty days after the date of the entry of this Judgment. The lawyer, after the entry of this Judgment, shall not accept any new retainer or engage as lawyer for another in any new case or legal matter of any nature. During the period between the entry date of this Judgment and its effective date, however, the lawyer may wind up and complete, on behalf of any client, all matters which were pending on the entry date.

It is FURTHER ORDERED that:

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

a) file a notice of withdrawal as of the effective date of the disbarment 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 Judgment, the client's or clients' place of residence, and the case caption and docket number of the client's or clients' proceedings;

b) resign as of the effective date of the disbarment 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 Judgment, 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 disbarred; that he is disqualified from acting as a lawyer after the effective date of the disbarment; 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 disbarred and, as a consequence, is disqualified from acting as a lawyer after the effective date of the disbarment;

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 Judgment, 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 Judgment 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 Judgment 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 Judgment 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 Judgment, 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 Judgment;

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, (Lynch, J.)

Entered: August 13,1999

 

SUMMARY1

On January 25, 1999, the respondent David Paul Babinski was disbarred by the Colorado Supreme Court following the respondent's admission to misconduct in nine separate client matters. People v. Babinski, No. 98SA457 (Colo. 1999). In eight of these matters, the respondent neglected his clients' cases and failed to communicate appropriately with them. Four of the cases also involved the respondent's failure to deliver funds or property promptly to the client or to a third party entitled to the funds and to provide an accounting, and, in one of them, the respondent also engaged in dishonest conduct. In addition, the respondent twice failed to respond to requests for information from the Colorado grievance committee.

The Colorado Supreme Court also took into account the respondent's record of prior discipline. The respondent had been privately censured on February 20, 1997, for failing to provide an accounting or refund after being discharged from a case, and he had been suspended for ninety days on February 23, 1998, in People v. Babinski, No. 97SA466 (Colo. 1998), for neglect, knowingly disobeying an obligation under the rules of a tribunal in two cases. The respondent claimed in the suspension case that he had personal and emotional problems and agreed to demonstrate as a condition of reinstatement that ... "'he is mentally and emotionally capable of returning to the practice of law.'" Id., slip op. at 6.

The respondent failed to report to Bar Counsel that he had been suspended or disbarred in Colorado, despite the requirements of S.J.C. Rule 4:01, Sect. 16(6), that he do so. On May 5, 1999, Bar Counsel filed a petition for reciprocal discipline with the Supreme Judicial Court for Suffolk County. Bar Counsel requested that the respondent be disbarred in Massachusetts and that the disbarment take effect on the entry date of the order.

On May 17, 1999, the county court issued an order directing the respondent to inform the court within thirty days why it should not impose identical discipline. Bar Counsel served the order on the respondent's registered address, but the correspondence sent by certified mail was returned to Bar Counsel by the post office with "moved" written on the envelope. The letter sent by first class mail was not returned. Bar Counsel also sent notice to addresses in Irondequ[o]it, New York, and an address in Colorado Springs, Colorado, provided by Colorado disciplinary counsel. The respondent failed to respond to the order of notice.

On August 13, 1999, the county court entered a judgment of disbarment effective September 13, 1999.

1 Compiled by the Board of Bar Overseers based on the on the record submitted to the Supreme Judicial Court.



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