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No. BD 99-041

IN THE MATTER OF STEPHEN H. FAGAN

ORDER OF DISBARMENT1

SUMMARY

The respondent was divorced in August 1978, and his former wife was granted custody of their two daughters, then ages 4 and 1. In September 1979, the respondent filed a motion in the Middlesex Probate and Family Court for custody of his daughters on the ground that their mother was unfit. Legal custody was transferred to the Department of Public Welfare and an investigation was commenced by a guardian ad litem and the welfare department. On September 21, 1979, the probate court entered an order prohibiting both parents from leaving the commonwealth with the children without prior approval from the court.

On October 19, 1979, the parties appeared in probate court on the motion. Both the guardian ad litem and Department of Public Welfare recommended that custody remain with the mother. The court entered an order prohibiting both parties from leaving the commonwealth except for trips temporary in nature and set a date in December 1979 for a final hearing on custody.

On October 24, 1979, the respondent applied for a social security card in the name of William Stephen Martin. On October 25, 1979, the respondent picked up his daughters for a planned visit. The respondent then took his children to Florida, where he lived with them under assumed names.

For the next twenty years, their mother neither saw nor heard from her children, despite her efforts to locate them. In the early fall of 1997, the mother was contacted by a Massachusetts state trooper who had received information concerning the two children. An investigation was commenced by the Framingham Police Department and the Middlesex County District Attorney’s office, and the respondent was traced to Florida. He was arrested on April 16, 1998.

On May 28, 1999, the respondent was convicted in the Middlesex Superior Court of two counts of kidnapping in violation of G. L. c. 265, § 26, and one count of criminal contempt in violation of the common law. The respondent was sentenced on the kidnapping charges to concurrent terms of three to five years’ imprisonment at MCI-Cedar Junction, suspended for five years, and placed on probation. The respondent was required to perform 2,000 hours of community service and to make a $100,000 donation to the New England Home for Little Wanderers in the name of the children’s mother. The respondent was sentenced to five years of probation, concurrent with the other sentences, on the contempt charge.

On November 3, 1999, the respondent signed an affidavit of resignation in which he acknowledged having been convicted of these offenses and that the convictions were for serious crimes as defined by S. J. C. Rule 4:01, § 12. He acknowledged that his conduct violated Canon One, Disciplinary Rule 1-102(A)(4), (5), and (6), and Canon Seven, Disciplinary Rule 7-106(A).

Bar counsel requested that the respondent’s affidavit of resignation be accepted and that an order of disbarment enter. On December 13, 1999, the Board of Bar Overseers voted to recommend that the affidavit of resignation be accepted and that the respondent be disbarred. On December 30, 1999, the Supreme Judicial Court for Suffolk County entered a judgment of disbarment.

1S.J.C. Order of Disbarment entered by Justice Greaney on December 30, 1999.



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