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No. BD99-042

 

IN RE: DIANE MCGARVEY

Last known address:
90 Lacy St.
North Andover, MA 01845

ORDER OF TERM SUSPENSION

 

This matter came before the Court, Ireland, J., on an Information and Record of Proceedings including the vote and Recommendation of the Board of Bar Overseers filed by the Board on June 25, 1999. Upon consideration thereof, it is ORDERED that:

1. DIANE MCGARVEY is hereby suspended from the practice of law in the Commonwealth of Massachusetts for a period of two months. In accordance with SJC Rule 4:01, Sect. 17(3), the suspension shall be effective 30 days after the date of the entry of this Order. The lawyer, after the entry of this Order, 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 Order 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 14 days of the date of entry of this Order, the lawyer shall:

a) file a notice of withdrawal as of the effective date of the suspension 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 as of the effective date of the suspension 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 after the effective date of the suspension; 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 after the effective date of the suspension;

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 SJC 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 (Ireland, J.)

Entered: June 29, 1999

SUMMARY1

In or before June 1986, and prior to her admission to the Bar, the respondent was licensed as a registered nurse by the Board of Registration in Nursing. After her admission to the Bar in 1991, the respondent continued to work as a nurse anesthetist, as well as to practice law. On October 16, 1995, the Board of Registration in Nursing issued an order to show cause why the respondent's nursing license should not be suspended or revoked. On April 30, 1996, and in resolution of this order to show cause, the respondent executed a voluntary surrender of her nursing license for three years. In connection with this surrender of her nursing license, the respondent admitted that in August 1993, while employed as a nurse anesthetist, she signed out quantities of certain controlled substances which she failed to administer to patients and as to which she failed to accurately document the dispensing and that this conduct was in violation of G.L.c. 112, Sect. 61.

The Board of Registration in Nursing reported the respondent's 1996 surrender of her nursing license to Bar Counsel by letter dated December 1, 1997. The records of the Board of Registration in Nursing showed that this was the second time that the respondent had voluntarily surrendered her nursing license.

The facts of the earlier case were as follows. In June 1986, the Board of Registration in Nursing received a written complaint from a medical provider stating that the respondent had taken controlled substances for her own personal use while on duty. On August 14, 1986, the respondent admitted the allegations to the Board of Registration in Nursing. On January 16, 1987, the respondent executed a Voluntary Surrender Agreement, surrendering her license as an R.N. in lieu of an administrative hearing by the Board of Registration in Nursing. On September 30, 1987, the Board of Registration in Nursing voted to reinstate the respondent's nursing license and place her on probation for one year. The respondent successfully completed her probation.

Thereafter, on or about January 10, 1991, the respondent submitted an application to the Supreme Judicial Court for admission as an attorney to the Massachusetts Bar. After completing the application, she signed a certificate that "each of the foregoing answers is true, complete, and candid."

Question 6(a) of the application asked "Have you ever been disbarred, suspended, reprimanded, censured, or otherwise disciplined or disqualified as an attorney, or as a member of any other profession, or as a holder of public office." The respondent falsely answered this question "no" and did not disclose the 1987 voluntary surrender of her nursing license in lieu of an administrative hearing by the Board of Registration of Nursing.

Question 4 of the application asked that the applicant list any employment since her 18th birthday. In her answer to this question, the respondent intentionally omitted her employment at the time of the 1986 incident of personal drug use that led to the 1987 surrender of her nursing license.

The respondent's conduct in 1991 in making material false statements and deliberately failing to disclose a material fact requested in connection with her application for admission to the Bar was in violation of Canon One, DR 1-101(A), as well as Canon One, DR 1-102(A)(4),(6). The respondent's 1993 violation of G.L.c. 112, Sect. 61 in her failure to administer to patients and to accurately document the dispensing of controlled substances that she had signed out as a nurse anesthetist is conduct in violation of Canon One, DR 1-102(A)(6).

The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation that the respondent be suspended for two months. On June 14, 1999, the Board voted to accept the stipulation and to recommend the agreed-upon disposition to the Supreme Judicial Court. The Court so ordered on June 29, 1999.

1 Compiled by the Board of Bar Overseers based on the record filed with the Supreme Judicial Court.

 



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