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NO. BD 99-044

IN RE: DENNIS M. LEARY

Last known address:
7 Grove Street
Arlington, MA 02174

ORDER OF TERM SUSPENSION

This matter came before the Court, Abrams, J., on an Information and Record of Proceedings with the Vote and Recommendation of the Board of Bar Overseers filed by the Board on July 6, 1999. Upon consideration thereof and for reasons stated in the Memorandum of this date, it is ORDERED that:

1. DENNIS M. LEARY is hereby suspended from the practice of law in the Commonwealth of Massachusetts for a period of six months and a day retroactive to June 10, 1997, the date of his administrative 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 has 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, (Abrams, J.)

Entered: August 5, 1999

 

MEMORANDUM

I accept the parties' recommendation, solely because it is not disparate from other neglect cases.

The parties have agreed that the appropriate discipline is that the respondent, Dennis M. Leary, be suspended from the practice of law for six months and one day, retroactive to June 10, 1997, the date of the respondent's administrative suspension. The parties assert that this case is similar to cases of neglect. See Matter of Chambers, 421 Mass. 256 (1995), Matter of Garabedian, 415 Mass. 77 (1993), Matter of Kane, 13 Mass. Atty. Disc. R. 321, 327, 328 (1997), and Matter of Young, 11 Mass. Atty. Disc. R. 309 (1995).

The respondent, representing a client who had been injured in an automobile accident, failed to appear for conciliation and failed to notify the client. As a result, the case was dismissed and his motion to remove the dismissal was not filed expeditiously and therefore was denied. By the respondent's failure to attend the court ordered conciliation and by his failure to move expeditiously to remove the dismissal, the respondent violated Canon 6, DR 6-101 (a) (2) and (3) and Canon 7, DR 7-101 (a) (1) and (2) and (3). The failure to inform the client that the case had been dismissed and by implying that the case was ongoing, the respondent violated Canon 1, DR 1-101 (a) (4 and (6) and Canon 6, DR 6-102 (1). By failing to keep his peer monitor informed, he violated Canon 1, DR 1-102 (a) (4), (5), and (6). See Matter of Leary, 11 Mass. Atty. Disc. R. 155 (1995).

In mitigation, the respondent had severe medical problems which left him unable to be gainfully employed. In aggravation, he had a prior history of public discipline. He was under suspension for neglect and failure to promptly turn PIP funds over to clients. See Matter of Leary, supra. The client's claim for injuries was extinguished by the respondent' s failure to act promptly in this case.

Although I conclude that the recommendation is consistent with other cases, in my view, the imposition of six months and a day retroactive to 1997 is far too lenient. I feel compelled to accept the recommendation because it is not disparate from other neglect cases. The board may want to rethink the appropriate discipline for cases in which the client' s claim is extinguished.

By the Court, (Abrams, J.)

Dated: August 5, 1999



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