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No. BD99-047

 

IN RE: TIMOTHY F.X. CLEARY

Last known address:
38 Rowe St.
Milton, MA 02186

JUDGMENT ACCEPTING AFFIDAVIT OF RESIGNATION AS A DISCIPLINARY SANCTION

 

This matter came before the Court, Greaney, J., on an Affidavit of Resignation submitted by Timothy F.X. Cleary pursuant to SJC Rule 4:01, Sect. 15 and the Recommendation and Vote of the Board of Bar Overseers filed by the Board on July 9, 1999.

Upon consideration thereof, it is ORDERED and ADJUDGED that the Affidavit of Resignation be accepted as a disciplinary sanction and the lawyer's name is stricken from the Roll of Attorneys. In accordance with SJC Rule 4:01, Sect. 17(3), the resignation shall be effective 30 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 resignation 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 resignation 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 resigned; that he is disqualified from acting as a lawyer after the effective date of the resignation; 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 resigned and, as a consequence, is disqualified from acting as a lawyer after the effective date of the resignation;

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, (Greaney, J.)

Entered: July 22, 1999

Summary1

This matter came before the Court on the respondent's affidavit of resignation pursuant to Supreme Judicial Court Rule 4:01, Sect. 15, in which he acknowledged that there was sufficient evidence to establish the following facts as to three separate matters.

In the first matter, the respondent neglected the personal injury claims of two sisters injured in 1987 when a miniature train derailed in an amusement park in Holyoke. The girls were minors at the time of the accident. This case was referred to the respondent's then law firm by New York counsel. The respondent took over the file in or about August 1990 when prior counsel left the employ of the firm, and after the parties and insurers of the amusement park had been identified, demand made, and settlement offers declined. The respondent took the file with him when he left the firm later that year.

The respondent did not file suit until June 1995. Although he made further demand upon the insurance company, he never made service on the defendants and took no further action on the case. After the respondent failed to appear for a pre-trial conference in June 1996, the case was dismissed. Thereafter another attorney from the respondent's former firm filed suit on behalf of the two young women. However, the statute of limitations had already expired as to at least one of the claims. The respondent's conduct in this matter violated Canon Six, DR 6-101(A)(3), and Canon Seven, 7-101(A)(1),(2), and (3).

In the second matter, the client retained the respondent in October 1992 to represent her in connection with a September 1992 accident in which an elevator door in her office building closed on her arm. Although the client received emergency treatment and some follow-up medical care, she was not permanently injured. The respondent never contacted any potential defendants or insurers, took no effective action on behalf of the client, and allowed the statute of limitations to expire without filing suit. In addition, the respondent repeatedly misrepresented the status of the case to the client, and misplaced her file. The client died of unrelated causes in September 1997, five years after her accident. The respondent's conduct in this matter violated Canon One, DR 1-102(A)(4), Canon Two, DR 2-110(A)(2), Canon Six, DR 6101(A)(3), and Canon Seven, DR 7-101(A)(1),(2), and (3).

The third matter came to Bar Counsel's attention through Bar Counsel's receipt pursuant to Canon Nine, DR 9-103, of several notices of dishonored checks drawn on the respondent's IOLTA account in the spring and summer of 1996. There were no client funds in the IOLTA account after October 1995. However, the respondent, who was having financial problems, used his IOLTA account as both his personal and business account, deposited fees and loans from family members into the account, paid personal bills from the account, and also authorized electronic withdrawals to cover the costs of his son's private school tuition. The respondent agreed that his conduct in this matter violated Canon Nine, DR 9-102(A).

The respondent did not provide Bar Counsel with information requested until he appeared under subpoena in the Office of Bar Counsel. By failing to cooperate with Bar Counsel's investigation, the respondent violated SJC Rule 4:01, Sect. 3.

In aggravation, the respondent did not carry malpractice insurance and was unable to make restitution to the clients for losses resulting from his neglect. In addition, he had received an informal admonition in 1992 in connection with neglect of a malpractice matter.

On June 14, 1999, the Board of Bar Overseers voted to recommend to the Supreme Judicial Court that the respondent's affidavit of resignation be accepted as a disciplinary sanction. On July 22, 1999, the Court (Greaney, J.) ordered that the respondent's affidavit of resignation be accepted as a disciplinary sanction and that the respondent's name be stricken from the roll of attorneys.

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



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