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No. BD 99-041

IN THE MATTER OF KENNETH A. FINN

MEMORANDUM AND ORDER

This matter came before the court on an Information filed by the Board of Bar Overseers (board) pursuant to S.J.C. Rule 4:01, § 8 (4), recommending that the respondent, Kenneth A. Finn, be suspended from the practice of law for three months.

Bar counsel commenced disciplinary proceedings before the board on July 28, 1998. A hearing committee recommended that the respondent receive a public reprimand for violations of Canon 1, DR 1-101 (A) (making materially false statement in, or deliberately failing to disclose material fact in connection with, application to the bar); Canon 1, DR 1102 (A) (4) (dishonesty, fraud, deceit, or misrepresentation); Canon 1, DR 1-102 (A) (5) (conduct prejudicial to the administration of justice); Canon 1, DR 1-102 (A) (6) (conduct adversely reflecting on fitness to practice); Canon 2, DR 2-102 (A) (use of deceptive claim in business card or letter head); Canon 3, DR 3-101 (B) (unauthorized practice in another jurisdiction in violation of its regulations); and Canon 9, DR 9-102 (B) (3) (failure to maintain proper records of a client's property). Bar counsel then appealed from the report 2 of the hearing committee to the board, seeking a suspension of six months.

Bar counsel argues that a six-month suspension is required because of the respondent's multiple acts of misconduct. The respondent contends that a suspension of six months is an inappropriate sanction. He believes that the appropriate sanction in this case would be either a private admonition or a public reprimand. The relevant findings of the hearing committee are summarized below.

The respondent was an undergraduate at Ohio University between September, 1979, and June, 1981, but did not graduate. He was placed on academic probation for approximately four months during the period of his enrollment. The academic probation was recorded on a page separate from the respondent's transcript. The respondent claimed that he had no knowledge that he was placed on academic probation and the hearing committee credited this testimony. The respondent entered Northeastern University in September, 1981, and withdrew in June, 1984, three credits short of graduation.

Between June, 1980, and November, 1983, the respondent received student loans totaling $10,000. He signed three applications for these loans and other documents related to the loans. His family signed two additional loan applications on his behalf. In February, 1984, the respondent signed a statement of responsibilities to the guarantor of the loans in which he acknowledged his responsibility to inform the lender or guarantor1 in writing of any address change. The respondent did not notify either party of any changes in his address. He did not voluntarily make any payments on his loans before 1992.2

1The loans were guaranteed by the New York State Higher Education Services Corporation because the respondent was a resident of New York State at the time he received the loans.

2The account was credited with $168.22 in May, 1987, after the respondent's tax refund was credited to the loans by the government.

In 1989, the guarantor began legal proceedings to collect the outstanding loans. A New York court entered default judgment against the respondent in the amount of $15,963.44.3 The respondent did not receive a copy of the summons and complaint or of the default judgment.

3This amount represents the principal of the loans, accrued interest, and attorney's fees.

The respondent moved to Georgia in 1991, petitioned the Georgia bar for admission, and submitted an application for certification of fitness to practice law (fitness application) in support of his petition. In response to a question on the fitness application that asked whether the respondent had "ever been dropped, suspended, warned, placed on scholastic or disciplinary probation, expelled or requested to resign from any school, college, or university," the respondent checked "No." The respondent also indicated that he had never applied for, obtained, or defaulted on any student loan on the fitness application.

The Board to Determine Fitness of Applicants of the Supreme Court of Georgia Office of Bar Admissions (Fitness Board) learned of the respondent's academic probation and of his default on his student loans. The Fitness Board asked him to explain his previous answers, to notify it of any arrangements he made to repay his loans, and to file an amendment to his fitness certification. In response, the respondent stated that he "had no personal knowledge of ever having applied for or receiving a student loan of any sort, or having a student loan applied for or received on [his] behalf' and that he was "without sufficient information to form an opinion as to the truth or veracity" of the allegation that he had been on academic probation at Ohio University.

In 1992, the Fitness Board issued a temporary certificate of fitness to the respondent, which enabled him to take the bar examination in July of that year. The Fitness Board indicated that he would not be granted a final certificate of fitness unless and until he provided evidence that the default judgment against him was satisfied or set aside, with appropriate repayment arrangements in place. The respondent sat for the bar examination, but his scores were withheld because he did not have a final certificate of fitness. The respondent has never been admitted to practice law in the state of Georgia. The only obstacle to his being admitted to the Georgia bar is repayment of the loan.4

4At that time, Massachusetts did not inquire about student loans.

Several months after sitting for the bar examination in Georgia, an automobile accident occurred near the respondent's residence. The respondent assisted the driver of one of the cars involved in the accident. Then the respondent informed him that he was a Massachusetts attorney and that he hoped to be admitted to practice law in Georgia. The respondent gave the driver a business card with "Law Offices of Finn & Lerner" with addresses in Massachusetts and Georgia printed on it. The respondent had had these business cards printed when he was contemplating a relationship with Attorney Lerner. The respondent did not provide anyone other than this driver with any of these cards.

Subsequently, the driver enlisted the respondent's services to press claims for property damage and personal injury. The respondent gave the driver legal advice and, in written and oral communications, held himself out to the insurance company of the other driver as an attorney. The respondent corresponded with the insurance company on paper with letterhead that read, "LAW OFFICES OF KENNETH A. FINN & ASSOCIATES[,] 931 MARTIN LUTHER KING JR. DR. SW" though he had neither a law office nor any associates.

In early 1993, the insurance company sent a check to the respondent, payable to the respondent and the driver, for the property damage. The respondent promptly indorsed the check and forwarded it to the driver without recording his receipt and disbursement of it. Because the driver encountered difficulty cashing the check, he endorsed it and returned it to the respondent. The respondent gave the driver the full amount of the check in cash and then the respondent deposited the check in his personal account. Again, the respondent kept no records of these transactions.

The respondent then returned to Massachusetts. From Massachusetts, the respondent sent another letter to press the driver's personal injury claim. Several months later, the driver informed the respondent that he retained a different attorney to pursue this claim. This attorney settled the claim and the respondent received nothing from this settlement.

On consideration of the entire record, I conclude that the hearing committee's findings of fact are supported by substantial evidence. These findings warrant the conclusion that the respondent violated Canon 1, DR 1-101 (A), Canon 1, DR 1-102 (A) (4), Canon 1, DR 1-102 (A) (5), and Canon 1, DR 1-102 (A) (6) by falsely and intentionally stating that he had not ever applied for or obtained a student loan in connection with his application to the Georgia bar; Canon 1, DR 1-101 (A), Canon 1, DR 1-102 (A) (5), and Canon 1, DR 1102 (A) (6) by recklessly failing to inquire into the status of his student loans and by recklessly denying the existence of the default judgment against him. In addition, these findings support the hearing committee's conclusions that the respondent violated Canon 1, DR 1-102 (A) (4), Canon 1, DR 1-102 (A) (5), and Canon 1, DR 1-102 (A) (6) by intentionally misrepresenting that he was eligible to practice law in Georgia; Canon 2, DR 2-102 (A) by distributing a deceptive business card and by using deceptive letterhead; and Canon 9, DR 9-102 (B) (3) by failing to maintain proper records of a client's property.

I now turn to the question of determining the appropriate sanction for the respondent's misconduct. The purpose of discipline is to protect the public and to maintain the integrity of the bar. Matter of Saab, 406 Mass. 315, 328, 6 Mass. Att'y Disc. R. 278, 291 (1989). Where the attorney has committed multiple offenses, the cumulative effect of these violations should be weighed. Matter of Saab, supra at 327, 6 Mass. Atty. Disc. R., supra at 291: The sanction imposed must not be markedly disparate from sanctions imposed on similarly situated lawyers. Each party has relied on different cases. There appears to be no uniform discipline in our cases in these circumstances.

It also is appropriate to consider mitigating factors when determining which sanction to impose. In the Matter of Hurley, 418 Mass. 649, 652 (1994). In this case, several mitigating factors exist. First, it is important to note that the State of Georgia took no action against the respondent with respect to these violations. Before he can become a member of the Georgia bar, the loan must be repaid. Although this Commonwealth acts independently from other States in matters of bar discipline, Georgia's failure to impose any sanction is noteworthy because most of the offenses occurred within that State. A second mitigating factor is that these violations occurred between six and eight years ago. Since that time, the respondent has been representing clients in Massachusetts without a single complaint. Finally, the respondent represents an under-served population. His clients are all "poor people of color in Roxbury, Dorchester, and Mattapan" involved in civil matters. Suspending him would only serve to harm the interests of this under-served community.

In light of these mitigating factors, I conclude that a public censure is appropriate. Therefore, it is ORDERED that Kenneth A. Finn be publicly censured.

By the Court, Ruth I. Abrams, Associate Justice, Supreme Judicial Court
Dated: November 12, 1999



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