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Commonwealth of Massachusetts

NO. BD-1999-0054

IN RE: JOHN M. MORAN

S.J.C. Order of Disbarment entered by Justice Cordy on April 5, 2007, retroactive to April 2, 2003.1
(S.J.C. Order of Disbarment Vacated and Order of Reinstatement entered by Justice Cordy on October 15, 2009.)

MEMORANDUM OF DECISION ON RESPONDENT'S MOTION FOR STAY ANDORDER OF DISBARMENT

This matter originally came before the court on a Notice of Conviction and Petition for Temporary Suspension filed by the Board of Bar Overseers (board). On July 14, 1999, a jury in the United States District Court for the District of Massachusetts found respondent John M. Moran guilty of one count of conspiracy to commit bank fraud and three counts of bank fraud. The trial judge later allowed Moran's posttrial motion for judgments of acquittal n.o.v., based on insufficient evidence. The government appealed. On September 23, 2002, the United States Court of Appeals for the First Circuit reversed the trial judge's allowance of the motion. The verdicts were reinstated and judgments of conviction entered. United States v. Moran, 312 F.3d 480 (1st Cir. 2002) (Moran I). On April 2, 2003, after a hearing before a single justice of this court, Moran was suspended pending further proceedings before the board.

Moran continued to attack his convictions in the Federal court by filing a motion for a new trial. That motion was denied as untimely, and the judge imposed sentence. Moran appealed. On December 15, 2004, the United States Court of Appeals for the First Circuit affirmed the trial judge and reiterated its decision on the substantive case in Moran I. United States v. Moran, 393 F.3d 1 (1st Cir. 2004) (Moran II). Moran has thus exhausted all direct substantive and procedural appeals. The Moran II decision did, however, allow him to continue with collateral proceedings in the Federal District Court in which he sought a new trial based on allegations that his trial counsel was ineffective for the late filing of his motion for a new trial. Moran II, supra at 16. The Federal trial judge took Moran's motion under advisement in January, 2006, but has yet to rule on it.

After the decision in Moran II, Moran and bar counsel entered into a stipulation by which Moran admitted to the conviction and waived proceedings before the board. The parties agreed that disbarment was the appropriate sanction for conviction of a serious crime involving the practice of law. See Matter of Concemi, 422 Mass. 326 (1996). Under the stipulation, if the Federal court did not rule on Moran's motion for a new trial by May 31, 2006, bar counsel would present a petition for discipline to the board. It did so, and on October 10, 2006, the board filed an Information recommending that Moran be disbarred. Moran then filed a motion for a stay of proceedings. That motion, along with the Information, came before me at a hearing held on March 28, 2007.

In support of his motion for a stay, Moran (through counsel) states that he "assumed" that the Federal court would have ruled on his motion for a new trial by May 31, 2006. Because it did not in fact do so, he claims that a stay is an appropriate way to conserve judicial resources. As this argument goes, if the Federal court allows his motion for a new trial, the sanction of disbarment based on conviction of a serious offense will be inappropriate, and further proceedings will ensue. He also notes that a stay will preserve the status quo: he remains suspended, and is not practicing law.

Under S.J.C. Rule 4:01, § 12(4), this court may (but need not) stay disciplinary proceedings "until all appeals from the conviction are concluded." Such is now the case here. Twice Moran has gone before the First Circuit, and twice that court has affirmed his convictions. His appeals are exhausted. What remains is a collateral attack of the sort potentially available in almost any criminal case. Moran's motion for a stay impliedly treats his right (noted in Moran II) to proceed with such a collateral attack as an "appeal" in the sense meant by the rule. I am not inclined to accept this construction of the rule. Were I to do so, by extension almost any disciplinary case could be continued indefinitely. The language of the rule is not so broad as that, and the interest in finality is great.

I therefore proceed to the substance of the Information. S.J.C. rule 4:01, § 12(2) provides that a "conviction of a lawyer for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against that lawyer based upon the conviction." Bar counsel has provided a certified copy of Moran's convictions of bank fraud and conspiracy to commit bank fraud. These were serious offenses committed in the course of Moran's legal practice. The presumptive sanction is disbarment. Matter of Concemi, supra at 329. Moran has by the stipulation admitted to the conviction and the appropriateness of the sanction. At the hearing, his counsel conceded that, absent the collateral attack, he had no remaining argument in opposition to action on the information.

Accordingly, the motion for a stay is DENIED, and it is ORDERED AND ADJUDGED that John M. Moran be, and he hereby is, disbarred, with effect retroactive to April 2, 2003.

FOOTNOTES:

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.



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