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Commonwealth of Massachusetts

NO. BD-1999-0076

IN RE: JOHN W. KELLEY

S.J.C. Order of Reinstatement entered by Justice Sosman on January 18, 2002.1

HEARING PANEL REPORT

I. Introduction

Petitioner John W. Kelley ("Kelley") seeks reinstatement after a six month and one day suspension that took effect on December 22, 1999. He has been eligible to petition for reinstatement since June 22, 1999. 2

The Hearing Panel consisted of Thomas E. Peisch, Esq. (chair), Richard M. Zielinski, Esq., and Ms. Maryanne Frangules. The Panel held a hearing on the afternoon of August 29, 2001. The Panel considered the materials submitted with the petition, three additional exhibits, and the testimony of two witnesses, Kelley and his psychologist, Steven N. Shapse.

Bar Counsel called no witnesses and took no position on the petition pending review of the transcript. Tr., p. 10.3 Following the hearing, Kelley and Bar Counsel submitted Requests for Findings of Fact and Conclusions of Law. Bar Counsel supports the petition with conditions, some of which are agreeable to Kelley.

After due consideration, the Panel recommends favorable action on the petition, with conditions set forth below.

II. Findings and Conclusions

Kelley was admitted to the Bar in 1983. Prior to attending college and law school, he served in the U.S. Marines and was honorably discharged. His first legal job was as a prosecutor in the Plymouth County District Attorney's Office, and he thereafter worked in-house at a computer company before opening his own practice in Brockton in about 1989. He maintained that practice until shortly before his suspension. Prior to the difficulties that lead to his suspension, Kelley received informal admonitions for two separate disciplinary violations. Hearing Ex. 2.

The events that formed the basis of the suspension took place in 1996 and 1997. In brief, Kelley failed to render competent legal service to a criminal defense client, failed to respond to her inquiries about an appeal, and failed to respond to Bar Counsel's inquiry and to a Petition for Discipline. Kelley's client was incarcerated, but it is not clear that capable representation would have affected the outcome.

The Hearing Panel concludes that Kelley has sustained his burden of demonstrating that he “has the moral qualifications, competency and learning in the law required for admission to practice in the Commonwealth, and that . . . his resumption of the practice of law will not be detrimental to the integrity and standing of the bar . . . .” Supreme Judicial Court Rule 4:01, Section 18(d)(5). See also BBO Rule 3.65. The Panel's conclusions are as follows.

1. Although the issue is a close one, Kelley has demonstrated that he has maintained his competency and learning in the law during his suspension. He has regularly read Massachusetts Lawyer's Weekly, and he has taken and completed a professional responsibility examination. Tr., pp. 14,47. Kelley's spouse is an attorney and works in-house for a large manufacturing company. She appeared at the hearing but did not testify. However, the Panel is concerned that Kelley has not done more to stay current as to legal matters during the sixteen months of his suspension. Accordingly, the Panel's recommendation regarding reinstatement is conditioned on Kelley's successfully completing a practical skills course to the satisfaction of Bar Counsel.

2. The Panel concludes that Kelley has the moral qualifications required for re-admission to practice. Kelley appeared generally to understand the seriousness of his wrongdoing and to be remorseful about it. Kelley ascribes his difficulties to severe depression brought about by the stress and isolation of being a sole practitioner. The Panel notes that shortly after his suspension three claims were made by former clients to the Client's Security Board. Two of these claims were rejected, but a third was approved in the amount of $1,000.4 Kelley has reimbursed the Client's Security Board in full. Tr., pp. 24-25. During his suspension, Kelley has assumed responsibility for daily care of his household, including three children, and has had a couple of short-term jobs. Tr., pp. 37-40.

3. The Panel also concludes that Kelley's re-admission will not be detrimental to the integrity and standing of the Bar. Kelley has now served a substantially longer suspension than ordered by the Supreme Judicial Court. In addition, the Panel credits the testimony of Kelley's psychologist, Dr. Shapse, who prepared a detailed report and appeared and testified at the hearing. Dr. Shapse described Kelley's depression and the treatment he rendered for it. The Panel credits the uncontradicted testimony from Dr. Shapse that this misconduct is unlikely to recur in the future. However, the Panel also recommends (as does Dr. Shapse) that Kelley's reinstatement be accompanied by the requirement that he continue treatment with Dr. Shapse, or another therapist acceptable to Bar Counsel, for such time and on such schedule as his therapist deems appropriate, and that Kelley inform Bar Counsel in the event a decision is made to discontinue therapy for any reason.

4. Kelley testified that if he is reinstated his plan is to look for employment in a large organization, hopefully to be involved in software licensing. Tr., pp. 25, 47-48. Kelley has no plans to go back to being a sole practitioner, and Dr. Shapse agrees that Kelley is not a suitable candidate for such a law practice environment. Tr., pp. 87-88. Accordingly, the Panel also recommends as a condition of reinstatement that Kelley enter into a mentoring relationship to the satisfaction of Bar Counsel should his professional plans change and he decides to resume solo private practice. The Panel does not believe that Kelley's spouse would be an appropriate mentor.

5. The Hearing Panel recommends that Kelley's petition for reinstatement be allowed subject to the conditions described above.

THE HEARING PANEL

Thomas E. Peisch, Esq., Chair
Richard M. Zielinski, Esq.
Ms. Maryanne Frangules

Dated: October 23, 2001

FOOTNOTES

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

2 Kelly's suspension took place before the change in Rule 4:01, § 18 took effect. Therefore, he is required to apply for reinstatement. See Transitional Order in Aid of Construction of the Change to Rule 4:01. (“ . . . a person who was suspended before January 3, 2000, for a term exceeding six months shall be required to petition for reinstatement. . . .”) 3 Transcript references will be as follows: “Tr., p. _____”; Exhibit references will be: “Hearing Ex. _____.” 4 Bar Counsel provided no explanation for why no disciplinary action was taken in any of these matters.



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