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No. BD99-076

IN RE: JOHN W. KELLEY

ORDER OF TERM SUSPENSION1


SUMMARY

On June 20, 1994, the respondent was retained to represent Janette Johnson on a three-count indictment. Count one charged Johnson with distribution of cocaine, count two charged that she was a repeat offender, and count three charged her with distribution within one thousand feet of a school zone.

The charges arose from Johnsonís alleged participation with a co-defendant in the sale of cocaine to an undercover state trooper. The co-defendant was also charged with distribution of cocaine and with committing the offense within one thousand feet of a school zone. Johnsonís defense was that she played no part in the sale of the cocaine to the trooper and had participated only in the purchase of the cocaine for her own use.

The co-defendant was tried before Johnson. She was convicted on January 20, 1995, on both counts and was sentenced to a period of incarceration at MCI Framingham. The respondent never spoke with the co-defendant or her lawyer, nor did he familiarize himself with the co-defendantís trial testimony.

Johnson was tried on the charges that she had distributed cocaine and that the distribution was within one thousand feet of a school zone. She was convicted on those offenses on January 26, 1996. The Commonwealth then proceeded to try Johnson on the second offender charge.

The count in the indictment charging a second and subsequent offense charged

UNLAWFUL DISTRIBUTION OF A CONTROLLED SUBSTANCE

(CLASS B Ė COCAINE)

(SUBSEQUENT OFFENSE)

GENERAL LAW CHAPTER 94C, SECTION 32A(d)

and the jurors aforesaid, for the Commonwealth of Massachusetts on their Oath, aforesaid, do further present,

That

JANETTE JOHNSON

Of BROCKTON in the COUNTY of PLYMOUTH, the said JANETTE JOHNSON having been previously convicted of a similar offense.

Although this count failed to declare the substantive offense that Johnson had previously committed, the respondent failed to consider whether the indictment gave sufficient notice to his client of the nature of the accusations against her. For this reason, he did not object to or move to dismiss this count of the indictment.

On February 1, 1996, Johnson was convicted as a repeat offender. The court sentenced Johnson to terms of not more than five years and a day nor less than 5 years in state prison on the counts charging distribution of cocaine and the repeat offender charge, and, on the charge of distribution within one thousand feet of a school zone, to two years in a house of correction to be served on and after the completion of the state prison sentences.

After sentencing, Johnson told the respondent that she wanted to file an appeal of the case. The respondent told Johnson that he would meet with her within a couple of days. The respondent had no further communications with Johnson and never filed a notice of appeal from any of the convictions.

Over the next four months, Johnson wrote to the respondent on four different occasions asking for information concerning the appeal and whether or not the court would appoint new counsel if the respondent withdrew from the case. The respondent did not respond to any of the letters.

On July 23, 1996, Johnson filed a pro se motion in the Appeals Court for appointment of counsel and to file her appeal late. On July 26, 1996, the Appeals Court allowed the motion, and counsel was appointed to represent Johnson on the appeal.

On February 2, 1998, successor counsel filed a brief with the Appeals Court that argued, among other things, that the indictment charging Johnson as a repeat offender gave insufficient notice of the charges. Johnsonís appeal was consolidated with another appeal that raised the same issue. On March 15, 1999, the Appeals Court denied the appeals in Commonwealth v. Fernandes, et al., 46 Mass. App. Ct. 455 (1999). On June 30, 1999, the Supreme Judicial Court allowed Johnsonís and Fernandesí petitions for further appellate review and the cases were argued before the Supreme Judicial Court on November 1, 1999.

On July 15, 1996, Johnson filed with the Office of the Bar Counsel a request for investigation into the respondentís conduct. The respondent failed to respond to bar counselís requests for information by deadlines in August and September 1996. The respondent did not provide the information requested until October 11, 1996

On April 13, 1999, bar counsel filed a petition for discipline alleging that the respondentís failure to investigate Johnsonís case, research her defenses, pursue her appeal, and respond to her inquires violated Canon One, Disciplinary Rules 1-102(A)(6); Canon Six, Disciplinary Rule 6-101(A)(2) and (3); and Canon Seven, Disciplinary Rules 7-101(A)(1), (2), and (3). The petition further alleged that the respondentís failure, without good cause, to cooperate in bar counselís investigation violated Supreme Judicial Court Rule 4:01, ß 3, and Canon One, Disciplinary Rules 1-102(A)(5) and (6). The respondent failed to file an answer to the petition for discipline, in violation of S.J.C. Rule 4:01, ßß 3 and 8(3), and Section 3.59(c) of the Rules of the Board of Bar Overseers. Bar counsel moved to amend the petition for discipline to add a charge that the respondentís failure to file an answer to the petition for discipline violated S.J.C. Rule 4:01, ß 3(1)(c), and Mass. R. Prof. C. 8.4(d), (g), and (h). On September 29, 1999, a hearing committee of the Board of Bar Overseers allowed bar counselís motion to amend the petition for discipline.

On September 29, 1999, the respondent filed an answer to the petition for discipline that admitted to its allegations and to violating the Disciplinary Rules cited. The parties agreed that a suspension from the practice of law for six months and a day was the appropriate discipline.

On October 18, 1999, the Board of Bar Overseers voted to accept the stipulation of the parties and to file an information with the Supreme Judicial Court recommending that the respondent be suspended from the practice of law for six months and a day. The respondentís prior discipline, considered by the Board in aggravation of his misconduct, included an informal admonition in 1993 for the respondentís failure to cooperate with bar counselís investigation and an admonition imposed in 1994 for violations of DR 6-102(A)(3) and DR 7-101(A)(1), reported as Adm. No. 94-57, 10 Mass. Attíy Disc. R 430 (1994). On December 22, 1999, the Supreme Judicial Court for Suffolk County (Lynch, J.) entered an order suspending the respondent from the practice of law for six months and a day effective 30 days after the date of the entry of the Order.

1S.J.C. Order of Term Suspension entered by Justice Lynch on December 22, 1999.



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