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Commonwealth of Massachusetts

Public Reprimand No. 2002-7



IN RE: FRANK G. KELLEHER

Order (public reprimand) entered by the Board March 27, 2002.

SUMMARY1


The respondent received a public reprimand for his neglect of a motion for a new trial in a criminal case and subsequent misrepresentations to his client. In 1993, the respondent was retained to investigate the possibility of reducing the length of a sentence imposed on a criminal defendant who had pled guilty to three separate charges, including drug trafficking which carries a mandatory minimum five-year sentence. From his review of the transcript of the client’s plea colloquy, the respondent determined that the only way to obtain a reduction of the client’s sentence would be by withdrawing the client’s plea and securing a new trial on the grounds that the client’s trial counsel had failed fully to explain the consequences of a guilty plea. The respondent prepared a motion for new trial and a supporting affidavit for the client, but he failed to file the motion in court.

In letters to the client, the respondent falsely represented that the motion had been filed and that he was hoping to schedule a hearing date on the motion before the judge who had originally sentenced the client to prison. After the client demanded the return of his retainer, the respondent visited him in prison and again misrepresented that a hearing had been scheduled on the motion for new trial. Thereafter, the respondent failed to communicate with the client about his case.

By his failure to file a motion for new trial or for other post conviction relief for the client, the respondent violated Canon Six, Disciplinary Rules 6-101(A)(2) and (3) (lawyer shall not handle a legal matter without adequate preparation and neglect legal matter), and Canon Seven, Disciplinary Rules 7-101(A)(1), (2), and (3) (lawyer shall not intentionally fail to seek lawful objectives of client, fail to carry out contract of employment, and prejudice client during course of professional relationship). By misrepresenting to his client that a motion for post conviction relief had been filed and that a hearing on the motion had been scheduled, the respondent violated Canon One, Disciplinary Rules 1-102(A)(4) and (6) (lawyer shall not engage in conduct involving deceit or misrepresentation, or other conduct adversely reflecting on fitness to practice law).

In aggravation of this misconduct, the respondent has a prior disciplinary history consisting of a public reprimand and two private reprimands. See Matter of Kelleher, 10 Mass. Att’y Disc. R. 161 (1994), PR No. 90-23, 6 Mass. Att’y Disc. R. 424 (1990), and PR No. 79-9, 1 Mass. Att’y Disc. R. 415 (1979).

1 Compiled by the Board of Bar Overseers based on the record of proceedings before the Board.



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