Mass.gov
   
Mass.Gov home Mass.gov  home get things done agencies Search Mass.Gov


Commonwealth of Massachusetts

Public Reprimand No. 2008-29



DONALD H. BARNES, JR.

Order (public reprimand) entered by the Board January 9, 2009.

SUMMARY1


The respondent was admitted to the Bar of the Commonwealth on May 14, 1968. In 2002, the respondent received a public reprimand for commingling, negligent misuse of client funds, and failing to keep adequate trust account records. See Matter of Barnes, 18 Mass. Att’y Disc. R. 64 (2002).

In 2002, “X” and “Y” had a child together. Afterwards, they lived together on a sporadic basis until 2005, when the relationship broke down. On March 23, 2005, X sought a domestic abuse restraining order against Y at the local district court. On March 25, the court issued a G.L. 209A protective order for X against Y.

On March 29, 2005, X complained to the police that Y had threatened her, grabbed her, and kept her from leaving his presence. On March 30, the police filed a criminal complaint against Y, charging him with domestic assault and battery, kidnapping, and threatening to commit a crime. Trial on the complaint was set for May 6, 2005.

On April 1, Y sought the respondent’s legal advice about the pending criminal charges. The respondent agreed to represent Y and scheduled a meeting with him on April 9, 2005.

Y reconciled with X on about April 2. On April 4, Y asked the respondent if X could accompany him to the April 9 meeting. The respondent agreed to let X attend. On April 6, before the meeting with the respondent occurred, X appeared in court and requested that the 209A restraining order against Y be vacated. The court accepted X’s request and vacated the restraining order on that date.

On April 9, 2005, Y and X met with the respondent at the respondent’s law office. During the meeting, the respondent obtained personal information from X about herself and her relationship with Y. X informed the respondent that the criminal charges against Y exaggerated the complaint she had made to the police on March 29, 2005. The respondent did not explain to X that he was representing Y and not X and he did not advise her to seek the advice of independent counsel in the matter.

The respondent advised X about the procedure that would be followed in the criminal case, including the likelihood that the judge would appoint counsel to represent her, and discussed with her the possibility of invoking her privilege against self-incrimination in the event the case reached a trial. The respondent did not advise X to seek the advice of independent legal counsel concerning those issues.

The respondent had further conversations with X after the April 9 meeting regarding a victim impact statement to the court. The respondent advised X that she could recommend in her victim impact statement that all charges against Y should be dismissed. On May 2, 2005, X submitted a victim impact statement to the district attorney’s office in which she requested “total dismissal of all charges.”

Sometime prior to June 2, 2005, the respondent met with X to review her anticipated testimony in Y’s case. During that meeting, the respondent advised X that she could testify that the contents of the police report were exaggerated. The respondent did not tell X that he was representing only Y’s interests in the matter and that the only advice that he could give her was the advice to obtain independent counsel.

On June 2, 2005, X told the Assistant District Attorney that the police report was inaccurate and exaggerated. At sidebar, the respondent told the judge that X would testify that Y did not act in the manner described in the police report. The court then appointed counsel to advise X. After meeting with X, appointed counsel advised the court that X had a basis to assert her privilege against self-incrimination. The court then dismissed all criminal charges against Y.

By obtaining confidential information from X when he knew or reasonably should have known that X did not understand his role in the matter and without making it clear that he was not disinterested in the matter, the respondent violated Mass. R. Prof. C. 4.3(a) (communicating with unrepresented person) and 4.4 (in representing a client, lawyer shall not use methods of obtaining evidence from a third person that violates the rights of that person). By giving advice to X that implicated her privilege against self-incrimination, an unrepresented person whose interests had a reasonable possibility of being in conflict with the interests of his client, other than the advice to obtain counsel, the respondent violated Mass. R. Prof. C. 4.3(b) (lawyer shall not give advice to unrepresented person, except for advice to secure counsel) and 4.4.

This matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for discipline by public reprimand. The Board of Bar Overseers voted to adopt the parties’ recommendation and imposed a public reprimand.


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



BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2003. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.