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Commonwealth of Massachusetts

Public Reprimand No. 2009-3



JOHN EDWARD MCCABE

Order (public reprimand) entered by the Board April 13, 2009.

SUMMARY1


The respondentís firm specialized in civil litigation and personal injury. He maintained two accounts designated as IOLTA accounts, one at Wellesley Bank and the other at Citizens Bank.

Since at least August 1, 2006, the respondent failed to keep records for either IOLTA account in compliance with Mass. R. Prof. C. 1.15. The respondent did not keep (1) check registers with a client identifier after every transaction, a list of every transaction, and a running balance after every transaction, (2) individual client ledgers for each client matter listing each transaction and running balance for each client matter, and (3) ledgers of his personal funds for reasonably expected bank charges. The respondent did not perform a three-way reconciliation of either IOLTA account at least every sixty days. The respondent also withdrew funds from the IOLTA accounts without assuring that funds for that client matter were deposited in the IOLTA account from which the withdrawal was made.

On or about March 8, 2005, the respondent was retained in a personal injury matter. In January 2007, the respondent settled the claim for $3,750. In early February, 2007, the respondent received a settlement check in the amount of $3,750, which he deposited into the Citizens IOLTA. That same day, the respondent issued himself a check in the amount of $1,250 from the Citizens IOLTA for his legal fee.

On or about March 5, 2007, the respondent issued a check to himself in the amount of $2,000 from the Citizens IOLTA. These funds were owed to him by a client whose funds were deposited in the Wellesley IOLTA account and were not attributable to any client matter for which the respondent was holding funds in the Citizens IOLTA. Consequently, the respondent negligently misused funds belonging to the client and others in the Citizens account to fund this check. When the respondent issued a check to the client for his share of the proceeds from the settlement on March 7, 2007, from the Citizens account, the check, in the amount of $1,746.29, was dishonored due to insufficient funds in the Citizens IOLTA.

The respondent then issued a replacement check to the client from the Wellesley IOLTA. Because the respondent held no funds for the client in the Wellesley IOLTA account, the respondent negligently misused other client funds in that account. The respondent restored the funds to the accounts before any client was deprived of funds.

The respondentís negligent misuse of trust funds violated Mass. R. Prof. 1.15(f)(1)(C). The respondentís conduct in not keeping a proper check register for his IOLTA accounts violated Mass. R. Prof. C. 1.15(f)(1)(B). His failure to keep proper individual client ledgers and a ledger for his personal funds kept in the account to cover bank charges violated Mass. R. Prof. C. 1.15(f)(1)(C) and (D). The respondentís failure to perform reconciliations for the accounts at least every sixty days violated Mass. R. Prof. C. 1.15(f)(1)(E).

On February 26, 2009, bar counsel filed a petition for discipline, and the respondent filed an answer admitting to the allegations of misconduct and the rule violations. The parties also stipulated that the appropriate sanction was a public reprimand. On March 9, 2009, the Board of Bar Overseers accepted the partiesí recommendation and imposed a public reprimand.


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



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