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In re Jackman7/20/2005
Attorney at Law, Disciplinary proceeding, Suspension.
Bar counsel appeals from an order of a single justice of this court suspending the respondent from the practice of law on terms that are described below.
Background
Bar counsel filed a petition for discipline with the Board of Bar Overseers (board) against the respondent in 2003. The petition alleged that from 1998 through October, 1999, the respondent operated a personal injury law office at which a non-lawyer staff member engaged in the unauthorized practice of law (by handling and settling personal injury cases with inadequate supervision from the respondent), and shared in the legal fees received. In addition, the petition alleged that the respondent failed properly to oversee the receipt, maintenance, and disbursement of client funds, resulting in commingling of client and business funds. Ultimately, the non-lawyer converted settlement and insurance proceeds. The respondent and bar counsel stipulated to the relevant facts (the respondent, in essence, admitting most of the allegations of the petition). A hearing committee of the board recommended that the respondent be suspended from the practice of law for one year. It also recommended that, on reinstatement, the respondent's practice be limited to the representation of criminal defendants in the District Court Department. The parties stipulated that, since 1988, the respondent primarily had practiced in the District Court as appointed counsel for indigent defendants in criminal matters.
Bar counsel appealed to the board from the hearing committee's disciplinary recommendation. The board adopted the hearing committee's findings of fact, made additional conclusions of law, and by a divided vote recommended that the respondent be indefinitely suspended from the practice of law. An information was filed with the Supreme Judicial Court for Suffolk County, and the single justice ordered that the respondent be suspended from the practice of law for three years. The single justice also ordered that the third year be suspended during a two-year probationary period, during which the respondent's practice would be limited to criminal matters in the District Court. Bar counsel again appealed, arguing not only that the sanction is too lenient, but also that the probationary conditions were inappropriate.
Discussion
In reviewing the disciplinary sanction imposed by a single justice, we "inquire whether the judgment is markedly disparate from those ordinarily entered by the various single justices in similar cases," Matter of Alter, 389 Mass. 153, 156 (1983), and consider the "cumulative effect of the several violations committed by the respondent." Matter of Palmer, 413 Mass. 33, 38 (1992). Our review "is de novo, but tempered with substantial deference to the board's recommendation." Matter of Foley, 439 Mass. 324, 333 (2003).
Both the board and the single justice considered the respondent to have engaged in two categories of misconduct: unintentional misappropriation of client funds, and improper association with a non-lawyer. With respect to the client funds issue, bar counsel recognizes that the respondent's misconduct in this case is analogous to the negligent misuse of client funds. While the negligent, unintentional misuse of client funds might warrant a public reprimand in the absence of actual deprivation, see Matter of Schoepfer, 426 Mass. 183, 185-186 n.2 (1997), where, as here, the unintentional misconduct has resulted in even temporary deprivation, a term suspension is typical. See, e.g., Matter of Newton, 12 Mass. Att'y Discipline Rep. 351 (1996) (two years); Matter of Zelman, 10 Mass. Att'y Discipline Rep. 302 (19
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