401 Mass. 460 (1988), Matter of Pool

Citation:401 Mass. 460, 517 N.E.2d 444
Party Name:In the Matter of James M. POOL.
Case Date:January 07, 1988
Court:Supreme Judicial Court of Massachusetts

Page 460

401 Mass. 460 (1988)

517 N.E.2d 444

In the Matter of James M. POOL.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1988

Argued Oct. 9, 1987.

[517 N.E.2d 445] John P. White, Jr., Boston, for petitioner.

Daniel Klubock, Boston, Bar Counsel.


LYNCH, Justice.

In this case, we are asked to decide whether James M. Pool (petitioner) should be reinstated as a member of the bar of the Commonwealth. The question is before us on the reservation and report, without decision, of a single justice of this court. A hearing panel (panel) of the Board of Bar Overseers (Board) recommended reinstatement, concluding that the offenses for which the petitioner was disbarred were an isolated instance occurring eleven years [517 N.E.2d 446] prior to disbarment, when the petitioner was relatively young and inexperienced. The Board concurred in the recommendation of the panel with no votes to the contrary. We accept the recommendation of the Board.

The petitioner was disbarred on January 17, 1984, for a serious breach of client confidentiality, coupled with failure

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to disclose to his client significant facts which had a bearing on the amount of the fee the petitioner received. We relate in some detail the unusual nature of the conduct which led to the petitioner's disbarment.

In March, 1973, the petitioner undertook representation of a client who had been arrested here on a Federal warrant from the Eastern District of Virginia, charging him with the kidnapping of a Mexican national. The petitioner and his client agreed to a fee of $1,500 for representation in the removal hearing.

To establish the client's defense that the alleged kidnap victim had not been kidnapped, but was instead a fugitive from justice, the petitioner engaged the services of a private investigator. As a part of the investigation, it was necessary for the investigator to travel to Mexico in an attempt to procure evidence which would substantiate this defense. When the petitioner expressed his concern that the cost of this investigation was exceeding the $800 he had received from the client for expenses, the client revealed that he had rented under a pseudonym two safe deposit boxes and that the boxes contained a substantial amount of cash as well as a handgun and false identifications. According to the client, these materials were unconnected with the alleged kidnapping; nonetheless, the client wished the materials removed. The keys to the safe deposit boxes were among the client's belongings then in the possession of the Federal Bureau of Investigation (F.B.I.). The petitioner believed, and mistakenly informed his client, that the F.B.I. would be able to locate the safe deposit boxes from the keys.

The petitioner requested the keys from the Assistant United States Attorney assigned to the case, under an order for the return of seized evidence in so far as the material was "not likely to be used as evidence." The petitioner then told the Assistant United States Attorney that he needed the keys to the safe deposit boxes in order to obtain money for his client's defense and that there was nothing incriminating in the boxes. However, he also said that the boxes contained a gun which was not connected to the alleged kidnapping, and, that if he could obtain the keys, he would open the boxes alone, remove

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only the money, and disclose the location of the boxes and the alias under which they were listed. The Assistant United States Attorney accepted the offer.

By this time, the client's sister, an attorney practicing in California, was in Boston to help her brother. Under the impression that the petitioner had obtained the keys pursuant to a court order, she was with the petitioner when he removed from the boxes an envelope which contained $48,600. Except for the amount designated for expenses, this money was turned over to the sister. Nothing else was removed from the safe deposit boxes, although it was determined that they contained numerous sets of false identification, including a fictitious passport and the handgun.

The Assistant United States Attorney then obtained a warrant to search the safe deposit boxes. At the petitioner's request, the warrant application stated merely that "further investigation" had revealed the existence, location, and identity of the holder of the boxes. The petitioner never disclosed to his client what he had told to the Assistant United States Attorney.

On April 11, 1973, the day before the client was to be removed to Virginia, the petitioner again visited him in jail. An additional retainer agreement for $7,500 was executed; at the same time, the petitioner agreed to his client's request that he remove the remaining contents from the safe deposit boxes. The next day, he told his client's sister that he would go to the bank alone. Upon his...

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