Pool, Matter of

• Citation: 517 N.E.2d 444,401 Mass. 460
• Parties: In the Matter of James M. POOL.
• Decision Date: 07 January 1988
• Court: United States State Supreme Judicial Court of Massachusetts

Page 444

517 N.E.2d 444

401 Mass. 460

In the Matter of James M. POOL.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 9, 1987.

Decided Jan. 7, 1988.

John P. White, Jr., Boston, for petitioner.

Daniel Klubock, Boston, Bar Counsel.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

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 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 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 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 return thirty minutes later, without having entered the boxes, he announced to the sister that the F.B.I. had seized the material from the boxes. His client subsequently learned about the petitioner's role in these events from successor counsel.

As a result of this conduct the petitioner was found to be in violation of S.J.C. Rule 3:07, Canon 1, DR 1-102, as appearing in 382 Mass. 769 (1981) (deceit, misrepresentation); Canon 4, DR 4-101(B)(1) (revealing confidence or secret of a client); and DR 4-101(B)(3), as appearing in 382 Mass. 778 (1981) (using a confidence or secret of a client for his own advantage, without the client's informed consent), and he was disbarred on January 17, 1984. Because the events leading to disbarment occurred in 1973, ¹ and in view of the petitioner's inexperience and otherwise good record, the petitioner was granted the right to seek reinstatment after the passage of one year from the date of disbarment.

On January 8, 1985, ² the petitioner filed a petition for reinstatement, pursuant to S.J.C. Rule 4:01, § 18, as amended, 394 Mass. 1113 (1985), and a hearing before a panel of the Board of Bar Overseers (panel) was held on September 23, 1985. By memorandum dated January 13, 1986, the panel requested additional relevant evidence, which was submitted by August 20, 1986. On October 27, 1986, the panel recommended that the petitioner be reinstated and the Board of Bar Overseers voted to adopt the recommendation of the panel on November 10, 1986, subject to a requirement, which has since been met, that the petitioner pass the multistate professional responsibility examination.

Under S.J.C. Rule 4:01, § 18(5), as amended, 394 Mass. 1106 (1985), the burden is on the petitioner to demonstrate "that he has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth, and that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest." This rule is considered to have two distinct requirements. The first addresses the personal qualifications of the petitioner with regard to both competence and learning in law and his moral qualifications. The second requirement concerns the effect of the petitioner's resumption of practice on the integrity of the bar, the administration of justice and the public interest. Matter of Gordon, 385 Mass. 48, 51-52, 429 N.E.2d 1150 (1982).

1. Personal qualifications. Bar counsel questions the petitioner's present moral fitness and achievement of rehabilitation. The petitioner's disbarment "is conclusive evidence of his lack of moral character at the time of his removal from office. And it continues to be evidence against him with respect to lack of moral character at later times." Matter of Keenan, 313 Mass. 186, 219, 47 N.E.2d 12 (1943). The petitioner, therefore, has the burden to "establish affirmatively that since his disbarment he has become 'a person proper to be held out by the court to the public as trustworthy.' " Id., quoting Boston Bar Ass'n v. Greenhood, 168 Mass. 169, 183, 46 N.E. 568 (1897). Although it has been noted that rehabilitation is a "state of mind," Matter of Allen, 400 Mass. 417, 425, 509 N.E.2d 1158 (1987), "[i]n judging whether a petitioner ... has demonstrated the requisite rehabilitation since disbarment, it is necessary to look to (1) the nature of the original offense for which the petitioner was disbarred, (2) the petitioner's character, maturity, and experience at the time of his disbarment, (3) the petitioner's occupations and conduct in the time since his disbarment, (4) the time elapsed since the disbarment, and (5) the petitioner's present competence in legal skills" (footnote omitted). Matter of Hiss, 368 Mass. 447, 460, 333 N.E.2d 429 (1975).

The offenses for which the petitioner was disbarred were ones which strike at the heart of the fiduciary nature of the attorney-client relationship. See Berman v. Coakley, 243 Mass. 348, 137 N.E. 667 (1923). Moreover, the petitioner's continuing lack of disclosure of the breach of confidence and his agreement with the Assistant United States Attorney evince more than a mere error of judgment. The panel found, however, that the misconduct was an isolated instance which, it should be further noted, arose in highly unusual circumstances. Substantial evidence before the panel of a good record of practice as an attorney in the years intervening between 1973 and the petitioner's disbarment, as well as the fact that the petitioner's misconduct occurred when he had been in sole practice for less than a year, support this finding. See S.J.C. Rule 4:01, § 18(5).

In 1982, the petitioner moved with his family to West Virginia. His occupation subsequent to disbarment has been as director of the bicentennial celebrations of Harrison County and the city of Clarksburg, West Virginia. During the course of this employment, the petitioner wrote a book for children and edited an album on the history of the county. The panel found impressive the support...