In re McAleer
| Docket Number | 2023-31-M.P. |
| Decision Date | 19 December 2023 |
| Parties | In the Matter of James F. McAleer. |
| Court | Rhode Island Supreme Court |
1
In the Matter of James F. McAleer.
No. 2023-31-M.P.
Supreme Court of Rhode Island
December 19, 2023
For Petitioner: Kerry Reilley Travers, Esq.
For Respondent: James F. McAleer, pro se.
Suttell, C.J., Goldberg, and Lynch Prata, Justices JJ.
ORDER
This attorney disciplinary matter came before the Court pursuant to Article III, Rule 6(d) of the Supreme Court Rules of Disciplinary Procedure. On October 23, 2023, the Disciplinary Board of the Supreme Court (the Board) forwarded to us a decision finding that the respondent, James F. McAleer, had violated the Supreme Court Rules of Professional Conduct, along with its recommendation that we disbar the respondent. Rule 6(d) provides:
"If the [Disciplinary] Board determines that a proceeding should be dismissed, or that it should be concluded by public censure, suspension or disbarment, it shall submit its findings and recommendations, together with the entire record, to this Court. This Court shall review the record and enter an appropriate order. Proceedings, if any before this Court shall be conducted by [Disciplinary] Counsel."
We directed respondent to appear before the Court at its conference on November 21, 2023, to show cause, if any, why we should not accept the recommendation of the Board. The respondent appeared before the Court without counsel. Having heard the representations of respondent and this Court's Disciplinary Counsel, we concur with the decision of the Board that respondent
violated several Rules of Professional Conduct and should be disbarred. We hereby disbar respondent for his actions.
The respondent was authorized to practice law in the State of Rhode Island during all times material to this matter.[1] The respondent is subject to the Rules of Professional Conduct as adopted and promulgated as Article V of the Rhode Island Supreme Court Rules. The facts found by the Board are as follows. The respondent was appointed as the Executor and Fiduciary for the Estate of Valerie Webb (appointed August 5, 1996); Estate of Hertha Champlin (appointed December 3, 2014); and the Estate of Chauncey Champlain (appointed October 3, 2008). Clifford K. Webb was the sole beneficiary of the three estates.
On May 21, 2020, Mr. Webb filed a verified complaint (the Complaint) in Providence County Superior Court, alleging respondent failed to account for $557,496.27 in estate funds out of an estate worth $1,000,000. Mr. Webb alleged he only received $282,313.73. The Complaint also alleged respondent neglected to convey property in Oklahoma left to Mr. Webb and neglected to pay property taxes on the parcel. Mr. Webb alleged that, as a result, the property was sold at auction. Mr. Webb, through counsel, filed a motion for leave to issue a prejudgment writ of attachment.
On August 4, 2020, respondent signed and later submitted an affidavit (the Affidavit) to the Superior Court attesting to, among other things, that he was "in the process of obtaining all (IOLTA) account disbursements made by [him] as necessary expenditures of the above estates." The respondent's Affidavit also alleged "none of the expenditures of the estates taken from [his] (IOLTA) account were for [his] personal benefit," and he "can account for all disbursements referenced above." The Affidavit does not refer to respondent having any physical limitations. At the time of filing this Affidavit, respondent was represented by counsel.
On September 9, 2020, the Superior Court issued an order restraining and enjoining respondent from "transferring and/or alienating any real or personal property until further order of the court" and from "transferring any and all checking accounts, bank accounts, savings accounts, stocks, bonds, investments and the like, other than the reasonable and necessary living expenses of the defendant and his family as well as reasonable attorney's fees incurred by the defendant, until further order of the court." The respondent was also ordered to conduct an investigation into his clients' accounts, including the bank accounts referenced in the Complaint. Furthermore, respondent was ordered to provide all disbursement documents to the plaintiff.
On October 9, 2020, Mr. Webb filed a complaint with Disciplinary Counsel bringing this matter to their attention. In response to the disciplinary complaint,
respondent submitted the same August 4, 2020 Affidavit to Disciplinary Counsel. On December 18, 2020, the Superior Court issued a Prejudgment Writ of Attachment in the amount of $300,000.00 against respondent.
On January 26, 2023, Disciplinary Counsel, following her investigation, filed a Petition for Disciplinary Action (Petition) against respondent, alleging several violations of the Rules of Professional Conduct for his conversion of at least $243, 115.50 from the Hertha V. Champlin Estate (the Estate) for his own personal and professional benefit, with an additional $120,901.99 unaccounted for. The Petition alleged that $839,810 was transferred from the Estate account held at Wells Fargo into respondent's IOLTA account. Disciplinary Counsel charged violations of Rule 1.1 ("Competence"); Rule 1.3 ("Diligence"); Rule 1.5 ("Fees); Rule 1.15 ("Safekeeping property"); Rule 1.19 ("Required bookkeeping records"); Rule 3.3 ("Candor toward the tribunal"); Rule 5.3 ("Responsibilities regarding nonlawyer assistants"); and Rule 8.1 ("Bar admission and disciplinary matters"); and Rule 8.4 ("Misconduct").
The Petition was served on respondent, who was required to respond within twenty (20) days pursuant to disciplinary procedure. The respondent requested and was granted two thirty (30) day extensions on February 17, 2023, and March 22, 2023, respectively. On April 18, 2023, Disciplinary Counsel's office received a written request for a third thirty (30) day extension from respondent, citing ongoing
medical treatment and providing certain medical documentation. Attached to this third request were copies of two (2) checks (#3168 - $1,000.00 and #3169 -$3,500.00) payable to the Rhode Island Division of Taxation and U.S. Treasury. The memo line on both checks stated "H. Champlin Estimated Tax."[2] Because Rule 3.7(a) of the Rules of Procedure of the Disciplinary Board of the Supreme Court of Rhode Island allows no more than two (2) continuances, the Board denied respondent's third request for another thirty (30) day extension on April 21, 2023.
On July 12, 2023, a hearing was held before a three-member hearing panel of the Board (the Hearing Panel). Both respondent and Disciplinary Counsel presented their respective positions. Other than the above-referenced copies of checks, the Board found that respondent failed to provide any substantive accounting of the Estate funds to Disciplinary Counsel, the Superior Court, or Mr. Webb's counsel. The Board found that respondent also failed to file an answer in accordance with Rule 3.18 of the Rules of Procedure of the Disciplinary Board. Rule 3.18(b) requires that answers
"shall be in writing, and drawn so as to advise fully and completely the participants and the Board as to the nature of the defense. They shall admit or deny specifically, and
in reasonable detail, each material allegation of the petition and state clearly and concisely the facts and matters of law relied upon." See also Article III, Rule 6(b) of the Supreme Court Rules.
Because respondent never filed an answer to the Petition, despite obtaining two extensions to do so and being informed by Disciplinary Counsel in writing of the consequences of failing to file an...
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