Thursday, July 29, 2010

All In the Family

The Massachusetts Supreme Judicial Court has reinstated a disbarred attorney over the objections of Bar Counsel. The court described the misconduct that led to the sanction:

...the petitioner's misconduct...as reflected in the indictments to which he pleaded guilty, occurred in 1990 and 1992 when he forwarded information he knew to be false to insurers in order to win settlements for two of his personal injury clients. The hearing panel also assessed the environment in which this conduct occurred. While the law firm eventually bore his name, the petitioner was new to the practice of law when he joined the firm in 1986. The firm was established by his father and tightly controlled by his more experienced older brother, James Ellis, Jr., both of whom were also indicted for fraud and conspiracy. As the prosecutor made clear to the judge at the petitioner's plea and sentencing, the petitioner's conduct paled in comparison to that of his brother, and he was a considerably less significant actor in the crimes committed at the Ellis law firm, playing a supporting role in the frauds that the firm's clients and James Ellis, Jr., perpetrated on insurers.

As to reinstatement:

The hearing panel...found that the petitioner had demonstrated the competency and learning required for admission to practice law. In addition to taking and passing the multistate professional responsibility examination, the petitioner had taken a number of Massachusetts continuing legal education courses and had undertaken to keep current in his legal reading sufficient to assist him in transitioning into the practice of law in specialty areas different from those in which he practiced at Ellis & Ellis. More particularly, the petitioner, on reinstatement, intends to focus his practice on immigration law, Social Security disability law, District Court criminal defense, and debt collection, areas of practice in which he has arranged for mentors to assist him. The petitioner has also secured two experienced attorneys with whom he is acquainted to act as his ethical advisers.

Perhaps the most challenging hurdle for the petitioner to overcome is the effect and perception of his reinstatement on the public and the bar. Matter of Daniels, 442 Mass. 1037, 1038 (2004), and cases cited. In this regard, the hearing panel took note not only of his postdisbarment conduct and testimony, but also of a number of letters sent from neighbors, work supervisors, and an attorney regarding the petitioner's current, rehabilitated reputation in the community. In addition, in recommending reinstatement, the hearing panel suggested certain conditions, none of which has been objected to by the petitioner, and all of which were adopted by the board. These conditions are directed toward assuring the public that the petitioner is prepared and capable of reentering the practice of law and steering clear of the problems of his past. Specifically, the panel recommended the following conditions:

"(1) prior to reinstatement, the petitioner shall take a course recommended by bar counsel concerning the proper method of handling an [Interest on Lawyers Trust Account (IOLTA) ] account; (2) the petitioner shall sign an agreement with bar counsel to have his IOLTA account audited for a period of two years at his cost, and shall use for his law practice accounting and auditing an accountant other than Mr. Kyriakis (or any member of his firm), who has been and continues to be his father's accountant; (3) for a period of five years, the petitioner shall not engage in practice with any family member or former member of the Ellis & Ellis firm, or the James N. Ellis, Sr. & Associates firm, nor shall he employ in his law practice any employee of his father's firm or his sister's office employees; (4) the petitioner shall not engage in any personal injury or workers' compensation cases, and shall not represent any family members for a period of five years; (5) the petitioner shall purchase and maintain malpractice insurance in a minimum of $1,000,000 per claimant with a deductible not to exceed $10,000 for a period of five years; and (6) within the next two years, the petitioner shall take forty hours of [continuing legal education] courses in the areas of the law in which he intends to practice."

We agree with these conditions. They convey in part the message that the petitioner's reinstatement is decidedly not a reopening of the disgraced law practice of Ellis & Ellis. They also confirm the seriousness with which the board and this court take their obligation to assure the protection of the public interest above all else.

Having demonstrated to the board that he possesses the current moral qualifications and learning to practice law, and that his admission to the bar would not be detrimental to the public interest, the petitioner is reinstated with the aforementioned conditions.

The case is Matter of Ellis, decided July 29, 2010. (Mike Frisch)


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