In the Matter of Charles M. Maclean

SUMMARY²

This matter came before the Court on the report of a hearing committee adopted by the Board of Bar Overseers without objection or appeal by either party.

The committee recommended that the respondent receive a stayed suspension for failure to cooperate with bar counsel’s investigation of a matter, based on the following findings:

Before entering law school, the respondent served in active duty in Vietnam, and later served as a police officer for the Town of Natick. Admitted to the Massachusetts bar in 1981, he focused his practice on criminal defense, handling the occasional personal injury matter and some civil service matters for police officers.

Around 1990, the respondent advanced money to a lawyer friend to fund a business venture, receiving in return a verbal “guarantee” that the money would be returned with profit if the venture prospered. One reason the respondent agreed to make the advance was to support a business that would provide a job for his step-son, whose psychiatric illness made it difficult for him to find work elsewhere. After the venture failed, the respondent’s friend faced substantial tax liabilities, and he began to channel money to the respondent from various sources.

One source was a small personal injury case the respondent had handled. On collection, the respondent had tendered the settlement funds to the friend, but the friend insisted that the respondent hold the money, giving him permission to use it subject to a final accounting of the mutual debts and obligations between them. At that point and in the circumstances, the committee found, the settlement funds were not subject to the rules concerning attorney trust funds. The committee found that other funds the friend gave the respondent were unrelated to any representation and, once again, the respondent had permission to use them subject to a final accounting. For these reasons, the committee rejected charges brought under the rules relating to trust finds, trust accounting, and misuse of trust funds.

After some years, the respondent’s friend demanded an accounting, but he did not demand that the respondent return the money.

The respondent was unable to render an accounting. He had not placed the money in a separate account and a basement flood destroyed any records the respondent had of receipt and expenditures, some of the latter being for the friend and some for his own purposes. In addition, some of the funds were seized to satisfy the respondent’s personal tax obligations. The committee found that the respondent had placed the funds in his personal account consistent with the permission he was granted to use the funds, as well as with his friend’s expressed desire that the funds not be held in the friend’s name.

After some years with no accounting, the friend contacted bar counsel. The respondent ignored bar counsel’s numerous efforts to reach him. A single justice temporarily suspended the respondent effective September 15, 2009 and the respondent was in compliance with the order of temporary suspension by October 30, 2009.

The respondent had made offers to settle with the friend in lieu of an accounting. At the committee’s suggestion, the respondent returned the amount the respondent concedes was owed.

The only violations the committee found fell under Mass. Rule Prof. C. 8.1(b) and S.J.C. Rule 4:01, § 3(1), concerning a lawyer’s duty to cooperate with bar counsel’s investigations. The committee credited testimony from the respondent’s psychiatric expert that the respondent’s failure to cooperate with bar counsel was related to post-traumatic stress disorder and other psychiatric conditions. Still, in aggravation, the committee was concerned that the entire course of conduct reflected adversely on the respondent’s fitness to practice and contributed to the respondent’s failure to cooperate with bar counsel. Therefore, the committee recommended that the respondent receive a ninety-day suspension stayed for eighteen months on the conditions that the respondent continue to receive treatment for his psychiatric conditions, comply with the recommendations of his treating psychiatrist, and provide bar counsel with a release to permit confirmation of compliance with conditions.

On September 13, 2010, the Board of Bar Overseers voted to adopt the committee’s findings of fact and conclusions of law, and to recommend the committee’s proposed disposition. The Court so ordered on October 7, 2010, simultaneously terminating the respondent’s temporary suspension.

FOOTNOTES:

¹ The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

² Compiled by the Board of Bar Overseers based on the record filed with the Supreme Judicial Court.

Related to No. BD-2009-072

• S.J.C. Order of Temporary Suspension entered by Justice Spina, 09/15/2009