In the Matter of Barry E. O'Connor

SUMMARY²

The respondent was disbarred for conduct set forth in a two-count petition for discipline arising from the respondent’s handling of a workers’ compensation matter and a civil suit.

In the first matter, the respondent charged and collected an illegal fee in a workers’ compensation matter and misrepresented the amount of his fee to an administrative law judge at the Department of Industrial Accidents (DIA). The respondent had filed a claim for benefits under G.L.c. 152, § 28 on behalf of a client whose husband had been killed in an industrial accident. Ultimately, the parties reached a settlement of the claim under which the client would receive approximately $200,000 over a ten-year period and the respondent $10,000 in attorney’s fees. The respondent told the client that he was actually entitled to receive a sum of almost $30,000 in attorney’s fees and that she could pay him the additional approximately $20,000 over time from her weekly workers’ compensation payments.

An administrative law judge at the DIA approved the settlement. The respondent appeared before the judge and signed the § 28 lump sum settlement, representing and agreeing that his attorney’s fees for the representation were $10,000 and concealing from the DIA his side agreement with the client to charge and collect additional fees for the representation. The client initially complied with the respondent’s request, and over a nineteen-month period, she gave the respondent $3,200. She then became suspicious about this arrangement and stopped making payments to him.

By charging and collecting an attorney’s fee in the workers’ compensation matter that had not been approved by the DIA and by telling his client that she owed him additional attorney’s fees, the respondent took an illegal fee in violation of Mass. R. Prof. C. 1.5(a) and 8.4(c). By concealing his side agreement with his client from the DIA and misrepresenting in the § 28 lump sum agreement that his attorney’s fees would be $10,000, the respondent made a false statement to a tribunal in violation of Mass. R. Prof. C. 3.3(a)(1) and 8.4(c), (d), and (h).

In the second matter, the respondent neglected a civil case. A client retained the respondent in December 2001 to file suit against an insurer who had sold the client an accident and disability insurance policy and then refused to make disability payments to the client following an injury. The respondent never filed suit against the insurer, and on several occasions between 2001 and 2008, the respondent intentionally misrepresented the status of the matter to the client by telling him that the case had been filed. In July 2008, the respondent further intentionally misrepresented the status of the matter to the client by discussing a specific settlement offer from the insurer when in fact the statute of limitations to bring suit against the insurer had already expired. The respondent did not advise the client that the statute of limitations had expired.

In addition, while representing this client between 2001 and 2008, the respondent was suspended for a six-month period commencing July 6, 2005. Pursuant to the suspension order, the respondent was required to notify the client of his suspension and then certify under oath to bar counsel that he had done so. Prior to reinstatement, the respondent was also required to certify under oath to the Supreme Judicial Court that he had fully complied with the suspension order. The respondent failed to notify this client of his suspension, and his affidavits to bar counsel on June 30, 2005 and the Court on January 25, 2006 were false.

By failing to file suit and allowing the statute of limitations to expire, the respondent failed to represent his client competently, he failed to seek the lawful objectives of his client, and he failed to act with reasonable diligence in violation of Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. By failing to inform the client that he had not filed suit and that the statute of limitations had expired, the respondent failed to keep his client reasonably informed about the status of a matter and failed to explain a matter to his client to the extent necessary to permit him to make informed decisions in violation of Mass. R. Prof. C. 1.4(a) and (b). By intentionally misrepresenting to the client that he had filed suit on his behalf and that he was in a position to negotiate a settlement, the respondent engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation and conduct adversely reflecting on his fitness to practice law in violation of Mass. R. Prof. C. 8.4(c) and (h). The respondent’s intentional misrepresentation in the affidavit provided to bar counsel on June 30, 2005, that he had sent the required notice to all of his clients when no notice had been sent to this client and his intentional misrepresentation in the affidavit provided to the Court on January 25, 2006, that he had fully complied with the provisions of the suspension order were in violation of Mass. R. Prof. C. 3.3(a)(1) and 8.4 (c), (d), and (h).

In aggravation, the respondent had a history of discipline which consists of a prior admonition, Admonition 96-34, 12 Mass. Att'y Disc. R. 654 (1996); a six-month suspension, Matter of O’Connor, 21 Mass. Att'y Disc. R. 525 (2005); and a suspension for a year and a day, Matter of O’Connor, 25 Mass. Att'y Disc. R. 453 (2009). In the latter case, the suspension commenced on April 27, 2009. The respondent did not petition for reinstatement and remained suspended until disbarment entered in this case on December 2, 2010.

Bar counsel filed a petition for discipline against the respondent on July 28, 2010. In aggravation, the respondent failed to file an answer to the petition. By letter dated August 23, 2010, the Board of Bar Overseers notified the respondent that the allegations in the petition were deemed admitted and that he had waived his right to be heard in mitigation.

On October 18, 2010, the board voted recommend to the Court that the respondent be disbarred. The Court so ordered on December 2, 2010.

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.