In the Matter of Marc Daniel Foley

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

MEMORANDUM OF DECISION

Attorney Marc Daniel Foley has petitioned for reinstatement t6 the bar under S.J.C. Rule 4:01, § 18 (4), as amended, 394 Mass. 1106 (1985), after having been suspended from the practice of law in Massachusetts for eighteen months by a single justice of this court on February 22, 2010. His petition for reinstatement is denied.

On March 12, 2012, the Board of Bar Overseers (Board) adopted the hearing panel's report and its recommendation that Foley's petition for reinstatement be denied. The findings and recommendations of the Board are entitled to deference but are not binding on this court. In re Ellis, 457 Mass. 413, 415 (2010); Matter of Prager, 422 Mass. 86, 89 (1996). "The test of fitness for reinstatement is two pronged. Not only must a petitioner demonstrate the requisite moral qualifications and learning in the law, but he also must show that his resumption of the practice of law will not be detrimental to the integrity of the bar, the administration of justice, or the public interest." Id. at 93, citing S.J.C. Rule 4:01, § 18 (5), as amended, 394 Mass. 1106 (1985). "The conduct giving rise to the petitioner's disbarment is affirmative proof that he lacked at the time the moral qualifications to practice law, and he bears the heavy burden of establishing that he presently meets those moral and competency qualifications" (citation omitted). In re Ellis, supra at 415. "In judging whether he is fit to serve as an attorney, the court looks. 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 he was disbarred; (3) the petitioner's occupation 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." Id. The petitioner must show that he has so rehabilitated himself that he 'currently possesses the necessary moral character to be admitted to the bar of the Commonwealth," Matter of Prager, supra at 92, and will "inspire public confidence once again, in spite of his previous actions." Id. at 89, quoting Matter of Hiss, 368 Mass. 447, 452 (1975). "[I]t is appropriate, despite the lack of specific directive~, to consider the public perception of and confidence in the bar when determining the fitness of original applicants to practice law in the Commonwealth." Matter of Prager, supra at 93.

Here, there is no dispute that Foley has the competency and learning in the law required to practice law in this Commonwealth. Reinstatement was denied by the Board because he did not meet his burden of showing current moral fitness. In view of the deference given to the Board's decision and my independent review of the evidence, I conclude that the Board did not err in reaching this conclusion.

I am particularly troubled by Foley's failure to disclose to Bank of America when he applied in January, 2011, to work as a mortgage loan officer that he had been suspended from the practice of law for having certified (and causing an associate to certify) HUD-1 statements that falsely represented that buyers had made down payments when they purchased their condominiums. His moral fitness to practice law is properly placed in question by his decision to accept this employment without notifying his prospective bank employer that he had been suspended from the practice of law for conduct that reasonably could be characterized as bank fraud. ¹

I am equally troubled by his failure to reveal to Bank of America that he had been placed on an "exclusionary list" by the Federal Home Loan Mortgage Corporation (Freddie Mac), which meant that he could not participate in mortgage transactions where the mortgage would be sold to Freddie Mac on the secondary market. Foley admitted that he had received notice from Freddie Mac in February 2009 that he and his firm had been placed on the exclusionary list, and that he had appealed this decision. The Board did not clearly err in rejecting his contention that he did not receive notice of the denial of his appeal, where the denial was sent to his .home in a 'next day air letter" through United Parcel Service and receipt of the letter was acknowledged, albeit not by Foley. Even if he did not receive notice of the denial, he certainly knew that he had been placed on the "exclusionary list" and had no reason to believe that, without giving notice to him, Freddie Mac had allowed his appeal. The significance of this omission is demonstrated by the bank's conduct when it learned that he was on this "exclusionary list' - Foley was promptly placed on indefinite suspension and never returned to work as a mortgage loan officer.

In light of this conduct, considered together with the other relevant findings of the Board, which I do not find to be clearly erroneous, I conclude that Foley has failed to satisfy his burden of showing that he has the necessary moral character to practice law. I also conclude that, in view of the totality of his 6onduct, the public's confidence in the bar would be diminished by his reinstatement. ²

Conclusion. For the reasons stated above, Foley's petition for reinstatement is denied.

Ralph D. Gants
Associate Justice

Entered: April 30, 2012

¹ Foley was later indicted by a Federal grand jury on charges of bank fraud based on the same conduct that resulted in his suspension from the practice of law. He is presently awaiting trial.

² While my decision would be the same even if criminal charges of bank fraud were not currently pending against him, I note that reinstatement while he is awaiting trial on these charges would likely also diminish the public's confidence in the bar.

Related to No. BD-2010-005

• S.J.C. Order of Term Suspension entered by Justice Gants, 02/22/2010
• S.J.C. Judgment of Disbarment entered by Justice Duffly, 11/02/2015