In the Matter of Julie Court Molloy

HEARING PANEL REPORT

I. Introduction

On October 31, 2016, Julie C. Molloy filed a pro se petition for reinstatement from an order of suspension for a year and a day entered on February 24, 2015.

A public hearing on the petition was held on April 3, 2017. Six exhibits were admitted into evidence. Represented by counsel at the hearing, the petitioner testified on her own behalf and called two witnesses, Stanley Budryk and Gregory Roberts. Bar counsel called no witnesses. For the reasons discussed below, we recommend that the petition for reinstatement be denied.

II. Standard

A petitioner for reinstatement to the bar bears the burden of proving that she has satisfied the requirements for reinstatement set forth in S.J.C. Rule 4:01, § 18(5), namely that she possesses "the moral qualifications, competency, and learning in the Jaw required for admission to practice law in this Commonwealth, and that [her] ... resumption of the practice of law [would] not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest." Matter of Daniels, 442 Mass. 1037, 1038, 20 Mass. Att'y Disc. R. 120, 122 (2004), quoting S.J.C. Rule 4:01, § 18(5). See Matter of Dawkins, 432 Mass. 1009, 1010, 16 Mass. Att'y Disc. R. 94, 95 (2000); Matter of Pool, 401 Mass. 460,463, 5 Mass. Att'y Disc. R. 290, 293 (1988).

In determining whether the petitioner has satisfied these requirements, a panel considering a petition for reinstatement looks to "(1) the nature of the original offense for which the petitioner was [suspended or disbarred], (2) the petitioner's character, maturity, and experience at the time of [her suspension or disbarment], (3) the petitioner's occupations and conduct in the time since [her suspension], (4) the time elapsed since the [suspension], and (5) the petitioner's present competence in legal skills." Matter of Prager, 422 Mass. 86, 92 (1996); see Matter of Hiss, 368 Mass. 447,460, 1 Mass. Att'y Disc. R. 122, 133 (1975).

The conduct giving rise to the petitioner's suspension is affirmative proof that she lacks the moral qualifications to practice law. See Matter of Centracchio, 345 Mass. 342, 346 (1963). To be reinstated, the petitioner has the burden of proving that she has led '"a sufficiently exemplary life to inspire public confidence once again, in spite of his previous actions."' Matter of Prager, 422 Mass. at 92, quoting Matter of Hiss, 368 Mass. at 452, I Mass. Att'y Disc. at 126.

III. Disciplinary Background

The petitioner was admitted to the bar on December 19, 1989. (Ex. 3). A sole practitioner (Tr. 32, petitioner),¹ she was suspended on February 24, 2015, for a year and a day, after stipulating to various acts of misconduct in two matters. In the first matter, she knowingly falsely represented to the client that the expert required a $2,000 retainer and asked the client to send her $2,000 for the retainer; she intentionally misused $1,000 of the client's funds for her own purposes; she failed to call the expert as a witness for the client at trial; she knowingly falsely represented to the client that the expert was unavailable to appear at his trial; she failed to comply with orders of the court in the expert's suit against her, which resulted in the entry of a default and necessitated the issuance of a capias warrant; and she intentionally violated the court's order to make installment payments of $500 per month to the expert.

In the second matter, the petitioner was retained to represent a client in a divorce. She deposited the retainer check into her IOLTA, but within two months she had misused the client's retainer for her own purposes; she failed to provide the client with any written itemized bills or other accountings showing the services rendered on or before the dates on which withdrawals from the trust account were made; she failed to provide the client with a full written accounting upon termination and failed to refund the unearned portion of the retainer; and she failed to act with reasonable diligence and promptness in representing the client. (Ex. 3).

In mitigation, the petitioner has a history of depression and anxiety disorder during the relevant periods of time and for which she has received treatment. The petitioner's depression and anxiety disorder impaired her judgment and contributed to her violations. Also in mitigation, the petitioner had paid the first client $1,000 and the expert $2,913.68 by the date of her suspension. (Ex. 3). In her reinstatement petition, she stated that she reimbursed the second client some time in 2016. (Ex. 1, page 2).

In aggravation, the petitioner has a history of prior discipline. In 2009, the petitioner received an admonition for disclosing confidential information. See Ad. No. 09-13, 25 Mass. Att'y Disc. R. 676 (2009). In 2013, the petitioner received a public reprimand for failure to properly maintain her IOL TA account. See Matter of Molloy, 29 Mass. Att'y Disc. R. 458 (2013).

IV. Findings

A. Moral Qualifications

As explained below, while we find that the petitioner is truly remorseful, this does not, by itself, affirmatively establish that she has reformed and has been rehabilitated. See Matter of Waitz, 416 Mass. 298,305, 9 Mass. Att'y Disc. R. 336,343 (1993) ("[r]eform is 'a state state of mind' that must be manifested by some external evidence").

We found the petitioner's claims of remorse to be credible. See Matter of Ellis, 457 Mass. 413,416, 26 Mass. Att'y Disc. R. 162, 166 (2010) (identifying remorse as one of factors in support of successful showing of good moral character). Her reinstatement questionnaire and initial testimony did not display an acceptance of responsibility sufficient to demonstrate reform. They referred to her conduct as "overcharging" (Ex. 1, reinstatement questionnaire Part I, § II.B., p. 2 (describing her misconduct in both matters as "overcharging client"); Tr. 45-66, 51-52). She also testified that she did not know that she had admitted to falsely representing to a client that she needed a $2,000 retainer and then intentionally misused $1,000 of it (Tr. 46-48). On further questioning, however, she said, "I not only overcharged the client, I misused client funds," but without actually admitting she lied to the first client about the retainer. (Tr. 50). Nevertheless, having observed the petitioner carefully during her testimony, we find her to be repentant and remorseful.

"A petitioner's moral character can be illustrated by charitable activities, volunteer activities, commitment to family, or community work." Matter of Sullivan, 25 Mass. Att'y Disc. R. 578, 583 (2009). In Matter of Wong, 442 Mass. 1016, 1018, 20 Mass. Att'y Disc. R. 540, 543-544 (2004), under "moral qualifications," the Court noted that the petitioner had been "active in his church community and supportive of his sons' group activities, particularly the activities stressing social responsibility. He has undertaken community-oriented activities with an attitude that evidences a sensitivity beyond himself and a respect for others. He has, in short, established the self-reform necessary to make him a person proper to be held out by the court to the public as trustworthy."'

Here the petitioner did no work for any charities, and there was also an absence of other evidence of community service.² See Matter of Ostrovitz, 31 Mass. Att’y Disc. R. _, BD-2008-076, slip op. at 6 (May 6, 2015) (charitable activities despite being a single parent of a minor child with serious medical problems); Matter of O'Sullivan, 31 Mass. Att'y Disc. R. _, BD-2000-066, slip op. at 7-8 (May 14, 2015) (commendable charitable activities). She has, however, assisted a neighbor who is going blind from diabetic retinopathy, by driving him to medical appointments, and by doing cooking, shopping, cleaning, and other household chores (Ex. l, page 2), albeit in exchange for a place to live. (Tr. 10; tr. 117, Roberts). It is therefore not truly charitable.³

The petitioner's father died on July 1, 2004, and since then she has suffered from depression and anxiety; rather than seeking treatment, she began drinking heavily. (Tr. 26-28, 84, 91). She did not seek treatment until 2013 or 2014 at a walk-in clinic, but did not feel comfortable with the counselor there. (Tr. 28-29). She first testified that she had stopped drinking in March of 2015 and has been compliant with her medication⁴ for depression and anxiety since then. (Tr. 31-32). However, on cross-examination with reference to her reinstatement questionnaire, the petitioner testified that she had "fallen off the wagon" about five times between March and December 2015. (Tr. 72).

Mr. Budryk testified that he has known the petitioner since she was eight years old. (Tr. 100, Budryk). Most of his testimony involved discussing her family history and his efforts to assist her in staying sober and to encourage her to attend AA. (Tr. 101-107, 109-100). Mr. Budryk also wrote a brief letter on the petitioner's behalf (Ex. 6); it blamed her life "falling apart" due to her father's death and her "turning to alcohol to cope."

The other witness, Mr. Roberts, is a retired pharmacist who has known the petitioner since 2000. (Tr.112-113, Roberts). While he never saw the petitioner while she was intoxicated, he knew that she was "spiraling" and "disheveled." Because Mr. Roberts is going blind, he needs someone to assist him in many activities. The petitioner needed a place to live, and she and Mr. Roberts agreed that the petitioner could stay on his couch and help him with some of his daily activities. She has been living in his house since January of 2016 and he has never seen her drink since then. (Tr. 117-118, Roberts).

Putting aside the witnesses who testified as to the petitioner's current sobriety since January 2016 (Tr. 118, Roberts), she briefly attended AA from September through November 2015, but has not attended since then and has failed to keep in touch with her sponsor. (Tr. 69-70). While there is AA in Cotuit, where she lives, she found it "too difficult to find a regular meeting to go to, that [she] could go to every single week, yes, a meeting that I enjoy." (Tr. 70- 71). The petitioner also did not meet with LCL until January 31, 2017, because of the cost of traveling to Boston. (Tr. 72-75). Although she could have participated in subsequent LCL sessions by telephone, she failed to follow up. (Tr. 74-76). Even one of her own witnesses testified that the petitioner is not yet "back on her feet 100 percent. She's probably right now at 65 to 70 percent. She still has another 30, 35 percent to go, but she's well on her way." (Tr. 105-106, Budryk).

We find that the witnesses did not further the petitioner's claim of reform and rehabilitation. Neither related any discussion with the petitioner of her misconduct and what led to it, how the petitioner has changed or reformed in character since her suspension, or any affirmative testimony of reform, apart from her recent sobriety. While it is obviously necessary for the petitioner to have stopped drinking, sobriety by itself falls short of establishing "reform."

Considering all the evidence with which we have been presented, we find that the petitioner has not shown the moral fitness to resume the practice of law. See generally Matter of Dawkins, 432 Mass. at 1010-1011, 16 Mass. Att'y Disc. R. at 95.

B.  Competence and Learning in the Law

The petitioner's pre-suspension practice predominantly consisted of civil litigation. Originally, she did personal injury insurance defense work (Tr. 21-23, petitioner); later, as a solo practitioner on the Cape, she did mostly probate and family law. (Tr. 23-24).

Since her suspension, the petitioner has not taken any courses with MCLE, nor has she taken the free trust accounting class taught by bar counsel's office. (Tr. 57). While she knows she could apply for scholarships for CLE courses, she has not done so because she is embarrassed and finds it humiliating, although she testified she will do so now. (Tr. 57-58). She also has not taken any online courses (Tr. 60), but she reads the free slip opinions from the SJC and the Appeals Court that are of interest to her (Tr. 32-33). Given that the petitioner's 2013 public reprimand arose from multiple IOL TA accounting violations (including depositing personal funds and earned fees into her IOLTA account to avoid an IRS levy) and that her 2015 suspension arose from having misused client funds and lied to a client about case expenses (Ex. 3, prior disciplinary suspension), we find that her failure to take bar counsel's free trust accounting class or an equivalent to be a serious deficiency.

The petitioner described her practice plans should she be reinstated. While no one has offered to hire her upon reinstatement, she would like to work as an associate at a firm, because she finds solo practice to be isolating and she doesn't like billing clients or the business aspects of the practice of law. (Tr. 40-41, 82, 88, 92-94). She has no back-up plan, and states that she is not in a position to open her own practice. (Tr. 82-83).

We find that the petitioner has not demonstrated competence and learning in the substantive areas of practice law,⁵ particularly in the area of trust accounting, as discussed in more detail below.

C. Effect of Reinstatement on the Bar, the Administration of Justice and the Public Interest

SJC Rule 4:01, § 18(5), provides that the hearing panel must determine, inter alia, whether the petitioner's reinstatement would be "detrimental * * * to the administration of justice or to the public interest." "Reinstatement 'amounts to a certification to the public that the attorney is a person worthy of trust."' Matter of Prager, 422 Mass. at 93 (citations omitted). The petitioner's lack of competence and learning in the law, as it pertains to trust accounting, together with a failure to follow through with LCL and attend AA, even though she is now in counseling, compels a finding that the petitioner has not satisfied the "public interest" criterion.

Since her suspension, the petitioner has worked at a series of part-time jobs (sometimes two at once) in retail business (cake decorating, Wal-Mart, working in a bookstore, and Roche Brothers). (Tr. 63-68). She never sought permission from the SJC to work as a paralegal, saying she was told she would not be able to get a paralegal job on the Cape where she now lives.⁶

We are charged with protecting the public when considering whether to recommend reinstatement of a suspended or disbarred lawyer. Matter of Shyavitz, 26 Mass. Att'y Disc. R. at 616-617 (denying reinstatement because the petitioner "cannot be trusted to protect client funds" or "to protect other interests of his client"); Matter of Ellis, 457 Mass. 413,418 (2010) (imposing restrictions on petitioner's resumption of the practice of law and other conditions "to assure the protection of the public interest above all else"). See Prager, supra, at 101 (on reinstatement, we must "independently assure the public that the applicant is trustworthy and 'that the guilty person can ... inspire the public confidence necessary to the proper performance of the duties of an attorney at law'"; ellipsis in the Prager decision; citations omitted). We consider that responsibility to be even more serious when the suspension resulted from intentional misuse of client funds and resulting deprivation; and attempting to cover up the misconduct by false statements to clients and bar counsel.

V. Conclusions and Recommendation

As indicated above, we conclude that the petitioner has not met her burden. While she may have the moral qualifications to practice and is deserving of a second chance, we think her reinstatement could potentially have an adverse impact on the bar, and on the administration of justice or the public interest.

Moreover, she lacks the requisite learning in the law. Despite having misused client funds, which led to her suspension, she has not taken any courses since her suspension, most notably the free course in trust accounting. The petitioner testified that she hates the business aspects of the legal profession and that she wants to work for someone else. But because we cannot limit her reinstatement to working in such an environment, we must be sure she is capable of compliance with the IOLT A rules before we can recommend readmission.

We have some specific suggestions that might strengthen any subsequent petition for reinstatement. First, the petitioner needs to make a serious commitment to her future, which we find thus far to be lacking. She needs to attend AA meetings⁷ regularly and either reconnect with her sponsor or find a new one. She also needs to find a job that will enable her to do more than live hand-to-mouth⁸ while sleeping on a friend's couch. (Tr. 117, 122, Roberts). To the extent that the petitioner says she cannot find employment on the Cape but is willing to relocate to Boston, where she previously lived and worked, then she should relocate, whether to Boston, or elsewhere. She testified that her prior employers in the insurance defense field were satisfied with her work; perhaps one of them will support, as we strongly advise, a petition on her behalf for leave to work as a paralegal under SJC Rule 4:01, §18(3). That might serve a two-fold purpose: first, it would provide her with a living wage.⁹ Second, she needs to gain competence and learning in the law, in part by taking continuing education courses and courses in trust accounting, IOLTA, bookkeeping and record-keeping. Employment as a paralegal would give her valuable work experience and might also make it more feasible for her to take CLE courses. She needs to work with LCL on a regular basis as LCL recommends. Her being in or near Boston would facilitate that as well.

Before, and as a condition to, being reinstated, the petitioner should make full use of LOMAP's resources to learn trust accounting and law office management, should the need arise. We further recommend that, at such time as the petitioner may be reinstated, she be required to advise bar counsel if she goes out on her own or becomes a partner, or otherwise has responsibility for or access to client funds. In that case, she should be required to enter into a two-year monitoring agreement acceptable to bar counsel of her law practice, which would include review of her law practice and her bookkeeping.

Accordingly, we recommend that the petition for reinstatement filed by Julie C. Molloy be denied.

 

¹ All remaining transcript cites are to the petitioner's own testimony, unless otherwise noted.

² In Matter of Sites, 19 Mass. Att'y Disc. R. 448, 453-456 (2003), the hearing panel report had separate discussions of the petitioner's "treatment," which discussed his hospitalization for his alcoholism, and subsequent out-patient counseling; "rehabilitation" (his church-related activities); and "civic activities" (community-based volunteer work).

³ See Matter of Ascher, 31 Mass. Att'y Disc. R. _, BD-2000-020, slip op. at 8, n.4 (Sept. 24, 2014), where the hearing panel rejected the petitioner's paid work for two non-profits as "charitable endeavors."

⁴ The petitioner had been on medication at the time of her misconduct, but does not remember whether it is the same medication she is taking now. (Tr. 77-78). She was scheduled to see a physician for an evaluation of her medication after the date of her reinstatement hearing. (Tr. 78-80).

⁵ We acknowledge that the petitioner was admitted to the bar in 1989 and has been suspended now for slightly over two years. The panel would have given more weight to her prior legal experience, but for her two prior disciplines before the present suspension.

⁶ While it was not evidence, her counsel asserted that even without her disciplinary history, she would not be able to get a "paralegal job" on the Cape because Cape lawyers "have administrative people who work for them." (Tr. 137). Regardless of the job title, and as we discuss below, the petitioner needs to work in a legal capacity before seeking to be reinstated as a lawyer. It is the SJC that references a suspended lawyer's seeking permission to work as a paralegal, S.J.C. Rule 4:01, § 18(3), in between its discussions of "eligibility for reinstatement" and "petitions for reinstatement." We assume that placement is intentional.

⁷ One of the petitioner's own witnesses, who has personal experience with alcoholics, said the petitioner is an alcoholic, as are all recovering alcoholics, and she needs to resume and continue AA meetings. (Tr. 105, 109-110, Budryk).

⁸ Ex. 1, reinstatement questionnaire, §§ G&H, "I have no money to pay for any courses or subscriptions as my menial jobs have barely kept a roof over my head and food on the table."

⁹ While she was not specifically asked the question, it appears from the petitioner's testimony that she could not afford the $300 BBO registration fee, which in tum would only lead to her administrative suspension for non-payment.

Related to No. BD-2015-008

• S.J.C. Order of Term Suspension entered by Justice Botsford, 02/24/2015
• S.J.C. Order Allowing Employment as a Paralegal entered by Justice Cypher on November 20, 2017., 11/20/2017