In the Matter of Stephen H. Merlin

HEARING PANEL REPORT

INTRODUCTION

The Petitioner, Stephen H. Merlin, was indefinitely suspended from the practice of law in May of 1998, retroactive to June 27, 1997, the date of his temporary suspension. On or about January 5, 2003, he filed a Petition for Reinstatement in accordance with Supreme Judicial Court Rule 4:01, Section 18. Hearings were held on May 21, 2003 and August 7, 2003, before a Hearing Panel consisting of Board Members Janet Kenton-Walker, Esq. (Chair), Alan D. Rose, Esq. and Maryanne Frangules. This Report contains the Panel's Findings of Fact, Conclusions of Law and Recommendation.

FINDINGS OF FACT

1. The Petitioner resides at 62 Brentwood Drive, North Easton, Massachusetts. He is married with three children.

2. The Petitioner graduated from the University of Massachusetts in 1971. He later attended and graduated from the New England School of Law in 1975.

3. The Petitioner was admitted to the Massachusetts bar on December 18, 1975.

4. After admission to the bar, the Petitioner went into the private practice of law in Brockton, Massachusetts. He practiced mainly as a solo practitioner in the areas of domestic relations, estates, criminal defense, personal injury and collection work.

5. The conduct of the Petitioner that led to his suspension consisted of essentially two incidents.

6. Between 1983 and 1993, the Petitioner had drafted a will, trust and amendment for a client, Israel Rotblit. Under the terms of the trust, the Petitioner was to become the trustee upon Mr. Rotblit's death and then distribute the trust's assets to the designated non-charitable and charitable beneficiaries. After Mr. Rotblit passed away, the Petitioner paid the non-charitable beneficiaries, but failed to pay the charitable beneficiaries. Instead, he converted almost $85,000 of the trust's funds to his own use and paid personal and business expenses. He then made false representations to an attorney for one of the charitable beneficiaries stating that the settlor had recently died and that he expected to pay a bequest of $25,000 by May 1, 1996, and failing to disclose that the charity was entitled to an additional bequest as the residuary beneficiary.

7. In the second matter, the Petitioner had been appointed to represent an indigent client on a criminal appeal in 1993. He twice neglected to file the brief resulting in a dismissal of the appeal. Both times he failed to notify the client of the dismissals. The client complained to Bar Counsel who began an investigation. In a letter to Bar Counsel, the Petitioner falsely represented that the brief had been filed.

8. On June 27, 1997, pursuant to Bar Counsel's petition, the Supreme Judicial Court entered an order temporarily suspending the Petitioner from the practice of law.

9. A more detailed and full explanation of the events and circumstances that resulted in the Petitioner's indefinite suspension are described in Matter of Merlin, 14 Mass. Att'y Disc. R. 501 (1998), which was admitted as Exhibit 1.

10. Following the filing of the complaint with Bar Counsel's office, the Petitioner repaid the funds he had taken from the Rotblit estate, together with interest.

11. The Petitioner had attempted to portray the image of a "successful" lawyer by living well beyond his means, and he explained that his theft of the estate funds resulted from the desperate financial circumstances he ended up in at that time. Unfortunately, he was too ashamed and embarrassed to either discuss with or seek help from members of his family, his friends, rabbi, or colleagues.

12. We find that the Petitioner has accepted responsibility for his actions, has expressed considerable remorse for those actions and, with the help of a loan from a generous family member, not only paid back the money he took from the Rotblit trust, but has begun to put his financial situation in order.

13. After his suspension, the Petitioner worked at a garment mill in Fall River and attended the University of Massachusetts in Boston where he obtained a masters degree in business administration in 1999. He also taught Hebrew to Bar and Bat Mitzvah students at Temple Beth Emunah, where the Petitioner has remained active and involved in the activities of the Temple, including helping to conduct services.

14. In July 2001, the Supreme Judicial Court granted his petition to permit him to work as a real estate paralegal in the offices of Attorney Mark Gladstone. The Petitioner is in charge of coordinating all of the paperwork and title examinations necessary for the real estate closings for Attorney Gladstone. Attorney Gladstone testified, and we credit his testimony, that he has been extremely satisfied with the Petitioner's work, has complete trust in him and is prepared to offer the Petitioner a position in his office if he is reinstated.

15. On November 9, 2001, the Petitioner successfully completed the Multi-State Professional Responsibility Exam with a score of 88.

16. Rabbi David Werb of Temple Beth Emunah described the Petitioner as an active member of the Temple community, having served as its president and on the board of directors. Rabbi Werb further testified, and we credit his testimony, that the Petitioner was generally a man of high moral character and that the actions that led to his suspension were out of character and contrary to the experiences the Rabbi had with him.

17. Tal Gilad, a relative of Israel Rotblit, testified that the emotional harm she and other members of her family endured as a result of the Petitioner's actions should preclude reinstatement of the Petitioner.

18. The Petitioner has read Lawyer's Weekly during his suspension and has remained current in the law through his paralegal work with Attorney Gladstone.

19. If reinstated, the Petitioner hopes to continue employment with Attorney Gladstone as an associate and has no desire to return to private practice as a solo practitioner.

20. Bar Counsel has no objection to the Petitioner's reinstatement.

CONCLUSIONS OF LAW

1. The Petitioner is now eligible to apply for reinstatement pursuant to Supreme Judicial Court Rule 4:01, Section 18(2)(c).

2. In reinstatement proceedings, the Petitioner has the burden of proving that he has the moral qualifications, competence and learning in the law required for admission to practice law in the Commonwealth of Massachusetts, and that his reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice or to the public interest.

3. The concerns that Tal Gilad and her family have concerning the Petitioner's reinstatement are understandable given their relationship to Israel Rotblit; however, their opinion is only one factor to be considered in reviewing this petition. No other member of the public has opposed this reinstatement petition.

4. Based on the foregoing findings of fact and on all of the testimony, exhibits and other evidence in the record, this Hearing Panel concludes that Petitioner has the moral qualifications, competence and learning in the law required for admission to practice law in the Commonwealth of Massachusetts and his reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice or to the public interest.

5. The Petitioner has fully complied with all the terms and conditions of the order imposing suspension and has fully completed the term of suspension.

6. No costs were assessed against the Petitioner by the Court pursuant to Supreme Judicial Court Rule 4:01, Section 23.

7. The Petitioner has made full restitution of the converted funds.

CONCLUSION

The Hearing Panel recommends that Stephen H. Merlin's Petition for Reinstatement be allowed with the condition that, should he return to the practice of law, for a period of two years thereafter, he be required to practice in association with one or more members of the bar, approved by Bar Counsel, who will supervise him, and to obtain and maintain malpractice insurance.

Janet Kenton-Walker, Esq. (Chair)
Alan D. Rose, Esq.
Maryanne Frangules

Dated: December 10, 2003

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