Attorney’s Estate May Proceed Against Restaurant

The estate of an attorney who died in a single car accident has made sufficient averments to survive in its Dram Shop action against the establishment that served him liquor before the fatal drive home, according to a decision of the Massachusetts Supreme Judicial Court.

Herman T. Bayless, the plaintiff’s decedent, was killed in a one-car accident after leaving a restaurant owned by the defendants where he had consumed alcoholic beverages. The plaintiff alleged that prior to his decedent’s fatal motor vehicle accident, the defendants exhibited negligent, wilful, wanton, and reckless conduct by selling and serving alcoholic beverages to the decedent while he was obviously intoxicated, and that such conduct was the proximate cause of the decedent’s death…

we conclude that the plaintiff’s affidavit based upon information and belief is sufficient to satisfy the procedural requirement under G. L. c. 231, § 60J, and the plaintiff has sufficiently raised a legitimate question of liability.

The attorney had been the subject of a bar disciplinary action based on a criminal conviction

  Bayless was indicted on charges of worker’s compensation fraud, in violation of G. L. c. 152, § 14, and larceny over $250 in violation of G. L. c. 266, § 30, for continuing to accept worker’s compensation benefits arising from the death of his wife after remarriage to a different woman. Bayless’ s wife died in 2001 on the job as a Department of Corrections officer, and he remarried in 2004. On September 13, 2010, he tendered a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970) (Alford), and by agreement with the Commonwealth, a Superior Court judge continued the case without a finding for three years subject to probation conditions. Bar Counsel argues that a so-called Alford plea qualifies as a conviction under the definition provided by Rule 4:01, section 12(1), and consequently, places the burden on Bayless to show cause why he should not be temporarily suspended from the practice of law pending final disposition of any disciplinary proceedings. S.J.C. Rule 4:01, § 12(4), as appearing in 425 Mass. 1313 (1997). For the reasons discussed below, I conclude that an Alford plea qualifies as a conviction under the definition provided by Rule 4:01, section 12(1), and refer the matter to the Board of Bar Overseers to proceed as they see fit under these circumstances.

The court denied a request for interim suspension in the disciplinary matter.

there are a litany of personal mitigating circumstances that counsel against immediate suspension. In a twist of unfortunate irony, Bayless and his new wife were divorced by decree in Worcester Probate and Family Court. Bayless represents that he has struggled not only emotionally, but also financially since the death of his wife, and now even more so since, upon dissolution, he has retained only his assets prior to his most recent marriage. He has four children, and financially supports at least three of them (one son is serving in Afghanistan). As a solo practitioner, the toll of even a temporary suspension would be quite severe.

(Mike Frisch)