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Commonwealth of Massachusetts


2004 Admonitions



ADMONITION NO. 04-01

CLASSIFICATIONS:
Failing to Communicate Adequately With Client [Mass. R. Prof. C. Rule 1.4(a)]
Improper Disclosure of Confidential Information [Mass. R. Prof. C. Rule 1.6(a)]
Withdrawal Without Permission from Tribunal [Mass. R. Prof. C. Rule 1.16(c)]
Withdrawal Without Protecting Client or Refunding Fee [Mass. R. Prof. C. Rule 1.16(d)]

SUMMARY:
During 2001, the respondent represented a woman in connection with a complaint he had filed in court for damages the client had suffered in an automobile accident. Because of serious personal and emotional problems, the respondent decided to close his practice and refer his clients to other attorneys. In November 2001, the respondent forwarded this client's' case file to successor counsel without advising the client of his withdrawal as her attorney and without obtaining her advance consent to have the file forwarded to another lawyer. The respondent also did not seek court approval in advance for his withdrawal from the client's case.

The client made repeated, unsuccessful efforts to contact the respondent about her case. The respondent did not return the client's telephone calls. The client did not become aware that her case had been transferred to successor counsel until sometime in mid 2002.

By failing to communicate with his client about the status of her case, the respondent violated Mass. R. Prof. C. 1.4(a) (lawyer shall keep client reasonably informed about status of a matter and comply with reasonable requests for information). By transferring the client's file to new counsel without the client's knowledge or consent, the respondent violated Mass. R. Prof. C. Rule 1.6(a) (lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation). By failing to inform the client in advance that he was withdrawing from her case and by failing to obtain permission from the court for his withdrawal, the respondent violated Mass. R. Prof. C. 1.16(c) and (d) (lawyer shall not withdraw from employment in a proceeding in court without the court's permission and lawyer shall give reasonable notice to a client before terminating his representation of the client).

In mitigation, the client suffered no significant prejudice as a result of the respondent's actions. The respondent received an admonition for his misconduct.


ADMONITION NO. 04-02

CLASSIFICATIONS:
Failing to Seek Client's Lawful Objectives [Mass. R. Prof. C. 1.2a]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
The respondent was retained to represent a client in a personal injury matter arising out of a May 1995 motor vehicle accident in which she was injured as a pedestrian. The respondent filed suit on her behalf in this matter in July 1997.

In December 1997, the client was injured again in another motor vehicle accident. The client hired other counsel to represent her in this matter. However, in late December 2000, a few days prior to the expiration of the statute of limitations, the client discharged this attorney, and asked the respondent to handle the second claim.

The respondent, who was heavily involved in trial preparation for the first matter, quickly prepared a complaint and filed suit on the second matter two days before the statute of limitations was set to expire. However, the respondent failed to serve the complaint on the defendant and failed to enter the case in his firm's database.

In late March 2001, the court dismissed the second matter due to the respondent's failure to effectuate service on the defendant. The respondent learned of the dismissal on March 23, 2001, but did not immediately advise the client about the dismissal because he was in the midst of preparing for trial in the first matter, which had been continued and was rescheduled to begin on April 2, 2001.

The first matter ended in a defense verdict after a weeklong trial. The respondent was upset about the loss and did not remember the dismissal of the second claim. Thus, he failed to take any action to vacate the dismissal.

The respondent timely filed a notice of appeal on the first matter, but advised the client that he did not wish to represent her on the appeal and asked her to obtain appellate counsel. He then closed his file on the first matter and sent the file, which consisted of six banker's boxes, to an offsite storage facility. The file for the second claim was inadvertently placed in one of those six boxes.

In December 2001, the respondent's firm relocated its office and began a physical inventory of all open and closed files. The file for the second matter was discovered at the firm's offsite storage facility in February 2002. Upon finding the file, the respondent filed a motion to vacate the dismissal on or about March 12, 2002. The motion was denied on July 22, 2002. The respondent then telephoned the client and advised her for the first time that there was a problem with her second claim that he could not correct and that he wished to discuss it with her in person.

Due to scheduling difficulties, the respondent did not actually meet with the client until August 2003. He then explained the circumstances surrounding the dismissal of the claim and apologized. He also advised the client of his firm's malpractice insurance.

By failing to effectuate service on the defendant resulting in the dismissal of his client's claim, failing to take timely action to vacate the dismissal and failing to timely advise the client about the dismissal, the respondent violated Mass. R. Prof. C. 1.2(a), 1.3 and 1.4.

The respondent was admitted to the Bar in 1972 and has no prior discipline. He received an admonition for his conduct, conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 04-03

CLASSIFICATIONS:
Failing to Seek Client's Lawful Objectives or Abide by Client's Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)] Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
On or about April 7, 1998, a client retained the respondent to represent him in obtaining the return of a motor vehicle that was being held by an automobile repair shop pursuant to an alleged mechanic's lien. The shop was insisting that the client sign a release as well as pay the bill in full. In addition to obtaining the return of his vehicle, the client also wished to file a claim against the shop pursuant to G.L. c. 93A and a claim for breach of contract.

The respondent entered into negotiations with attorneys for the repair shop but the parties were initially unable to reach an agreement. In or around May 1999, the respondent negotiated a settlement. Pursuant to the terms of that settlement, the vehicle was to be returned to the client upon payment of the repair bill with the understanding that neither party waived any claims against the other. The respondent sent a check to the counsel for the repair shop on or about May 24, 1999. However, the car was not delivered to the client because it was still not working properly. The car was finally returned to the client in September 1999.

The respondent advised the client that in order to pursue a civil claim, the client needed to obtain an expert witness to substantiate the damages caused by the repairs and a written estimate of the additional repairs that were necessary as a result of those damages. The client found a mechanic in Vermont who was willing to act as an expert witness. He gave the respondent a business card with the mechanic's telephone number and asked the respondent to contact him. The respondent never spoke to the witness.

The client sent the respondent a letter by certified mail dated June 13, 2002, expressing dissatisfaction with the respondent's representation. The client questioned

whether or not the respondent had ever contacted the expert witness. The respondent was offended by the letter and did not reply. The respondent also made a decision to terminate his representation of the client without informing the client that he was doing so.

The client filed a grievance against the respondent at the Office of Bar Counsel in July 2003. By then, the statute of limitations had expired on the client's 93A claim. However, the client's contractual claims against the repair shop remained viable. The respondent advised the client that he carried malpractice insurance and suggested that the client obtain counsel to pursue any claims he had against the repair shop and the respondent.

By failing to contact the client's witness and to file suit on behalf of the client prior to the expiration of the c. 93A statute of limitations, the respondent violated Mass. R. Prof. C. 1.2(a) and 1.3. By failing to communicate with the client, he violated Mass. R. Prof. C. 1.4. By making a decision to terminate his representation of the client without so advising the client and without taking steps to protect the client's interests, the respondent violated Mass. R. Prof. C. 1.16(d).

The respondent has been a member of the bar since 1975. He received an admonition for his conduct in this matter, conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 04-04

CLASSIFICATION:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]

SUMMARY:
The respondent is a conveyancer. In two separate instances, one in November 2002 and another in March 2003, the respondent closed on real estate loans without confirming that the mortgage funds either had been received or were in the appropriate account.

The respondent maintains two IOLTA accounts. In the first matter, the mortgage funds were wired by the lender in November 2002 to the wrong IOLTA account. Prior to the closing, the respondent did not confirm receipt of the funds to the account from which he actually conducted the closing. The respondent subsequently transferred the funds to the correct account.

In the second matter, the respondent again closed on a loan in March 2003 without confirming that the lender had wired the mortgage proceeds to his IOLTA account. The funds in fact had not been wired. The respondent discovered the error in May 2003 and contacted the lender, which then wired the funds.

The respondentís record keeping for his IOLTA accounts was inadequate. He did not routinely confirm receipt of wires with the banks before proceeding with closings. Although he maintained electronic check registers, he did not reconcile the accounts during busy periods and thus was unaware for two months after the closing that the wire for the second closing had not been received. The respondentís conduct in going to record without having received the mortgage funds was also in violation of the ďgood fundsĒ statute, G.L.c.183, ß63B.

The respondentís conduct in these respects was in violation of Mass. R. Prof. C. 1.15(a). The respondent has been a member of the bar since 1990 with no prior discipline. He accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 04-05

CLASSIFICATION:
Excessive fee [Mass. R. Prof. C. 1.5]

SUMMARY:
In November 1999, the respondent was retained to recover damages for injuries sustained by a client when a taxicab in which the client was a passenger hit a parked car. The respondent and the client entered into a contingent fee agreement that set the respondentís fee at one third of all monies recovered.

In August 2000, the respondent filed the clientís application for PIP medical benefits. The PIP insurer did not contest the claim for benefits and issued a check for $3,297.93, the full amount.

In April 2001, the respondent, with the approval of the client, settled the clientís claim against the taxicab company for $14,100.00.

The respondent calculated his fee by taking one third of all the funds recovered, including the uncontested PIP benefits. In so doing, he charged a clearly excessive fee in violation of Mass. R. Prof. C. 1.5(a). The respondent refunded the fee taken to the client after a complaint was filed with the Office of the Bar Counsel.

The respondent received an admonition conditioned upon attendance at a CLE course designated by bar counsel.


ADMONITION NO. 04-06

CLASSIFICATIONS:
Conduct Prejudicial to the Administration of Justice [Mass. R. of Prof. C. 8.4(d)]
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4 (h)]

SUMMARY:
The respondent received an admonition for unprofessional behavior toward court personnel and opposing counsel.

The majority of the respondentís solo practice consists of court appointed criminal defense work. Over the course of the last ten years, the respondent had several confrontations with courthouse personnel and opposing counsel. In a 2001 incident in court, the respondent, after trying to get the court interpreterís attention, motioned her to approach the prisonerís dock, and said "Donít think that I'm going to kiss your ass to get you to do thisÖ.Ē The respondent concedes that he acted inappropriately and apologized to the interpreter.

In another incident, at a bail hearing in district court in 1998, a female assistant district attorney attempted to correct the respondent. The respondent approached her in an aggressive manner and poked her with his finger. The respondent later apologized to opposing counsel. In speaking to a male assistant district attorney, the respondent referred to female prosecutors in vulgar and derogatory terms.

The respondentís verbal abuse of opposing counsel and courthouse personnel is conduct prejudicial to the administration of justice and reflects adversely on his fitness to practice law in violation of 8.4(d) and (h).

The respondent has been a member of the bar since December 15, 1993, and has received no prior discipline. He regrets his behavior and understands that he must refrain from intemperate conduct.


ADMONITION NO. 04-07

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]

SUMMARY:
In August 2001, the respondent began representation of a client regarding the sale of the assets of the clientís restaurant. The client already had a preliminary oral agreement with potential buyers to sell the restaurant for $55,000.00. The client was to receive $25,000 in cash and the balance was to be secured by a promissory note. A written sales contract had not been executed and a closing date had not been determined.

The respondent and the client also discussed dissolution of the clientís LLC and payment of the restaurantís outstanding debts (rent arrearages and unpaid taxes). The respondent asked the client to determine the amount that she owed and to find out whether there were any liens on the assets.

On or about August 30, 2001, the respondent received a telephone message from the buyersí counsel, seeking a contract for the sale. The respondent advised counsel that she needed to investigate some issues regarding the restaurant before they could proceed.

The buyers took occupancy of the restaurant in September 2001 even though no closing had occurred and no purchase and sales agreement had been executed. On September 24, 2001, the attorney for the buyers contacted the respondent regarding the status of the restaurant sale. He suggested to the respondent that she draft a proposed purchase and sale agreement and send it to him in order to finalize the agreement. The respondent informed the buyersí attorney that she was still researching the question of how much the client owed the Commonwealth in back taxes. The buyersí attorney suggested that any outstanding debts could be dealt with at the closing. However, the respondent was reluctant to go forward with the sale until the debt issue was resolved. She did not draft or send a proposed contract and did not engage in any negotiations with the buyersí attorney. She also failed to clearly communicate her position to the client.

The respondent met with the client again on November 18, 2001. The client advised the respondent that she was having difficulty getting information from the Commonwealth regarding the amount of her tax indebtedness. The client also informed the respondent that the buyers had the initial $25,000.00 payment check ready for her, but this check was not remitted and the respondent never followed up by contacting the buyersí counsel to request payment.

In March 2002, the client advised the respondent that the taxes were paid. The respondent contacted the buyersí attorney, who indicated that his clients were no longer willing to abide by the terms of the initial oral agreement. They now claimed that the assets were not as the client had described them and that the client had not followed through on commitments that she had made to them regarding the sale. The buyersí attorney told the respondent that he would contact her after speaking with his clients. Between July 2, 2002 and July 12, 2002 the respondent left telephone messages for the buyersí attorney, but she was unsuccessful in reaching him.

On July 16, 2002, the client terminated the respondent in writing and directed her to send the clientís file to the clientís new counsel. On August 2, 2002, the respondentís attorney sent the file to the clientís new counsel. The box of records that the client had delivered to her office in September 2001 was not included as part of the file because it was the respondentís mistaken belief that this box had been returned to the client in March 2002. On October 2, 2002, the clientís attorney wrote to the respondentís attorney seeking the box of records. On October 8, 2002, her attorney wrote to the clientís attorney and advised him that the respondent had no other papers pertaining to the client. However, the respondent subsequently found the clientís additional documents and forwarded them to the clientís attorney on January 23, 2003.

On October 4, 2002, the client filed suit against the buyers in Superior Court and filed a motion for attachment by trustee process. After their bank accounts were attached, the buyers offered to pay $25,000 if the client agreed to mediation regarding whether any additional payment should be made. The client consented to this agreement and the buyers subsequently secured and paid for an independent mediator. In March 20003, the parties agreed that the buyers would pay the client an additional $17,500. The client subsequently sent the respondent a demand letter and the respondent has notified her malpractice carrier.

Regardless of whether the existence of outstanding debts was a valid reason to delay the closing, it was not a valid reason to fail to execute a purchase and sales agreement or obtain a deposit from the buyers. The respondentís failure to obtain the deposit and to draft a formal purchase and sales agreement for the client during the eleven month period that she represented her was conduct in violation of Mass. R. Prof. C. 1.3. The respondent also never adequately explained to the client why the sale could not proceed until the outstanding obligations were paid. Her failure to adequately communicate with the client was in violation of Mass. R. Prof. C. 1.4. Finally, the respondentís failure to promptly return the clientís records after she was discharged was in violation of Mass. R. Prof. C. 1.16(e).

The respondent was admitted to practice in 1985 and has no prior discipline. She received an admonition for her conduct in this matter, conditioned upon her attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 04-08

CLASSIFICATIONS:
Neglecting a Legal Matter [DR 6 101(A)(3)] Failing to Act Diligently [Mass. R. Prof. C. 1.3] Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
The respondent represented a client in a claim arising out of a 1987 automobile accident. He was retained as successor counsel in 1989 and filed suit in 1990, prior to the expiration of the statute of limitations. He had difficulty locating the defendant and never made service. Because this case was filed prior to the instigation of time standards in the court system, the matter was never dismissed for lack of service and remained pending in district court.

In 2001, the client filed a complaint with Bar Counsel, alleging that the accident case remained unresolved. After additional unsuccessful efforts to get the defendantís insurer to review the matter, the respondent settled the claim directly with the client in 2003 from his own funds. The client is satisfied. The underlying lawsuit was in any event of very dubious viability.

In aggravation, the respondent has a prior admonition from 2001 for similar misconduct. However, the neglect here occurred during the same time frame as that in the earlier admonition. Given that fact and because the current matter has since been resolved, the respondent received an admonition for violations of Canon Six, DR 6 101(A)(3) and Mass. R. Prof. C. 1.3 and 1.4.


ADMONITION NO. 04-09

CLASSIFICATION:
Commingling Clientsí Funds with Lawyerís Funds [DR 9 102(A)]

SUMMARY:
The respondent failed to segregate funds held for clients from his personal funds. He commingled funds in two different ways. First, he permitted fees to remain in his IOLTA account after they were due and wrote checks on the IOLTA account for personal and business expenses. Secondly, he deposited personal funds in the IOLTA account in excess of the amount necessary to pay bank charges.

In the one year period covered by Bar Counselís audit of the respondentís IOLTA account, the respondent wrote at least 51 checks on his IOLTA account to pay the expenses of a business enterprise in which he was engaged. Most of the $37,500 paid by these checks came from legal fees left in the account, but approximately $5,800 was directly deposited in the account for the use of the respondentís business enterprise. No clientsí funds were used for the respondentís business enterprise.

After the start of Bar Counselís audit, the respondent ceased permitting his earned fees to remain in his IOLTA account and ceased using the account to pay personal and business expenses. He now properly withdraws his fees by checks payable to himself or his firm.

The respondentís misconduct constituted commingling in violation of Disciplinary Rule 9 102. The respondent had previously received an admonition for lack of diligence that took place in 1993. An admonition was imposed for the current offense.


ADMONITION NO. 04-10

CLASSIFICATIONS:
Failing to Seek Clientís Lawful Objectives or Abide by Clientís Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)] Failing to Act Diligently [Mass. R. of Prof. C. 1.3]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]

SUMMARY:
In October 2002, appellate counsel (ďcounselĒ) was assigned to handle the direct appeal of a criminal case in which the respondent had been trial counsel. From December 2002 until September 2003, counsel tried unsuccessfully to obtain the trial file from the respondent.

Counsel wrote the respondent on December 19, 2002 requesting his trial file and expressing an interest in having a telephone conference about potential appellate issues. This was accompanied by a written request for the file from the client. This letter was returned because the respondent had moved and the forwarding order with the post office had expired.

After writing to the respondent again in January 2003, counsel called the respondent at his new office in February 2003 and left a message. She received a message back that was not responsive. Counsel called the respondent and left messages for him, requesting a return call and the file, a total of seven times in March 2003. Also in March, counsel sent the respondent a copy of her January 2003 letter via facsimile. Finally, at the end of March, the respondent called counsel and told her that he would look for the file. That was the last counsel heard from the respondent despite calls to the respondent in April, May, and June 2003 and letters to the respondent in May and July 2003.

In September 2003, counsel filed a complaint with Bar Counsel. In October 2003, in response to the complaint, the respondent called counsel and advised her that he had lost the file. The respondent was, however, able to obtain duplicate copies of the discovery materials from the Assistant District Attorney and provide those to counsel. The respondent also provided counsel with the name and telephone number of the investigator, who in turn faxed counsel all of his notes. Finally, the respondent was able to provide counsel with a copy of his ďrunning sheetĒ for part of the case. As a result of receiving these materials in October 2003, counsel was able to review them before her appellate deadline and was satisfied that the clientís right to an effective appeal was protected.

By failing to respond to counselís numerous telephone calls and letters requesting the file and expressing an interest in discussing the potential appellate issues, the respondent failed to seek the clientís lawful objectives and failed to act diligently, in violation of Mass. R. Prof. C. 1.2(a) and 1.3. The respondent also failed to retain the file and provide it to appellate counsel within a reasonable amount of time, in violation of Mass. R. Prof. C. 1.16(d) and (e).

The respondent received an admonition for his misconduct in this matter, conditioned upon his attendance at a continuing legal education course designated by Bar Counsel.


ADMONITION NO. 04-11

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. of Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a)]

SUMMARY:
In December 2001, a client retained the respondent to file a complaint for divorce on her behalf and to negotiate a property settlement. The property included a condominium, its contents, and an automobile. The client paid the respondent a $700 retainer.

After the initial meeting, the client had difficulty reaching the respondent. She sent the respondent letters and made numerous telephone calls to him to ascertain the status of her divorce. Only rarely did she succeed in reaching the respondent. When she did, the respondent assured her that everything was proceeding smoothly.

The attorney for the clientís husband wrote the respondent in March and May 2002 advising him that the husband would accept service once the respondent had filed the complaint for divorce and that the husband would sign over title to the automobile once the client had paid the excise tax.

The respondent never filed the complaint for divorce on behalf of his client. He never advised her of the correspondence from her husbandís attorney, nor did he respond to the attorneyís letters and offers. In October 2002, the client learned that her divorce complaint had not yet been filed. In January 2003, the client sent the respondent a certified letter in which she discharged him and requested her file and a refund of the $700 retainer. Hearing nothing in response to her letter, the client contacted Bar Counsel in March 2003.

In mitigation, the respondent subsequently returned the file and the $700 retainer to the client. The respondentís own divorce and a serious illness in his family contributed to his neglect of the complainantís case. In aggravation, the clientís divorce and property settlement have been delayed and the husband has withdrawn his offer to sign over the automobile.

By failing either to file the complaint for divorce or to attempt to negotiate a property settlement, the respondent neglected a legal matter entrusted to him, in violation of Mass. R. Prof. C. 1.3. By failing to respond to his clientís letters and numerous telephone calls, the respondent also failed to adequately communicate with his client, in violation of Mass. R. Prof. C. 1.4(a).

The respondent received an admonition for his misconduct in this matter, conditioned upon attendance at a continuing legal education course designated by Bar Counsel.


ADMONITION NO. 04-12

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with a Client [Mass. R. Prof. C. 1.4]

SUMMARY:
The client hired the respondent in September of 1998 to probate the estate of her deceased husband, who died intestate with approximately $41,000 in assets. The court appointed the client as administrator of her husbandís estate and in that capacity, she handled the estate assets. The beneficiaries included the client and her two children with the deceased, as well as the deceasedís two children from a prior marriage who lived with their mother.

In March of 2001, the respondent sent the client a rough draft of the First and Final Account for the estate. During the next year, the client and the respondent communicated and the respondent revised the accounts. On March 1, 2002, the respondent forwarded the revised account to the client asking her to reconcile a discrepancy of $506.85. Although the client provided the respondent with an explanation for the discrepancy, the respondent did not revise the accounts and return them to the client until October of 2002. In addition, when the respondent filed the First and Final Account with the court in October of 2002, the respondent did not file a motion to waive the appointment of a guardian ad litem (GAL). That motion was filed on December 9, 2002.

On February 10, 2003, the respondent notified the client that the motion to waive the appointment of a GAL had been allowed on January 24, 2003, and that the respondent would check with the court to determine what steps remained to get the accounts allowed. The respondent failed to communicate with the court as promised and did not return calls from the client. Accordingly, on March 20, 2003, the client went to the court herself. At that time, she was informed that the respondent had failed to file a motion to request that the accounts be allowed.

Pursuant to the clientís request on March 20, 2003 that the accounts be allowed, the court issued a citation on April 10, 2003 with a return date of May 16, 2003. The respondent failed to make service by the return date. On June 16, 2003, the respondent returned the citation because service had not been made. On June 27, 2003, the court issued a second citation with a return date of August 22, 2003. Again, the respondent failed to complete service by the return date.

On November 10, 2003, after making numerous calls to the respondent that went unanswered, the client filed a complaint with the Office of Bar Counsel. The respondent obtained another citation on December 1, 2003 returnable on January 9, 2004. The respondent did complete the return of service by January 9, 2004 and the probate court allowed the accounts on January 16, 2004.

The respondentís failure timely to prepare estate accounts, complete service within the time period established by the courtís citations, and conclude the administration of the estate in a timely manner constituted neglect and failure to act diligently in violation of Mass. R. Prof. C. 1.3. The respondentís failure to respond timely to the clientís many inquiries between 2001 and 2003 concerning the status of the estate violated Mass. R. Prof. C. 1.4.

The respondent has been a member of the bar since 1980, and has no history of discipline. Ultimately, the respondent concluded the estate. The respondent received an admonition for his conduct in this matter conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 04-13

CLASSIFICATIONS:
Failure to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
In April 1998, the respondent was retained to deal with the clientís creditors and to file a Chapter 13 bankruptcy petition. The respondentís written fee agreement required that the entire fee of $1,910.00 be paid prior to the filing of the bankruptcy petition. The fee agreement provided that in addition to the respondentís fee, the funds would pay for all costs and expenses related to the filing of the bankruptcy petition. By the end of May 1998, the client had paid the respondent the entire fee.

In mid-1998, the respondent left the full-time practice of law. The respondent wrote to the client that the respondent would continue to work on the clientís matter until it was complete.

Over the next eighteen months, the respondent met with the client, took information from the client that would be required to file the bankruptcy petition, and dealt with the clientís creditors. The respondent never filed the Chapter 13 petition.

In January 2000, the respondent ceased the practice of law. The respondent did not inform the client of this fact and did not return the clientís file or refund any unearned portion of the fee.

By late 2002, the respondent still had not filed the Chapter 13 petition. On February 3, 2003, the client filed with bar counsel a request for investigation alleging that the respondent had failed to file the bankruptcy petition, failed to communicate with the client, and failed to return any part of her fee or her file. On September 15, 2003, the respondent refunded the entire fee to the client and sent the client a copy of the entire file.

By failing to file the Chapter 13 bankruptcy petition and failing to maintain adequate contact with the client, the respondent violated Mass. R. Prof. C. 1.3 and Mass. R. Prof. C. 1.4(a) and (b). By terminating the representation of the client without informing the client or taking steps to protect the clientís interest and without returning the unearned part of the fee, the respondent violated Mass. R. Prof. C. 1.16(d).

The respondent received an admonition for the above violations, conditioned upon attendance at a CLE course designated by bar counsel.


ADMONITION NO. 04-14

CLASSIFICATIONS:
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)] Failure to Withdraw Generally [Mass. R. Prof. C. 1.16(a)]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]

SUMMARY:
On September 17, 2002, the respondent was retained to represent a client in a divorce from his wife. The respondent requested and was paid a retainer of $2,000.00, from which he was to deduct his fee at a rate of $125.00 per hour for his representation. On October 8, 2002, the client was charged with a criminal offense, and he sought the representation of the respondent. The respondent represented the client without taking an additional retainer or charging an additional fee.

In February 2003, the retainer was exhausted. The respondent continued to represent the client without informing him that the retainer had been exhausted. On July 12, 2003, the client, dissatisfied with the respondentís services, discharged the respondent by a certified letter. The client requested that the respondent return his file and account for the funds he had paid the respondent. At that time, the criminal case was resolved, but the respondent still represented the client in the divorce.

The respondent received the certified letter by no later than July 14, 2003, but he did not withdraw from the divorce case, return the file, or provide the accounting. In August 2003, the client filed a grievance with Bar Counsel. On September 3, 2003, Bar Counsel sent the grievance to the respondent. On September 23, 2003, the respondent filed a motion to withdraw his appearance in the divorce case and delivered the clientís files and an itemized bill to Bar Counsel.

The respondentís failure to provide an accounting of the funds received from the client upon request was in violation of Mass. R. Prof. C. 1.15(b). The respondentís failure to promptly withdraw when he was discharged violated Mass. R. Prof. C. 1.16(a) (3). The respondentís failure to return the clientís file in a reasonable amount of time upon request was in violation of Mass. R. Prof. C. 1.16(e). The client was not harmed by the respondentís delay.

The respondent received a previous admonition, No. 01-22, in 2001 for failing to withdraw fees as they were earned from his IOLTA account.


ADMONITION NO. 04-15

CLASSIFICATIONS:
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)] Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
In April of 2001, the client hired the respondent to initiate a divorce against her husband from whom she had been estranged for many years. The client paid the respondent $400 on April 19, 2001 and $1,000 on July 27, 2001 to be billed against an hourly rate. The respondent deposited the retainer into his operating account, rather than into a client trust account as required.

On December 5, 2001, the respondent filed the complaint for divorce. The respondentís process server was not able to obtain service on the clientís husband, who had a history of intentionally and successfully evading service. On December 26, 2001, the respondent filed a motion seeking permission for alternative service, which was denied. After that date, the respondent did not complete service or take any other action to prosecute the divorce complaint for the client. The client repeatedly attempted to contact the respondent in 2002 and early 2003, but he did not return her calls. On May 28, 2003, the client discharged the respondent. At the time of discharge, the client requested an accounting and the return of her retainer and her file.

The respondent delayed in returning the clientís file and accounting for the retainer. As a result, the client filed a complaint with Bar Counsel in October 2003. Although the respondent had performed services that exceeded the amount of the retainer, the respondent did not prepare a bill or return the file until he had received notice of the clientís complaint. In mitigation, during the time that the respondent represented the client, he was unable to devote his full attention to his practice because of the illness and death of a close family member.

By failing promptly to return the clientís file and to account for the retainer upon request by the client, the respondent violated Mass. R. Prof. C. 1.16(e) and 1.15(b). By depositing the retainer into his office operating account rather than into a client trust account, the respondent violated Mass. R. Prof. C. 1.15(a) and (d). By failing to return the clientís telephone calls, the respondent violated Mass. R. Prof. C. 1.4.

The respondent has been a member of the Bar since 1975, with no prior discipline. The respondent received an admonition, conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 04-16

CLASSIFICATIONS:
Failing to Seek Clientís Lawful Objectives or Abide by Clientís Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)] Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Withdrawal without Tribunalís Permission [Mass. R. Prof. C. 1.16 (c)]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16 (d)]
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4(h)]

SUMMARY:
The respondent represented a New Jersey resident on a complaint for modification of a divorce decree. At a hearing on October 5, 2001, attended by both the respondent and his client, the court scheduled a hearing on discovery issues in the case for November 28, 2001.

During the time the respondent was representing this client, he was exploring the possibility of moving to New York State. To that end, the respondent had filed an application for waiver into the New York bar. In early November, the respondentís application for waiver was approved. The respondent was then interviewed and approved for membership, and, on November 14, 2001, was admitted to the bar of New York. That same week, a law firm in New York, with which the respondent had had previous contact, offered the respondent a job to begin immediately. The respondent accepted the offer and made arrangements to move from Massachusetts to New York.

On November 20, 2001, the respondent telephoned his client in New Jersey and told her that he had accepted a job in New York and that she should get a new attorney as soon as possible. He recommended a lawyer for the client to call and gave her the lawyerís phone number. The respondent also told the client that she could avoid the necessity of the November 28 hearing if she complied with the discovery requests of the other party. The respondent did not tell the client that he would not appear on her behalf, nor did he file a motion to withdraw from the clientís case. The client contacted the lawyer the respondent had recommended and made arrangements to meet with him to discuss her case after the hearing on November 28.

On November 20, 2001, the respondent sent a letter to opposing counsel in which he requested a continuance of the upcoming hearing to allow time to forward additional documents and to allow the client to hire new counsel. The respondent sent a copy of this letter to his client, but the client did not receive the letter until November 26, 2001. She then realized that the respondent did not plan to appear with her at the November 28th hearing. The client called the respondent on November 27th and told him that she did not have new counsel to represent her at the hearing. The respondent told the client that he would not appear for her. The client then sent a request to opposing counsel to postpone the hearing, but he refused.

The client appeared without counsel at the hearing on November 28, 2001. The court proceeded with the hearing despite the respondentís absence and ordered her to produce the requested discovery. After the hearing, the client retained new counsel to represent her, and the respondent forwarded his file to the clientís the new lawyer.

By failing to file a motion to withdraw and to secure the permission of the court before he withdrew from his clientís case, the respondent violated Mass. R. Prof. C. 1.16(c) (lawyer shall not withdraw from employment in a proceeding before a tribunal without permission) and (d) (upon termination of representation, lawyer shall take steps to protect clientís interests). By his failure to appear at the hearing on his clientís behalf, the respondent violated Mass. R. Prof. C. 1.2 (a) (lawyer shall seek lawful objectives of client), 1.3 (lawyer shall act with reasonable diligence in representing a client), and 8.4 (h) lawyer shall not engage in conduct adversely reflecting on fitness to practice law).

The respondent was admitted in 1989 and has no prior discipline. The respondent received an admonition for his misconduct in these matters.


ADMONITION NO. 04-17

CLASSIFICATION:
Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation [DR 1-102(A)(4)]

SUMMARY:
In 1995, the respondent notarized the signatures of clients on a mortgage and a deed. The clients were not present before the respondent when the documents were notarized. The respondent's conduct in notarizing the signatures of persons who were not present before him violated Canon One, DR 1 102(A)(4).

The respondent was admitted in 1978 and has no prior discipline. The respondent had no wrongful intent and no harm resulted. He has notified his clients of potential problems with the documents that he notarized and has offered to re-execute them at no cost to his clients.

The respondent received an admonition for this conduct conditioned upon his attending a CLE course designated by Bar Counsel.


ADMONITION NO. 04-18

CLASSIFICATIONS:
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g)]
Failure to Cooperate in Bar Discipline Investigations [S.J.C. Rule 4:01 ß3]

SUMMARY:
In or around the beginning of January 1997, the respondent was retained to represent a defendant on several Superior Court criminal matters. The respondent withdrew in June 1997, after the client discharged him because of a disagreement regarding defense strategy. The client contacted the Office of Bar Counsel in November 2002, alleging among other things that the respondent had not earned the legal fee that he had been paid. He requested an accounting of the fee.

The respondent failed to reply to Bar Counselís April 11, May 8 and May 28, 2003 inquiries regarding the matter. Bar Counsel then received another inquiry regarding the respondent from an attorney who had been retained to represent another of the respondentís former clients. The attorney alleged that the respondent had failed to provide him with the clientís file after repeated telephone requests. The respondent failed to reply to Bar Counselís June 17, 2003, letter requesting his response to the attorneyís allegations.

A subpoena was issued on the first matter for the respondent to appear at the Office of Bar Counsel on July 16, 2003. The respondent failed to appear. After Bar Counsel telephoned him, the respondent appeared at the Office of Bar Counsel on September 5, 2003 and explained his conduct in both matters.

Bar Counsel ultimately determined that the first matter was a fee dispute and not a disciplinary matter. As to the second matter, the respondent had forwarded file materials to successor counsel in January 2003. Successor counsel was under the misapprehension that additional items had not been sent. The respondent failed to reply to requests for information from the attorney because he had no additional relevant information or file materials. After meeting with Bar Counsel in August 2003, the respondent wrote to successor counsel on September 12, 2003. He identified the items that he had previously provided and explained that he had no additional documents.

By failing to reply to requests for information from successor counsel, the respondent violated Mass. R. Prof. C. 1.4. By failing to cooperate with Bar Counselís investigations and failing to appear at the Office of Bar Counsel pursuant to a subpoena, the respondent violated Supreme Judicial Court Rule 4:01 ß 3, and Mass. R. Prof. C. 8.4 (g).

In mitigation, the respondent has been experiencing personal problems and was suffering from depression. As a result, he failed to retrieve and respond to his telephone messages and failed to read all of his mail. He was not aware that he had been subpoenaed to appear at the Office of Bar Counsel until he received a telephone call from Bar Counsel after he failed to appear on the originally scheduled date. After meeting with Bar Counsel, the respondent sought assistance from a therapist. The respondent received an admonition for his conduct in this matter, conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 04-19

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]

SUMMARY:
The respondent issued a check from his IOLTA account on November 23, 2002 in the amount of $100.00. The check in question was payable to a restaurant. The bank paid the check although the account had insufficient funds. Payment created an overdraft of $87.26. On November 25, 2002, the respondent issued a check to himself from his IOLTA account for $12.00. The bank paid the check although the account had insufficient funds.

There were no client funds on deposit in the IOLTA account. The account was solely used for the deposit of earned fees and other personal funds. The respondentís use of a client trust account for the deposit of personal funds and the payment of personal expenses violated Mass. R. Prof. C. 1.15(a). The respondentís mislabeling of a personal or business account as a trust account was a violation of Mass. R. Prof. C. 1.15(d). In mitigation, the respondent did not understand that his use of the account was improper and has now ceased using it in this manner.

The respondent has been a member of the Bar since 1976, with no prior discipline. He accordingly received an admonition for the above violations, conditioned upon attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 04-20

CLASSIFICATION:
Unauthorized Practice of Law [Mass. R. Prof. C. 5.5(a)]

SUMMARY:
The respondent left the practice of law in 1998. He filed notices of withdrawal in all of his cases, except one bankruptcy matter. He then failed to pay his registration fees to the Board of Bar Overseers, resulting in an administrative suspension on November 24, 1998. Without thinking about the administrative suspension, he continued to represent the client in the bankruptcy matter filed in March of 1998. The parties filed cross motions for summary judgment and the respondent represented the client at oral argument on February 6, 2001. The respondent did not realize that even an isolated appearance was prohibited until he paid the outstanding bar dues and was reinstated from the administrative suspension.

The respondent has been a member of the Bar since 1989. By appearing in court and arguing a summary judgment motion after he had been administratively suspended as an attorney, the respondent violated Mass. R. Prof. C. 5.5(a). The respondent received an admonition for his conduct in this matter.


ADMONITION NO. 04-21

CLASSIFICATIONS:
Conflict Of Interest Between Lawyer And Client [DR 5 101(A)]
Handling A Legal Matter Without Adequate Preparation [DR 6 101(A)(2)]

SUMMARY:
The respondent represented a client who suffered from recurrent metastatic breast cancer from 1995 until her death in 1997. The clientís husband had left her and their two teen aged children. Her primary concern in consulting the respondent was to protect her only asset, a $100,000 life insurance policy, from her husband and his creditors when she died. She also consulted the respondent about a divorce.

The respondent prepared and had the client execute an irrevocable life insurance trust that provided for payments to or for the benefit of the children. The client had little money and intended that the respondentís fees and her funeral expenses be paid from the life insurance proceeds upon her death. The client also instructed her sister, the trustee of the trust, to pay the respondentís fees and the funeral expenses from the proceeds. The respondent, however, did not adequately draft estate documents to reflect his clientís intent to authorize the payment of these expenses from the insurance proceeds.

The respondent represented the client in divorce proceedings until her death in 1997. He then represented the trustee and advised her to pay a number of outstanding bills, including the respondentís legal fees and the clientís funeral expenses, from the life insurance proceeds. The respondent did not appreciate that the trust did not authorize the payment of his fees for the clientís divorce or the funeral expenses. He also did not appreciate that he had a personal conflict of interest on the issue of payment of his fees from the trust.

In advising the trustee to make unauthorized payments from the trust and in accepting unauthorized payment of his fees from the trust while representing the trustee, the respondent violated Canon Six, DR 6 101(A)(2) (inadequate preparation) and Canon Five, DR 5 101(A) (lawyer shall not accept employment if exercise of professional judgment may reasonably be affected by personal interest). In mitigation, the respondent has reimbursed the trustee for the fees and funeral expenses and has waived his fees for representing the trustee.

The respondent received an admonition for his misconduct.


ADMONITION NO. 04-22

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
IOLTA Violation [Mass. R. Prof. C. 1.15(e)]

SUMMARY:
This matter came to Bar Counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of Bar Counselís receipt of a notice of dishonored check from a bank at which the respondent maintained an IOLTA account. The respondentís record keeping for the account was inadequate to the volume and dollar amount of transactions, resulting in the error that led to the dishonored check.

During the period in question, the respondent also maintained a second IOLTA account at another bank. The respondent, acting as closing attorney, failed in another matter to confirm receipt of the mortgage proceeds before closing. He closed the loan and went to record prior to receiving the funds, in violation of the ďgood fundsĒ statute, G.L.c.183, ß63B. The mortgage funds ultimately were received and deposited several weeks later.

In addition, the respondent maintained funds for three estates in his pooled IOLTA accounts, rather than in individual interest bearing accounts as required.

The respondentís conduct in these respects was in violation of Mass. R. Prof. C. 1.15(a) and (e). In aggravation, the respondent had previously been cautioned by Bar Counsel concerning the application of the ďgood fundsĒ statute. The respondent accordingly received an admonition, conditioned upon attendance at a training program on the revisions to Mass. R. Prof. C. 1.15.


ADMONITION NO. 04-23

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)(2)]

SUMMARY:
This matter came to Bar Counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of Bar Counselís receipt of a notice of dishonored checks from a bank at which the respondent maintained an IOLTA account. The respondentís record keeping for the account was generally inadequate, resulting in the error that led to the dishonored checks. The checks in question were payable to the respondent himself and purported to be payments of fees from one client. The respondent maintained no check register or client ledgers for this account. He did not recollect that he had lost the clientís original check and that the client had subsequently paid him in cash that had not been deposited to the account. The respondentís conduct in this respect was in violation of Mass. R. Prof. C. 1.15(a). He has since closed this account.

The respondent at the same time also maintained a second IOLTA account, which is still open. His management of this account was again unacceptable. The respondent failed to withdraw fees earned in personal injury cases in full when settlements or judgments were received. He instead removed fees piecemeal through ATM withdrawals and checks payable to a family member, in violation of Mass. R. Prof. C. 1.15(d)(2). The respondentís conduct in writing checks to the family member from his IOLTA account also constituted commingling, in violation of Mass. R. Prof. C. 1.15(a).

The respondent has been a member of the bar since 1993, with no prior discipline. The respondent accordingly received an admonition, conditioned upon attendance at a training program on the revisions to Mass. R. Prof. C. 1.15.


ADMONITION NO. 04-24

CLASSIFICATION:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]

SUMMARY:
This matter came to Bar Counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of Bar Counselís receipt of a notice of dishonored check from the bank at which the respondent maintains his IOLTA account.

The respondent is a conveyancer who represented the lender at a closing on February 26, 2004. The respondent has represented the lender for many years. The lenderís policy was to fund by check, not wire, on the day of closing. This policy predated the ďgood fundsĒ statute.

The dishonored check at issue represented the net proceeds due the seller. The check was issued from the respondentís account on February 26, 2004. The respondent went to record and issued the check to the seller before the lenderís check for the mortgage proceeds had been deposited to the respondentís account. The loan was funded by deposit of the lenderís check later on the day of the closing. The respondent had instructed the seller not to present the check for payment until the following day, but the seller presented the check the same day.

The sellerís check was returned as unpaid by the respondentís bank. The respondent placed a stop payment order on the check and issued a new check. The new check was deposited and paid.

The respondentís conduct in going to record prior to receipt of ďgood fundsĒ was in violation of G.L. c.183 ß63B and the respondentís distribution of settlement funds prior to receipt of the supporting deposit was in violation of Mass. R. Prof. C. 1.15(a). In an earlier matter, Bar Counsel had cautioned the respondent regarding the ďgood fundsĒ statute and further that it was his responsibility in every transaction to confirm with his bank that mortgage funds were credited to his account with good funds before disbursement checks were issued.

The respondent was admitted in 1971 and has no prior discipline. He received an admonition conditioned upon attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 04-25

CLASSIFICATION:
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
On August 9, 2002, the respondent accepted a $3,000.00 retainer to represent a client in a divorce matter. The retainer was deposited into the respondentís IOLTA account. The parties executed a written fee agreement that provided that the respondent would bill at $200.00 per hour.

Between August 2002 and December 2002, the respondent worked six hours on the matter and incurred $28.00 in costs. However, during this time, the respondent never sent his client a bill. On June 24, 2003, the client discharged the respondent and requested that his file be sent to successor counsel. On October 3, 2003, the client wrote to the respondent and requested a final statement and a return of the unearned balance of his $3,000.00 retainer. The respondent did not reply.

On November 28, 2003, the client wrote the respondent again, demanded a bill and the return of the unearned portion of the retainer by the end of the year. When the respondent did not reply, the client on March 4, 2004 filed a complaint with Bar Counsel. However, prior to the respondentís receipt of notice of the complaint, the respondent, on March 11, 2004, sent the client an itemization of time, service and costs and a check for $673.67, representing the respondentís calculation of the unearned balance of the retainer. A fee dispute ensued, but was promptly resolved to the satisfaction of the client.

The respondentís failure to account and return the unearned portion of the clientís retainer for almost a year after his services were terminated was in violation of Mass. R. Prof. C. 1.15(d) and 1.16(d).

In aggravation, the respondent received an admonition in 2001 for failing to timely provide an accounting of a fully earned retainer, combined with the inadvertent deposit of that retainer into a business operating account.

In mitigation, in June 2003, shortly after the client discharged the respondent, the respondentís computer system malfunctioned, causing a loss of billing records. The system was not backed up. However, the respondent never informed his client of his administrative difficulties. The respondent finally re created his time and billing in the clientís matter by reviewing the paper file in March 2004. The respondentís current system has off site backup.

The respondent was admitted in 1977. In light of the fact that the clientís grievance was resolved before the respondent knew that a complaint had been filed, and in light of the remedial measures that the respondent has now undertaken, the respondent received an admonition in this matter.


ADMONITION NO. 04-26

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Withdrawal without Tribunalís Permission [Mass. R. Prof. C. 1.16(c)]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
On March 15, 1999, the respondent was retained to represent a client after her husband filed a complaint for divorce against her. The respondent filed his notice of appearance and an answer to the complaint for divorce on April 1, 1999. Sometime thereafter, the client and her husband attempted to reconcile and the respondent lost touch with the client until she telephoned him two years later seeking further assistance. Starting in August 2002, the respondent began preparing and exchanging draft agreements between the parties.

In November of 2002, the respondent moved to Florida. He informed the client of the move and they agreed that the respondent would continue to work on the matter if an agreement could be reached, but that the client would need to get new counsel if the matter went to hearing or trial. The respondent did not file a notice of change of address with the court. The respondent did not inform the husbandís counsel, and the husbandís counsel was unaware, of the respondentís move or his change of address. The respondentís phone number, however, remained in use.

Between December 2002 and April 2003, the respondent and counsel for the husband continued to discuss proposed settlement agreements. When no settlement could be reached, the husbandís counsel indicated he would seek a court date. Pursuant to his agreement with the client, the respondent decided that he would no longer represent her. However, he did not advise the client at this time of her need to seek new counsel and he did not file a motion to withdraw.

A pre-trial conference was set for July 14, 2003. Notice of the conference was sent to the respondent at his former address by the court. The respondent did not receive the notice and therefore did not notify the client of the hearing. Neither the respondent nor the client appeared at the hearing and a judgment of divorce entered on that date.

A copy of the judgment of divorce was mailed to the respondent at his former address by the court. The respondent did not receive it and therefore did not notify the client.

In early October 2003, after several unsuccessful attempts to reach the respondent, the client telephoned the court directly and learned that judgment had entered in July 2003. On October 4, 2003, the client spoke with the respondent. He denied having knowledge of the court date and further indicated that he could not remedy the problem since he was in Florida. He advised the client to seek new counsel to pursue the matter further.

On October 10, 2003, successor counsel filed a motion for relief from judgment. On December 16, 2003, the motion was allowed and the judgment of divorce was vacated. The respondent was sanctioned for failing to appear at the pre-trial conference and ordered to pay $250.00 to opposing counsel. The sanction was paid.

The respondentís failure to notify the court of his change of address and his withdrawal from employment without permission of the court was in violation of Mass. R. Prof. C. 1.3 and 1.16(c) and (d). Though a judgment of divorce entered against the respondentís client as a result of his misconduct, successor counsel was able to vacate the judgment and, ultimately, no harm resulted.

The respondent was admitted in 1990 and has no prior discipline. He has moved to Florida where he is a member of the bar in good standing and is no longer practicing law in Massachusetts. He received an admonition for his conduct.


ADMONITION NO. 04-27

CLASSIFICATIONS:
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]

SUMMARY:
In November of 2002, the respondent began representing the client in a dispute with the Department of Social Services concerning the clientís son. The respondent requested a retainer of $2,500 to be billed against an hourly rate. The client was unable to pay the retainer in one lump sum amount and agreed to remit monthly installments. The client made several installment payments toward the retainer between November of 2002 and April of 2003. The respondent deposited these installment payments directly into her operating account rather than into a client trust account.

In April of 2003 there was a breakdown in the respondentís relationship with the client. On May 1, 2003, the respondent notified the client that she could no longer represent the client. At that time, the client requested her file.

The respondent delayed in returning the file to the client and in accounting for the retainer. As a result, the client filed a complaint with Bar Counsel in July 2003. Although the respondent had performed services that exceeded the amount of the retainer, the respondent did not prepare a bill or return the clientís file until October of 2003, after the respondent had received notice of the clientís complaint. Part of the delay resulted from a medical procedure that the respondent underwent during this period.

By failing to account for the retainer, the respondent violated Mass. R. Prof. C. 1.15(b). By depositing the retainer into her office operating account rather than into a client trust account, the respondent violated Mass. R. Prof. C. 1.15(a) and (d). By failing to promptly return the clientís file when the representation terminated, the respondent violated Mass. R. Prof. C. 1.16(e).

The respondent has been a member of the Bar since 1989, with no prior discipline. The respondent accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 04-28

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]
Knowing Failure to Respond to Demand for Information from Disciplinary Authority [Mass. R. Prof. C. 8.1(b)]
Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g)]
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4(h)]

SUMMARY:
The respondent received an admonition for his conduct in two matters as described below.

In the first matter, the respondent ordered and received copies of deposition transcripts from a stenographer, but did not pay the stenographic fees totaling over $1,100.00. On January 30, 2002, the stenographer filed a small claims action in Boston Municipal Court. The respondent did not appear at the hearing. On April 12, 2002, a default judgment entered in the amount of $1,148.55, which the court ordered the respondent to pay by May 13, 2002. The respondent did not pay the judgment, and on June 3, 2002 an execution issued. The stenographer filed a supplementary process action on June 10, 2002 in the Plymouth District Court, and the respondent was ordered to appear on July 30, 2002. The respondent did not appear, and a capias issued on August 7, 2002. After the capias issued, the stenographer filed a grievance with Bar Counsel.

In the second matter, on or about July 29, 2002, a client engaged the respondent to assist her with a matter before the IRS, and paid him a $500.00 retainer. Between August and October of 2002, the respondent performed no work of substance on the matter. On about October 4, 2002, the client went to the respondent's office and demanded that the file and the $500.00 retainer be returned. The respondent was not there, but an employee wrote her a check for $500.00 from the law office account, and returned the file to the client. When the client attempted to negotiate the check, it was returned for insufficient funds. After the client filed a grievance with Bar Counsel, the respondent refunded the $500.00 retainer using funds borrowed from a friend. The client sought professional assistance elsewhere, and was not harmed by the respondentís neglect of the tax matter.

The respondent did not reply to letters from Bar Counsel about either matter, or appear for a subpoena meeting on January 9, 2003. On January 17, 2003, the Supreme Judicial Court entered an order administratively suspending the respondent for noncooperation, pursuant to S.J.C. Rule 4:01, ß 3(2). On January 27, 2003, the respondent met with Bar Counsel, and filed written responses to the grievances. On February 19, 2003, the respondent was reinstated to practice.

The respondentís failure to comply with the courtís order to pay the small claims judgment and to appear at the supplementary process hearing, resulting in the issuance of a capias for his arrest, violated Mass. R. Prof. C. 8.4(d) (professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice), and Mass. R. Prof. C. 8.4(h) (professional misconduct to engage in any other conduct that adversely reflects on fitness to practice law). The respondent also failed to act with reasonable diligence and promptness in representing the tax client between August and October of 2002, and failed to promptly return the clientís unearned retainer. His conduct in this regard violated Mass. R. Prof. C. 1.3 (lawyer shall act with reasonable diligence and promptness in representing a client), and Mass. R. Prof. C. 1.16(d) (upon termination of representation, a lawyer shall refund any advance payment of fee that has not been earned). In addition, the respondentís failure to cooperate in Bar Counselís investigation violated Mass. R. Prof. C. 8.1(b) (lawyer in connection with a disciplinary matter shall not knowingly fail to respond to a lawful demand for information from a disciplinary authority), and Mass. R. Prof. C. 8.4(g) (professional misconduct to fail without good cause to cooperate with the Bar Counsel as provided in S.J.C. Rule 4:01, ß 3).

The respondent was admitted to practice in 1999, and had received no prior discipline.

In mitigation, the respondentís failure to cooperate in Bar Counselís investigation, and the underlying misconduct, occurred during a period that the respondent was suffering from stress-related illnesses and depression arising out of his personal and financial difficulties and the diagnosis of his mother with cancer in April of 2002. As a result of his illness, the respondent closed his office in the fall of 2002. The respondent sought assistance from Lawyers Concerned for Lawyers (LCL) in 2003. Since then, the respondentís medical situation has stabilized, although he remains unable to pay the stenographerís judgment.

Based on the foregoing, the respondent received an admonition for the above violations.


ADMONITION NO. 04-29

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
The respondent neglected two immigration cases. In the first matter, an employee and employer retained the respondent in March 2002. The employee sought to transfer her H-1B work visa from one employer to another. The employee paid the respondentís fee, plus a premium processing fee to the Immigration and Naturalization Service for expedited handling. The papers were filed in April 2002 and the respondent received acknowledgement of filing from INS, with a further note that the matter would be adjudicated within 15 days of the receipt date, April 22, 2002, unless a request for additional information was faxed in the interim.

INS did fax a request for additional documentation within the 15 day period. The respondent either did not receive, or misfiled, this correspondence and therefore did not submit the required items. However, although he knew that he was supposed to have received an adjudication by May 7, 2002, he failed to follow up when (as he believed) nothing further was received from INS.

The application was denied by INS in August 2002 because the necessary documents had not been provided. The employee in the interim had attempted unsuccessfully to obtain information on the case status from the respondent and finally learned from her employer that the application had been denied. She contacted the respondent, who recommended filing a motion to reopen. This motion was denied in November because the grounds for allowance of such motions are very limited.

The respondent offered to resubmit the application and to pay the premium processing fee himself. This was done, also in November. The employee at this point discharged the respondent and retained successor counsel. Her application was approved in December. The respondent paid successor counselís fees.

In the second matter, the respondent had represented a married couple in a successful asylum claim. After the trial in June 2002, the clients asked the respondent to file employment authorization permits (Form I-765) for them. He prepared the applications and asked his secretary to send them to INS, but the papers were never mailed. The secretary was terminated in August. Meanwhile, the clients called and emailed the respondent in the late summer and early fall of 2002, but received no response. In November, the clients contacted the INS Service Center and learned that the forms had never been filed. An INS staff person called the respondent while the client was still on the telephone. The respondent then filed the applications and paid the filing fees from personal funds as compensation for the delay. The clients were satisfied.

The respondentís conduct in both of these matters constituted lack of diligence and inadequate communication in violation of Mass. R. Prof. C. 1.3 and 1.4. In aggravation, the respondent has a prior admonition from 2000 for inadequate trust account record keeping. In mitigation, these complaints came in during a period in 2002 when the respondent was overextended. He had opened a second office and was advertising. He has since closed the second office and discontinued the advertising. He also took prompt corrective action in both cases. The respondent accordingly received an admonition for his misconduct.


ADMONITION NO. 04-30

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Neglecting A Legal Matter [DR 6-101(A)(3)]

SUMMARY:
In the fall of 1986, the court appointed the respondent successor administrator to an estate. The heirs were four siblings. One of the siblings had litigated issues concerning the estate and was also involved in separate civil litigation against the rest of his siblings and other individuals.

The litigation between the siblings continued in the 1990ís and the respondent accordingly put aside the matter of settling the estate. The respondent did not focus again on the estate until the same sibling who was suing the other heirs filed a complaint with the Office of Bar Counsel in 2003. At that point, the respondent distributed the estate assets and filed a final account with the court.

The respondentís failure to conclude the administration of the estate and distribute assets to the beneficiaries in a timely manner constituted neglect and failure to act diligently in violation of Mass. R. Prof. C. 1.3 and Canon Six, DR 6-101(A)(3).

The respondent has been a member of the bar since 1982, and has no history of discipline. The respondent received an admonition for his conduct in this matter, conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 04-31

CLASSIFICATION:
Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)]

SUMMARY:
The respondent, an Assistant District Attorney, unlawfully accessed the Criminal Offender Record Information (CORI) system (G.L. c 6, ßß167-178B) at the request of a private investigator.

The private investigator had been hired to conduct a background check on a witness in a divorce case. The investigator found public records in a district court clerkís office that showed that the witness had been charged with crimes but that the charges had been dismissed. The investigator was concerned about the accuracy of the clerkís records and called the respondent, with whom he was acquainted, to confirm the accuracy of the records.

The respondent caused a CORI check to be conducted under the witnessís name and received a computer print-out containing the witnessís CORI information. The respondent confirmed from the print-out that the criminal charges had been dismissed. He then called the private investigator and informed him that he had confirmed that the criminal charges had been dismissed. The respondent then threw away the computer print-out.

It was a violation of G.L. c. 6, ß172, for the respondent to access the witnessís CORI information and to discuss that information with the private investigator in any way. The respondentís conduct in unlawfully obtaining and disseminating the witnessís CORI information was prejudicial to the administration of justice in violation of Mass. R. Prof. C. Rule 8.4(d).

In mitigation, the respondent did not provide the investigator with the complainantís CORI report, did not disclose any criminal convictions and only provided information confirming what the investigator had learned from public records. The respondent received an admonition for his misconduct.


ADMONITION NO. 04-32

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
IOLTA Violation [Mass. R. Prof. C. 1.15(e)]

SUMMARY:
The respondent has a personal injury practice. His record keeping in his IOLTA account was inadequate to the number and dollar amount of transactions, resulting in accounting errors. In particular, he did not maintain individual client ledgers and he did not routinely reconcile the account or reconcile it adequately.

In one instance, the respondent settled a case for $21,500. Due to errors in his accounting as to both the amount of the settlement and the amount due medical providers, the respondent overpaid the client and himself a total of $2000. In a second instance, the respondent disbursed funds that should have been held in escrow to pay a disputed medical bill. After Bar Counsel caused him to complete a case-by-case reconciliation, the respondent found these problems and he reimbursed the IOLTA account in both matters.

In addition, in several other matters, the respondent held funds long term in his IOLTA account, rather than in individual interest-bearing accounts as required.

The respondentís conduct in these respects was in violation of Mass. R. Prof. C. 1.15(a) and (e). The respondent accordingly received an admonition, conditioned upon attendance at a training program on the revisions to Mass. R. Prof. C. 1.15.


ADMONITION NO. 04-33

CLASSIFICATION:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]

SUMMARY:
A client hired the respondent in 1999 pursuant to a contingent fee agreement to represent him in a civil claim based on supposedly intolerable conditions at his place of incarceration, including an allegation that prison officials failed to prevent him from being assaulted by another inmate. Approximately eighteen months later, the respondent filed suit in the United States District Court, alleging violations of state and federal law. He named a number of defendants including state defendants, county defendants and individual defendants.

The respondent was very ill during 2000 and 2001. As a result, he failed to effectuate service of process and the case was dismissed late in 2001. About eight months later, the respondent filed a motion to vacate judgment. The Court vacated the dismissal and required that service be made within thirty days. The respondent requested an additional thirty days to serve process, and the court granted the motion and allowed an additional thirty days.

The respondent served a number of the defendants, including the state defendants under the Massachusetts Tort Claims Act. However, he did not serve any of the individual defendants and did not properly serve one of the county defendants by the Courtís new deadline. He also did not file proof of service with the Court before the deadline. As a result, the case was dismissed again for failure to make service. After the case was dismissed, the respondent served some, but not all, of the remaining defendants.

The respondent then attempted to obtain relief. On December 4, 2002, the respondent filed a motion to vacate the judgment. The Court denied the motion to vacate, but indicated that the plaintiff could initiate a new cause of action for claims under the Massachusetts Tort Claims Act in the state court.

Early in 2003, the respondent filed a notice of appeal. Late in 2003, after oral argument, the judgment of dismissal was affirmed by the United States Court of Appeals for the first Circuit. The Court of Appeals reasoned that most of the defendants were not properly served and that the claims against the few defendants that were properly served were ďdoomed to fail on the meritsĒ.

The respondent immediately sent a letter to his client indicating that the appeal had been lost. The respondent provided the client with case law showing that the client could refile in state court within one year of disposition of the original action and advised the client to hire new counsel. The respondent also forwarded a copy of the written decision to his client. In order to protect his clientís rights, the respondent filed a case in the state court and it is currently pending.

The respondentís failure to diligently pursue his clientís case by obtaining service even after the suit was reinstated was in violation of Mass. R. Prof. C. 1.3.

The respondent was admitted in 1995 and has no prior discipline. While the client lost some claims of dubious merit, his primary state law claim was ultimately preserved.

The respondent received an admonition for his conduct, conditioned upon attendance at a CLE program recommended by Bar Counsel.


ADMONITION NO. 04-34

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]

SUMMARY:
In September of 2002, the respondent undertook the representation of the client in a personal injury lawsuit. The matter went to arbitration and the client was awarded $39,000.00 in settlement of all claims. The respondent deposited two settlement checks directly into his personal checking account rather than into a client trust account. The respondent disbursed the funds owed to the client, and made payments to medical providers, all from his personal checking account.

By depositing the settlement proceeds into his personal checking account rather than into a client trust account, and making payments to the client and medical providers from the personal checking account, the respondent violated Mass. R. Prof. C. 1.15(a) and (d).

The respondent has been a member of the Bar since 1986, with no prior discipline. The respondent accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 04-35

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Trust Fund Accounting and Disputes [Mass. R. Prof. C. 1.15(c)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]

SUMMARY:
The respondent received an admonition for her conduct two matters described below.

In the first matter, on June 7, 2002, the respondent was settlement agent for the closing on a real estate transaction. The respondent received partial funding from the borrower by two checks, one in the amount $10,510.14 and the other in the amount of $6,375.56. The respondent deposited the first check but, as a result of carelessness, failed to deposit the second check.

The respondent was obligated to remit $14,560.51 for the borrower's unpaid real estate taxes. The respondent drafted a letter to the town and drafted a check for transmittal. The town has no record of receipt and the check was never cashed.

Beginning in early October 2003, the borrower began to receive dunning letters from the town for the unpaid taxes. Throughout October 2003, the borrower made efforts, without success, to cause the respondent to address the problem.

On November 17, 2003, the borrower filed a complaint with Bar Counsel. Upon her receipt of the complaint, the respondent pulled her file from storage, found the original check for $6,375.56 stapled to the inside of her file and learned that the check payable to the town in the amount of $14,560.51 had never been cashed. She then made the appropriate adjustments and payments and made the borrower whole for all penalties and interest due.

The respondent's failure to promptly distribute funds to the town that the town was entitled to receive was in violation of Mass. R. Prof. C. 1.15(c). The respondent's failure to timely account to the borrower for the real estate tax funds was in violation of Mass. R. Prof. C. 1.15(d).

In the second matter, on July 15, 2002 the respondent accepted a fee of $75.00 from a couple with the understanding that she would file a Declaration of Homestead in connection with a real estate closing. The respondent gave the declaration to her title examiner to file with the other closing documents. However, the title examiner did not file the declaration and the respondent did not notice the omission.

Beginning in late 2002, the couple attempted to contact the respondent to have the declaration filed but the respondent did not return the couple's calls. On January 16, 2003 the couple finally reached the respondent. The respondent apologized and promised to look into the matter within a week. On February 17, 2003, the couple informed Bar Counsel that the respondent still had not attended to the problem. On March 12, 2004, the respondent examined the title and determined that her title examiner had not recorded the declaration. At this time, pursuant to the couple's request, the respondent returned the unrecorded declaration and the fee.

The respondent's failure to diligently represent and adequately communicate with her clients was in violation of Mass. R. Prof. C. 1.3 and 1.4.

The respondent, admitted in 1991, is a solo practitioner with no prior discipline. In August 2002, the respondent temporarily ceased practicing law, except on a very limited basis, to pursue a business opportunity. The problems at issue occurred during the time period that the respondent was not practicing. In January 2004, the respondent returned to the practice of law full time. She has since received training in trust accounting and law office management.

The respondent accordingly received an admonition, conditioned upon attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 04-36

CLASSIFICATION:
Failing To Communicate Adequately With Client [Mass. R. Prof. C. 1.4]

SUMMARY:
The respondent was retained in October 2002 to represent a client in two matters. The respondent took action in the first matter and counseled the client to take no action in the second case because he believed it could result in adverse consequences for the client. The client agreed to consider the respondent's suggestions. However, when the client tried to contact the respondent to discuss the matter further, he was unable to do so. The respondent did not make a reasonable effort to return the client's phone calls and letters or otherwise respond to the client's efforts to communicate with him. The client then terminated his relationship with the respondent.

The respondent received an admonition for his failure to comply with his client's reasonable requests for information in violation of Mass. R. Prof. C. 1.4(a).


ADMONITION NO. 04-37

CLASSIFICATIONS:
Handling a Legal Matter Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)]

SUMMARY:
An insurer hired the respondent in 2003 after a default judgment issued against its insureds, who were brother and sister ("the clients"). At the time, the insurer did not know where the clients were living. While the respondent was working with the insurer to locate the clients, the court entered a monetary judgment in excess of the policy limits. The respondent finally located the sister and obtained information needed to draft affidavits for both clients in support of a motion to remove the default judgment.

The respondent checked and confirmed the brother's address on the Internet and then drafted an affidavit for the brother stating the brother had been served at the wrong address. After speaking to the sister, the respondent signed both affidavits and initialed them to indicate that he, rather than the clients, had signed them. The motion and affidavits were then filed with the court. The address at which the brother was served was in fact his correct address. At the hearing on the motion to remove the default judgment, the respondent put the brother on the stand to testify concerning the subject of the affidavit and to correct the record.

An attorney cannot sign another person's name to an affidavit, or any other document signed under oath, even with authorization. Nonetheless, there was no misrepresentation to the court or opposing counsel concerning who had signed the affidavits because the respondent's initials followed the clients' signatures on both affidavits. However, the respondent failed to realize that, despite initialing the affidavits, there was still an implication that he was signing with the clients' authorization. In fact, the respondent at that point had not yet spoken with the brother. By not speaking with the brother to confirm the content of the brother's affidavit, the respondent did not adequately prepare in violation of Mass. R. Prof. C. 1.1. The respondent's conduct in signing, initialing, and then filing the brother's affidavit with the court was prejudicial to the administration of justice in violation of Mass. R. Prof. C. 8.4(d).

The respondent was admitted to practice in 2001. His error in judgment arose from a lack of experience. The respondent therefore received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 04-38

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
Pursuant to S.J.C. Rule 1:07 (3), (4), the superior court appointed the respondent to represent a defendant on a charge of assault and battery with a deadly weapon. The respondent met with the defendant at the arraignment and thereafter attended the pretrial conference. However, the respondent then failed to make any further contact or to communicate with the defendant.

A non-evidentiary motion hearing was scheduled and continued on three occasions because of the respondent's failure to appear. Subsequently, the defendant filed a Motion to Dismiss Counsel and Appoint New Counsel, citing a failure of communication. The motion was allowed and new counsel was appointed.

The respondent's failure to act with reasonable diligence and promptness in representing his client, and his failure to communicate with his client is a violation of Mass. R. Prof. C. 1.3 and 1.4. In mitigation, on one hearing date, the respondent's wife was admitted to the hospital. On another hearing date, the respondent's mother-in-law and sister-in-law were in a car accident.

The respondent has been a member of the bar since 1990, with no prior discipline. The respondent received an admonition for the above violations.


ADMONITION NO. 04-39

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]

SUMMARY:
The respondent is a conveyancer. In December 2001 the respondent closed on two real estate loans without confirming that mortgage funds had been wired into his IOLTA account.

In one closing, the respondent did not confirm in advance that he had received closing funds in his IOLTA account. The closing occurred on December 20, 2001, and the respondent disbursed closing funds on that date. Due to an error on the part of the lender, the lender did not wire transfer loan proceeds into the respondent's IOLTA account until January 8, 2002.

In another closing, the lender did not wire closing funds to the respondent's IOLTA account in a timely manner and the respondent closed on the loan without confirming that the funds were on deposit in his account. The respondent disbursed closing funds on December 17, 2001. As a result, one of the checks the respondent issued was returned in late January 2002 for insufficient funds. The respondent contacted the lender who then wired the funds to the respondent on February 4, 2002.

The respondent's record keeping for his IOLTA accounts was inadequate. Although he maintained an electronic check register, the respondent did not regularly reconcile his account. The respondent's conduct in going to record without having received the mortgage funds violated the "good funds" statute, G.L.c.183, ß63B.

The respondent's conduct violated Mass. R. Prof. C. 1.3 (lawyer shall act with reasonable diligence) and 1.15(a) (lawyer shall keep complete records of receipt, maintenance, and disposition of client funds). The respondent received an admonition for his misconduct, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 04-40

CLASSIFICATIONS:
Failing to Seek Client's Lawful Objectives [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a)]
Withdrawal without Tribunal's Permission [Mass. R. Prof. C. 1.16(c)]
Withdrawal without Protecting Client [Mass. R. Prof. C. 1.16(d)]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]

SUMMARY:
The respondent received an admonition for his conduct in four matters.

In the first matter, in July of 1998, the respondent filed his appearance as counsel for the plaintiff in a race discrimination case based on a wrongful arrest claim (a racial profiling case). The respondent had just begun practicing with a firm in an of counsel basis. The firm had represented the client in the underlying criminal case. In December of 1996, the district court dismissed the charges against the client for disorderly conduct and resisting arrest. Another attorney had filed the discrimination suit before leaving the firm. When the respondent took over the case, the client's interrogatory answers were already overdue. The respondent requested an extension of time to file his client's answers, which was granted.

In the fall of 1998, the respondent met with the client to prepare his answers to interrogatories. When he took over the case, the respondent had understood that the client had lost his job as a result of the alleged wrongful arrest. When he met with the client, the respondent learned that the client had left his employment voluntarily, and that his employment was not affected by his arrest. The client told him that he had not ever received any counseling with respect to the incident, and had not suffered any physical symptoms relating to stress or depression as a result of the incident. The respondent concluded that the only actual or potential damages suffered by the client were for his legal fees in criminal matter, which amounted to $4,000. Under his contingent fee agreement with the law firm, the client was responsible for the costs of pursuing the civil matter. The respondent advised the client that the civil case was unlikely to result in any significant financial recovery, and that the costs of pursuing the matter to trial would be prohibitive. The respondent recommended that the client dismiss the case. The client disagreed with this recommendation.

The client was living and working out of the country for substantial periods of time, and left the country without completing the answers to interrogatories. The client's case was dismissed on December 16, 1998, for failure to answer interrogatories. The respondent did not have the client file answers to the interrogatories because the respondent believed that if the client answered the questions truthfully, the case was likely to be dismissed on a summary judgment motion of the defendants. The respondent did not notify the client that the case was dismissed. The respondent hoped that by the time the client returned to Massachusetts, the case law on racial profiling might have developed in a way that would assist the client in proving damages, or the client might be able to identify some damages that he had suffered. The respondent intended at that time to seek to remove the default and to continue with the case.

On July 5, 2000, the client filed a grievance with Bar Counsel, alleging that the respondent was neglecting his case. In his answer, the respondent informed the client for the first time that his case had been dismissed. The respondent offered to assist the client in sealing his criminal record, and in obtaining a letter of apology from the town. The client declined to have the respondent take any further action on his behalf.

By failing to abide by his client's decision to continue to pursue the matter, and by failing to assist his client in filing answers to interrogatories, the respondent violated Mass. R. Prof. C. 1.2(a) (lawyer shall seek the lawful objectives of his client), and Mass. R. Prof. C. 1.3 (lawyer shall act with reasonable diligence and promptness in representing a client). By effectively withdrawing from his client's representation without informing the client and taking steps to protect the client's interests, and without first seeking permission from the court, the respondent violated Mass. R. Prof. C. 1.16(d) (upon termination of representation lawyer shall take steps to protect a client's interests such as giving reasonable notice to the client), and Mass. R. Prof. C. 1.16(c) (lawyer shall not withdraw from employment in a proceeding before a tribunal without its permission). By failing to inform his client that his case had been dismissed, the respondent violated Mass. R. Prof. C. 1.4(a) (lawyer shall keep a client reasonably informed about the status of a matter).

In the other three matters, the respondent failed to promptly return his clients' files when he was discharged and upon his clients' requests. The respondent's conduct in this regard violated Mass. R. Prof. C. 1.16(d) (upon termination of representation, lawyer shall surrender papers and property to which the client is entitled), and Mass. R. Prof. C. 1.16(e) (lawyer shall return a client's file within a reasonable time following the client's request).

In mitigation, during the relevant time period, the respondent and a family member were experiencing health problems. The respondent, who suffers from attention deficit disorder, was practicing primarily on his own, and was not able to handle the demands of a busy solo practice. The respondent obtained treatment for his condition, and has found employment in a structured environment.

The respondent was admitted to practice in 1989, and had no prior discipline. He received an admonition for his conduct, on the condition that he attend a continuing legal education course designated by Bar Counsel.


ADMONITION NO. 04-41

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]

SUMMARY:
In or about February of 1998, the respondent agreed to represent a client in connection with the settlement of the estate of the client's aunt who had died on March 26, 1997. At the time of her death, the aunt was residing in a nursing home, and she was receiving Medicaid benefits. Her only assets were a house worth approximately $200,000, and approximately $500 in tangible personal property.

Because the aunt had died intestate, on August 25, 1998 the respondent filed a petition for administration of her estate, seeking the appointment of the client as her administrator. The client was appointed administrator on January 27, 1999. On or about March 1, 1999, the respondent filed a petition seeking issuance of a license to sell the house. The Probate Court issued the license to sell on or about April 12, 1999. The closing took place on April 16, 1999.

At the closing, the respondent received a check for $168,605.78 for the net sale proceeds. In April of 2000, with the consent of his client, the respondent paid the Division of Medical Assistance $126,460.41, in satisfaction of the state's Medicaid lien.

The respondent did not promptly distribute the remaining estate funds to the estate's beneficiaries. This delay was in part the result of a breakdown in communications between the respondent and his client, the administrator, who was dissatisfied with the small share of the estate he would be receiving. As a result of the delay, the respondent received a number of letters from disgruntled heirs, and in August of 2001, one heir filed a grievance with Bar Counsel alleging that the respondent was neglecting the estate matter. In April of 2002, the client also filed a grievance with Bar Counsel regarding the respondent's handling of the estate.

In November of 2001, with his client's approval, the respondent began making final distributions to the twenty-one heirs. The payment to one heir, who was receiving SSI benefits, was delayed in order to determine if the payment could be made in a way so as not to disqualify the heir from receipt of his SSI benefits. The respondent did not make the final distribution to this heir until July of 2004, at which point the respondent filed the first and final account on behalf of his client with the probate court.

By failing to act with reasonable diligence and promptness in representing a client with respect to the settlement of the estate, the respondent violated Mass. R. Prof. C. 1.3. By failing to promptly distribute the funds that he was holding to the estate beneficiaries, the respondent violated Mass. R. Prof. C. 1.15(b).

In mitigation, during the relevant time period, the respondent was suffering from the effects of alcoholism, which contributed to his lack of diligence in this matter. The respondent sought and obtained professional assistance for this problem from Lawyers Concerned for Lawyers (LCL), and is involved in the AA program. He has been sober since January of 2002, and is continuing with the monitoring program. The respondent also made some changes to his practice, and is no longer handling any civil matters.

The respondent, who was admitted to practice in 1987 and had received no prior discipline, received an admonition for his conduct, on the condition that he attend a continuing legal education course designated by Bar Counsel on the subject of legal ethics and law office management.


ADMONITION NO. 04-42

CLASSIFICATION:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]

SUMMARY:
This matter came to Bar Counsel's attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of Bar Counsel's receipt of a notice of dishonored check from the bank at which the respondent maintains his IOLTA account.

The respondent's IOLTA account was commingled and in violation of Mass. R. Prof. C. 1.15(a) by virtue of his practice of leaving fees in the IOLTA account and using the account to pay his personal and business obligations. He did not maintain a separate personal or business checking account. Bar Counsel examined the account and verified that there was no misuse of clients' funds and that the dishonored checks were personal or business obligations.

In aggravation, the respondent has a prior public reprimand from 1992 for unrelated misconduct. However, the respondent has recently substantially curtailed his law practice and is now semi-retired after more than thirty years of practice. He has opened a personal checking account and is no longer commingling. The respondent accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel on the record keeping and operational requirements of Mass. R. Prof. C. 1.15.


ADMONITION NO. 04-43

CLASSIFICATION:
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a)]

SUMMARY:
In or about April of 1998, the client filed a claim with the Massachusetts Commission Against Discrimination (MCAD), alleging that his employer discriminated against him on the basis of his disability, i.e. depression, and his national origin. The client had been terminated from his employment in April of 1998. He claimed that he was subjected to a hostile work environment because his coworkers would make derogatory comments about his Irish heritage, and his supervisors took no action after he complained about his treatment. The employer claimed that the client was terminated because he threatened one of his coworkers.

In July of 1998, the respondent agreed to represent the client in his MCAD matter. The respondent prepared a rebuttal statement to the employer's response to the MCAD complaint, which he submitted to the MCAD prior to the fact-finding conference on December 12, 1998. The respondent presented the client's case at the fact-finding conference.

In February of 1999, the respondent learned that the MCAD had made a determination that there was no probable cause to conclude that discrimination had occurred. The respondent promptly faxed a notice of appeal to the MCAD's appeals clerk, and kept a copy of his faxed letter for his file. However, MCAD has no record of receiving the notice of appeal, and the client's appeal was not effectuated.

The respondent did not notify the client that his MCAD claim had been dismissed. The client first learned of the dismissal in October of 1999, when he contacted the MCAD to find out the status of his claim. The client filed a grievance with Bar Counsel on May 1, 2000. In his response, the respondent acknowledged that it was his responsibility to notify the client of the dismissal of his MCAD claim in a timely fashion, and admitted that he had not done so. The respondent claimed that his failure to do so was inadvertent, in that he relied on his staff and the non-profit referral agency that had referred the matter to him to notify the client of the dismissal. The respondent has taken steps to ensure that this problem will not happen again. The respondent also noted that the client still had a right to pursue his discrimination claim in the Superior Court. The client was informed of his rights in this regard, but elected not to file suit in the Superior Court.

The respondent's failure to promptly notify his client that his MCAD claim had been dismissed violated Mass. R. Prof. C. 1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter).

While the matter was under investigation, the respondent attended a continuing legal education course designated by Bar Counsel on the subject of legal ethics and law office management.

The respondent, who was admitted to practice in 1994 and had no prior discipline, received an admonition for his conduct.


ADMONITION NO. 04-44

CLASSIFICATIONS:
Solicitation Violations [Mass. R. Prof. C. 7.3(d)]
Improper Acceptance of Compensation for Representation from Nonclient [Mass. R. Prof. C. 1.8(f)]
Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4(c)]

SUMMARY:
An insured had a long-term disability policy with an insurance company ("the insurer") through her employer and had been receiving benefits under that policy since 1998. The disability policy provides that the insured is obligated to notify the insurer of any other income benefits she receives, and considers social security benefits to be "other income". The insurer is then permitted to make an adjustment to the net monthly benefit being paid by the insurer. If the receipt of the "other income" results in an overpayment to the insured pursuant to the terms of the long-term disability policy, the insured must reimburse the insurer the amount of the overpayment within thirty-one days of the reward.

In August 1999, the insured received a letter from the insurer, advising her that she might be eligible for Social Security Disability Insurance ("SSDI") and that although the insurer would reduce her long-term disability benefits by the amount of her SSDI benefit, she would "gain some significant financial advantages with entitlement to Social Security." The letter went on to notify her that an attorney would call her shortly to discuss her case.

The respondent has an agreement with the insurer under which the insurer refers its insureds who have potential SSDI claims to the respondent. If the insured retains the respondent, and the claim is successful, the insurer pays the respondent 2.5 times the amount of the insured's monthly SSDI benefit.

Shortly after the insurer's letter was sent, the respondent called the insured and offered to represent her with respect to an SSDI claim. The respondent explained that the insured would not be charged for the respondent's services, and that the respondent would be compensated by the insurer if the SSDI claim was successful. At that time and on two occasions thereafter, the respondent also advised that if the social security claim was successful, the insurer would seek to recoup most or all of any retroactive check received from social security, and that the insurer would reduce her future monthly checks by the amount of the monthly SSDI check. The insured agreed to engage the respondent to represent her with respect to an SSDI claim.

The respondent then sent the client various forms, including a Fee Agreement, an Appointment of Representative, an Authorization for the Release [by the insurer] of Long-Term Disability Information, and an Authorization for Release of Social Security Information, which authorized the respondent to release to the insurer "information relative to my Social Security claim and all subsequent appeals." Also enclosed was an Authorization to Release Medical Information. The respondent's cover letter, enclosing the forms, advised the client to sign the forms where indicated, and that she need not have anyone witness her signature as "we will do so when the forms are returned to our office."

In May 2001, the respondent received a favorable decision granting the complainant entitlement to disability benefits. She wrote to the client advising her of the favorable decision and adding that, "when you get this check I would advise you not to spend it, but rather put it in a savings account. Your insurance company or employer most likely will require that you pay all or most of this check back to them. Please do not spend any of it until they have authorized you to do so."

By soliciting the client by telephone to suggest that she represent the complainant in an SSDI claim, the respondent violated Mass. R. Prof C. 7.3(d), which prohibits, solicitation of "professional employment for a fee from a prospective client in person or by personal communication by telephone, electronic device, or otherwise."

By advising the client that she did not need to have anyone witness her signature as "we will do so when the forms are returned to our office," the respondent participated in the false witnessing of a signature in violation of Mass. R. Prof. C. 8.4 (c).

By giving the client advice not to spend the proceeds of the retroactive social security check, which advice benefited the insurer, the respondent violated Mass. R. Prof. C.1.8 (f), which provides that a lawyer shall not accept compensation for representing a client from one other than the client unless there is no interference with the lawyer's independence or professional judgment or with the client-lawyer relationship.

The respondent was admitted to the bar in 1988 and has no disciplinary history. There is no evidence that the respondent caused harm to the client. The respondent received an admonition for her misconduct conditioned upon her attendance at a course designated by bar counsel.


ADMONITION NO. 04-45

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]

SUMMARY:
In 1999, the client hired the respondent to represent him in a probate and family court action to obtain visitation with his minor son. The respondent negotiated a visitation agreement in March of 2000, but there were many obstacles to the implementation of that agreement. The client had a history of violence with his ex-wife. As a result, the probate court had entered a ten-year restraining order in 1998 that prohibited the client from any contact with his ex-wife and son. That restraining order needed to be amended in order to allow visitation. The respondent did not file a motion to vacate that ten-year restraining order until July of 2002, two years after negotiating the visitation agreement.

On August 14, 2002, the court appointed a guardian ad litem to review the issue of visitation and to make a recommendation as to whether allowing the client to visit with the minor son would be appropriate. Although the respondent cooperated with the guardian ad litemís investigation, the respondent took no further action to pursue implementation of the negotiated visitation agreement. Also between January 2000 and June 2003, the respondent failed to respond to numerous calls from the client concerning the case. In June of 2003, the client discharged the respondent and requested that his file be forwarded to successor counsel. The respondent was unable to locate the clientís file. As a result, the client filed a complaint with bar counsel in November of 2003. The respondent did not attempt to recreate the lost file for the client until bar counsel became involved.

The respondentís failure between March of 2000 and June of 2003 to diligently pursue implementation of the negotiated visitation agreement constituted neglect in violation of Mass. R. Prof. C. 1.3. The respondentís failure to return the clientís telephone calls and requests for information violated Mass. R. Prof. C. 1.4. The respondentís failure to promptly return the clientís file when the representation terminated violated Mass. R. Prof. C. 1.16(e).

In mitigation, the respondent has been diagnosed with clinical depression and is currently receiving treatment.

The respondent has been a member of the Bar since 1977, with no prior discipline. The respondent accordingly received an admonition, conditioned upon attendance at a CLE course designated by bar counsel.


ADMONITION NO. 04-46

CLASSIFICATIONS:
Failure to Communicate Adequately with a Client [Mass. R. Prof. C. 1.4]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4 (g)]
Failure to Cooperate in Bar Discipline Investigations [SJC Rule 4:01 ß3]

SUMMARY:
In May 2003, the respondent was retained to draft documents including a will and power of attorney. The respondent drafted the documents and was paid by the client. The respondent provided the client with a draft of the documents, but not the originals. Later in October 2003, the client attempted to obtain the originals of her documents from the respondent, but he did not respond to her requests. On October 31, 2003, the client filed a grievance with bar counsel.

The respondent replied to bar counselís communication, but did not produce the documents. Bar counsel made numerous requests for the documents, and ultimately issued a subpoena directing the respondent to appear with the documents. Initially, the respondent did not appear as requested, but ultimately did appear, having in the meantime delivered the originals of the documents to the client.

By failing to respond to his clientís request for information, the respondent violated Mass. R. Prof. C. 1.4 and 1.16(e). By failing to respond to bar counselís letters and subpoena, the respondent violated SJC Rule 4:01 ß3 and Mass. R. Prof. C. 8.4 (g).

In mitigation the respondent was dealing with depression for which he is receiving counseling.


ADMONITION NO. 04-47

CLASSIFICATIONS:
Improper Contingent Fee [Mass. R. Prof. C. 1.5(c)]
Improper Disclosure of Confidential Information [Mass. R. Prof. C. 1.6]

SUMMARY:
In mid-2001, the respondent took over, from the prior attorney, the representation of the client in a personal injury case on a contingency basis. The respondent failed to have executed a written contingent fee agreement.

In July 2002, the respondent settled the case on behalf of the client for $85,000. On August 5, 2002, the respondent received a settlement check from the defendant in the amount of $85,000, made out jointly to the respondent and to the client. On August 7, 2002, the respondent and client signed an agreement concerning the distribution of the settlement funds, under which the respondent was to receive $24,335.10. Of that amount, the respondent was to remit $3500 to the clientís prior attorney, reimburse himself $3085 for case-related expenses, and retain attorneyís fees of $17,750. The respondent agreed to allow the client to deposit the $85,000 check into the clientís own bank account, after the client had agreed to obtain a bank check payable to the respondent in the amount of $24,335.10 funded from the same account. The client subsequently failed to purchase the bank check.

On August 20, 2002, the respondent filed a district court action against the client, alleging breach of contract. The client filed an answer and counterclaim on September 17, 2002. The counterclaim contained counts for breach of contract, fraud, violation of M.G.L., c. 93A, and quantum meruit. In December 2002, the respondent filed a motion for partial summary judgment in the district court. In his motion, the respondent set forth facts purporting to establish that the client had admitted owing the respondent $24,335.10 and that the client intentionally engaged in a fraudulent scheme to deprive the attorney of those funds. The motion made no reference whatsoever to the clientís allegation that the respondent had not adequately represented him or to the potential value of the personal injury case.

The respondent attached to the motion for summary judgment a letter from the clientís first attorney in the personal injury case to the client, dated January 2001. In that letter, the first attorney made reference to medical records indicating that the client had tested positive for cocaine immediately following the accident that resulted in the injury, and informed the client that she was concerned about those medical records.

The letter contained confidential information relating to the respondentís representation of the client. The contents of the letter bore no relation to the summary judgment motion, and the disclosure of the letter at that time was not reasonably necessary, within the meaning of Mass. R. Prof. C. 1.6(b)(2), to the respondentís prosecution of his contract claim or to his defense of the clientís counterclaims.

By disclosing confidential information, the respondent violated Mass. R. Prof. C. 1.6(a). By failing to put the contingent fee agreement between himself and the client in writing, the respondent violated Mass. R. Prof. C. 1.5 (c).

The respondent has been a member of the Bar since 1952. He received a public censure in 1989 for unrelated misconduct. The respondent received an admonition for his conduct as described above.


ADMONITION N0. 04-48

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3] Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4(c)]

SUMMARY:
In July 2000, the respondent agreed to represent a client in claims against a marina for damage done to the clientís boat while fixing the boatís engines. The client agreed to pay the respondent $150 an hour for his services and paid the respondent a retainer of $2,500. After he retained the respondent, the client demanded frequent updates about the respondentís progress in preparing the case for filing, including the sending of a G.L. c. 93A demand letter to the marina. During the fall of 2000, before he finished drafting the complaint against the marina, the respondentís best friend and two close relatives died, and the respondent experienced a period of significant depression.

Because of his depressed condition, the respondent neglected to send a c. 93A demand letter. In response to his clientís frequent inquiries, the respondent negligently misrepresented to the client that he had sent the demand letter to the marina. To avoid a confrontation with his client, the respondent also informed the client in early November that he had filed a complaint in court in which he alleged negligence, breach of contract, and violation of G.L. c. 93A on the part of the marina. In fact, the respondent did not actually file the complaint until November 24, 2000.

In December, when the client discovered that the respondent had not filed the complaint at the time he had been told, the client discharged the respondent and retained new counsel. At the clientís demand, the respondent turned over his file to the client and returned the clientís full $2,500 retainer.

Shortly thereafter, the marina moved to dismiss the c. 93A count of the complaint, alleging the plaintiff had failed to meet the statutory requirement that a demand letter be sent at least thirty days prior to the filing of a complaint. The court allowed the motion without prejudice when the client was unable to produce a copy of a demand letter to the marina.

The client was not harmed by the respondentís neglect or misrepresentations. The filing of the complaint two weeks after the respondent had told his client he had done so did not prejudice the clientís rights. In addition, instead of sending a new demand letter and seeking to amend his complaint, the respondent settled his claim against the marina for a payment in excess of $9,000.

By neglecting to send a demand letter to the defendant the respondent violated Mass. R. Prof. C. 1.3 (lawyer shall act with reasonable diligence in representing a client). By negligently misrepresenting to the client that he had sent a 93A demand letter and by misrepresenting that he filed a complaint in court before he actually did so, the respondent violated Mass. R. Prof. C. 1.4 (lawyer shall keep a client reasonably informed about the status of a matter) and 8.4(c) (lawyer shall not engage in conduct involving dishonesty or misrepresentation).

The respondent was admitted in 1990 and has no prior discipline. The respondent received an admonition for his misconduct in this matter.


ADMONITION NO. 04-49

CLASSIFICATION:
Conflict from Responsibilities to Another Client or Lawyerís Own Interests [Mass. R. Prof. C. 1.7(b)]

SUMMARY:
The client is a foreign national who had married a United States citizen in New York. The client had previously sought residency status in New York through a spousal petition, which was denied. Thereafter, the client was placed in deportation proceedings, moved to Boston (without his wife), and hired the respondent to file an application for residency based upon labor certification. In order to be successful in the deportation process, it was necessary to advance and complete the labor certification process prior to the final deportation order.

While the clientís two immigration cases were proceeding on parallel tracks, the client told the respondent that because of problems in his personal life, he was thinking about returning to his birth country and abandoning his efforts to obtain U.S. residency. The client stopped making the required installment payments on his fee agreement. The respondent thereafter filed a collection action, without first withdrawing as the clientís counsel.

The respondentís failure to withdraw from representation before filing suit against his client is a conflict of interest in violation of Mass. R. of Prof. C. 1.7(b).

The respondent has been a member of the Bar since 1988, with no prior discipline. The respondent accordingly received an admonition.


ADMONITION 04-50

CLASSIFICATIONS:
Handling Legal Matter When Not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failure to Seek Lawful Objectives of Client [Mass. R. Prof. C. 1.2(a)]
Failure to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
The client consulted the respondent in 1998 about a 1997 workplace accident, which caused a serious injury to the clientís right arm. The client had already applied for and collected workerís compensation benefits, but was interested in pursuing other sources of recovery. The respondent advised the client about a variety of options, and the respondent and client jointly concluded that the best option was a claim for negligent maintenance against the owners of the building in which the client was injured.

On March 6, 2000, the respondent filed a suit against the building owners on behalf of the client. The respondent failed to cause service to be made on the defendant. As a result, on July 3, 2000, the court dismissed the action without prejudice. The respondent was timely notified of the dismissal by the court. The respondent did not notify the client that the case had been dismissed. He took no action to serve the defendant or to vacate the dismissal.

The respondent and client had no contact between March 2000 and December 2001. In December 2001, the client called and wrote to the respondent inquiring about the status of the case. In January 2002, the respondent checked the case docket and recalled that the case had been dismissed. The respondent concluded that because so much time had elapsed since he had filed the lawsuit, the court would be very unlikely to vacate the dismissal.

The respondent and the client met on March 1, 2002. The respondent informed the client that the case had been dismissed, and that there was almost no chance it could be reinstated.

The respondentís failure to make service on the defendant, and his failure, when he learned of the dismissal, to make service and attempt to vacate the dismissal, violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. The respondentís failure to inform the client that his case had been dismissed violated Mass. R. Prof. C. 1. 4.

The respondent received an admonition for his conduct conditioned upon attendance at a CLE program designated by bar counsel.



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