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Commonwealth of Massachusetts

2005 Admonitions


ADMONITION NO. 05-01

CLASSIFICATION:
Handling Legal Matter When Not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1]

SUMMARY:
A native of Lebanon entered the United States on November 20, 1999 on a temporary non-immigrant visitorís visa. The visa expired on May 22, 2000. On or about May 1, 2000, the visitor contacted the respondent, informed him that he was in the country on a visitorís visa and indicated that he wanted to stay in the United States. The respondentís immigration experience was limited to the processing of employer-sponsored visa applications and he did not know what other immigration options were available. The respondent offered to undertake Internet research and, based on his research, he recommended the filing of an ďApplication to Extend/Change Nonimmigrant StatusĒ. Such an application, if allowed, would extend a visitorís visa for six months.

On May 4, 2000, the respondentís client signed the application and provided the respondent with the filing fee of $220.00 and on May 18, 2000, the application was filed. On July 20, 2000, the INS asked for additional documentation including, among other requests, documentation of the clientís ability to support himself while in the country and proof that he could afford a return air ticket. The respondent had multiple discussions with the client regarding the need for financial documentation but the client did not provide the respondent with sufficient information.

The respondent did not respond to the INS in any fashion and on December 20, 2000, the INS deemed the application for a visa extension abandoned. The client received the notice directly from INS and consulted with other counsel. On May 21, 2002, the client, represented by other counsel, filed a petition for asylum. The client had good grounds for claiming asylum. However, asylum applications must be filed within one year from the date of last arrival. In June 2002, the matter was referred to the immigration court because the client had ďnot demonstrated that an exception to the 1-year filing requirement appliesÖĒ.

On March 4, 2004 the client filed a complaint with bar counsel alleging ďineffective assistance of counselĒ based on the respondentís failure to file an asylum petition within one year. The client never specifically asked the respondent to pursue an asylum application. However, the client indicated that he wanted to remain in the United States permanently and a visa extension, even if granted, would only be valid for six months and would not authorize the client to work. The respondent never asked his client to describe the circumstances of his departure from his country of origin and otherwise did not investigate what other options might be available to the client so that he could become a permanent resident. The client was unaware that he might qualify for asylum or of the limited time frame for pursuing that relief.

The respondentís failure to conduct reasonable and customary inquiry into the circumstances of his clientís departure from his country of origin or to consult with or associate with a lawyer of established competence in immigration matters, violated Mass. R. Prof. C. 1.1 (prohibiting a lawyer from handling a legal matter without legal knowledge, skills, thoroughness and preparation reasonably necessary for the representation).

The respondent has no prior discipline. He received an admonition for his conduct in this matter.


ADMONITION NO. 05-02

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 client hired the respondent in December 2002, to represent her and her husband in a Chapter 7 bankruptcy. The respondent filed the bankruptcy in late December. In early January 2003, the client and the respondent received notice from the bankruptcy court that the creditorsí meeting was scheduled for February 6, 2003. The respondent postponed the creditorís meeting to March, but did not notify the client that he had rescheduled the meeting. The client appeared at the court on February 6, and waited several hours for the respondent to appear. The bankruptcy trustee then informed her that the respondent had rescheduled all his meetings that day.

The creditorís meeting was rescheduled for February 14. The respondent failed to appear. The bankruptcy petition was allowed despite the non appearance of the respondent. The respondent refunded $500 of his fee to the complainant.

By failing to notify his client that he had postponed the originally scheduled creditorís meeting, the respondent violated Mass. R. Prof. C. 1.4. By failing to attend the rescheduled creditorís meeting, the respondent violated Mass. R. Prof. C. 1.3

In another matter, the respondent, on behalf of a client, filed a motion for sanctions against a credit union. The motion alleged that the credit union had, in violation of the automatic stay resulting from filing a petition in bankruptcy, collected money, through payroll deductions, from respondentís client. The respondent intended to file and serve the motion on the credit union on December 29, 2003, but, unbeknownst to the respondent, his staff failed to effect the filing or serving on that day.

In early January 2004, the credit union refunded the money it had wrongly collected from the respondentís client, and so informed the respondent. The respondent learned later on January 2 that his office had failed to file the motion for sanctions. He filed the motion on

January 20, 2004. By that time, although the respondent believed he still had valid grounds to file the motion, some of the allegations in the motion and supporting affidavit were no longer accurate. The respondent did not review the motion and revise the allegations that were no longer accurate.

The respondent filed with the motion on January 20, 2004 a certificate of service attesting that he had served the motion on the credit union on December 29, 2003. The credit union had not received a copy of the motion on December 29 because the motion was not properly transmitted to the credit union. The credit union did not actually receive a copy of the motion until January 26, 2004.

The respondentís neglect in failing to file and serve the motion for sanctions on December 29, and his neglect in failing to confirm and correct the facts alleged in the motion, and the certificate of service, before filing those documents with the bankruptcy court on January 20, 2004, violated Mass. R. Prof. C. 1.3.

In mitigation, the respondent had serious health issues that caused him to suffer from lack of concentration and fatigue. The respondent is now receiving appropriate treatment for his health conditions.

The respondent has been a member of the Bar since 1971. The respondent received an admonition for his conduct and was required to attend a course in legal ethics.


ADMONITION NO. 05-03

CLASSIFICATION:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a) as effective through June 30, 2004]

SUMMARY:
This matter came to Bar Counselís attention as the result of the respondentís attempt to pay his annual registration fees to the Board of Bar Overseers with a check drawn on an IOLTA account.

The respondent is a sole practitioner. In addition to retainers or other trust funds that he occasionally received, he improperly deposited earned fees to his IOLTA account, thereby commingling his own personal or business funds with trust funds. He then used his earned fees to pay certain personal expenses directly from the IOLTA account.

The respondentís use of a client trust account for the deposit of earned fees and the payment of personal expenses violated Mass R. Prof. C. 1.15(a) as appearing in 426 Mass. 1301, 1363 (1997) and effective through June 30, 2004. The respondent did not understand that he could not use a trust account for the deposit of earned fees. He has now opened a new IOLTA account that is properly maintained.

The respondent has been a member of the Bar since 1983, with no prior discipline. He accordingly received an admonition for the above violations, conditioned upon attendance at a CLE program or programs designated by Bar Counsel.


ADMONITION NO. 05-04

CLASSIFICATIONS:
Alluding to Matters not Supported by Admissible Evidence [Mass. R. Prof. C. Rule 3.4(e)]
Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. Rule 8.4(d)]

SUMMARY:
The respondent prosecuted a criminal case. An appellate court found that during the closing argument to the jury, the respondent improperly commented on the defendantís failure to call a witness without obtaining the courtís prior authorization. In addition, the respondent referred in her closing to statements in police reports that the trial judge had specifically excluded from evidence because of hearsay. The defendantís conviction was overturned on appeal based on the respondentís improper argument and on the judgeís failure to give proper curative instructions to the jury. The respondentís closing remarks violated Mass. R. Prof. C. Rule 3.4(e) (alluding to matters not supported by admissible evidence), and Mass. R. Prof. C. Rule 8.4(d) (conduct prejudicial to the administration of justice).

In mitigation, the respondent had been admitted to the bar only a year and a half prior to becoming a prosecutor and had not previously tried a case before a jury. The respondent received an admonition for this misconduct.


ADMONITION NO. 05-05

CLASSIFICATIONS:
False or Misleading Communication [Mass. R. Prof. C. 7.1]
Firm Names and Letterhead [Mass. R. Prof. C. 7.5(d)]

SUMMARY:
The respondent, who was admitted to practice in 2002, is a solo practitioner with no lawyer associates in his employ. For over a year, the respondent used a firm name on his letterhead that implied that the respondent employed associates or had partners.

The respondentís use of misleading letterhead is in violation of Mass. R. Prof. C. 7.1 and 7.5(d).

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


ADMONITION NO. 05-06

CLASSIFICATIONS:
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)]
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:
The respondent was paid small retainers in two unrelated domestic relations matters. The first, in the amount $1,500.00, was paid in September 2003 and the second, in the amount of $700.00, was paid in April 2004. When he failed to diligently pursue these cases, the clients discharged him. The respondent then did not timely return the unearned portions of the retainers or return the files despite repeated requests from the clients. After the clients filed complaints with bar counsel, the respondent also failed to reply to bar counselís requests for information, necessitating the issuance of a subpoena to compel his appearance.

After meeting with bar counsel in December 2004, the respondent returned the clientsí files and refunded the full amounts of each retainer without deduction for work performed.

The respondentís failure to communicate with his clients and to represent them diligently was in violation of Mass. R. Prof. C. 1.3 and 1.4. The respondentís failure to return the unearned portion of his clientsí retainers and his failure to return his clientsí files upon termination of the representation was in violation of Mass. R. Prof. C. 1.16(d) and (e). The respondentís failure to cooperate with bar counsel was in violation of Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01, ß3.

In aggravation, the respondent received an admonition in 2001 for similar misconduct. In mitigation, the respondent had serious family problems that contributed to his neglect of the clientsí matters and to his failure to cooperate with bar counsel. During the time period in question, the respondentís father suffered from advanced Alzheimerís disease and a family dispute had arisen concerning guardianship. In addition, the respondentís brother had substance abuse problems and his mother had heart surgery and is in failing health.

The respondent was diagnosed with depression at least in part as a result of these events. Beginning in March 2004, the respondent undertook remedial measures, including therapy and prescribed medication. He also retained an attorney to deal with his family issues.

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


ADMONITION NO. 05-07

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a) as effective through June 30, 2004]

SUMMARY:
This matter came to bar counselís attention as a result of the receipt pursuant to Mass. R. Prof. C. 1.15(h), in December 2003 and April 2004, of four notices of dishonored checks from the bank at which the respondent maintains his IOLTA account.

The respondent accepted a full time position in the public sector in 1997 and does not currently engage in private practice or hold client funds. However, instead of closing his existing IOLTA account or allowing it to remain inactive, the respondent began using the IOLTA account as a personal account.

The respondent had no clientsí funds in his IOLTA account. The respondent was depositing personal funds, and then issuing checks for personal expenses from the account, including checks to pay a personal loan and his childrenís college tuition.

The account became overdrawn when the respondent issued two checks for the loan payoff before he made the corresponding deposit, and again when the respondent issued two checks for his childrenís tuition before he made the supporting deposit.

The respondentís use of an account designated as a trust account for the deposit of personal funds and the payment of personal expenses violated Mass R. Prof. C. 1.15(a) as appearing in 426 Mass. 1301, 1363 (1997) and effective through June 30, 2004.

The respondent has been a member of the Bar since 1989, 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 05-08

See In the Matter of Two Attorneys Ė SJC-BD-2003-048


ADMONITION NO. 05-09

CLASSIFICATIONS:
Withdrawal Without Permission from Tribunal [Mass. R. Prof. C. Rule 1.16(c)]
Withdrawal Without Protecting Client [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
From August 1996 to January 1999, the respondent represented a client in connection with claims for damages resulting from repairs to her apartment by a contractor. The respondent notified the client that another attorney with whom he shared office space would act as co-counsel with him on her case.

The respondent filed suit against the contractor in November 1998. The other attorney did not appear in the case on the clientís behalf. In January 1999, the respondent accepted a job with a legal research company and closed down his law practice, and he turned the clientís case over to the other lawyer.

Because the clientís case was pending in court at the time of his withdrawal, the respondent was required to obtain the permission of the court to withdraw. He failed to do so. The respondent also failed to make sure that successor counsel filed an appearance on the clientís behalf. After he took over the representation, successor counsel neglected the clientís case and allowed it to be dismissed.

By failing to obtain permission from the court for his withdrawal from the 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 the permission of the tribunal). By failing to take reasonably adequate steps to protect the clientís interests upon his withdrawal, the respondent violated Mass. R. Prof C. 1.16(d) (upon termination of representation, lawyer shall take reasonable steps to protect clientís interests).

The respondent received an admonition for his misconduct.


ADMONITION NO. 05-10

CLASSIFICATIONS:
Handling Legal Matter when not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Clientís Lawful Objectives or Abide by Clientís Decisions to Settle or Enter Plea [Mass. R. Prof. C. Rule 1.2(a)]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. Rule 1.4]
Responsibilities Regarding NonLawyer Assistants [Mass. R. Prof. C. Rule 5.3]

SUMMARY:
An elderly client requested the respondent to prepare a will for her. The respondent prepared notes about the content of the will and left the notes with a temporary secretary to prepare a draft. The secretary mistakenly inserted the respondentís name in an article of the will, the result of which was to bequeath to the respondent the clientís modest personal property.

The respondentís partner reviewed the draft will and asked the secretary to confirm the inclusion of the respondentís name as a beneficiary. Another secretary then called the client, who stated that she wanted the respondent to have her possessions because he had been good to her and knew what to do with her property. The secretary did not discuss the matter further with the respondent or his partner. Instead, she did not remove the respondentís name from the final draft of the will, and did not give the final draft to the respondent or his partner to review. Pursuant to normal office practice, the secretary mailed the final draft of the will to the client.

The client went to the respondentís office to execute the will. She met with the respondent and requested a modification unrelated to the bequest to the respondent. The respondent reviewed the will at that time, but did not notice the article creating the bequest to him. The respondent instructed a secretary to make the change requested by the client and left to go to court. Pursuant to office procedures, the client executed the will in the presence of the respondentís secretaries.

The respondentís failure to properly review the will before it was executed by his client, and to discuss with the client the provisions of the will violated Mass. R. Prof. C. Rule 1.1 (lawyer shall provide thorough representation and preparation reasonably necessary for the representation), 1.2(a) (lawyer shall carry out clientís lawful objectives), and 1.4(b) (lawyer shall explain matter to the extent necessary to enable client to make informed decisions regarding the representation). The respondentís failure to adequately supervise the secretary who prepared the draft will and to supervise the secretaries who aided the client in executing the will violated Mass. R. Prof. C. Rule 5.3(b) (lawyer having direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure nonlawyerís conduct is compatible with the professional obligations of the lawyer).

In aggravation, the respondent was previously admonished for inadequate preparation in a criminal matter. In mitigation, the error in the preparation of the clientís will was rectified immediately, the personal property included as a bequest was of minimal value, and the respondent did not charge the client for the will.

The respondent instituted procedures in his office to require that a lawyer review every will before it is executed and that a lawyer be present at the execution of every will.

The respondent received an admonition for his misconduct.


ADMONITION NO. 05-11

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

SUMMARY:
The respondent, a partner in a law firm, authorized the firmís outside collection counsel to bring suit against a client of the firm without ensuring that the firm had withdrawn from representing the client.

The respondent and other lawyers working under his supervision provided substantial legal services to a corporate client and submitted a bill for more than $80,000. Nine months after the services had been completed, the bill remained unpaid. The firm was continuing to represent the corporate client, however. The respondent was, or should have been, aware that another partner in the firm represented the client in connection with an unrelated litigation matter.

Without ensuring that his partner had withdrawn from the representation, the respondent authorized the firmís collections manager to begin collection proceedings. The collections manager understood the respondentís instructions to mean that the firmís representation had, in fact, terminated. Without further inquiry, she confirmed to outside counsel that the firmís representation of the client was terminated and authorized outside counsel to institute suit and to obtain an ex parte trustee attachment of the clientís bank account. The respondent signed an affidavit, filed by outside counsel, which asserted that the firmís client was likely to withdraw its funds if given notice of the motion for ex parte trustee process.

As a result of the respondentís actions, his firm was simultaneously representing the client and suing it in violation of Mass. R. Prof. C. 1.7(b). The respondentís partner did not learn that suit had been filed nor inform his client of his duty to withdraw until one day after the trustee attachment had been granted.

The respondentís failure to ensure that his firm withdrew from the representation before bringing suit was inadvertent. He accordingly received an admonition.


ADMONITION NO. 05-12

CLASSIFICATION:
Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
A Lawyer May Limit the Objectives of the Representation if the Client Consents after Consultation [Mass. R. Prof. C. 1.2(c)]
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 was appointed to represent a client on a criminal case. The client was convicted after trial on October 7, 2002, and sentenced to 31/2 years in the house of correction.

The respondent did not file a notice of appeal because he did not believe that there were meritorious appellate issues. However, the respondent failed to adequately advise the client of his appellate rights and did not discuss appellate issues with him. Between October 2002 and February 2003, the client attempted unsuccessfully to contact the respondent to inquire about his post conviction remedies. The respondent was not aware of the clientís efforts.

In early February 2003, the client contacted the Committee for Public Counsel Services regarding the respondentís failure to file an appeal on his behalf. The respondent was advised by CPCS that its performance guidelines require an attorney to consult with a client regarding the decision to file an appeal.

On February 25, 2003, after speaking to CPCS, the respondent filed a motion for a new trial, a motion to withdraw and request for appellate counsel, a motion to file a late notice of appeal, and notice of appeal. The new trial motion was premature and potentially harmful to the client, because it stated no grounds for allowance and was not supported by an affidavit. Pursuant to Mass. R. Crim. P. 30, any grounds not raised in an new trial motion are waived at the discretion of the court.

On March 21, 2003, CPCS appointed appellate counsel for the client and his appeal was reinstated. Appellate counsel was allowed to withdraw the respondentís new trial motion. The Appeals Court subsequently affirmed the clientís conviction on November 19, 2004. The client thus suffered no ultimate harm as a result of the respondentís conduct.

By failing to adequately discuss the clientís appellate rights with the client and failing to file a notice of appeal on behalf of the client, the respondent violated Mass. R. Prof. C. 1.2(c), 1.3 and 1.4. By filing a premature and defective motion for new trial, the respondent violated Mass. R. Prof. C. 1.1.

The respondent was admitted to the Massachusetts Bar in 1991. He now understands that he is required to have a thorough discussion of post conviction options with every convicted client and that he must file a notice of appeal if there is any question as to the clientís decision. He accordingly received an admonition for his conduct in this matter, conditioned upon his attendance at a CLE course designated by bar counsel.


ADMONITION NO. 05-13

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Improper Contingent Fee [Mass. R. Prof. C. 1.5(c)]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]

SUMMARY:
In 1998 and 2000, the respondent undertook to represent a client in two unrelated matters. Although the respondent agreed orally to charge the client a one third contingent fee in each case, he did not cause a written contingent fee agreement to be executed on either matter.

The first case was a personal injury matter arising out of a motor vehicle accident that the client had in June of 1998. The respondent took the claim to arbitration in March of 2004, but the arbitrator decided against the client.

The second case was a products liability case for injuries that the clientís minor child sustained when using a scooter in August of 2000. Other than writing two letters to the insurer in March of 2001 and one letter in January of 2002, the respondent took no action to pursue the products liability claim, despite many requests from the client that he do so.

By letter dated August 18, 2004, the client discharged the respondent and requested the return of both files as well as the scooter itself. The respondent did not reply. The respondent did not finally return the files or the scooter until December 7, 2004, after the client filed a complaint with bar counsel in November 2004 and bar counsel requested a response. The statute of limitations in the products liability case had not expired and the client was able to secure successor counsel.

The respondentís failure to return the clientís files and the scooter for six months after the client discharged him and requested these items and until after the client filed a complaint with bar counsel, constitutes a violation of Mass. R. Prof. C. 1.16(e). The respondentís failure to diligently pursue the products liability case on behalf of the clientís minor child

and to keep the client informed constitutes a violation of Mass. R. Prof. C. 1.3 and 1.4. The respondentís failure to execute a written contingent fee agreement in each case constitutes a violation of Mass. R. Prof. C. 1.5(c).

The respondent has been a member of the bar since 1989 and has no prior discipline. The respondent received an admonition conditioned upon his attendance at a CLE course designated by bar counsel.


ADMONITION NO. 05-14

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. of Prof. C. 1.3]
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) and S.J.C. Rule 4:01, ß 3]

SUMMARY:
In September 2003, a client retained the respondent to represent him in connection with deportation proceedings. During these proceedings, the client conceded his removability, and the respondent obtained a continuance to explore what relief might be available to his client.

Thereafter, the respondent failed to appear twice for scheduled court appearances in October and November 2003. The respondent did not appear at these hearings due to court obligations elsewhere. He did not file a motion for a continuance of the October date, and although he did file a motion for a continuance of the November date one day before the hearing, the motion was not timely and the Immigration Judge had not acted upon it by the time of the hearing. The hearing was held, and the Immigration Judge ordered the client deported.

The client retained successor counsel, who pursued a direct appeal without success. Successor counsel was, however, successful in challenging the clientís state conviction that had formed the predicate for the deportation proceedings. He obtained a reduced sentence for the client and was able to get the deportation proceedings reopened. Ultimately, the client was not deported.

The client also filed a complaint with bar counsel. The respondent failed to respond to bar counselís inquiries regarding this matter, necessitating the issuance of a subpoena for his appearance at the Office of Bar Counsel in July 2004.

In a second case, the respondent was appointed in September 2003 to represent a client in a criminal matter. In January 2004, following a bench trial, the client was convicted on one of four counts and sentenced to a term of incarceration. The respondent told the client that he would take the steps necessary for the client to pursue an appeal. The respondent filed a timely notice of appeal, along with a motion to withdraw and a motion for appointment of substitute counsel on appeal. However, the court never acted upon these motions and the respondent did not follow up.

The respondent thereafter failed to reply to the clientís numerous inquiries concerning the status of the appeal. As a result, the client filed a complaint with bar counsel in November 2004. The respondent again failed to respond to bar counselís inquiries regarding this matter, necessitating the issuance of another subpoena for his appearance at the Office of Bar Counsel in March 2005. Immediately following the meeting, the respondent took appropriate steps to ensure that the court acted upon the pending motions.

By failing to appear in Immigration Court for scheduled hearings in the first case and by failing to ensure that his motions were acted upon in the second case, the respondent failed to act diligently, in violation of Mass. R. Prof. C. 1.3. By failing to respond to the second clientís inquiries, the respondent failed to adequately communicate with his client, in violation of Mass. R. Prof. C. 1.4. By failing to cooperate with bar counselís investigation in two matters, resulting in the issuance of a subpoena to compel his appearance in both matters, the respondent violated Supreme Judicial Court Rule 4:01, Section 3 and Mass. R. Prof. C. 8.4(g).

The respondent received an admonition for his misconduct, conditioned upon his attendance at a continuing legal education course designated by bar counsel.


ADMONITION NO. 05-15

CLASSIFICATION:
Record Keeping Violation [Mass. R. of Prof. C. 1.15(f)]

SUMMARY:
This matter came to bar counselís attention pursuant to a notice of dishonored check received in August 2003, pursuant to Mass. R. Prof. C. 1.15(f) of the rule in effect prior to July 2004 (now 1.15(h)), from the bank at which the respondent maintains his IOLTA account. The respondent is a solo practitioner whose practice includes conveyancing. During the time period at issue, his record keeping in his IOLTA account was inadequate to his needs. In particular, he did not maintain or cause a complete and accurate check register to be maintained, and he did not reconcile or cause the check register to be reconciled, or reconciled adequately, to bank statements. The respondentís conduct in these respects was in violation of Mass. R. Prof. C. 1.15(a) of the rule in effect prior to July 2004 (now 1.15(f)), and led to the problems that caused the check to be returned.

The respondent has been a member of the Bar since 1972, with no prior discipline. After the check was returned unpaid, the respondent took immediate corrective action, both as to the specific check and as to his record keeping generally. He accordingly received an admonition for the above violations, conditioned upon attendance at a CLE program designated by bar counsel.


ADMONITION NO. 05-16

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 was appointed to represent a client on a criminal matter in July 2003 after the client became dissatisfied with prior appointed counsel. The client was convicted in May 2004 after a jury waived trial and sentenced to one year in the house of correction. Immediately after he was sentenced, the client asked the respondent to file an appeal. The respondent explained to the client that his conviction was not in itself an issue for appeal, and advised the client he would review the file and advise him of any appellate issues.

The respondent reviewed the clientís case file and determined it contained no appellate issues. The respondent subsequently advised the clientís wife he could find no issues in the clientís case to appeal.

After his release from the house of correction in or around July 2004, the client contacted the respondent to determine the status of his appeal. The respondent advised the client he did not file an appeal because he could find no appellate issues. The client filed a grievance with bar counsel in November 2004.

After receiving a copy of the grievance, the respondent filed a motion to file a late notice of appeal with a supporting affidavit. The court returned the motion to the respondent several days later because it did not contain any reason for allowance and because the respondent failed to enclose the required $300 filing fee with the motion.

In December 2004, the client contacted the Committee for Public Counsel Services (CPCS) regarding the respondentís failure to file an appeal on his behalf. CPCS appointed appellate counsel for the client. In early April 2005, the Appeals Court allowed appellate counselís motion to file late notice of appeal and the appeal was reinstated. Thus, the client suffered no ultimate harm as a result of the respondentís conduct.

By failing to adequately discuss the clientís appellate rights with the client and failing to file a notice of appeal on the clientís behalf, the respondent violated Mass. R. Prof. C. 1.3 and 1.4.

The respondent was admitted to the Massachusetts Bar in 1977. He has no prior discipline but was previously cautioned by bar counsel as to a similar problem. The respondent now understands that CPCS requires appointed counsel to file a notice of appeal for each client convicted after trial unless the client affirmatively declines to appeal.

The respondent received an admonition for his conduct in this matter.


ADMONITION NO. 05-17

CLASSIFICATION:
Improper Contingent Fee [Mass. R. Prof. C. 1.5(c)]

SUMMARY:
In October 1999, a client retained the respondent to represent him in challenging certain provisions of a family trust created in 1989. The respondent contacted a law firm in Florida to assist in the matter, because the trust instrument in question had been prepared in Florida and the principal office of the trustee was located in Florida. In January 2000, the client entered into a written fee agreement with the Florida firm to represent him in connection with litigation there. The fee agreement specified an hourly rate for the Florida firm and also indicated that the respondent would supervise the handling of the case and be available for consultation with the client.

The respondent and the client did not enter into a written fee agreement at the time the respondent undertook the representation of the client. In December 1999, the client sent the respondent a $10,000 retainer. The client ultimately agreed that the respondentís fee would be ten percent of any settlement or judgment. However, no written contingent fee agreement in compliance with Mass. R. Prof. C. 1.5(c) was ever prepared by the respondent or executed by the respondent and the client.

As the Florida case progressed, the parties decided to enter into mediation, as a result of which the case was settled for $900,000 in 2000. The settlement agreement signed by the client provided for the client to receive $810,000 and the respondent to receive $90,000. After receiving his check for $90,000, the respondent refunded the $10,000 retainer that he had received from the client in 1999. In January 2003, the client filed a complaint with bar counsel, alleging that the $90,000 fee was improper.

By failing to execute a written contingent fee agreement with the client, the respondent violated Mass. R. Prof. C. 1.5(c).

The respondent was admitted to practice in 1968 and has no prior history of discipline. The respondent accordingly received an admonition for his misconduct in this matter.


ADMONITION NO. 05-18

CLASSIFICATIONs:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Responsibilities Regarding Non-lawyer Assistants [Mass. R. Prof. C. 5.3(b)]

SUMMARY:
The respondent represented a husband in a divorce proceeding that went to trial in the probate court. The respondent was unhappy with the judgeís findings and rulings. However the client decided not to appeal. Thereafter, the respondent sent a letter to the judge, with copies to other judges, opposing counsel, the Judicial Conduct Commission, the client, and another third party. The respondentís letter accused the judge of collusion with the opposing party and counsel, and alleged that the judgeís findings and rulings referred to a marital asset that was not in dispute and thus not referenced in the record or the trial testimony. The respondent further alleged that the judge could not have known about this marital asset absent collusion with opposing counsel.

The marital asset to which the respondent referred was in fact erroneously mentioned in the respondentís own post-trial submissions to the judge. The respondentís legal assistant had prepared those post-trial submissions with the client but the respondent did not read them before filing them with the court. The respondent did not review these pleadings before making her written accusations of misconduct against the judge.

The respondentís conduct in mailing allegations of misconduct against the judge without first reviewing her own pleadings or the court record constituted a failure to act diligently in violation of Mass. R. Prof. C. 1.3.

The respondentís failure to review the post-trial submissions prepared by the legal assistant before filing them with the court, constituted a failure to adequately supervise a non-lawyer assistant in violation of Mass. R. Prof. C. 5.3(b).

The respondent was admitted to practice in 1979 and has no history of discipline. She recently closed her law practice and is currently engaged only in volunteer activities. The respondent received an admonition for her misconduct in this matter.


ADMONITION NO. 05-19

CLASSIFICATION:
Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4(c)]

SUMMARY:
On or about February 26, 2003, an adult son retained the respondent to represent his mother regarding the sale of her home. The son indicated that he would be negotiating the sale for his mother. The respondent provided general information about the procedure to the son and offered to review a purchase and sale agreement on the motherís behalf. The respondent had had no prior dealings with the client or the son.

The respondent received a copy of a purchase and sale agreement from the realtor who was handling the sale. The agreement, dated March 5, 2003, was signed by the mother. The respondent did not meet with her because she was living out of state with her son. However, he did communicate with her by letter and telephone.

When the home was sold, the respondent prepared a power of attorney from the mother to the respondent giving the respondent the authority to execute the closing documents on her behalf. The mother signed the POA to the respondent on April 8, 2003. Her signature was notarized by a notary in the state where she resided.

The respondent then sent the deed to the mother and asked her to sign it, but not date it. He advised her that he would fill in the appropriate date and that he would also notarize her signature. The respondent was not present when the mother signed the deed. She returned the signed deed to him by mail and he notarized her signature on April 30, 2003. The closing took place on May 6, 2003.

There was no dispute regarding the genuineness of the signature. However, the respondentís conduct in notarizing and purporting to witness the signature of a person who was not present before him violated Mass. R. Prof. C. 8.4(c).

The respondent has been a member of the bar since 1979. He has no prior discipline. The respondent received an admonition for his misconduct in this matter.


ADMONITION NO. 05-20

CLASSIFICATIONS:
Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Clientís Lawful Objectives or Abide by Clientís Decision to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Trust Account Violation [Mass. R. Prof. C. 1.15(b)(1)]

SUMMARY:
On or around August 8, 2001, a decedentís brother retained the respondent to probate the decedentís estate, which included a home, life insurance proceeds, bank account funds and several uncashed payroll checks. At the time of the decedentís death, he was behind on payments toward a first and second mortgage on his home. The first mortgagee had begun foreclosure proceedings. The brother decided to allow the foreclosure to proceed because he did not believe that the home would sell for more than was owed on the mortgages.

The decedent had executed a will in 1986, leaving all of his property to his wife and naming his brother as executor. The residuary legatees were his three children and his stepson. The decedent and his wife divorced prior to his death. The respondent incorrectly believed that the divorce invalidated the decedentís will, instead of merely the bequest to the wife. Consequently, he did not file the will. Instead, he filed a petition to name the brother as administrator of the estate and he named the decedentís three children as heirs. On August 16, 2001, the decedentís brother was appointed administrator of the estate.

The decedentís brother gave the respondent several checks made payable to the decedent and a $10,000 life insurance policy. Periodically, he forwarded other documents to the respondent, including correspondence pertaining to the foreclosure of the decedentís home, the decedentís overdue electric and water heater rental bills, his unpaid income taxes from the year 2000, and his life insurance policies. He also periodically telephoned the respondent seeking advice about estate-related matters. The respondent failed to return the majority of his calls.

On October 21, 2003, the decedentís brother sent the respondent a letter requesting that the respondent produce a copy of the estate file. When he did not receive it, he filed a grievance with bar counsel on November 3, 2003. He discharged the respondent and retained new counsel in March 2004.

In the approximately two and one-half years that the respondent represented the estate, he did very little substantive work to conclude the administration of the estate. He prepared and filed a petition for administration of the estate, viewed the decedentís home, collected documents and had several telephone conversations regarding insurance policies, the foreclosure sale, and the decedentís outstanding debts. He also reviewed court documents, deposited the decedentís pension fund check in the amount of $4,701.26 into his IOLTA account and paid the decedentís funeral bill and the probate court filing fee from proceeds of that check. The respondent took the remaining $973.55 as payment toward his legal fees.

The respondent never opened an estate account. He failed to collect the decedentís two life insurance policies and failed to deposit the decedentís paychecks, allowing them to become stale. He did not contact the IRS to attempt to compromise unpaid income taxes. In addition, the respondent was unaware that the decedent had mortgage insurance and thus failed to make a claim for reimbursement against the

second mortgagee after the amount due the second mortgagee was inadvertently paid twice, once from the foreclosure proceeds and once from the mortgage insurance.

The respondentís failure to research probate law concerning the effect of a divorce on a will, causing him not to file the decedentís valid will, constituted inadequate preparation in violation of Mass. R. Prof. C. 1.1. The respondentís failure to complete the estate, failure to address the decedentís tax problems, failure to gather and collect all estate assets and to deposit the decedentís payroll, insurance and tax refund checks into a trust account was in violation of Mass. R. Prof. C. 1.2(a) and 1.3 and 1.15(a) of the rule in effect prior to July 1, 2004 (now 1.15(b)(1)).

The respondent was admitted to the bar on December 11, 1971. He received a private reprimand in 1992, for neglect of an estate matter. In mitigation, the respondent was under a great deal of stress during the relevant time period because his wifeís undiagnosed serious health problems his nephewís serious injury in a motor vehicle accident and other domestic issues. As a result, it was difficult for him to manage his law practice. The respondentís family problems are now resolved.

The respondentís delay and errors caused no ultimate harm to the estate, and the respondent has now refunded all legal fees that he was paid. Accordingly, the respondent received an admonition, conditioned upon his attendance at CLE courses designated by bar counsel.


ADMONITION NO. 05-21

CLASSIFICATION:
IOLTA Violation [Mass. R. Prof. C. 1.15(e)(5)]

SUMMARY:
The respondent represented a credit union in a foreclosure action. The foreclosure resulted in a surplus of $417,000. On February 13, 2004, the respondent received a check for $417,000 from the attorney representing the buyer of the subject property. The respondent understood that before he could distribute the proceeds of the check, he had to file an interpleader action naming several parties as defendants, and obtain a resolution of that action. The respondent knew or should have known that this would take at least several months and that these funds should have been deposited to an individual interest-bearing account. The respondent deposited the $417,000 into his firmís IOLTA account. The respondent held the funds in his IOLTA account from February 13, 2004 through September 2004, a period of more than six months.

By holding trust funds that were not nominal in amount for longer than a short period of time, the respondent violated Mass. R. Prof. C. 1.15(e)(5). As a result of the courtís intervention, the respondent made restitution of the interest that the funds would have earned in an interest-bearing account. The respondent received an admonition for his conduct.


ADMONITION NO. 05-22

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]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
In early June 2002, a client engaged the respondent through a prepaid legal services plan to represent her in a civil matter in which she was being sued for $3,400 in credit card debt. The client advised the respondent that while she owed some of the debt, she did not owe all of it and that she wanted to contest the suit. The respondent misunderstood the clientís position and filed an answer admitting all of the credit card debt. The court set the matter down for a case management conference to be held in November 2002. Upon receiving the respondentís answer admitting the debt, the plaintiff filed a motion for judgment on the pleadings, and the court scheduled a hearing on that motion for July 2002. Notice of the hearing was sent to the respondent.

The respondent and the client met again in late June at which time the respondent did not inform the client of the plaintiffís motion for judgment on the pleadings or the July hearing on the motion. Because the respondent and the client did not discuss the respondentís answer admitting the debt or the plaintiffís motion for judgment on the pleadings, the misunderstanding was not discovered. Had the respondent understood the clientís position, he could have filed a motion to amend his answer. The respondent did not do this, nor did he attend the July hearing. At the hearing, the court entered judgment on the pleadings and sent a copy to the respondent. The respondent sent the judgment to the client, but she did not understand its meaning.

Although the case management conference had been taken off the courtís calendar at the time judgment entered, the respondent and the client appeared in court in November for the conference and spent hours waiting, only to learn after visiting the clerkís office that the conference had been canceled upon entry of judgment. The respondentís bill to the prepaid legal services plan reflected 3.5 hours for the time spent at the court that day. The client discharged the respondent in November 2002. Acting pro se in the subsequent supplementary process proceeding, the client agreed to pay $35 per month to the creditor, which she is still paying. She has since engaged successor counsel and is trying to reopen the judgment.

By admitting the debt in its entirety when the client only admitted owing some of the debt and wanted to contest the suit, the respondent failed to seek his clientís lawful objectives, in violation of Mass. R. Prof. C. 1.2(a). By failing to amend his answer or appear at the hearing on the motion for judgment on the pleadings, the respondent neglected a legal matter entrusted to him, in violation of Mass. R. Prof. C. 1.3. The respondent also failed to adequately communicate with his client, in violation of Mass. R. Prof. C. 1.4.

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. 05-23

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

SUMMARY:
The respondent represented both a driver and passenger in a motor vehicle accident claim in circumstances where it became obvious that there was a conflict of interest at least after the insurance carrier for the driver of the car determined that there was an issue as to liability.

In September 2000, two sisters who had been the driver and passenger in a car retained the respondent to represent them in connection with a collision between the driverís car and a truck. The accident caused minor injury to both sisters. The sisters claimed in their accident report and to the respondent that the driver of the truck was at fault. However, the truck driver claimed in his accident report that the driver of the car was at fault. The respondent obtained this report in the fall of 2000.

In September 2000, the respondent sent a letter of representation to the car driverís insurer on behalf of both the car driver and passenger and thereafter collected PIP payments on behalf of both clients. In October 2001, the respondent filed a claim with the truck driverís insurer on behalf of both the car driver and passenger.

The car driverís insurance company decided in August 2002 that the car driver was liable for the accident based on the truck driverís version of events. In August 2002, the insurance company for the car driver made an offer to the respondent to settle the passengerís bodily injury claim for $4,500. In September 2002, the passenger accepted the offer. The insurance company for the truck driver denied liability and declined to settle with either the car driver or passenger.

In October 2002, after resolving the passengerís claim, the respondent wrote the car driver and advised her that both insurance companies had decided that she was liable for the accident and that he would no longer pursue this matter on her behalf. He advised her that she might wish to consult with another attorney regarding her claim and that the statute of limitations would not expire until August 2003.

At least after the respondent learned in August 2002 that the car driver was potentially partially or entirely responsible for the accident and that the passenger had a claim against the car driver, his conduct in continuing to represent both sisters constituted a conflict of interest in violation of Mass. R. Prof. C. 1.7(a) and (b).

The respondent was admitted to practice in 1965 and has no prior history of discipline. 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. 05-24

CLASSIFICATIONS:
Handling Legal Matter Without Adequate Preparation [Mass. R. Prof. C. Rule 1.1]
Failing To Act Diligently [Mass. R. Prof. C. Rule 1.3]
Conduct Adversely Reflecting On Fitness To Practice [Mass. R. Prof. C. 8.4(h)]

SUMMARY:
In 1996, the respondent represented a defendant in a petition to establish the paternity of a child born in October 1992. The respondentís client told the respondent that he was earning $200 per week and that he had no assets. In fact, the client had income far in excess of $200 per week and owned assets of some value. In connection with the paternity case, the client filed a financial statement that misrepresented his income and assets. Based on an agreement between the client and the childís mother, the court issued a judgment of paternity against the respondentís client and ordered him to pay $75 per week in child support starting from the date of the order.

In January 1997, the respondent filed a complaint for modification for his client, seeking joint physical and legal custody of the child. The mother of the child filed an answer to the complaint and a counterclaim seeking child support from the father retroactive to the childís date of birth.

In July 1997, the client informed the respondent that his girlfriend planned to finance the purchase of a house for herself but that title would be in the clientís name because the client had good credit and his girlfriend did not. The respondent made no further inquiry.

The respondent attended the closing on the property with the client in August 1997. The deed to the property was issued in the clientís name and, after the deed was recorded, it was returned to the respondent. The day after the closing, the client asked the respondent to prepare a deed transferring the property from the client to the clientís girlfriend. The respondent prepared the deed and delivered it to the client. The respondent believed that the client intended to execute this deed immediately or shortly after the respondent gave it to him, but, in fact, the client did not execute the deed, and the property remained in the clientís name.

In connection with various court appearances on the clientís modification/contempt case between December 1, 1997, and January 1, 1999, the respondent filed with the court several financial statements in which the client maintained that his income was $200 per week and that he owned no interest in any real estate. Beyond asking his client to confirm these representations, the respondent did not conduct any further inquiry to confirm that the client had transferred title to the property to his girlfriend and that the clientís income was correctly stated.

In about August 1998, the mother discovered the respondentís clientís interest in the real estate. On August 7, 1998, the mother filed a complaint for modification in which she alleged that there had been a material change in circumstances in the clientís income since September 4, 1996, and that the client had misrepresented his income and assets at the time he agreed to pay $75 per week in child support. The motherís complaint for modification requested an increase in child support dating back to September 4, 1996. Relying on his clientís representations, the respondent filed an answer to the complaint for modification on August 27, 1998, denying that there had been a change in his clientís circumstances.

The mother subpoenaed the mortgage documents for the original purchase of the real estate; and two subsequent the home equity loan applications the respondentís client had made in December 1997 and July 1998. After receiving these documents, the mother amended her complaint in November 1998 to allege fraud by the respondentís client on his original 1996 financial statement.

Trial on the two cross complaints for modification was scheduled for February 18, 1999. In January 1999, the motherís counsel delivered to the respondent copies of the mortgage and loan documents showing the fatherís income and assets. Through these documents, the respondent learned for the first time that his client had not transferred his interest in the real estate to his girlfriend and that the client had claimed to be earning substantially more income on his loan applications than he had listed on his financial statements filed with the court. On January 18, 1999, the respondent submitted a new financial statement to the court on behalf of his client on which the client accurately listed his interest in the real estate.

At the trial on February 18, 1999, the court found that the client had sufficient assets and income to warrant an increase in child support from $75 per week to $218 per week. The court also ordered the respondentís client to pay the motherís attorneyís fees and costs.

The respondent violated Mass. R. Prof. C. 1.1 (lawyer shall provide competent representation), 1.3 (lawyer shall act with reasonable diligence), and 8.4(h) (lawyer shall not engage in conduct adversely reflecting on fitness to practice law), by failing to investigate the accuracy of the information contained on his clientís financial statements and by filing the financial statements with the court when further inquiry or preparation would have suggested that the information on the statements was not true.

In mitigation of this misconduct, the respondent had been admitted to practice for only a few months when he began representing the client in the paternity action. He also had virtually no experience in family law or real estate matters, which contributed to his failure to appreciate the implications of his clientís purchase of a house.

The respondent received an admonition for his misconduct.


ADMONITION NO. 05-25

CLASSIFICATION:
Solicitation Violations [Mass. R. Prof. C. 7.3(d)]

SUMMARY:
The respondent was consulted by an adult son about his elderly mother, who lived in a nursing home. The son informed the respondent that his sister and her husband (daughter and son-in-law) were trying to take over the mother's affairs and had filed a petition to become her guardians on grounds of mental illness. At the son's request, the respondent agreed to assist the mother in the matter and prepare whatever documents were necessary to protect her interests.

The respondent did not review the court records or otherwise inquire about the guardianship proceeding. As a result, the respondent was unaware that the mother already had a longtime attorney with whom she was content. She was also unaware that, pending the appointment of a permanent guardian, the son-in-law had been appointed as the motherís temporary guardian based on evidence that the son was placing his mother at personal and financial risk.

In sole reliance on her limited communications with the son, the respondent prepared a fee agreement for representation of the mother and visited the mother at the nursing home. The respondent related to the mother that a hearing was scheduled on the guardianship and then asked the mother whether the mother was represented by counsel in the proceeding. The mother replied that she had an attorney and suggested that the respondent contact her son-in-law for more information. The respondent placed a call to the son-in-law. While awaiting a response, the respondent told the mother that she would leave the fee agreement in the event that the mother wanted the respondentís representation. A few minutes later, the son-in-law returned the call, informed the respondent that he had been appointed as temporary guardian, confirmed that the mother was already represented, and instructed the respondent not to communicate further with the mother. The respondent then departed after leaving the proposed fee agreement with the mother, who did not sign it.

The respondent was relatively inexperienced and failed to understand that her concern about protecting the mother's interests, however sincere, did not entitle her to make an in-person approach to the mother and offer to represent the mother in these circumstances. The respondent's encounter with the mother violated Mass. R. Prof. C. 7.3(d) (soliciting professional employment for a fee in person). The respondent, who had no history of discipline, received an admonition conditioned on her attendance at a CLE course designated by bar counsel.


ADMONITION NO. 05-26

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Account on Request or on Final Disbursement [Mass. R. Prof. C. 1.15(d)(1)]
Responsibilities Regarding Nonlawyer Assistants [Mass. R. Prof. C. 5.3(a) and (b)]

SUMMARY:
The respondentsí firm acted as settlement agent for a refinance through a mortgage company. The closing for the refinance took place on December 18, 2001. Pursuant to the HUD settlement statement, outstanding property taxes for 1999 in the amount of $615.72, and the first half of property taxes for 2002 in the amount of $1,085.98, were to be paid from the loan proceeds.

Checks in the respective amounts of $615.72 and $1,085.98 were sent to the town on December 27, 2001. The check in the amount of $1,085.98 was negotiated on January 8, 2002. The town never cashed the second check for $615.72 representing payment for the outstanding 1999 taxes.

On or about October 1, 2004, the lender informed the borrower that an escrow account for the borrowerís property taxes had been established because the town had advised the lender that the property taxes were delinquent. The borrower was asked to pay the lender additional funds in order to fund the escrow account. In order to eliminate the need for the escrow account, the borrower had to provide proof that the taxes had been paid.

The borrower sent the respondents four letters between October 2004 and January 2005 requesting documentation to show that the property taxes had been paid as shown on the HUD settlement statement. Pursuant to the firmís practice, these letters were turned over to the firmís paralegal upon receipt, and the respondents were not aware of the borrowerís requests. The firmís paralegal contacted the town when she received the borrowerís correspondence. However, she was unsuccessful in rectifying the problem and did not follow up with the town or the borrower, did not provide the borrower with the requested documentation, and did not notify the respondents of the continuing problem. The respondents shared supervisory authority for the paralegal.

On April 25, 2005, the borrower filed a grievance with bar counsel. After they received the grievance, the respondents provided the borrower with documentation that both checks had been sent to the town at or about the time of the refinance in 2001, but that only the $1,085.98 check for the 2002 taxes had been negotiated by the town. The respondents also provided the borrower with a check in the amount of $615.72, representing the amount of the outstanding check for the $615.72 taxes that had never cleared. In addition, the respondents have begun reviewing mail as it is received, and have instituted a firm policy that their paralegal should notify them of problems that arise after the closing.

By failing to act with reasonable diligence and promptness in responding to the borrowerís questions regarding the closing for which they served as settlement agents, the respondents violated Mass. R. Prof. C. 1.3.

By failing to render a full and written accounting regarding distribution of the closing proceeds upon request by the borrower, the respondents violated Mass. R. Prof. C. 1.15(d)(1).

By failing to adequately supervise the firmís paralegal over whom they had direct supervisory authority, the respondents violated Mass. R. Prof. C. 5.3(a) and (b).

Both respondents were admitted to practice in 1977 and had received no prior discipline.

Based on the foregoing, the respondents each received admonitions for the above violations.


ADMONITION NO. 05-27

CLASSIFICATIONS:
A Lawyer May Limit the Objectives of the Representation if the Client Consents after Consultation [Mass. R. Prof. C. 1.2(c)]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(b)]

SUMMARY:
A woman was injured in an automobile accident on or about January 13, 2002. Shortly after the accident, she met with the respondent, who prepared the personal injury protection (PIP) application for her and submitted it to her insurance company along with her medical bills for payment. The insurer paid the PIP funds directly to the medical care providers. The respondent did not charge the client for this service.

Based on this contact, the client assumed that the respondent was representing her in pursuing her bodily injury claim. The respondent claims, however, that he had just prepared the PIP application for the client as a courtesy, because her son was a former client and, at one time, her daughter-in-law worked for another lawyer in the office. The respondent did not tell the client that he was limiting his representation to assisting her in the collection of PIP benefits and that she should consult another lawyer for representation on her bodily injury claims.

Over the next two and one-half years, the client and the respondent discussed generally her continuing medical treatment, and the respondent told the client to send him any additional medical bills she received. On one occasion, the client asked what her case would be worth, and the respondent informed her that a demand figure of $10,000.00 would be appropriate. The respondent did not clarify for the client that he was not representing her in connection with bringing a claim for pain and suffering, and did not advise her to seek counsel to represent her in the matter.

In about June of 2004, the client contacted the insurer, and learned that the respondent had never sent them a notice of representation on her behalf. The client then wrote to the respondent and requested that he return her file. He did so promptly, and the client retained new counsel to represent her in the matter, who quickly settled the case to the clientís satisfaction.

The respondentís failure to seek the clientís consent after consultation to limit the objectives of the representation violated Mass. R. Prof. C. 1.2(c). The respondentís failure to explain to the client that he did not intend to pursue a bodily injury claim on her behalf violated Mass. R. Prof. C. 1.4(b).

The respondent was admitted to practice in 1970, and had received no prior discipline.

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


ADMONITION NO. 05-28

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

SUMMARY:
In May 2004, the client contacted the respondent concerning the possibility of filing for bankruptcy. The respondent advised the client that his fee was $1300, which the client could pay in installments, and that the respondent would file a bankruptcy petition when his fee and the $209 filing fee had been paid in full. The respondent also advised the client that he would provide the additional service of writing creditors to stop harassing phone calls upon receipt of the first installment and the clientís review of his credit information. The respondent sent representation letters to the clientís creditors on June 24, 2004 and accepted telephone calls from the clientís creditors thereafter.

In September 2004, when the client had paid the fee in full, the respondent and the client met to review the proposed filing. At that meeting, the client informed the respondent that he had, within the past year, and for no consideration, conveyed his share of his former marital residence to his estranged wife, and that the probate court refused to grant a divorce unless the client received fair consideration. The client indicated a desire to insulate his estranged wife from financial consequences.

The respondent advised the client that if he filed for bankruptcy, the conveyance could be viewed as a fraudulent transfer, and the bankruptcy trustee would attempt to recover the transferred property from his wife. The respondent suggested alternative courses of action, and instructed the client to advise his wife to obtain independent legal advice, and to inform the respondent of the substance of that advice. He also requested that the client provide him with certain information concerning the value of the property transferred. The respondent confirmed those instructions in writing by a letter to the client dated September 7, 2004.

The client sent some of the requested documents to the respondent on or about September 17, 2004. The respondent did not thereafter contact the client for more than seven weeks. During the fall of 2004, the client attempted unsuccessfully on several occasions to contact the respondent by telephone. The respondent did not return his telephone calls. On or about November 9, 2004, the respondent sent to the client a copy of the September 7th letter, with notes indicating that the respondent was still waiting for additional documentation of the value of the property conveyed, and the legal advice obtained by his wife. The client replied to the respondent immediately, enclosing the information he had previously provided and some additional information and documents. The respondent did not reply for another ten weeks because he had not been able to fully resolve in his own mind the legal issues pertaining to the clientís situation.

The client wrote to the respondent again on or about December 24, ďpleading for information about his case,Ē and threatening to complain to bar counsel. The respondent did not reply. On January 21, 2005, the client contacted bar counsel.

Shortly thereafter, the respondent decided that he needed to advise the client that unless he sought a part of his wifeís pension as consideration for the transfer of the real estate, the bankruptcy trustee was likely to do so. The respondent then offered to continue his representation of the client, which offer the client accepted. The respondent filed a chapter 7 bankruptcy petition on behalf of the client on April 17, 2005, and the matter proceeded in due course.

The respondent acknowledged with regret his undue delay in responding to the client.

By failing to communicate with the client, and failing to respond to the clientís telephone calls for a period of several months, the respondent violated Mass. R. Prof. C. 1.4(a).

The respondent received an admonition for his conduct on condition of his attending a CLE program recommended by bar counsel.


ADMONITION NO. 05-29

CLASSIFICATIONS:
Handling a Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with a Client [Mass. R. Prof. C. 1.4(b)]
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:
In December 2001, a client retained the respondent to represent him in connection with deportation proceedings. Although the respondent had never handled any immigration cases before and was not familiar with this area of law, he agreed to accompany the client to the December 26, 2001 removal hearing as a favor to the clientís brother, a business acquaintance.

On December 26, 2001, the respondent filed an appearance on behalf of the client. At the respondentís request, the judge continued the hearing until June 26, 2002. After the hearing, the respondent advised the client to find counsel with experience in immigration law to represent him at the next hearing.

However, as the June 26, 2002 hearing date approached and the client had not yet found counsel, the respondent again appeared with the client at the hearing. At the hearing, the respondent, on the clientís behalf, conceded removability due to the clientís having pled guilty to a charge of assault and battery with a dangerous weapon. The judge reviewed the options available to the client, and agreed to continue the hearing until February 26, 2003, in order to allow the client to apply for withholding of removal and protection against torture. The judge directed the client to bring a completed application for withholding of removal to the next hearing.

After the June 26, 2002 hearing, the respondent again advised the client to find successor counsel with experience in immigration law to assist him with the matter. The respondent also requested that the client provide him with information necessary to complete the application for withholding of removal, but the client did not do so.

Up until four days before the February 26, 2003 hearing, the respondent did not communicate to the client, in writing or otherwise, that the respondent did not intend to represent him at the next hearing date. On or about February 22, 2003, the respondent returned the blank application form to the client, advised the client to fill out the form himself, and told the client that he would not be attending the hearing. The respondent did not file a motion with the court seeking to withdraw his appearance, thereby violating the rules of the tribunal, and he did not appear for the February 26, 2003 hearing. Instead, the client appeared alone and without the necessary paperwork. Because the client had not filed the application for withholding of removal, the judge issued an order deporting him.

The client retained successor counsel to represent him in his appeal from the deportation order. As a predicate to appealing the immigration decision, successor counsel assisted the client in filing a grievance against the respondent with bar counsel. The respondent signed an affidavit submitted by the client in connection with his appeal from the deportation order in which the respondent acknowledged that he was inexperienced in the area of immigration law, that he had failed to appear at the February 26, 2003 hearing, and that he did not properly withdraw from the matter with the court. Subsequently, the Board of Immigration Appeals entered a decision dismissing the clientís appeal, based on a conclusion that the client was not prejudiced by the respondentís ineffective assistance of counsel because any prejudice was caused by the clientís failure to convey to the respondent any facts upon which to base the clientís application for withholding of removal.

By agreeing to represent a client in a legal matter for which the respondent did not have the requisite knowledge and skill and without undertaking the necessary efforts to obtain competence, the respondent violated Mass. R. Prof. C. 1.1 (obligation to provide competent representation to a client).

By failing to communicate to his client that he would not represent him at an upcoming hearing until several days prior to the hearing, the respondent failed to communicate adequately with a client in violation of Mass. R. Prof. C. 1.4(b), and failed to take adequate steps to protect a clientís interests in withdrawing from representation, in violation of Mass. R. Prof. C. 1.16(d).

By failing to seek the courtís permission before withdrawing from his representation of the client, the respondent violated Mass. R. Prof. C. 1.16(c) (obligation to seek the tribunalís permission before withdrawing from employment in a proceeding)

By failing to appear for a scheduled hearing in an immigration case, the respondent violated Mass. R. Prof. C. 1.3 (obligation to act with reasonable diligence in representing a client).

The respondent has been a member of the bar since 1987. He has no prior discipline.

The respondent received an admonition for his misconduct, conditioned upon his attendance at a continuing legal education course designated by bar counsel.


ADMONITION NO. 05-30

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

SUMMARY:
In March 2000, two clients retained the respondent to probate the estate of a cousin who died testate on March 5, 2000. The named executor in the will, an attorney, had retired and the alternate executor declined to serve. In December 2000, the clients were appointed co administrators with the will annexed. The estate was complicated due to difficulties in identifying, locating and valuing all of the assets held by the decedent at the time of his death.

In December 2002, the respondent filed an estate tax return, paid an estimated amount of the Massachusetts estate tax due and filed an application for extension of time to pay the tax. The application for extension of time to pay was denied because the estate tax return was not timely filed by December 5, 2000, when first due.

In December 2003, substantial additional estate assets were located. The delay in locating these assets was not the fault of the respondent. However, the respondent did not file an amended estate tax return or remit payment of additional tax.

The respondent continued to work to attempt to conclude the administration of the estate until late 2004. However, commencing in December 2004, the respondent failed to respond adequately to the clientsí repeated requests for information regarding the status of the estate, including the estate taxes. In May 2005, the clients filed a complaint with the Office of Bar Counsel and retained successor counsel.

In response to the complaint, the respondent withdrew his appearance as attorney, accounted for all funds held, explained the status of the estate tax returns and transferred the file and funds to successor counsel. The respondent has also agreed to hold the estate harmless for any penalties and interest that the estate may incur.

The respondentís failure to diligently pursue the administration of the estate and to keep his clients informed of the status of the matter constitutes a violation of Mass. R. Prof. C. 1.3 and 1.4. In mitigation, he has been in treatment for clinical depression, including medication and counseling, since 2002.

The respondent has been a member of the bar since 1982 and has no prior discipline. He received an admonition conditioned upon his attendance at a CLE course designated by bar counsel.


ADMONITION NO. 05-31

CLASSIFICATIONS:
Failing to Seek Clientís 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)]

SUMMARY:
The respondent represented the holder of mortgage in a foreclosure matter. After obtaining a judgment in court, the respondent retained a sheriff who conducted a foreclosure sale in the spring of 1997. Although the mortgage holder purchased the property at the foreclosure sale for the outstanding amount owed on the mortgage, the sheriff did not complete the documentation of the sale. During the next year and a half, the respondent neglected to follow up with the sheriff to ensure the necessary paperwork was completed and the sale recorded. The sheriff died after 19 months, never having completed the paperwork. The respondent then neglected to seek a deed in lieu of foreclosure or take any other action to complete the transfer of the property for the next five years. The respondent did not communicate with his client during this period or advise him that title to the property had not been transferred to his name.

The respondentís client died in March 2003. Following the clientís death, the executrix of his estate contacted the respondent to determine the status of the property. The respondent failed to reply to these inquires until after the executrix contacted the Office of Bar Counsel. The respondent then assured the executrix that he would complete the matter and keep her informed as to his progress. The respondent failed for eleven additional months to do so. The respondent finally located the former owners of the property and obtained a deed in lieu of foreclosure from them.

The respondentís neglect of the foreclosure matter for over seven years violated Mass. R. Prof. C. 1.2(a) (lawyer shall seek lawful objectives of client through reasonably available means) and 1.3 (lawyer shall act with reasonable diligence). The respondentís failure to respond to the requests of the executrix for information about the status of the property violated Mass. R. Prof. C. 1.4(a) (lawyer shall keep client reasonably informed about status of matter and promptly comply with reasonable requests for information).

The respondent, who was admitted in 1971, had no prior disciplinary history. The respondent received an admonition for this misconduct.


ADMONITION NO. 05-32

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 Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4g; S.J.C. Rule 4:01, ß 3]

SUMMARY:
The respondent was retained to represent one of two relatives who were joint owners of a business. Disagreements had arisen between them concerning the business and other matters, and they were unable to resolve their dispute. The respondent filed suit seeking dissolution of the corporation and distribution of all jointly-held assets.

The respondent failed to answer interrogatories filed by the defendant. As a result, the complaint was dismissed. The respondent did not inform his client that the complaint had been dismissed and did not return his clientís calls of inquiry.

Approximately five months after the dismissal, the respondentís client discovered that the court had dismissed his case and retained new counsel. His new lawyer filed a motion to vacate the dismissal and then reached a settlement agreement with the defendant. The suit was dismissed by stipulation.

The client filed a complaint with bar counsel in March 2005. The respondent failed to respond to bar counselís inquiries, necessitating the issuance of a subpoena to compel his appearance.

The respondentís conduct constituted lack of diligence in violation of Mass. R. Prof. C. 1.3 and failure to communicate in violation of Mass. R. Prof. C. 1.4. His failure to cooperate with bar counselís investigation was a violation of Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01, ß 3.

The respondent was admitted to practice in 1981 and has no prior discipline. He received an admonition for the above violations, conditioned upon attendance at a CLE course designated by bar counsel.


ADMONITION NO. 05-33

CLASSIFICATIONS:
Failing to Seek Clientís 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) and (b)]

SUMMARY:
The respondent was retained in 2000 to file suit against two real estate brokers who had advised prospective homebuyers not to use his clientís home inspection business. The client also wanted to sue three other area brokers for conspiring to destroy his business. The respondent advised the client that the conspiracy charge would be difficult to prove, but he agreed to pursue that claim as well.

The respondent researched, drafted, and filed a complaint against the five realtors in February 2001, in which he alleged slander, interference with the clientís business, civil conspiracy, and unfair and deceptive trade practices. In November 2001, the respondent successfully opposed the defendantsí motion to dismiss the complaint.

The defendants propounded a series of interrogatories to the client calling for the clientís grounds in alleging a conspiracy. The client provided the respondent with draft answers to the interrogatories, but the respondent failed to finalize or serve the answers because the respondent considered the answers insufficient to support the conspiracy claim. The respondent did not tell the client of his concerns and that he had not filed the interrogatory answers.

In 2003, the court entered judgment for four of the defendants against the client pursuant to Rule 33. The respondent did not advise the client that judgment had been entered against him in favor of the four defendants.

In February 2004, the respondent appeared in court for a pre-trial conference in the case and stated his intention to file a motion to vacate the default judgments granted to the four defendants. The respondent failed to do so.

The court entered judgment for the final defendant pursuant to Rule 33 in February 2004, after the pre-trial conference. In June 2004, the court dismissed several cross claims the defendants had filed against each other. The respondent failed to notify the client that the court entered judgment for the fifth defendant and that his case had been dismissed.

In November 2004, the client discovered that his case had been dismissed and contacted the respondent. At a meeting between the respondent and the client in December 2004, the respondent offered to withdraw from the case and refund all of the fees the client had paid. When the client rejected this offer, the respondent promised that he would file a motion to remove the default by the end of January 2005. The respondent did not follow through on this promise.

The respondentís neglect of his clientís case violated Mass. R. Prof. C. 1.2(a) (lawyer shall seek lawful objectives of client through reasonably available means) and 1.3 (lawyer shall act with reasonable diligence). The respondentís failure to inform his client that the case had been dismissed violated Mass. R. Prof. C. 1.4(a) (lawyer shall keep client reasonably informed about status of matter). The respondentís failure to explain adequately to the client the problems with the conspiracy charge and that he had not filed the interrogatory answers violated Mass. R. Prof. C. 1.4(b) (lawyer shall explain matter to extent reasonably necessary to permit client to make informed decisions about case).

The respondent, who was admitted in 1977, has no prior discipline. The respondent received an admonition for this misconduct conditioned upon attendance at a CLE program designated by bar counsel.


ADMONITION NO. 05-34

CLASSIFICATIONS:
Failure to Act Diligently [Mass. R. Prof. C. 1.3]
IOLTA Violation [Canon Nine, DR 9-102(C)]
Failure to Maintain Proper Records of Clientís Property [Canon Nine, DR 9-102(B)(3)]
Failure to Turn Over to Client His Property [Canon Nine, DR 9- 102(B)(4)]
IOLTA Violation [Mass. R. Prof. C. 1.15(e)(5)]
Record-Keeping Violation [Mass. R. Prof. C. 1.15(f)]
Failure to Notify of Receipt or to Disburse Promptly [Mass. R. Prof. C. 1.15(c)]

SUMMARY:
In late 1992, the clients engaged the respondent to represent them in an action by the bank to foreclose on a mortgage and collect the deficiency. The clients gave the respondent a total retainer of $16,500. The respondent deposited the retainer in his law firmís IOLTA account. He did not at any time deposit the retainer into a separate interest-bearing account. During 1993 and 1994, the respondent performed work for the clients, and the firm took funds from the clientsí retainer in payment of the respondentís fees. The bills sent to the clients by the respondent, however, did not contain any calculation of the amount of the retainer that had been earned by the respondent, or the amount remaining in the respondentís IOLTA account. When the respondent left the firm in February of 1994, to form a new firm, the funds were transferred to the respondentís new firm but the respondent lost track of the amount that he was holding for the clients. He did not, thereafter, maintain complete records of his maintenance and/or disposition of all of the clientsí funds.

After early 1994, the bank took no further action to further pursue its claims against the clients. From 1994 through 1998, the litigation sat dormant in the Essex Superior Court. The clients contacted the respondent in 1996, and requested that he refund to them the unearned portion of the $16,500 retainer. The respondent resisted, telling the clients that if he refunded the retainer, he would have to file a motion to withdraw, which might trigger action by the plaintiff bank.

In August 1998, as a result of inaction by the plaintiff bank, the lawsuit was dismissed on the courtís motion. The court sent notice of the dismissal to the respondentís office, but the respondent was not aware of it.

The respondent did not make any effort between 1998 and 2003 to ascertain the status of the litigation. In 2003, the clients again requested that the respondent refund the unearned portion of their retainer. The respondent again informed the client that if he refunded the unearned retainer, he would have to file a withdrawal, and that doing so might prompt the bank to take action on the litigation.

The clients then contacted the court directly and learned that the action had been dismissed in 1998. The clients informed the respondent that the action had been dismissed. The respondentís efforts to calculate the amount he owed the clients were hampered by his lack of adequate records, but he refunded the unearned retainer with interest.

By failing to ascertain between 1998 and 2003, that the court had dismissed the bankís lawsuit against the clients and failing to notify the clients that the case had been dismissed, the respondent failed to act with reasonable diligence and promptness in representing a client, in violation of Mass. R. Prof. C. 1.3.

By failing to place the clientsí retainer in an individual interest-bearing account, the respondent violated Canon Nine, DR 9-102(C) for conduct prior to January 1, 1998, and for conduct on and after January 1, 1998, Mass. R. Prof. C. 1.15(e) of the rule in effect prior to July 2004 (now 1.15(e)(5)).

By failing to keep adequate records of the clientsí retainer between the time he received it in late 1992 and when he refunded the unearned portion in 2003, the respondent violated Canon Nine, DR 9-102(B)(3) for conduct prior to January 1, 1998, and for conduct on and after January 1, 1998, Mass. R. Prof. C. 1.15(a) of the rule in effect prior to July 2004 (now 1.15f).

By failing to refund to the clients the unearned portion of their retainer promptly upon their request, the respondent violated Canon Nine, DR 9- 102(B)(4) for conduct prior to January 1, 1998, and for conduct on and after January 1, 1998, Mass R. Prof. C. 1.15(b) of the rule in effect prior to July 2004 (now 1.15c).

The respondent was admitted to the bar in 1981 and has no disciplinary history. The respondent received an admonition for his misconduct conditioned upon his attendance at an MCLE program designated by bar counsel.


ADMONITION NO. 05-36

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 Notify of Receipt or to Disburse Promptly [Mass. R. Prof. C. 1.15(c)]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
The respondent received an admonition for misconduct in two unrelated matters.

In the first matter, a non-attorney filed a petition for asylum on behalf of a Brazilian couple. The petition was denied at the administrative level. The couple retained the respondent after they were placed in removal proceedings and had received a notice to appear for hearing.

The respondent asked for, and was paid, a retainer of $4000 to represent the couple in immigration court and, in anticipation of a possible change in the immigration laws, to file applications on their behalf to adjust their status. Instead, the clients conceded removability and the judge granted them voluntary departure from the United States. Thereafter, the clients retained new counsel, who filed a motion to reopen the immigration proceedings. The clients also filed a complaint at the Office of Bar Counsel, claiming, among other matters, that the respondent had ultimately done little work and had not refunded the unearned portion of the fee.

The respondentís failure to refund the advance payment of a fee that had not been earned is conduct in violation of Mass. R. Prof. C. 1.16(d). After the complaint was filed and by agreement with the clients, the respondent refunded $2000.

In the second matter, the respondent represented the wife in an acrimonious divorce case. Proceeds from the sale of the marital home were being held in escrow by the respondent and the husbandís attorney. The probate court judge authorized release of $15,000 from the sale to the wife. The check for $15,000 was made payable jointly to the respondent and the wife.

The respondent insisted that the client pay him $5000 from this sum, representing his unpaid fees to date plus a retainer against future services. The client did not agree to this demand, both because the respondent had not sent her itemized bills on a monthly basis as requested and because she needed the funds to pay other debts and to support her children. The client under pressure finally agreed to pay the respondent $4000 when he indicated that he would withhold the entire $15,000 until their dispute was resolved. Two days later, the client discharged the respondent. He subsequently refunded $1117 that had not yet been earned.

The respondentís refusal, at a minimum, to release the undisputed $10,000 in funds due the client from the $15,000 check is conduct in violation of Mass. R. Prof. C. 1.15(b) of the rule in effect prior to July, 2004 (now Rule 1.15(c)). The respondentís failure to send monthly itemized bills to the client as requested is conduct in violation of Mass. R. Prof. C. 1.3 and 1.4.

The respondent was admitted to the bar in January 1995. He has no prior discipline.

The respondent received an admonition for his conduct in two matters, conditioned upon his attendance at a CLE course designated by bar counsel.


ADMONITION NO. 05-37

CLASSIFICATIONS:
Handling a Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Clientís Lawful Objectives [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Timely Communicate Basis of Fee [Mass. R. Prof. C. 1.5(b)]
Withdrawal without Tribunalís Permission [Mass. R. Prof. C. 1.16(c)]
Withdrawal without Protecting Client [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
In November of 2002, a client retained the respondent to represent him in connection with the collection of a $17,500 debt.

The respondent agreed to file a civil action against the debtors, and then seek a real estate attachment against certain property owned by the defendants in Billerica, MA. The respondent requested that the client pay him a $2,500 flat fee to cover his work in obtaining an ex parte real estate attachment. The respondent expected to be paid an additional $1,500 retainer and to charge an hourly fee of $175 per hour for any additional work on the case after obtaining the temporary ex parte real estate attachment. The client understood that the initial $2,500 flat fee would cover the entire case. The respondent, who had not represented the client before, failed to adequately communicate the basis and rate of the fee to the client in writing or otherwise, before or within a reasonable time after commencing the representation.

On November 4, 2002, the client paid the respondent $2,500. On February 14, 2003, the respondent filed in Middlesex Superior Court a verified complaint, motion for appointment of a special process server, ex parte motion for real estate attachment, and an affidavit from the client in support of the motion for real estate attachment. On February 23, 2003, the respondent had the complaint and summons served on the defendants. A hearing on the motion for real estate attachment was held on February 24, 2003. The motion was allowed on February 25, 2003. The respondent recorded the real estate attachment at the registry of deeds on March 11, 2003.

After obtaining the real estate attachment, the respondent asked the client for an additional $1,500 retainer to go forward with bringing the case to judgment. The client did not pay the respondent, and on or about May 30, 2003, the respondent informed the client that he would no longer represent him in the matter.

The respondent did not seek the courtís permission to withdraw his appearance on behalf of the client in the pending civil action. The respondent also did not file the original return of service with the court. On August 19, 2003, the court dismissed the civil action without prejudice for failure to complete service.

In about December of 2003, the client discovered that the defendants had sold their property. The client did not receive any money from the proceeds of the sale. He contacted the respondent who agreed to look into the matter. The respondent went to the court and discovered that the case had been dismissed. The respondent notified the client and advised him to seek other counsel to reinstate his case.

By failing to file the original return of service with the court, the respondent failed to handle the clientís case with adequate preparation, failed to seek the lawful objectives of the client, and failed to act with reasonable diligence and promptness in representing a client, in violation of Mass. R. Prof. C. 1.1, 1.2(a), and 1.3.

By withdrawing from the clientís representation in a proceeding before a tribunal without first obtaining permission from the tribunal and without protecting the clientís interests, the respondent violated Mass. R. Prof. C. 1.16(c) and (d).

By failing to communicate the basis or rate of the fee to the client before or within a reasonable time after commencing the representation, the respondent violated Mass. R. Prof. C. 1.5(b).

The respondent was admitted to the Bar in 1987. He had no prior discipline.

In mitigation, during the time period involved, the respondent was suffering from severe depression, for which he sought and obtained treatment. In addition, the respondent was involved in a difficult personal situation involving a child custody dispute and related proceedings. The respondent closed his solo practice and began working full-time in a non-legal position.

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


ADMONITION NO. 05-38

CLASSIFICATIONS:
Conflict from Responsibilities to Another Client or Lawyerís Own Interests [Mass. R. Prof. C. 1.7(b)]
Conflict with Former Client in Substantially Related Matter [Mass. R. Prof. C. 1.9(a)]
Imputed Disqualification Generally [Mass. R. Prof. C. 1.10(a)]

SUMMARY:
Respondents A and B received admonitions as a result of the representation of a driver and two passengers on personal injury claims.

The driver and passengers retained respondent A to represent them for injuries sustained in a collision between the driverís car and another vehicle. The driver and both passengers told respondent A facts suggesting that the other driver was at fault. Although the passengers had at least potentionally adverse interests to the driver, respondent A did not discuss with the clients any potential conflicts of interest that might arise and did not obtain their consent after consultation to the joint representation.

A number of months later, respondent A obtained the police report and learned that the driver of the other vehicle claimed that respondent Aís client was at fault. Respondent A understood that this created a direct conflict of interest between his clients because the passengers had claims against the driver. Respondent A attempted to cure that conflict by discharging the driver as a client and continuing to represent the passengers. He did not obtain the driverís consent after consultation to his continuing representation of the passengers. Respondent B, an associate in respondent Aís practice, took over the representation of the passengers and pursued claims against both drivers.

In agreeing to represent the driver and passengers without obtaining their consent after consultation to the joint representation, respondent A violated Rule 1.7(b), which provides that ďA lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless . . . the lawyer reasonably believes the representation will not be adversely affected; and . . . the client consents after consultation.Ē

In continuing to represent the passengers after withdrawing as the driverís lawyer, respondent A also engaged in a conflict of interest with a former client in violation of Mass. R. Prof. C. Rule 1.9(a), which provides that ďA lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.Ē

In taking over representation of the passengers and pursuing claims against both drivers, respondent B engaged in a conflict of interest in violation of Rule 1.10(a), which provides that ďWhile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), or 1.9.Ē While respondent B had not personally represented the driver, respondent Aís conflict under 1.9(a) is imputed to respondent B by this rule.

In aggravation, respondent A received an admonition in 2000 for advancing funds to a client. Admonition No. 00-80, 16 Mass. Att'y Disc. R. 566 (2000). Respondent B received an admonition in 2000 for commingling and inadequate record-keeping of clientsí funds. Admonition No. 00-55, 16 Mass. Att'y Disc. R. 533 (2000).

In mitigation, both respondents have withdrawn from representation of the passengers and have waived any entitlement to a fee. Although respondent A did not appreciate the potential for conflict in agreeing to represent the driver and passengers simultaneously, he made a good-faith if mistaken effort to avoid the conflict when he learned of the other driverís statement by discharging the driver as a client.

Each respondent received an admonition for his misconduct in this matter, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 05-39

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

SUMMARY:
In February 2002, the client hired the respondent to transfer a small claims action that the client had filed pro se in November of 2001 to the district court civil docket. The client had sued a landscaping company for damages sustained when its employees cut down several trees and bushes on her property without her authorization. The clientís prior counsel had sent a chapter 93A demand letter and the lawsuit therefore sought triple damages and attorneyís fees in addition to the costs of replacing the trees and bushes.

The respondent was successful in transferring the case to the district court. On October 6, 2003, the respondent filed a motion requesting a default judgment in the amount of $2,354 and noted in the motion that the client was entitled to multiple damages pursuant to the chapter 93A demand letter. Although that motion was supported by an affidavit of counsel, the affidavit did not request attorneyís fees or include an itemized bill that identified the fees incurred as of that date.

On October 15, 2003, the district court allowed the respondentís motion for an entry of default judgment. The respondent took no further action to seek an award for multiple damages or attorneyís fees on the clientís behalf. On December 2, 2003, the court issued a default judgment for $2,832.26, which represented damages plus prejudgment interest. On January 14, 2004, the district court issued an execution and sent it to the respondent. Unbeknownst to the respondent, the respondentís secretary placed the execution in the clientís file instead of sending it to the client.

Between January and September of 2004, the respondent did not review the clientís file or take any further action to seek multiple damages or attorneyís fees on behalf of the client, despite requests from the client that she do so. In September of 2004, the client filed pro se motions for multiple damages and attorneyís fees, which the court denied. At that point, the client requested an execution from the court and was told that it had already issued and been sent to the clientís attorney. Thereafter, the respondent reviewed her file and found the January 14, 2004 execution that her secretary had filed. On November 5, 2004, the respondent sent the client the execution. However, by that time the sheriff had already levied upon and sold the defendantís assets in August of 2004 pursuant to another creditorís judgment.

The respondentís failure to respond to the clientís requests that she seek multiple damages and attorneyís fees, and her failure to forward the execution to the client in a timely manner, constituted a failure to act with diligence and promptness in her representation of the client, and a failure to keep the client informed of the status of her case in violation of Mass. R. Prof. C. 1.3 and 1.4. After bar counsel began his investigation, the respondent refunded the attorneyís fees paid and notified her malpractice carrier.

The respondent has been a member of the Bar since 1996, with no prior discipline. The respondent received an admonition conditioned upon her attendance at a CLE course designated by bar counsel.


ADMONITION NO. 05-40

In the Matter of an Attorney


ADMONITION NO. 05-41

CLASSIFICATIONS:
Handling a Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Clientís 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]
Failure to Withdraw Generally [Mass. R. Prof. C. 1.16(a)(2)]

SUMMARY:
The respondent represented a client in two personal injury matters.

The first case concerned injuries that the client sustained in an automobile accident on December 23, 1998. The client and the respondent signed a contingent fee agreement on December 29, 1998. The respondent filed suit on December 7, 2001.

The defendant scheduled the clientís deposition for September 5, 2002, October 25, 2002, and December 10, 2003. The defendant cancelled the deposition scheduled for September 5, 2002. The respondent did not notify the client of the other two scheduled dates for his deposition, and neither the respondent nor the client appeared.

On or about January 27, 2004, the defendant filed a motion to compel the client to attend a deposition, and sought costs for the clientís failure to attend the scheduled depositions. On February 10, 2004, the court ordered the client to appear at a deposition at a date convenient to counsel for the defendant. The respondent did not inform his client about the motion or the courtís order. The defendant noticed the clientís deposition for March 12, 2004. The respondent notified the client of this deposition, but the client was unavailable because he was recovering from hip surgery performed on March 10, 2004. By fax dated March 11, 2004, the respondent notified defendantís counsel that his client was unavailable for the deposition the next day due to the hip surgery, but defendantís counsel went forward with the deposition as scheduled.

When the client did not appear for the deposition, the defendant filed a motion for sanctions including dismissal of the action and the assessment of $804.00 in costs due to the clientís failure to attend previously-noticed depositions. The respondent did not notify the client of the motion, or take steps to oppose the motion. On May 25, 2004, the court entered an order dismissing the case without prejudice. The court order stated that if the client paid $804.00 to the defendantís attorney within thirty days and provided a date certain within sixty days for the deposition to take place, upon motion by the client the case might be reinstated. The respondent did not notify his client of the motion or the courtís order, and took no action to reinstate the case. In about March 2005, the client retained new counsel. In September 2005, the respondent paid the sanctions of $804.00, and the court allowed the clientís motion to reinstate the case. Successor counsel subsequently settled the case for $6,500.00.

The respondent also agreed to represent the client in a second case that arose out of personal injuries the client suffered in an automobile accident on July 27, 2000. The respondent filed the civil action on July 25, 2003. However, on October 13, 2004, the case was dismissed due to the respondentís failure to request a trial date. The respondent did not inform the client of the dismissal, or take any action to reinstate the case. In March 2005, the client retained new counsel, who was able to reinstate the case.

By failing to take steps to prevent his clientís two cases from being dismissed, the respondent violated Mass. R. Prof. C. 1.1 (handling a client matter without adequate preparation), 1.2(a) (failing to seek a clientís lawful objectives), and 1.3 (failing to represent his client diligently). By failing to keep his client reasonably informed about the status of his cases or to explain the matters to the extent reasonably necessary to permit the client to make informed decisions concerning the representation, the respondent violated Mass. R. Prof. C. 1.4(a) and (b).

During the relevant time period, the respondent experienced significant health problems that affected his ability to manage his solo practice. Although these health problems materially impaired the respondentís ability to represent the client, the respondent did not inform the client of the problems and seek to withdraw from the clientís representation. The respondentís conduct in this regard violated Mass. R. Prof. C. 1.4(b) and 1.16(a)(2).

In mitigation, the clientís new counsel was able to reinstate both cases and the respondent paid the court-ordered sanction in the first matter. The client suffered no financial harm, although there was the potential for harm.

The respondent was admitted to practice in 1991 and had no prior discipline. The respondent took steps to limit his solo private practice, and to provide coverage when he was away from his office. The respondentís health problems were also considered as mitigating factors.

The respondent received an admonition for his conduct, conditioned upon his attendance at a CLE course designated by bar counsel on the subject of law office management and legal ethics.


ADMONITION NO. 05-42

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

SUMMARY:
The respondent prepared an estate plan for a client and her mother in February 2002. Following execution of the documents, the respondent sent the originals to the client. The client did not receive the documents and, over the next several years, repeatedly tried to contact the respondent about the status of her documents. The respondent failed to reply to the clientís inquiries. The respondent prepared new documents for the client and her mother to execute after they requested an investigation by the Office of Bar Counsel.

The respondentís failure to respond to his clientís repeated inquiries over a period of two years violated Mass. R. Prof. C. 1.4(a) (lawyer shall keep client reasonably informed about status of matter and promptly comply with reasonable requests for information).

In a second matter, the respondent prepared an estate plan for a client and her husband in the fall of 2002. As part of that plan, the respondent drafted an Agreement of Trust and a warranty deed transferring property owned by the client and her husband in New Hampshire into the name of the trust. In November 2002, the respondent noticed an error in that deed prior to recording it and sent a corrected deed to the client and her husband for their signatures. The client promptly returned the executed deed to the respondent. Thereafter, the respondent failed to record the deed or the trust. He also failed to respond to the clientís repeated inquiries over the next two years. After the client filed a request for investigation with the Office of the Bar Counsel, the respondent recorded the deed and the trust and sent certified copies of both documents to the client.

The respondentís failure to record the deed or the trust, and his failure to respond his clientís repeated inquiries over a period of two years violated Mass. R. Prof. C. 1.3 (lawyer shall act with reasonable diligence); and 1.4(a) (lawyer shall keep client reasonably informed about status of matter and promptly comply with reasonable requests for information).

The respondent received an admonition in 1999 after a capias warrant was issued against him for his failure to appear in a collection action brought by a stenographer seeking payment for a deposition transcript the respondent had ordered. See AD-99-25, 15 Mass. Atty. Disc. R. 693. The respondent received an admonition for this misconduct.


ADMONITION NO. 05-43

CLASSIFICATIONS:
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:
In February 2003, a client retained the respondent to represent her in an employment discrimination case against her former employer. The respondent filed a timely complaint on behalf of the client with the Massachusetts Commission Against Discrimination (MCAD) in March 2003, and he attended a conference at the MCAD in August 2003. At the conference, the respondent represented to the MCAD investigator that the client would be filing a complaint in superior court, and subsequently he filed a request for dismissal.

The respondent prepared a complaint for filing in superior court, but he did not review it with the client or file it on her behalf.

In October 2003, the respondent left the country to work in Iraq in a civilian non-legal position in connection with the war in that country. The respondent took no steps to inform the client of his departure or to transfer the file to the client or another attorney.

After a period in which the attorney was in Iraq and not in contact with the client, she contacted the respondentís office and spoke to his former partner. The respondentís former partner provided the file to the clientís new attorney in July 2004.

The respondentís neglect and failure to adequately communicate with his client violated Mass R. Prof. C. 1.3, 1.4 and 1.16(d).

The respondent does not currently engage in private practice. The respondent has been a member of the Bar since 1991, with no prior discipline. He accordingly received an admonition for the above violations.



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