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2007 Admonitions



ADMONITION NO. 07-01

CLASSIFICATIONS:
Handling Legal Matter when Not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Act Diligently [Mass. R. Prof. 1.3]

SUMMARY:
The respondent was hired to represent an individual who sought to make a loan through his company to a third party. The loan was to be secured by a mortgage on real estate located out of state. The respondent prepared the note and the mortgage. The respondent failed properly to research the owners of the property offered for security and was therefore unaware that the property was held jointly by the borrower and another person. Consequently, the mortgage was only in the name of the borrower and not the co-owner of the property. In addition, the respondent misspelled the borrower’s name on the note and the mortgage.

The respondent handled the closing on the loan. At the closing, the respondent had the borrower execute the note and the mortgage. The respondent gave the note to the lender and recorded the mortgage at the registry of deeds.

Approximately eight months after the closing, the borrower went into default on the note. In preparation for foreclosing on his mortgage, the lender had another lawyer do a title examination, which disclosed the existence of the co-owner and the problems with the note and mortgage. The fact that the lender held a mortgage from only one of the joint owners, coupled with the fact that the respondent had misspelled the borrower’s name, created substantial problems for the lender in foreclosing on the mortgage.

The lender, represented by new counsel, filed suit against the respondent and the borrower alleging, among other things, negligence and breach of contract by the respondent. The suit was settled when the respondent agreed to pay the lender the principal and interest due on the note.

The respondent’s failure to conduct an adequate title examination and to correctly spell the borrower’s name on the note and the mortgage violated Mass. R. Prof. C. 1.1 (lawyer shall provide competent representation to a client) and 1.3 (lawyer shall act with reasonable diligence and promptness in representing a client).

The respondent was admitted in 1981 and had no prior discipline. The respondent received an admonition for his conduct in this matter, conditioned upon his attendance at a continuing legal education program designated by bar counsel.


ADMONITION NO. 07-02

CLASSIFICATIONS:
Handling 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]

SUMMARY:
In March 2005, the respondent was retained by his client, the husband in a contested divorce matter. Prior counsel provided the respondent with the client’s file and all previously filed financial statements. In June 2005, and January 2006, the respondent filed updated financial statements with the court. The respondent relied partially on information contained in the December 2004 financial statement filed by prior counsel.

As to the July 2005 financial statement, the respondent asked his client if there had been a change in his financial situation, and the client said there had not. The respondent believed his client. As to the January 2006 financial statement, the client did not accurately report his earnings and expenses, and the respondent did not ask his client for any documentation. The financial statement also omitted the client’s support obligation, $200 per week, to his former wife for their two children. Furthermore, the respondent erroneously listed his legal fees as $2,000, but the fees were actually $3,000.

The respondent filed these financial statements on behalf of his client with the court and certified that he had no knowledge that any of the information contained in the statements was false. However, the probate judge found that the husband’s financial statements were inconsistent and incorrect in a number of material respects. In February 2006, the judge issued a memorandum and decision including findings of facts, and referred the matter to bar counsel.

The respondent’s conduct did not reflect any intent to mislead the court or opposing counsel. Instead, the respondent’s conduct reflected inadequate attention to the matter.

The respondent’s conduct in failing to carefully review and adequately investigate a domestic relations financial statement and his certification of a financial statement without reasonable inquiry of inconsistencies and errors, constituted inadequate preparation and lack of reasonable diligence in violation of Massachusetts Rule of Professional Conduct 1.1 and 1.3.

The respondent has been a member of the Bar since 2001, with no prior discipline. He accordingly received an admonition for the above violations.


ADMONITION NO. 07-03

CLASSIFICATIONS:
Failing to Seek Client’s Lawful Objectives [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]

SUMMARY:
In late 1999, the respondent was retained by the client to probate the client’s deceased husband’s estate. The respondent was paid a fee of $5,000.00.

The estate consisted of minimal personal property and real estate located out of state held only in the husband’s name. The respondent prepared a deed transferring the estate’s property to the client and the client’s niece as joint tenants and had the client appointed the administratrix of her husband’s estate. The respondent took no further action of substance to complete the administration of the estate.

In 2003, prior to the completion of the administration of the estate, the client died without a will. The respondent agreed for no additional fee to represent the niece in the probate of her aunt’s estate and to get her appointed successor administratrix of her uncle’s estate. At the same time, the niece paid the respondent $1,200.00 to draft a family trust.

Approximately one year later, an associate in the respondent’s office filed the papers with the probate court to have the niece appointed the successor administratrix of her uncle’s estate and the executrix of her aunt’s estate. The respondent never drafted the trust and took no further action of substance to complete the administration of either estate.

The niece’s husband died in late 2004. The niece was dissatisfied with the respondent’s failure to complete the probate of her aunt’s and uncle’s estate and to draft the family trust. She retained new counsel to complete the work. The respondent returned most of the fees he had been paid by the niece and her aunt.

The respondent’s failure to complete the probate of the two estates and his failure to draft the family trust violated Mass. R. Prof. C. 1.2(a) (lawyer shall seek a client’s lawful objectives) and 1.3 (lawyer shall act diligently in his representation of a client).

The respondent was admitted in 1997. In 2002, the respondent received an admonition for signing a false jurat and failing to seek a client’s objectives. Ad No. 02-14, 18 Mass. Att’y Disc. R 658 (2002) In mitigation, neither client suffered ultimate financial harm, and the respondent made restitution.

The attorney received an admonition for his conduct in this matter, conditioned on his attendance at a continuing legal education course designated by bar counsel.


ADMONITION NO. 07-04

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

SUMMARY:
On May 18, 2005, the respondent sent the Commonwealth of Massachusetts a demand for relief under the Massachusetts Tort Claims Act, alleging that his client, a licensed independent clinical social worker employed by a school operated by the Department of Mental Retardation, had been discriminated against for activities protected by the Massachusetts Whistleblower Statute, G.L. c. 149, sec. 185. On June 15, 2005, the respondent received a response to the demand letter from the Executive Office of Health and Human Services denying the client’s allegations. The respondent did not provide the client with a copy of the response or advise her that a response had been received.

At the time the respondent sent the demand letter, he and the client had not finalized the terms of a fee agreement. On May 19, 2005, the respondent presented his client with a draft of a contingent fee agreement that he had executed, but the client was not satisfied with all of the terms. On June 10, 2005, the respondent, the client and the client’s husband met at the respondent’s office to discuss the terms of the representation. No agreement was finalized at that time. However, the client reasonably expected that the respondent would send her another draft fee agreement as per the discussion.

After the meeting of June 10, 2005, the respondent decided that he did not have the time to represent the client. However, he did not notify the client of his decision at that time. Between June 10, 2005 and January 7, 2006, the client sent the respondent five e mails, two faxes, and two letters seeking information regarding the status of her claim. Throughout this time period, the client remained unaware that the Commonwealth had responded to her demand.

On February 26, 2006, the respondent sent the client a letter indicating that he would not agree to the changes in the fee agreement that the client had proposed and that his workload was such that he could not take on any new cases. In his letter, the respondent still did not inform the client that he had received a response to his demand letter or inform the client of the two-year statute of limitations in pursuing whistleblower claims or provide information as to time limitations as to any other claims that the client might potentially have.

On April 3, 2006, the client made written demand to the respondent for her file and on June 1, 2006, the respondent sent to the client a copy of her file. On top of the file was a copy of the Commonwealth’s response to the demand. Her receipt of the file was the first the client knew that the Commonwealth had responded to her demand in writing by denying her allegations. After receipt of the file, the client consulted with another attorney and decided not to pursue her claims.

The respondent’s failure to adequately and timely respond to requests for information regarding the status of the file and his failure to keep the client informed of the status of her claims was in violation of Mass. R. Prof. C. 1.4. The respondent’s withdrawal from employment without timely notifying his client of his withdrawal, informing her of the status of her claims or informing her of the applicable limitations period(s), was in violation of Mass. R. Prof. C. 1.16(d).

The respondent was admitted in 1991 and has no prior discipline. The respondent received an admonition conditioned upon attendance at a CLE program designated by bar counsel.


ADMONITION NO. 07-05

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

SUMMARY:
In August 2001, the client hired the respondent to handle the administration of his wife’s estate. The client's wife had died intestate in January 2001, leaving a house that she had owned solely and in her maiden name. All other assets were jointly held. By the end of August 2001, the respondent had filed the death certificate and a petition for administration of the estate. The court sent the respondent a letter in September 2001, notifying the respondent that the client's appointment as administrator had been approved but would not become effective until a bond had been filed and approved. Thereafter, the respondent did no further work on the estate, and the client, after making numerous attempts to contact the respondent that went unanswered, filed the complaint with bar counsel in July 2005.

The respondent did not reply to bar counsel's repeated requests for information and only responded upon receipt of a subpoena. Ultimately, the respondent revived the estate, paid the bond, and completed the filings necessary to finish the estate.

The respondent's failure to timely file the bond and perform the work necessary to conclude the administration of the estate constituted neglect and failure to act diligently in violation of Mass. R. Prof. C. 1.3. The respondent's failure to respond timely to the client's many inquiries between 2001 and 2005 concerning the status of the estate violated Mass. R. Prof. C. 1.4.

The respondent has been a member of the bar since 1996 and has no history of discipline. In mitigation, the respondent did not cause harm to the estate or the client and did ultimately conclude the administration of the estate. The respondent received an admonition for her conduct in the matter conditioned upon her attendance at a CLE course designated by bar counsel.


ADMONITION NO. 07-06

CLASSIFICATIONS:
Improper Disclosure of Confidential Information [Mass. R. Prof. C. 1.6]

SUMMARY:
In November 2004, the respondent agreed to represent a client on two personal injury claims arising out of a motor vehicle accident on June 30, 2002 and a motorcycle accident on September 9, 2002. The respondent was the third attorney to represent the client on these matters. The client had suffered a brain injury. As a result of the injury, the client had short-term memory loss and was suspicious of any legal advice that she received.

By September 2005, the relationship between the respondent and the client had deteriorated. The client accused the respondent of criminal misconduct. She filed an application for a criminal complaint against him that was denied. The client also accused the respondent of neglect of her personal injury cases.

On October 3, 2005, there was a hearing on the June accident case. Because of the client’s accusations, the respondent filed a motion to withdraw, which was allowed. The affidavit filed by the respondent in support of his motion to withdraw was unnecessarily detrimental to the client’s interest, stating that the client had been belligerent to the respondent and his staff, that she had made a misrepresentation to him, and that she had faxed and mailed accusatory and irrational correspondence to him. The respondent also attached copies of letters that he had written to the client. By revealing confidential information in his motion to withdraw, the respondent violated Mass. R. Prof. C. 1.6.

The respondent then filed a motion to withdraw as the client’s attorney on the September accident case. In the respondent’s supporting affidavit, he again violated Mass. R. Prof. C. 1.6 by unnecessarily revealing information that was detrimental to the client. The respondent’s motion was allowed on February 23, 2006.

The respondent was admitted to the bar on December 15, 1992. In 2004, he received an admonition for neglect and failure to communicate with a client in a personal injury matter. The respondent received an admonition for his conduct in this matter, conditioned upon his attendance at a CLE course designated by bar counsel.


ADMONITION NO. 07-07

CLASSIFICATIONS:
Handling 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]

SUMMARY:
The respondent is a collections attorney who represents credit card companies. In 2004, the past due account of a debtor was referred to him for collection. The credit card company provided a street address for the debtor, but the respondent’s correspondence to that address was returned as undeliverable.

In an effort to locate the debtor, the respondent used two electronic search services. Both returned multiple addresses, including a post office box in the town where the respondent was informed that the debtor worked and a street address in that town. One of the services also returned an address for the debtor in Boston. The respondent claimed that no search linked the debtor to a driver’s license. When the respondent decided to bring suit against the debtor, he arbitrarily selected the street address in the town where she worked. This address was incorrect and, in fact, the debtor had never lived in that town nor had she ever resided at the street address selected by the respondent. She maintained a post office box in that town because it was convenient to her employment. The Boston address was in fact the correct one.

In the course of the litigation, the respondent submitted various pleadings and affidavits representing that the debtor had been served. The debtor later learned of the lawsuit and judgment from correspondence sent by the respondent to her, which bore both her (correct) post office address and her (incorrect) street address. Her attorney appeared and filed a motion to vacate the default judgment against her, which was allowed because she was served at an address where she never lived. The entire action was subsequently dismissed because venue was improper.

Given that multiple addresses appeared on both of the search service results and particularly when (according to the respondent) no search linked the debtor to a driver’s license, the respondent should have undertaken further investigation before filing suit and making service. He should not have arbitrarily assumed that the debtor lived in the town where he served her simply because she had a post office box there.

By failing to take adequate steps to insure that the defendant was properly served, and by negligently representing to the court on several occasions that the defendant had been properly served, the defendant failed to undertake the preparation reasonably necessary to the representation or to act with reasonable diligence, in violation of Mass. R. Prof. C. 1.1 and 1.3.

The respondent has been a member of the bar since 1981 and has no prior discipline. He received an admonition for the above conduct.


ADMONITION NO. 07-08

Order (admonition) entered by the Board January 8, 2007.

HEARING REPORT

On January 16, 2004, Bar Counsel filed a petition for discipline against the Respondent, Richard Roe. All three counts of the petition alleged some combination of failure to represent a client competently and zealously, failure to withdraw, and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, that is prejudicial to the administration of justice, and that adversely reflects on his fitness to practice law. The Respondent, represented by counsel, filed an answer on February 12, 2004. A hearing was held in this matter before a Hearing Committee on June 14, 16, 30, and July 6, 2004. Fifty-seven exhibits were admitted into evidence and seven witnesses testified at the hearing. On September 8, 2004, the parties filed their proposed findings of fact, conclusions of law and recommendations for discipline.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
  1. The Respondent, Richard Roe, was admitted to the Massachusetts bar on December 18, 1980. (Ans. ¶21)
  2. From 1990 to 1993, the Respondent’s law office was located at Main Street, Boston. (Ans. ¶2) About May 1993, the Respondent moved his law office to Front Street, Boston, where it has remained to the present. (Ans. ¶2)
  3. John Doe was admitted to the Massachusetts bar on November 19, 1968. (Ans. ¶3) He was disbarred on April 20, 1999, retroactive to September 29, 1995, the date of his temporary suspension. (Doe Tr. II:35-36; Ans. ¶3) From 1991 to 1995, Attorney Doe subleased office space from the Respondent and assisted the Respondent on some cases, but Attorney Doe was not an employee of the Respondent. (Roe Tr. III:89-91, 98-99; Doe Tr. II:50-52, 149-50)

Count One – Findings of Fact

  1. On May 14, 1992, Attorney John Smith filed suit in Middlesex Superior Court on behalf of James Jones, in a matter styled Jones v. MK, et al. (Ans. ¶5; Ex. 47, Ex. 48) In his suit, Mr. Jones alleged that two Boston area physicians committed medical malpractice when removing nasal polyps in February 1987. (Ans. ¶6; Ex. 47) Mr. Jones also alleged that the doctors’ negligence caused a cerebrospinal fluid (CSF) leak and that the doctors had failed to inform him that a CSF leak was a risk when they obtained his consent to perform the surgery. (Ans. ¶6; Ex. 47) He further alleged that, as a result of the malpractice, he sustained brain damage, permanently lost his sense of smell, and sustained damage to other sensory functions. (Ans. ¶6; Ex. 47) Attorney Paul Poe represented the defendants in the lawsuit. (Ans. ¶6; Ex. 48)
  2. On December 7, 1992, Attorney Smith filed an offer of proof with a medical tribunal supported by an affidavit of Dr. W asserting that the defendant doctors had committed malpractice. (Ans. ¶7; Ex. 45, Ex. 48)
  3. On December 7, 1992, the medical tribunal issued a report finding that a legitimate question of liability existed in Mr. Jones’ case. (Ans. ¶8; Ex. 48)
  4. On or about March 15, 1993, Mr. Jones signed interrogatories that required him to identify his expert. (Ans. ¶9; Ex. 42) In his answers to interrogatories, Mr. Jones responded that no decision had been made about plaintiff’s expert. (Ans. ¶9; Ex. 42)
  5. On or about December 23, 1994, the court allowed the defendants’ motion to compel further answers to interrogatories that called for the plaintiff to identify his expert by no later than January 10, 1995. (Ans. ¶10; Ex. 21, Ex. 48) Attorney Smith sought reconsideration of the order, which was denied on or about February 12, 1995. (Ans. ¶10; Ex. 38, Ex. 48)
  6. On April 3, 1995, Attorney Smith sought permission to withdraw, citing substantive differences with his client. (Ans. ¶11; Ex. 37, Ex. 48) On May 1, 1995, Attorney Smith was allowed to withdraw and Mr. Jones was given 45 days to obtain successor counsel. (Ans. ¶12; Ex. 32, Ex. 33, Ex. 48)
  7. In May 1995, Mr. Jones retained the Respondent as successor counsel in his medical malpractice action.2 (Roe Tr. III:105-06) We credit the Respondent’s testimony that he agreed to represent Mr. Jones because he wanted to help Mr. Jones and because Attorney Doe thought it was a good case. (Roe Tr. III:104-05) Mr. Jones initially met both the Respondent and Attorney Doe, but Mr. Jones understood that Attorney Doe principally would be handling his case. (Roe Tr. III:101-03; Doe Tr. II:58-59) During May through August 1995, Attorney Doe was primarily responsible for Mr. Jones’ case, and Attorney Doe spoke frequently with Mr. Jones and periodically updated the Respondent on developments in the case. (Roe Tr. III:103, 106; Doe Tr. II:94-95)
  8. Although Mr. Jones had stated that his predecessor counsel had an expert on board and that his case was ready for trial, Attorney Doe realized after his initial review of Mr. Jones’ file and his telephone conferences with Attorney Smith and Dr. W that Mr. Jones did not have an expert for trial. (Roe Tr. III:103; Doe Tr. II:57-63) Although all discovery was essentially completed by this time, Attorney Doe also realized that Mr. Jones’ answers to interrogatories regarding his expert were due on June 15, 1995 or the case would be dismissed. (Roe Tr. III:103-04; Doe Tr. II:64)
  9. The Respondent obtained the name of a potential expert from a colleague and gave the name to Attorney Doe. (Roe Tr. III:108-09, 165; Doe Tr. II:65) In mid-May 1995, Attorney Doe then telephoned the potential expert, Dr. K, who agreed to review Jones’ medical records and provide a written evaluation for $1,000. (Doe Tr. II:66) On or about May 30, 1995, Attorney Doe sent copies of Mr. Jones’ medical records and a check for $1,000 to Dr. K, and requested his written report in two weeks, if possible. (Roe Tr. III:109; Doe Tr. II:67; Ex. 30, Ex. 30A)
  10. On June 14, 1995, when he had not yet received a written report from Dr. K, Attorney Doe spoke with Dr. K by telephone and discussed the doctor’s opinions and observations concerning Mr. Jones’ surgery. (Doe Tr. II:68-69, 98) As a result of the telephone conference with Dr. K, Attorney Doe drafted supplemental answers to interrogatories on behalf of Mr. Jones, identifying Dr. K as the plaintiff’s proposed expert (Roe Tr. III:186; Doe Tr. II:78, 98), and asserting that
    “Dr. K’s testimony will include, but not be limited to, the following opinions concerning this case:

    1. that given the previous course of treatment undertaken by the plaintiff, the ethmoidectomy performed by the defendants was unnecessary and unwarranted.
    2. the plaintiff was not sufficiently by [sic] informed of the consequences of the subject surgery and was not properly advised post surgery of the nature and extent of the complications which resulted from the perforation of his cribiform plate.
    3. that perforation of the cribiform plate with subsequent cerebral spinal fluid leak during ethmoid surgery is a rare occurrence and constitutes negligence on the part of the defendants.”
  11. (Ex. 3)
  12. On June 15, 1995, Mr. Jones came to the office and signed the supplemental answers to interrogatories. (Doe Tr. II:79-80) The same day, Attorney Doe appeared in court on Mr. Jones’s behalf and filed notices of appearance for himself and the Respondent.3 (Doe Tr. II:81, 84-85, 123; Ex. 1) At the hearing, the court revised the discovery deadlines, and as a result, Attorney Doe did not file Mr. Jones’ supplemental answers to interrogatories at that time. (Roe Tr. III:183; Doe Tr. II:83-84)
  13. On June 16, 1995, the court entered a procedural order scheduling a pretrial conference for September 21, 1995, and the commencement of trial on October 2, 1995. (Ans. ¶20; Ex. 2, Ex. 48)
  14. On or about June 26, 1995, Attorney Doe received a letter dated June 22, 1995 from Dr. K. (Roe Tr. III:112-13; Doe Tr. II:85-86; Ex. 4) In his letter, Dr. K did not express an opinion that Mr. Jones’ CSF leak was the result of malpractice. Instead, Dr. K stated that it was impossible to determine the cause of Mr. Jones’ loss of smell and he did not specifically attribute the loss of smell to the CSF leak. (Ex. 4) In his letter, Dr. K also stated that there would be a breach of standard medical conduct if the serious consequences of ethmoid surgery were not discussed with a patient, but Dr. K merely noted the conflicting stories of the surgeon and Mr. Jones without stating an opinion. (Ex. 4)
  15. We credit the Respondent’s testimony that there was a “disconnect” between Dr. K’s letter and the supplemental answers to interrogatories prepared by Attorney Doe, and that the Respondent instructed Attorney Doe to contact Dr. K in order to “straighten out why the letter was not fully consistent with what was in the answers.” (Roe Tr. III:113, 185-86; Doe Tr. II:86) We credit the Respondent’s testimony that Attorney Doe had a telephone conference with Dr. K on his speaker phone shortly thereafter while in the Respondent’s presence.4 (Roe Tr. III:113-14; Doe Tr. II:87-89) We credit the Respondent’s and Attorney Doe’s testimony that after their telephone conference with Dr. K by speaker phone, they both felt the supplemental answers to interrogatories were generally consistent with how Dr. K would testify at trial. (Roe Tr. III:121, 179-82; Doe Tr. III:89-91) We also credit the Respondent’s testimony that he believed that Dr. K “was almost there” on the informed consent issue and needed to be “more supportive” on the standard of care issues, but that with a well developed record and proper questions, he was confident he “could bring [Dr. K] around to be 100 percent supportive or strongly supportive . . . on these issues.” (Roe Tr. III:121, 179-82, 194-96)
  16. On July 20, 1995, Attorney Doe sent the previously signed supplemental answers to Attorney Poe. (Doe Tr. II:92-94; Ans. ¶23; Ex. 5)
  17. We do not credit the Respondent’s testimony that he had a discussion with Mr. Jones about how weak his case was and that he did not have an expert witness. (Roe Tr. III:144-45, 177-81) We do not credit the Respondent’s testimony that after he reviewed Dr. K’s report, he advised Mr. Jones that his only expert on liability and causation, critical to the success of a medical malpractice action, was not fully supportive of his case, at least on the standard of care issues. (Roe Tr. III:174-76, 178-81) We do not credit the testimony of the Respondent that Mr. Jones was given a copy of Dr. K’s report prior to trial. (Roe Tr. III:174-76) We also do not credit the Respondent’s testimony that he discussed with Mr. Jones the possibility of retaining a second expert to develop a stronger case for trial. (Roe Tr. III:180-81) Instead, we credit Mr. Jones’ testimony that he had been told at the outset that he had a good case (Jones Tr. I:83, 86, 160, 163), and that he was never told, until just prior to trial in March 1996, that there were potentially any problems with Dr. K’s anticipated testimony.5 (Jones Tr. I:98-101, 103-04, 115-18, 121-22, 193-94, 202-03) We therefore find that the Respondent failed to fully disclose to Mr. Jones the details of Dr. K’s opinions so that Mr. Jones could make an informed decision on whether to consult or retain an additional expert.
  18. We further find that by late June 1995, the Respondent knew he would need to work with Dr. K (or “bring him around” to use the Respondent’s vernacular) to make sure that indeed the doctor would support Mr. Jones’ case. (Roe Tr. III:182, 193-96) The Respondent also knew an expert was critical to the success of that case. (See Roe Tr. III:140-41) Finally, the Respondent knew or should have known that a medical expert, especially one located a distance from the forum6, would require significant advance notice of a trial date so he could make arrangements to be present. Nevertheless, we find that the Respondent did nothing, from July 1995 to March 1996, to work with Dr. K on developing his opinions, to meet with him or at least talk again with him by phone, and to make sure Dr. K would be available to testify at trial, or to record his testimony by deposition in the event there were problems with his appearing on the scheduled trial date. (Roe Tr. III:122, 132, 188) (See also ¶¶28 and 29 below.)
  19. On September 20, 1995, Attorney Doe faxed to Attorney Poe a “Statement of Proposed Evidence of Plaintiff’s Expert Witness,” to be included in a joint pretrial memorandum. (Ans. ¶25; Ex. 6) The Respondent admits he did not review the statement of proposed evidence before it was sent to Attorney Poe. (Ans. ¶26)
  20. On September 22, 1995, Attorney Poe and the Respondent signed a Joint Pre-Trial Memorandum, which incorporated the statement of proposed evidence by plaintiff’s expert previously faxed by Attorney Doe to Attorney Poe. (Roe Tr. III:124-25; Ex. 7) We credit the Respondent’s testimony that the statement attributed to Dr. K incorporated into the joint pretrial memorandum was generally consistent with his telephone conference by speaker phone with Dr. K in June 1995. (Roe Tr. III:126, 179-82) (See also ¶17 supra)
  21. On September 26, 1995, the court issued an order scheduling a pretrial conference for January 4, 1996 and the trial for January 11, 1996.7 (Ans. ¶30; Ex. 8) The notice was sent to Attorney Doe as attorney for the plaintiff, and Attorney Doe received the notice in due course. (Ans. ¶30)
  22. On January 4, 1996, the Respondent did not appear for the pretrial conference in Jones. (Roe Tr. III:128; Ans. ¶31)
  23. In a letter to the Respondent dated January 5, 1996, Attorney Poe reiterated that no one from the Respondent’s office had appeared for the pretrial conference the previous day, and Attorney Poe informed the Respondent that “the court clerk told me that your office must prepare a written Motion for a Continuance to a date certain, no later than Monday, January 8, 1996 . . . .” (emphasis in original) (Ans. ¶32; Ex. 9) Attorney Poe requested that the Respondent contact him to schedule a new trial date. (Ans. ¶32; Ex. 9)
  24. The Respondent admitted that he did not reply to Attorney Poe’s January 5, 1996 letter, and that he did not file a motion to continue the trial. (Ans. ¶33) Even if we were to credit the Respondent’s testimony that his office attempted to notify Attorney Poe of the Respondent’s unavailability for trial (see Roe Tr. III:129-30; Ex. 10), the fact remains that the Respondent admitted that he did not appear for trial on January 11, 1996 (Roe Tr. III:129-31; Ans. ¶34), and there is no evidence that the Respondent sought to notify the court or instruct someone from his office to notify the court of his unavailability.
  25. On January 12, 1996, the court issued an order scheduling a pretrial conference for March 11, 1996 and a new trial date for March 26, 1996. (Ans. ¶35; Ex. 12, Ex 48) The court specifically ordered that “[n]o continuances will be granted. In the event that a party fails to appear for either event an appropriate dismissal/nonsuit will enter.” (Ans. ¶35; Ex. 12, Ex. 48)
  26. In January 1996, Attorney Charles Coe began renting an office from the Respondent and also working on some of the Respondent’s cases, including the Jones medical malpractice matter.8 (Roe Tr. III:127, 166; Coe Tr. III:8-9; Ex. 57, p. 36) We credit the Respondent’s testimony that he instructed Attorney Coe in January 1996 to get the Jones matter ready for trial, which included contacting the witnesses. (Roe Tr. III:134, 166) We also credit Attorney Coe’s testimony that he began working on the Jones matter shortly after he started at the Respondent’s offices (Coe Tr. III:9), including reviewing the entire file and speaking to the doctors. (Coe Tr. III:9-10) We do not credit Attorney Coe’s testimony denying any instruction from the Respondent to prepare the witnesses and instead claiming that he did not begin working on the Jones case until February 1996 and that he was only supposed to organize the pleadings for trial. (Coe Tr. III:10, 28-29; Ex. 57, pp. 56-57, 81-84, 95-96, 126-27)
  27. On or about January 12, 1996 (see ¶27 supra), the Respondent knew of the March 26th trial date but did not, either directly or through Attorney Coe, contact Dr. K until mid-March. (Roe Tr. III:131-32, 134) To be sure, the Respondent delegated many pre-trial tasks to Attorney Coe (see ¶28 above), but in view of the importance of Dr. K’s testimony, it was critical that the Respondent ensure his expert was prepared to testify on the scheduled trial date. We find that this needless delay deprived the Respondent, and therefore Mr. Jones, of any realistic opportunity to try to find a second expert or to file a meaningful motion for a continuance of trial.
  28. On March 11, 1996, Attorney Coe attended the final pretrial conference in the Jones matter. (Roe Tr. III:132-33; Coe Tr. III:11) We do not accept Attorney Coe’s recollection that the court was told, ostensibly by opposing counsel, at this final pretrial conference that Dr. K would not be testifying at trial on behalf of the plaintiff. (Roe Tr. III:133-34; Coe Tr. III:11) Nonetheless, we find that supplemental answers to expert interrogatories sought by opposing counsel prompted Attorney Coe to contact Dr. K after the final prehearing conference. (Roe Tr. III:134-35, 190-91; Coe Tr. III:12-13)
  29. In a telephone conference with Dr. K prior to March 18, 1996, Attorney Coe learned that Dr. K would not appear to testify at the trial due to the lack of notice, and that his testimony in any event would not be favorable to Mr. Jones. (Roe Tr. III:134-35, 190; Coe Tr. III:12-13) We credit the Respondent’s testimony that on or before March 21, 1996, he personally spoke with Dr. K, who told the Respondent that he did not appreciate the late notice because his schedule was so busy, and that he would not be a good witness for Mr. Jones because his testimony would not be supportive. (Roe Tr. III:135-36)
  30. On March 21, 1996, a hearing was held on a motion before Judge McHugh; Attorney Coe did not appear for that hearing. (Ex. 52, p. 13, Ex. 57, p. 133) However, on or before March 22, 1996, the Respondent instructed Attorney Coe to notify Attorney Poe’s office that Dr. K would not testify for the plaintiff at trial. (Roe Tr. III:136-37; Coe Tr. III:14; Ans. ¶37) By letters addressed to Attorney Coe dated March 22, 1996, Attorney Poe attempted to confirm that Dr. K would not testify. (Ans. ¶38; Ex. 13) We credit the Respondent’s admission that he did not respond to these letters. (Ans. ¶38)
  31. A status conference was held before Judge McHugh on Monday, March 25, 1996, which both Attorney Coe and the Respondent attended (Roe Tr. III:139; Coe Tr. III:34-35), and Judge McHugh confirmed that all parties were prepared to proceed with trial on Wednesday, March 27, 1996. (Coe Tr. III:34-35; Ex. 52, pp. 13, 14) We credit Attorney Coe’s testimony that he appeared before the court at the status conference and advised the judge that they had no expert. (Coe Tr. III:11) Nonetheless, neither the Respondent nor Attorney Coe sought to continue the trial as a result. (Coe Tr. III:34-35)
  32. On March 27, 1996, the Respondent and Attorney Coe appeared for trial in the Jones matter. (Roe Tr. III:139; Ans. ¶39) At that time, Attorney Coe sought a continuance from the court to substitute another expert for Dr. K, claiming that Dr. K had changed his opinion. (Roe Tr. III:139; Coe Tr. III:36; Ans. ¶41; Ex. 52, pp. 11-12) In moving for a continuance, Attorney Coe informed the court that Dr. K’s “report that we had prior to this indicated there was malpractice” and that he “was willing to testify to that fact”, but now Dr. K was unwilling to participate in this matter.9 (Roe Tr. III:192-93; Coe Tr. III:36-37; Ex. 52, p. 11) The court denied the Respondent’s motion for a continuance, and the Respondent proceeded to trial on a theory of lack of informed consent. (Roe Tr. III:141; Ans. ¶41)
  33. On April 1, 1996, the Respondent rested his case. (Ans. ¶42) The judge, upon motion by the defendants, directed a verdict in their favor based, in part, on the plaintiff’s failure to introduce expert testimony. (Roe Tr. III:141; Ans. ¶42; Ex. 27)
  34. A notice of appeal was filed in superior court on behalf of Mr. Jones on April 5, 1996 (Roe Tr. III:142; Ex. 48), and the record was assembled and sent to the Appeals Court on May 20, 1996. (Ex. 48) On July 5, 1996, the Respondent filed with the superior court his Notice of Withdrawal of Appearance. (Ex. 29) The superior court’s judgment was affirmed by the Appeals Court in a rescript decision on November 13, 1997. (Ex. 48)
  35. In September 1996, the Office of Bar Counsel received Mr. Jones’ complaint about the Respondent and initiated an investigation. In August 1998, Mr. Jones filed a legal malpractice action against the Respondent, and in March 2003, Mr. Jones received the sum of $155,000 in full settlement of his legal malpractice claim. (Hinchey Tr. III:53) On January 16, 2004, Bar Counsel filed a petition for discipline against the Respondent. We credit the Respondent’s testimony that he fully cooperated with the Office of Bar Counsel throughout its lengthy investigation. (Roe Tr. III:146-47)

Count One – Conclusions of Law

  1. Bar Counsel charges that by accepting employment from Mr. Jones when he knew that he would delegate virtually all of his responsibility for the case to Attorney Doe without adequate supervision, and by failing to take any action of substance to investigate and prepare Mr. Jones’s case, the Respondent violated Canon Two, DR 2-110(B)(2)10, Canon Six, DR 6-101(A)(2)11 and (3)12, and Canon Seven, DR 7-101(A)(1), (2), and (3).13
  2. Mr. Jones met initially with both the Respondent and Attorney Doe to discuss his medical malpractice case, and Mr. Jones understood that Attorney Doe would be primarily responsible for handling his case. The Respondent has not contested that he was ultimately responsible for Mr. Jones’ case. Although Mr. Jones brought a case that he believed was ready for trial, in fact the Respondent and Attorney Doe were faced with the immediate task of finding a new expert after discovery was nearly completed. We find that the Respondent acted promptly and appropriately in retaining Dr. K. We therefore conclude that the Respondent did not violate these disciplinary provisions.
  3. Bar Counsel charges that by failing to prepare for and to appear at the pretrial conference and for trial or to timely seek a continuance, all without adequate notice to opposing counsel, the Respondent violated Canon Six, DR 6-101(A)(2)14 and (3)15, Canon Seven, DR 7-101(A)(1), (2), and (3)16, and DR 7-106(A)17 and (C)(5).18 The Respondent admitted that he failed to appear for the pretrial conference on January 4, 1996. Even if we were to credit the Respondent’s testimony that he did not personally receive the court’s notice of the pretrial conference, the fact remains that the notice was sent to his office, albeit addressed to Attorney Doe, and the Respondent had an obligation to review all notices and correspondence relating to the Jones matter once Attorney Doe stopped working on the case following his suspension from practice in September 1995. In any event, the Respondent admitted he was notified by opposing counsel of the January 11, 1996 trial date, but he did not contact the court to seek a continuance. Because the Respondent admitted that he did not appear for trial on January 11, 1996, we conclude that the Respondent violated Canon Six, DR 6-101(A)(2)19 and (3)20 as charged. However, we conclude that the Respondent’s failure to appear at the pretrial conference and for trial was not intentional and did not violate Canon Seven, DR 7-101(A)(1), (2) and (3)21 or Canon Seven, DR 7-106(A).22 We do conclude that by failing to appear for trial on January 11, 1996 with only last-minute notice to opposing counsel the preceding evening, the Respondent violated Canon Seven, DR-7-106(C)(5).23
  4. Bar Counsel charges that by failing to adequately supervise the work of Attorney Doe, by permitting false and misleading interrogatory answers to be signed by his client and served on opposing counsel, and by permitting false and misleading statements regarding Dr. K’s expert opinion to be included in the joint pretrial statement of facts, the Respondent violated Canon Six, DR 6-101(A)(3)24 and Canon Seven, DR 7-101(A)(1), (2), and (3).25
  5. Although Dr. K’s written report did not specifically opine that Mr. Jones’ CSF leak was the result of malpractice, we nonetheless credit the testimony of both the Respondent and Attorney Doe that after their speaker telephone conference with Dr. K, they both believed that Dr. K’s testimony at trial would generally be consistent with the supplemental answers to interrogatories prepared by Attorney Doe and the statements attributed to Dr. K that were incorporated in the joint pretrial memorandum. (Roe Tr. III:193-96; Doe Tr. II:90-91) Because we do not find these supplemental answers and statements attributed to Dr. K to be false and misleading at the time they were prepared and in light of the circumstances as a whole, we conclude that the Respondent did not violate these disciplinary provisions.
  6. Bar Counsel charges that, in the alternative, by intentionally having the client sign false and misleading interrogatory answers and by intentionally including false and misleading statements as to Dr. K’s opinion in the joint pretrial memorandum, the Respondent violated Canon One, DR 1-102(A)(4)26, (5)27 and (6)28 and Canon Seven, DR 7-102(A)(3)29 and (5).30 In light of our findings above that the supplemental interrogatory answers and joint pretrial memorandum statements attributed to Dr. K were not false and misleading at the time they were prepared and in light of the circumstances as a whole, we conclude that the Respondent did not act intentionally and did not violate these disciplinary provisions.
  7. Bar Counsel charges that by failing to advise Mr. Jones that he had no expert to support the claim of negligence, the Respondent violated Canon Six, DR 6-101(A)(3)31 and Canon Seven, DR 7-101(A)(1), (2), and (3).32 The Respondent admitted that there was a “disconnect” between the supplemental interrogatory answers prepared by Attorney Doe on June 15, 1995 and the written report sent by Dr. K dated June 22, 1995, but we nonetheless credited his testimony that after his telephone conference with Dr. K, the Respondent felt the supplemental interrogatory answers were generally consistent with how Dr. K would testify at trial. (See ¶17 supra) However, we did not credit the Respondent’s testimony that he provided a copy of Dr. K’s report to Mr. Jones or that he adequately and fully advised Mr. Jones of the potential problems with Dr. K’s opinions or the possibility of retaining a second expert to develop a stronger case at trial. Under these circumstances, we conclude that the fiduciary duty the Respondent owed to his client required the Respondent to fully disclose to Mr. Jones both Dr. K’s report and his and Attorney Doe’s conversation with the doctor, as well as the ramifications and advisability of consulting an additional expert, so that Mr. Jones would fully understand the potential weaknesses in his case if the Respondent were not able to produce completely supportive testimony from Dr. K, and so that Mr. Jones could make an informed decision as to whether to consult, and incur the expense of consulting with, an additional expert.
  8. In addition, because the Respondent was well aware that an expert was critical to the success of Mr. Jones’ case, we find the Respondent’s failure to directly follow-up with Dr. K or to adequately supervise Attorney Coe’ pre-trial preparation of witnesses simply due to his heavy criminal workload constitutes neglect. We therefore conclude that the Respondent’s failure to fully advise his client of the problems with the expert, both in June 1995 and continuing to trial in March 1996, and the Respondent’s failure to ensure that an expert would be prepared to appear and testify at trial, violated Canon Six, DR 6-101(A)(3)33, but were not intentional and did not violate Canon Seven, DR 7-101(A)(1), (2) and (3).34
  9. Bar Counsel charges that by failing to advise opposing counsel and the tribunal that Attorney Doe had provided false and misleading information regarding Dr. K’s opinion in the interrogatory answers and that this false and misleading information appeared in the joint pretrial memorandum, the Respondent violated Canon One, DR 1-102(A)(4)35, (5)36 and (6)37 and Canon Seven, DR 7-102(B)(2).38 In light of our previous findings above that the supplemental interrogatory answers and statements incorporated in the joint pretrial memorandum were not false and misleading at the time they were made and in consideration of the circumstances as a whole, we conclude that the Respondent did not violate these disciplinary provisions. In so deciding, we are not unmindful that we view the nature and scope of the disclosure the Respondent should have made to his client at the time as more encompassing than the disclosure the Respondent was required to make in the answers to expert interrogatories or in a joint pre-trial memorandum. In the former, we view the Respondent as having had an obligation to disclose fully to his client the substance of all communications with the expert. In the latter, the Respondent’s disclosure obligations were defined by the literal language of the civil rules of procedure, namely the substance of what the Respondent in good faith reasonably expected the expert to testify.
  10. Bar Counsel charges that by seeking a continuance on the ground that Dr. K was not available without withdrawing his statements regarding Dr. K’s opinion, the Respondent violated Canon One, DR 1-102(A)(4)39, (5)40 and (6)41 and Canon Seven, DR 7-102(A)(5).42 We do not agree with Bar Counsel that the Respondent’s failure to correct the record before the court regarding Attorney Coe’s representation of Dr. K’s expert opinion constituted a misrepresentation to the court in violation of the disciplinary provisions charged. The primary import of what Attorney Coe represented to the court was that the plaintiff’s expert, Dr. K, would not appear to testify to malpractice on behalf of Mr. Jones. This was an accurate statement of the situation at that time for purposes of trial. In light of the Respondent’s belief that Attorney Coe’s reference to Dr. K’s report encompassed all written and oral statements of Dr. K, which we credit, we do not find Attorney Coe’s representation to the court about Dr. K’s prior position or opinion about malpractice in the Jones matter to be a misrepresentation to the court in violation of the disciplinary provisions charged.
  11. As the Board distinguished, and a single justice of the Supreme Judicial Court agreed, in Matter of Long, 16 Mass. Att’y Disc. R. 250, 256-57 (2000), attorneys who perpetrate a fraud on the court as to substantive matters are subject to more severe discipline than attorneys whose misrepresentations do not concern material matters in dispute. In Long, the attorney failed to inform his client that a pretrial conference had been scheduled until the evening before. The client was unable to obtain leave from work on such short notice so the attorney sought a continuance by claiming he was on trial in another court. In a subsequent conversation, in response to specific questions by the judge’s staff, the attorney intentionally misrepresented the name of the other case, the name of the other court, and the name of the judge sitting on the other case. The Board found that “the respondent lied to get himself (and his client) out of a scheduling jam produced by his own neglect, but he did not seek to defraud the court on any substantive issue before it.” Id. at 257. The single justice agreed that the respondent’s “misrepresentations did not concern material matters in dispute.” Id. Compare, Matter of Shuman, 437 Mass. 1006 (2002) (six-month suspension for attorney who submitted a pretrial memorandum to the court listing an expert witness and describing said expert’s “expected testimony”, as well as expanding on said “expected testimony” in a court-ordered supplemental answer to expert interrogatory, when attorney had in fact never contacted or retained said expert.)
  12. Had Attorney Coe simply sought a continuance on the ground that Dr. K was not available, without disclosing that Dr. K was unwilling to testify to malpractice, and the Respondent failed to correct the record then, our analysis would likely be different because then the misrepresentation would concern a substantive issue in the case. In light of our previous findings that the Respondent had believed prior to March that Dr. K’s opinion generally would be supportive of Mr. Jones at trial and that the reference to Dr. K’s report encompassed both written and oral statements by Dr. K, we conclude that the Respondent did not fail to correct a misrepresentation to the court or engage in deceptive conduct in violation of the disciplinary provisions charged.

Count Two – Findings of Fact

  1. On or about August 12, 1998, Mr. Jones filed a lawsuit against the Respondent claiming, among other things, that the Respondent had committed legal malpractice in Mr. Jones’s medical malpractice case. (Roe Tr. III:146; Ans. ¶51; Ex. 14)
  2. In the course of the legal malpractice matter, on or about September 2, 1999, Mr. Jones’ attorney, Thomas Toe, took the Respondent’s deposition under oath. (Ans. ¶52) As part of his deposition, the Respondent was asked the following questions and gave the following answers under oath:
    Q: At the time you signed this document September 22nd, 1995, the joint pretrial memorandum, you have in fact reviewed the report from Doctor K, correct?
    A: Yes.
    Q: And you had reviewed it with the doctor, correct?
    A: Yes.
  3. (Ans. ¶53)

Count Two – Conclusions of Law

  1. Bar Counsel charges that the Respondent’s intentionally false statement in his deposition that he had consulted with Dr. K and reviewed his report prior to signing the joint pretrial memorandum violated Canon One, DR 1-102(A)(4)43, (5)44 and (6)45 and Canon Six, DR 6-102(A).46 In light of our findings above that the supplemental interrogatory answers and joint pretrial memorandum statements attributed to Dr. K were not false and misleading at the time they were prepared, and in consideration of the circumstances as a whole, we conclude that the Respondent did not act intentionally and did not violate these disciplinary provisions.
  2. Bar Counsel charges, in the alternative, that by failing to amend, correct or withdraw the misleading and false interrogatory answers regarding Dr. K’s opinion between June 20, 1995 and September 22, 1995 and by signing the Joint Pretrial Memorandum, the Respondent violated Canon One, DR 1-102(A)(4)47, (5) 48 and (6)49, and Canon Seven, DR 7-102(A)(3)50 and (5)51 and DR 7-106(C)(7).52 In light of our findings above that the supplemental interrogatory answers and joint pretrial memorandum statements attributed to Dr. K were not false and misleading at the time they were prepared and in consideration of the circumstances as a whole, we conclude that the Respondent did not act intentionally and did not violate these disciplinary provisions.

Count Three – Findings of Fact

  1. From 1992 to September 1995, Attorney Doe was under investigation by federal authorities, including the U.S. Attorney, for criminal and fraudulent acts committed while he was a member of the board of directors of the ABC Credit Union. (Ans. ¶58) The Respondent represented Attorney Doe during the investigation by the U.S. Attorney’s office. (Ans. ¶59)
  2. About July 1992, the Office of Bar Counsel notified Attorney Doe that he was under investigation as a result of the criminal investigation. (Ans. ¶60) The Respondent represented Attorney Doe during Bar Counsel’s investigation of Attorney Doe. (Ans. ¶61; Ex. 15)
  3. In August 1995, Attorney Doe was charged in a federal information. (Ans. ¶63; Ex. 50)
  4. On or about September 6, 1995, the Respondent notified Bar Counsel that Attorney Doe would assent to a temporary suspension of his license. (Ans. ¶64; Ex. 17)
  5. On or about September 29, 1995, Attorney Doe waived indictment and pleaded guilty to the federal information. (Ans. ¶65; Ex. 50)
  6. On September 29, 1995, the S.J.C. entered an order suspending Attorney Doe from the practice of law until further order. (Ans. ¶66; Ex. 18) The order required Attorney Doe to, inter alia, immediately withdraw his appearance as counsel for a party in any cases pending in any court and to supply a copy of each withdrawal to the Court and to Bar Counsel. (Ans. ¶66; Ex. 18) Within ten days of the order, Attorney Doe was required to file an affidavit of compliance with the Board of Bar Overseers and the Court. (Ans. ¶66; Ex. 18)
  7. By no later than October 2, 1995, the Respondent received a copy of the suspension order, which was sent to him as Attorney Doe’s lawyer in the bar discipline proceedings. (Ans. ¶67; Ex. 19)
  8. On or about October 18, 1995, Attorney Doe filed an affidavit of compliance with Bar Counsel’s office. (Ans. ¶68; Ex. 20) We credit Attorney Doe’s testimony that he told the Respondent that he had filed all of the withdrawals in cases that he had entered appearances. (Doe Tr. II:96) We also credit his admission that he did not file a withdrawal of his appearance in the Jones matter because he considered it to be a limited or special appearance only. (Doe Tr. II:96) Therefore, we find that it was reasonable for the Respondent to rely upon Attorney Doe’s representation that he had complied with the suspension order. We also credit the Respondent’s testimony that he had no knowledge of any appearance filed by Attorney Doe in the Jones matter (Roe Tr. III:97-98), and that the Respondent simply transmitted the compliance forms to the Office of Bar Counsel as completed by Attorney Doe. (Roe Tr. III:97)
  9. The Respondent admitted that he did not tell Mr. Jones that Attorney Doe was under investigation by federal and bar discipline authorities for possible criminal misconduct and that he was representing Attorney Doe in those matters. (Ans. ¶72; Roe Tr. III:145-46)
  10. The Respondent admitted that he did not notify Mr. Jones, Attorney Poe, or the Middlesex Superior Court that Attorney Doe had been suspended from the practice of law. (Ans. ¶75)

Count Three – Conclusions of Law

  1. Bar Counsel charges that the Respondent’s disclosure of confidences and secrets concerning Mr. Jones’ case to Attorney Doe without Mr. Jones’ informed consent violated Canon Four, DR 4-101(B)(1).53 In light of our previous findings that Mr. Jones met initially with both the Respondent and Attorney Doe to discuss his medical malpractice case and disclosed personal and confidential information to them both, we conclude that the Respondent did not violate the disciplinary provision charged.
  2. Bar Counsel charges that by failing to notify or to have Attorney Doe notify Mr. Jones, Attorney Poe and the Middlesex Superior Court of Attorney Doe’s suspension, and by filing Attorney Doe’s false affidavit of compliance with the Office of Bar Counsel, the Respondent violated Canon One, DR 1-102(A)(4)54, (5)55 and (6)56 and Canon Seven, DR 7-101(A)(1), (2), and (3),57 and DR 7-102(A)(3)58, (5)59 and (7)60 and (B)(1).61 In light of our previous findings that the Respondent was not aware that Attorney Doe had filed an appearance in the Jones matter, and that the Respondent reasonably relied upon Attorney Doe’s representation that he had complied with the suspension order when transmitting the documents to the Office of Bar Counsel, we conclude that the Respondent did not act intentionally and did not violate the disciplinary provisions charged.
  3. Bar Counsel charges that by failing to withdraw from representing Mr. Jones and Attorney Doe when he knew or it was obvious that his continued representation would result in a disciplinary rule violation, and by representing both Attorney Doe and Mr. Jones when they had actual or potentially differing interests, when his independent professional judgment on behalf of Mr. Jones was or was likely to be adversely affected by his representation of Attorney Doe, and when the Respondent’s personal or professional relationship with Attorney Doe did or might affect his professional judgment on behalf of Mr. Jones, without the informed consent of Mr. Jones, the Respondent violated Canon Two, DR 2-110(B)(2)62 and Canon Five, DR 5-101(A)63 and DR 5-105(A)64, (B)65, and (C).66 Because we do not find that Bar Counsel has met his burden of showing a conflict of interest in the Respondent’s simultaneous representation of Attorney Doe and Mr. Jones, we conclude that the Respondent did not violate these disciplinary provisions.

II. FACTORS IN AGGRAVATION AND MITIGATION
  1. In mitigation, the Respondent contends that he was extremely busy during 1995 and early 1996 with several complex criminal matters, and we credit this testimony. (Roe Tr. III:147-48, 152-53)
  2. In mitigation, the Respondent claims that he collapsed due to exhaustion in April 1996, and we credit this testimony. (Roe Tr. III:149-50)
  3. The Respondent also asserts that he no longer handles medical malpractice and product liability cases, and has reduced his caseload, and we also credit this testimony. (Roe Tr. III:84)
  4. In mitigation, the Respondent also points to the nearly six years that have passed since the conduct complained of occurred and when the complaint against him was filed by Bar Counsel. In Matter of Gross, 435 Mass. 445, 450 (2001), the Supreme Judicial Court held that “[m]ere delay in the commencement of disciplinary proceedings does not result in dismissal of the proceedings”, but recognized that “delay may be considered in mitigation. See Matter of Kerlinsky, 406 Mass. 67, 76 n.8 (1989), cert. denied, 498 U.S. 1027 (1991) . . . .” In Matter of Cobb, BD-2004-023, 20 Mass. Att’y Disc. R. __ (2004), Justice Greaney cited to Gross, supra, and found that “because the respondent did not make a sufficient showing of any prejudice . . ., I will not consider [delay] a mitigating factor in this case . . . .” Although this hearing committee finds the delay in this matter to be unacceptable and inexcusable, nonetheless, because the Respondent similarly has made no showing of any prejudice resulting from the delay in these proceedings, the delay shall not be considered a mitigating factor here.

III. RECOMMENDATION FOR DISCIPLINE

Bar Counsel is seeking a three-year suspension, while the Respondent appears to seek a dismissal of the petition for discipline. As discussed above, this case boils down to one where the Respondent neglected Mr. Jones’ medical malpractice claim. The standards for imposing sanctions for neglect are set forth in Matter of Kane, 13 Mass. Att’y Disc. R. 321 (1997) Although Kane is most significant for the Board’s announcement of its adoption of new guidelines for discipline in cases going forward involving neglect or failure of zealous representation, the Board also summarized the standards applied up to that point. In Kane, the Board acknowledged that an attorney’s neglect of a criminal matter for almost three years, including failing to respond to client inquiries, failing to diligently investigate, and failing to complete promised tasks in a timely manner, “absent the aggravating factors, would warrant no greater sanction than an admonition under current precedent.” 13 Mass. Att’y Disc. R. at 324. The Board also found “a phalanx of caselaw firmly establishing that the appropriate sanction for neglect, even with a disciplinary history for related misconduct is public reprimand. (citations omitted) Suspension has been imposed for neglect only in situations where the lawyer has added into the mix described above the added ingredients of misrepresentation and actual harm to the client, (citation omitted), or callous indifference to the plight of an incarcerated client; (citation omitted).” Id. at 325-26.

In the case at hand, the Respondent has no prior disciplinary history, we have found no intentional misconduct on the Respondent’s part, and the remaining violations primarily concern the Respondent’s neglect of the Jones matter, due in large part to his own busy criminal practice, his lack of experience in handling medical malpractice matters, and his failure to ensure that Dr. K was adequately notified of the trial date and prepared to testify as Mr. Jones’ expert. Therefore, applying the pre-Kane standard for neglect, we recommend that Richard Roe receive an admonition.

FOOTNOTES

1 The transcript shall be referred to as “Tr. _:_” with the first number referring to the volume and the second number referring to the page(s); the Answer shall be referred to as “Ans. ¶_”; and the exhibits shall be referred to as “Ex. _”.

2 A written contingency fee agreement was executed by Mr. Jones and the Respondent. (Ex. 31) We do not reach the issue of when this fee agreement was executed by the parties as it is not relevant to the violations charged in the petition.

3 The Respondent does not deny responsibility for the Jones case and does not contest that he knew that Attorney Doe had filed an appearance for the Respondent in this case. (Roe Tr. III:98, 122, 148) We credit the Respondent’s testimony and deem the Respondent to have entered an appearance in the Jones case for all purposes from and after June 15, 1995.

4 Although Dr. K did not recall this telephone conference with the Respondent and Attorney Doe, we note that Dr. K admitted that he did not always note his telephone conferences on a person’s file. (Ex. 56, pp. 14-17)

5 More specifically, we credit Mr. Jones’s testimony that he learned that Dr. K would not be testifying in his case first at the status conference in court before Judge McHugh, and then again in a late night telephone call from the Respondent the night before trial commenced. (Jones Tr. 103-04, 115-18, 121-22, 193-94, 202-03)

6 Dr. K practiced in New York City (Roe Tr. III:109) while the Jones trial was being held in Cambridge, MA.

7 We note that although the court did issue this notice, there is no corresponding entry on the court’s docket for the issuance of the notice scheduling trial for January 11, 1996. (See Ex. 48).

8 We note that there is no evidence that the Respondent formally introduced Attorney Coe to Mr. Jones, or sought Mr. Jones’s consent to disclosing confidential or personal information and retaining Attorney Coe as his counsel in his medical malpractice case. However, we need not address the relationship between the Respondent and Attorney Coe as Bar Counsel has not charged any disciplinary violation here, and the Respondent does not contest that he was responsible for Attorney Coe’s actions in the Jones matter. (See Roe Tr. III:148)

9 The Respondent admitted that he did not advise the court any differently at the time. (Roe Tr. III:192-93) However, we credit the Respondent’s testimony that he believed the reference to Dr. K’s report made by Attorney Coe to the court included all the written documents as well as the verbal conversations. (Roe Tr. III:197)

10 Canon Two, DR 2-110 Withdrawal from Employment. Mandatory Withdrawal.

  1. A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:

    1. He knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.

11 Canon Six, DR 6-101 Failing to Act Competently.

  1. A lawyer shall not:
    1. Handle a legal matter without preparation adequate in the circumstances.

12 Canon Six, DR 6-101 Failing to Act Competently.

  1. A lawyer shall not:
    1. Neglect a legal matter entrusted to him.

13 Canon Seven, DR 7-101 Representing a Client Zealously.

  1. A lawyer shall not intentionally:
    1. Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his clients, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
    2. Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102 and DR 5-105.
    3. Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).

14 See n.11 supra.

15 See n.12 supra.

16 See n.13 supra.

17 Canon Seven, DR 7-106 Trial Conduct.

  1. A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling.

18 Canon Seven, DR 7-106 Trial Conduct.

  1. In appearing in his professional capacity before a tribunal, a lawyer shall not:
    1. Fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of his intent not to comply.

19 See n.11 supra.

20 See n.12 supra.

21 See n.13 supra.

22 See n.17 supra.

23 See n.18 supra.

24 See n.12 supra.

25 See n.13 supra.

26 Canon One, DR 1-102 Misconduct.

  1. A lawyer shall not:
    1. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

27 Canon One, DR 1-102 Misconduct.

  1. A lawyer shall not:
    1. Engage in conduct that is prejudicial to the administration of justice.

28 Canon One, DR 1-102 Misconduct.

  1. A lawyer shall not:
    1. Engage in any other conduct that adversely reflects on his fitness to practice law.

29 Canon Seven, DR 7-102 Representing a Client Within the Bounds of the Law.

  1. In his representation of a client, a lawyer shall not:
    1. Conceal or knowingly fail to disclose that which he is required by law to reveal.

30 Canon Seven, DR 7-102 Representing a Client Within the Bounds of the Law.

  1. In his representation of a client, a lawyer shall not:
    1. Knowingly make a false statement of law or fact.

31 See n.12 supra.

32 See n.13 supra.

33 See n.12 supra.

34 See n.13 supra.

35 See n.26 supra.

36 See n.27 supra.

37 See n.28 supra.

38 Canon Seven, DR 7-102 Representing a Client Within the Bounds of the Law.

  1. A lawyer who receives information clearly establishing that:
    1. A person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.

39 See n.26 supra.

40 See n.27 supra.

41 See n.28 supra.

42 See n.30 supra.

43 See n.26 supra.

44 See n.27 supra.

45 See n.28 supra.

46 Canon Six, DR 6-102 Limiting Liability to Client.

  1. A lawyer shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice.

47 See n.26 supra.

48 See n.27 supra.

49 See n.28 supra.

50 See n.29 supra.

51 See n.30 supra.

52 Canon Seven, DR 7-106 Trial Conduct.

  1. In appearing in his professional capacity before a tribunal, a lawyer shall not:
    1. Intentionally or habitually violate any established rule of procedure or of evidence.

53 Canon Four, DR 4-101 Preservation of Confidences and Secrets of a Client.

  1. Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
    1. Reveal a confidence or secret of his client.

54 See n.26 supra.

55 See n.27 supra.

56 See n.28 supra.

57 See n.13 supra.

58 See n.29 supra.

59 See n.30 supra.

60 Canon Seven, DR 7-102 Representing a Client Within the Bounds of the Law.

  1. In his representation of a client, a lawyer shall not:
    1. Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.

61 Canon Seven, DR 7-102 Representing a Client Within the Bounds of the Law.

  1. A lawyer who receives information clearly establishing that:
    1. His client has, in the course of representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication.

62 See n.10 supra.

63 Canon Five, DR 5-101 Refusing Employment When the Interest of the Lawyer May Impair His Independent Professional Judgment.

  1. Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.

64 Canon Five, DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the ProfessionJudgment of the Lawyer.

  1. A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).

65 Canon Five, DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the ProfessionJudgment of the Lawyer.

  1. A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).

66 Canon Five, DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the ProfessionJudgment of the Lawyer.

  1. In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.


ADMONITION NO. 07-09

CLASSIFICATIONS:
Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Client’s Lawful Objectives or Abide by Client’s Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2a]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Withdrawal without Tribunal’s Permission [Mass. R. Prof. C. 1.16c]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16d]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16e]

SUMMARY:
The respondent received an admonition for his conduct in two matters. In the first case, the clients, a husband and wife, engaged the respondent on February 25, 2004, to assist them with claims against two construction companies arising from a flooded basement. The respondent was to pursue claims for personal injuries the clients allegedly suffered as a result of mold contamination to their home after their basement flooded. The husband was already represented by another attorney (“Attorney A”) with respect to a property damage claim arising from the same incident. By agreement with the clients, the respondent was to take the lead role on the personal injury case, and Attorney A would serve as co-counsel. The respondent also agreed to assist Attorney A with the ongoing property damage claim. The respondent and the clients signed a contingent fee agreement.

On September 2, 2004, the respondent filed suit in the Superior Court on the clients’ personal injury claim after the clients’ motion to add a claim for personal injuries to the pending property damage law suit was denied.

On April 25, 2005, the property damage case was scheduled for trial. On that date, the parties reported to the court that the case had settled. Immediately thereafter, the husband sought to repudiate the settlement. On May 2, 2005, due to his disagreement with the husband’s efforts to repudiate the settlement, the respondent sent the clients a letter withdrawing from their representation in all matters. On May 23, 2005, the respondent filed a withdrawal of appearance in the property damage case. Attorney A continued as counsel in the property damage case, and in June 2005, the parties reached a settlement and the case was dismissed.

Although the respondent ceased representing the clients in the personal injury case in May of 2005, he did not seek permission from the court to withdraw his appearance. As counsel of record, the respondent continued to receive court notices and correspondence on behalf of his clients. In May of 2005, the respondent received discovery requests from opposing counsel. The respondent did not forward the discovery requests to his clients, or take any steps to inform the clients or Attorney A of the need to respond to these requests. The clients were not aware that they had been served with discovery requests.

On or about June 9, 2005, the clients requested that the respondent send them their file. The respondent did not promptly respond to the clients’ request. The respondent did not provide the clients with a copy of the file until September 2005, when, at the clients’ request, he turned over the file to another attorney to review. The respondent assumed, incorrectly, that the attorney to whom he sent the file would handle the case.

In August and September 2005, the defendants in the personal injury case filed motions to compel the clients to respond to outstanding discovery requests, and a joint application to dismiss the lawsuit due to the clients’ failure to respond to discovery. The respondent received these motions as attorney of record for the clients. Neither the respondent nor Attorney A notified the clients that these motions had been filed, and neither took action to oppose the motions on their behalf. The respondent assumed that Attorney A would handle the matter because he had received an email from Attorney A in July 2005 stating that he was “carrying . . . on” with the case. However, after he received the motions to dismiss the clients’ case, the respondent did not seek to confirm with either the clients or with Attorney A that they had received the motions or that Attorney A was continuing with the representation.

On August 24, 2006, Attorney A was administratively suspended for failing to cooperate in bar counsel’s investigation of an unrelated matter. Attorney A did not inform the respondent, the clients, the opposing counsel, or the court of his administrative suspension. After August 24, 2006, Attorney A could not represent any clients.

On October 6, 2005, the defendants’ motion to dismiss the personal injury case was allowed without opposition. When he received the notice of dismissal, the respondent sent it to the attorney who had requested the clients’ file to review. Because the attorney had declined to take the case, he forwarded the notice to the clients.

On December 5, 2005, the clients filed a grievance with bar counsel. On September 25, 2006, at the clients’ request, the respondent filed a motion for relief from the judgment of dismissal, together with the clients’ interrogatory answers. On October 20, 2006, the Court entered an order reviving the clients’ action upon payment of costs. On or about November 7, 2006, the clients retained new counsel to represent them in the matter, and the respondent withdrew his appearance.

By failing to seek permission from the court to withdraw his appearance, by withdrawing from employment in a proceeding before a court without its permission, and by withdrawing from representation without taking reasonable steps to protect his clients’ interests, including returning to them their papers and property, the respondent violated Mass. R. Prof. C. 1.16(c) and (d). By failing to notify his clients that requests for discovery had been received, and that motions to dismiss their case had been filed, and by failing to explain the consequences of failing to respond to the discovery requests or to oppose the motions to dismiss, the respondent violated Mass. R. Prof. C. 1.4(a) and (b). By failing to promptly respond to his clients’ requests for their file, the respondent violated Mass. R. Prof. C. 1.16(d) and (e).

In the second case, on February 22, 2002, the respondent agreed to represent a client in a claim for injuries she suffered and for damages to her car as a result of a February 19, 2002 automobile accident.

The respondent failed to properly docket the case, and the statute of limitations passed without his filing suit. In the spring of 2005, the client asked another attorney to look into the matter. The respondent failed to respond to letters from the other attorney requesting information on the status of the case.

On October 4, 2005, the client sent a letter to the respondent discharging him, and asking him to send her file to her new attorney. The respondent did not reply to the letter, or send the file.

On March 28, 2006, the client filed a grievance with bar counsel. Thereafter, the respondent sent the client the file, and acknowledged that he had missed the statute of limitations. In September of 2006, the respondent reached an agreement with the former client, who was represented by counsel, and paid her $6,000. By failing to file his client’s automobile accident claim before the expiration of the statute of limitations, the respondent violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. By failing to respond to inquiries from the client and her successor counsel regarding the status of the case between April 2005 and March 2006, the respondent violated Mass. R. Prof. C. 1.4. By failing to send the client her file within a reasonable time following the client’s request, the respondent violated Mass. R. Prof. C. 1.16(d) and (e).

The respondent was admitted to practice in 1969 and had no prior discipline. In October 2006, at the request of bar counsel, the respondent attended a continuing legal education class on legal ethics and law office management. The respondent also obtained professional liability insurance coverage with an effective date of July 26, 2006.

The respondent received an admonition for his conduct.


ADMONITION NO. 07-10

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. of Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. of Prof. C. 1.4]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. of Prof. C. 8.4(g)]

SUMMARY:
In late September 2005, a client retained the respondent to represent her in a divorce and paid her a retainer of $2,500. The respondent filed the divorce in October 2005 and a motion for temporary orders in November 2005, which was scheduled for a hearing in late November. On the day of the hearing, the parties entered into a stipulation on temporary orders. In early December 2005, the client became dissatisfied with the respondent’s representation and discharged her. The client requested her file from the respondent and retained successor counsel. Thereafter, both the client and successor counsel made repeated requests for the client’s file, but the respondent was not responsive.

In February 2006, the client filed a complaint with bar counsel. The respondent failed to respond to bar counsel's inquiries regarding this matter, necessitating the issuance of a subpoena for her appearance on June 1, 2006. The respondent appeared and provided the client’s file to bar counsel on that date.

In a second case, a client retained the respondent to represent her in a child custody and support matter in 2005, which was resolved to the client’s satisfaction. The client retained the respondent again in 2006 to represent her on similar child custody and support issues and to draft a will for her. Although the respondent initially began to prepare pleadings and other documents for the support matter, she stopped responding to the client’s emails and telephone calls, did not file any pleadings or schedule any court appearance, and did not draft a will. Ultimately, the client had to discharge the respondent and retain successor counsel to pursue the matter. Both the client and successor counsel were unable to obtain the client’s file from the respondent despite making repeated requests for it.

In May 2006, the client filed a complaint with bar counsel. Despite this, the respondent did not return the file to the client until September 2006.

By failing to pursue the second client’s matters and failing to respond to the inquiries of both clients, the respondent failed to act diligently and failed to adequately communicate with her clients, in violation of Mass. R. of Prof. C. 1.3 and Mass. R. of Prof. C. 1.4. By failing to return both clients’ files upon request, the respondent violated Mass. R. Prof. C. 1.16(e). By failing to cooperate with bar counsel's investigation in the first matter, necessitating the issuance of a subpoena to compel her appearance, the respondent violated Supreme Judicial Court Rule 4:01, Section 3 and Mass. R. Prof. C. 8.4(g).

In mitigation, the respondent was going through the breakup of her marriage at the time in question and was under stress from, and preoccupied with, the ensuing divorce.

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


ADMONITION NO. 07-11

CLASSIFICATIONS:
Handling 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 Client [Mass. R. Prof. C. 1.4]

SUMMARY:
Between August 2004 to May 2005, in three separate matters, the respondent failed to represent his clients competently and diligently and failed to adequately communicate with the clients. In two matters, the respondent failed to comply with discovery requests from opposing parties. In the third matter, the respondent failed to file an opposition to a motion for summary judgment. In all three matters, the respondent failed to keep the clients informed about the status of their cases. The three cases were dismissed by the courts. The respondent’s law firm learned about the dismissals, suspended the respondent and successfully moved to have the cases reinstated. There was no ultimate harm to the clients.

The respondent’s failure to act with reasonable competence, diligence and promptness in representing his clients, and his failure to communicate with his clients is conduct in violation of Mass. R. Prof. C. 1.1, 1.3 and 1.4.

In mitigation, during the relevant time period, the respondent suffered from alcoholism and depression. The respondent’s depression was exacerbated by his wife’s illness and the death of a parent. He has been sober and in treatment for both problems since May 2005.

The respondent has been a member of the Bar since 1977, with no prior discipline. He accordingly received an admonition for the above violations, conditioned upon satisfactory completion of a monitoring agreement with Lawyers Concerned for Lawyers.


ADMONITION NO. 07-12

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

SUMMARY:
The respondent was a co-trustee of a trust established for the donor’s wife and their three adult sons. The wife served as the other co-trustee. The trust instrument authorized the trustees to make discretionary payments from the net income of the trust to any of the beneficiaries.

In January 1999, the wife and three sons entered into a written agreement, to which the respondent was also a signatory (1999 Agreement). The 1999 Agreement provided that the trustees would provide quarterly statements to all beneficiaries showing any distributions from the trust to any of the three sons, but excluding any distribution to the wife, for so long as the trust remained in effect.

Between 2001 and 2006, with the knowledge and assent of the wife, the respondent made distributions to two of the sons, including approximately $48,000 paid to one son between July 2001 and July 2002. The respondent did not prepare and distribute quarterly statements showing the distributions to the sons, as required by the 1999 Agreement. After a grievance was filed with bar counsel, the respondent prepared and distributed the accounts required by the 1999 Agreement to all of the beneficiaries.

The respondent was admitted to practice in 1969, and had no prior discipline.

The respondent’s failure to act with reasonable diligence and promptness in preparing and distributing written accounts to the beneficiaries violated Mass. R. Prof. C. 1.3.

The respondent received an admonition for his conduct.


ADMONITION NO. 07-13

CLASSIFICATIONS:
Failure to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a) and (b)]
Failure to Safeguard Trust Property Other than Funds [Mass. R. Prof. C. 1.15(b)(3)]
Withdrawal Without Protecting Client [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
A client hired the respondent in June 1998 to investigate a possible lawsuit against a drugstore for permitting photographs the client had left to be developed to be removed from the store and publicly displayed in the client’s hometown. In 1999, after investigation and consideration, the respondent decided that the client’s chances of recovery were doubtful and that pursuit of the claim would be costly and embarrassing to the client. The respondent did not adequately communicate her opinion to the client or advise the client to find alternative counsel before the statute of limitations on the client’s claim expired. The client, who did not want to abandon her claim, believed the respondent was continuing to work on her case.

The respondent failed to respond to a certified letter and several telephone calls from the client in 2002. That year, the respondent lost the client’s file containing the offending photographs.

By failing to communicate to the client that she did not intend to go forward with the case, the respondent violated Mass. R. Prof. C. 1.4(a) (lawyer shall keep client reasonably informed about status of matter) and (b) (lawyer shall explain matter to extent reasonably necessary to enable client to make informed decisions about the representation). By failing to inform the client about the applicable statute of limitations so the client could seek alternative counsel in a timely manner, the respondent also violated Mass. R. Prof. C. 1.4(b), and 1.16 (d) (upon termination of representation, lawyer shall take steps to protect client’s interests, such as allowing time for employment of other counsel). By losing the client’s file and photographs, the respondent violated Mass. R. Prof. C. 1.15(b) in effect prior to July 2004 (now Rule 1.15(b)(3) (lawyer shall safeguard client’s property).

The respondent had no history of prior discipline.

The respondent received an admonition for her conduct in this matter, conditioned upon her attendance at a continuing legal education course designated by bar counsel.


ADMONITION NO. 07-14

CLASSIFICATIONS:
Conflict from Responsibilities to Another Client or Lawyer’s Own Interest [Mass. R. Prof. C. 1.7(b)]
Improper Business Transaction With Client [Mass. R. Prof. C. 1.8(a)]

SUMMARY:
The respondents are a partner and associate in a law firm. In late 2005, the associate was representing a wife in certain post-divorce matters, including the sale of the marital home. The respondents’ fee agreement with the wife called for her to pay legal fees at an hourly rate.

There were substantial difficulties involved in selling the home. The wife was also in financial distress and foreclosure was imminent. The associate undertook to render certain of the types of services normally provided by a broker, including pursuing a potential buyer who had previously expressed an interest in the property.

After the buyer agreed to the purchase, the associate faxed a purchase and sale agreement to the wife, who by then had relocated to Georgia. With the knowledge of the partner, the associate included in the agreement a brokerage clause entitling the law firm to a 5% commission, half of which was to be paid by the wife and half by the ex-husband. The ex-husband had already executed the agreement. The associate advised the wife that the agreement needed to be signed and returned by fax immediately in order to stop an imminent foreclosure sale. Although the wife saw and read the brokerage clause, the associate did not explain it to her, did not obtain her informed consent after consultation or in writing to the potential conflicts of interest between them and did not advise her that she could or should consult with independent counsel.

After the wife signed the agreement, she retained independent counsel and protested the broker’s commission. The closing took place as scheduled in January 2006, with the disputed commission held in escrow by the closing attorney. The respondents subsequently settled their dispute with the wife on terms favorable to her.

The respondents’ conduct in continuing to represent the client in circumstances where their representation of her could be materially limited by their own interests in the commission without her informed consent after consultation, and their conduct in entering into a business transaction with a client without advising her that she could consult with independent counsel, or without reasonable time to consult with independent counsel, and without consent in writing to the conflict, is in violation of Mass. R. Prof. C. 1.7(b) and 1.8(a).

The respondents have no prior discipline and the matter was resolved to the client’s satisfaction. The respondents accordingly received an admonition conditioned upon attendance at a CLE course designated by bar counsel.


ADMONITION NO. 07-15

CLASSIFICATIONS:
Handling Legal Matter When Not Competent orWithout Adequate Preparation [Mass. R. of Prof. C. 1.1]
Failing to Act Diligently [Mass. R. of Prof. C. 1.3]
Failure to Withdraw Generally [Mass. R. of Prof. C. 1.16 (a)(1)]

SUMMARY:
The respondent received an admonition for disciplinary violations arising from his representation of a client in a civil rights claim.

In January 2004, a client consulted with the respondent regarding two matters: an appeal of a criminal conviction following a district court jury trial where the client was represented by other counsel and a civil rights claim pursuant to 42 U.S.C. § 1983 against the town and the police for having arrested and charged the client in the criminal matter. In the criminal case, the client had been acquitted on all charges except discharging a firearm within 500 feet of a building. Although the respondent did not ultimately take the criminal appeal, he did agree to represent the client in pursuing the related civil rights claims.

In August 2004, the respondent filed an eleven-count civil suit in superior court against various town officials and the police chief. The defendants successfully removed the case to the United States District Court for the District of Massachusetts.

In August 2005, the defendants filed a motion to compel production of documents from the plaintiff and a motion to compel answers to interrogatories propounded on the plaintiff. The respondent did not respond to the defendants’ discovery motions. In October 2005, the defendants filed a motion to dismiss for failure to prosecute, and in December 2005, the judge allowed the defendants’ motion to dismiss.

In February 2006, the respondent filed a motion to set aside the default judgment and offered to pay costs to the other side. In his supporting affidavit, the respondent stated that he had received signed interrogatory responses from his client and that it was an oversight on his part that the interrogatories had not been served on the defendants. The respondent also indicated in his affidavit that he was “not a civil rights attorney”, that he “should not have taken this case”, and that he “should have withdrawn from this case much sooner”. The court denied the motion to set aside the default judgment. However, although the respondent clearly was at fault in failing to submit the answers to the interrogatories, it is unlikely that the client’s case was viable.

The respondent received a previous admonition for improper financial assistance to a client in violation of Mass. R. Prof. C. 1.8(e).

By undertaking to represent the client in the civil rights case when he was not competent in that practice area, the respondent violated Mass. R. Prof. C. 1.1. By undertaking representation, and later failing to withdraw from representation that resulted in a violation of Mass. R. Prof. C. 1.1, the respondent violated Mass. R. Prof. C. 1.16(a)(1). By failing to file timely responses to discovery requests, including the signed interrogatories provided to him by his client, and by allowing the civil rights case to be dismissed, the respondent failed to act diligently on behalf of his client in violation of Mass. R. Prof. C. 1.3.


ADMONITION NO. 07-16

CLASSIFICATIONS:
Failing to Seek the Lawful Objectives of the Client [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]

SUMMARY:
The respondent is a solo practitioner who concentrates in criminal matters and care and protection cases. In April of 1999, he was retained by an existing client to represent the client as next friend of his two minor children, then four and five years old, in connection with claims against their landlord for lead paint poisoning. In May of 1999, the respondent filed suit on behalf of the children in housing court. The client was about to begin serving a prison sentence and the children were in the physical custody of the Department of Social Services.

After the litigation was filed, the respondent and the client submitted responses to the defendant’s formal discovery. However, in 2002, the respondent moved his office to New Hampshire. The respondent by this time had lost track of the client, who was still in prison, and made no attempt to locate him or to notify him of the change of address.

On January 12, 2003, the respondent received a notice from the court, scheduling a pre trial hearing for February 21, 2003. The respondent still did not know where the client was, or if he was still incarcerated, and again did not attempt to locate him. Because the children’s lead levels were below those established by the Mass. General Laws for strict liability for lead paint poisoning, the respondent decided to permit the case to be dismissed. As the children were still very young, the respondent knew that the statute of limitations would not expire for many years and that the case could be re-filed later if liability and damages could be substantiated. The respondent did not consult with the client or attempt to notify him of this decision.

On February 21, 2003, the case was “dismissed, without prejudice, for lack of prosecution” because the respondent did not appear at the scheduled hearing. The respondent never notified the client (who in fact was still incarcerated) that the case had been dismissed.

On August 23, 2005, the client wrote to the respondent, asking about the status of the case. The respondent replied on October 14, 2005, telling the client that he had allowed the case to be dismissed without prejudice. In September of 2006, the client filed a complaint with the Office of Bar Counsel.

By not keeping the client informed of the status of the case, by failing to advise or attempt to advise the client of his (the respondent’s) move of his office to New Hampshire, by not advising or attempting to advise the client of the pending dismissal or obtaining his permission to allow the case to be dismissed, and by failing to advise or attempt to advise the client of the dismissal of the case promptly after it occurred, the respondent violated Mass. R. Prof. C. 1.2((a) (failing to seek client’s lawful objectives, 1.3 (lack of diligence) and 1.4 (lack of communication).

The respondent has no prior discipline. He accordingly received an admonition for the above violations, conditioned upon attendance at a CLE course designated by bar counsel.


ADMONITION NO. 07-17

CLASSIFICATIONS:
Failing to Seek Client’s Lawful Objectives or Abide by Client’s Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Withdrawal without Tribunal’s Permission [Mass. R. Prof. C. 1.16(c)]

SUMMARY:
In September 2000, the respondent was retained to represent a client on a serious criminal charge pending in district court. The client was indicted on the charge and arraigned in Suffolk Superior Court on January 19, 2001.

The respondent filed a motion to suppress and supporting affidavit on behalf of the client on or about October 9, 2001. The motion to suppress was denied by the court on or about May 3, 2002. The client initially requested the respondent to file an interlocutory appeal, but was persuaded by the respondent that an appeal would not succeed and was not the appropriate strategy.

On December 15, 2002, the client was arrested on a new criminal offense and arraigned in district court. Another attorney was appointed to represent him. The client was held in lieu of bail.

After the client’s December 2002 arrest, he asked the respondent to represent him on the new matter but she declined. The client also advised the respondent that he now wanted to file an interlocutory appeal of the denial of the motion to suppress in the first case. The respondent indicated that she would not agree to file the appeal and that, based upon their renewed disagreement in this respect, she would move to withdraw from the superior court case.

The respondent did not file a motion to withdraw. The client’s superior court case was scheduled for a status hearing on February 3, 2003. The respondent was ill on that date and did not appear in court. She telephoned the prosecutor and the court to inform them of her illness and requested that the matter be continued to February 6, 2003. Three additional court dates were subsequently set but the respondent was still unwell and the matter was ultimately continued to April 2, 2003.

On April 2, 2003, the respondent again did not appear in the superior court. She telephoned the court and stated that she was having difficulty with her automobile. The client was also was not present in court because he had not been transported from the correctional institute to the court hearing. The client’s mother was in court and informed the judge that the client no longer wanted the respondent to represent him and that he would agree to the appointment of his attorney on the other criminal case to represent him on all of his pending cases. The magistrate declined to appoint new counsel unless the client and the respondent were present in court. The magistrate continued the case to April 15, 2003.

Between April 2, 2003 and April 15, 2003, the respondent had conversations with the prosecutor assigned to the client’s case and with the client’s other criminal defense attorney and informed them that she intended to move to withdraw as the client’s attorney. However, she still did not file a motion to withdraw.

On April 15, 2003, the respondent did not appear in court and did not contact the court to explain her absence. The judge appointed the second attorney to represent the client and continued the case to April 24, 2003. The court ordered the respondent to appear in court in person on April 24, 2003 to withdraw her appearance on behalf of the client.

The respondent did not appear in court on April 24, 2003. The court issued an order for her to appear on May 2, 2003 to show cause as to why she should not be held in contempt for failure to appear while her appearance was still on record on behalf of the client.

The respondent appeared in court on May 2, 2003. She informed the court that she had received notice of the April 24, 2003 hearing but did not appear because she believed that she was no longer the client’s attorney and therefore not required to appear. The court ordered the respondent to pay $100.00 as a sanction and told the respondent to file a withdrawal of appearance as the client’s attorney and the withdrawal would be approved. The respondent then filed a motion to withdraw and it was allowed by the court. On or about August 18, 2004, the respondent filed a motion for reconsideration of imposition of fine together with an affidavit in support of the motion. The respondent also requested that the motion and attachments be filed under seal because the client’s criminal matters were still pending and because the respondent’s submission detailed her private medical issues. The court allowed the respondent’s motions on or about September 15, 2004.

By failing to appear at the April 15 and April 24 court hearings, and by withdrawing as counsel in April 2003 without obtaining permission from the court, the respondent violated Mass. R. Prof. C. 1.2(a), 1.3 and 1.16(c).

In aggravation, the respondent in 1998 received an admonition for unrelated misconduct that occurred in 1995. In mitigation, the respondent has had numerous and chronic health problems since the spring of 2002 which affected the respondent’s law practice. In addition to the respondent’s chronic health problems, she was also suffering from a virus and an infection at the time of her misconduct in this matter. The respondent has substantially decreased her caseload in order to deal with her health issues.

The respondent received an admonition for her conduct in this matter, conditioned upon her attendance at a CLE course designated by bar counsel.


ADMONITION NO. 07-18

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

SUMMARY:
The respondent was retained by the executor of an estate to bring suit on behalf of the estate. Due to the pressure of his caseload, the respondent was not able to file the complaint immediately. When, after several months, the executor asked him when it would be filed, the respondent falsely reported that the complaint had been filed. More than two additional months elapsed before the respondent actually filed the complaint in Superior Court. During that period, he made additional false statements to the executor concerning the progress of the case.

When the executor learned of the respondent’s false statements, he discharged the respondent and retained another attorney to represent the estate. The new attorney filed an amended complaint, conducted discovery, and settled the matter on terms acceptable to the executor.

The respondent’s conduct in making false representations to his client about the filing and progress of the case was a violation of Mass. R. Prof. C. 1.4(a) (lawyer shall keep client reasonably informed of status of case) and 8.4(c) (lawyer shall not engage in dishonesty, fraud, deceit, or misrepresentation).

The respondent’s misconduct did not cause any ultimate harm to his client. In mitigation, the respondent had serious family and health problems during the period of the misconduct. His father had recently died and his mother was ill and dying. He is also a type II diabetic, whose blood glucose levels and mental health are affected by stress. He and his firm have taken steps to ensure that the respondent’s case load is properly managed in the future. The respondent was admitted to the bar in 1995 and has no disciplinary history. He received an admonition for his misconduct.


ADMONITION NO. 07-19

CLASSIFICATIONS:
Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failure to Timely Communicate Basis of Fee [Mass. R. Prof. C. 1.5(b)]

SUMMARY:
In January 2002, the respondent agreed to represent a client in settling the estate of her mother, who had passed away on January 19, 2002. The client had been nominated as executrix of her mother’s estate, and as trustee of a trust established by her mother. The respondent had previously represented the client’s mother in connection with her estate planning but had not previously represented the client.

The respondent and the client did not enter into a written or oral fee agreement. The respondent did not communicate the basis or rate of his fee to the client within a reasonable time after commencing the representation, in violation of Mass. R. Prof. C. 1.5(b). The client knew that the attorney had previously charged her mother an hourly fee and assumed that the attorney would charge the same.

The respondent subsequently filed an estate tax return for the estate, using an incorrect form. As a result, the estate overpaid its state and federal taxes by $150,000. The respondent’s failure to use the proper form for filing the return was in violation of Mass. R. Prof. C. 1.1, which requires a lawyer to employ “thoroughness ... and preparation reasonably necessary for the representation.”

Prior to discovering that the estate had overpaid the taxes due, the lawyer billed the client approximately $45,000 for his legal services. The lawyer calculated the bill on a variety of factors including hours spent, the size of the estate, and his experience. Although the client was surprised by the amount of the bill, she paid it.

In 2004, the IRS audited the estate tax return and discovered the overpayment. The client hired a new lawyer to assist with the audit and secure the refund. The client then demanded that a portion of the fee be refunded. After a grievance was filed with bar counsel, the respondent and the client reached an agreement, and the respondent refunded $20,000 of the fee previously paid by the client.

The respondent, who was admitted to practice in 1982 and had no prior discipline, received an admonition for his conduct.


ADMONITION NO. 07-20

CLASSIFICATIONS:
Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Improper Disclosure of Confidential Information [Mass. R. Prof. C. 1.6]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16e]
Responsibilities Regarding Non-lawyer Assistants [Mass. R. Prof. C. 5.3]

SUMMARY:
The respondent represented a client on a claim for injuries sustained in an automobile accident in September of 2004. In April of 2005, the client decided to terminate the respondent’s services and retained other counsel. On May 20, 2005, successor counsel sent the respondent a letter of discharge signed by the client and requested the client’s file.

On June 2, 2005, the respondent sent successor counsel a letter refusing to provide any file documents until he was reimbursed for his costs in obtaining the client’s medical bills and records. The respondent also wrote that the client was not pursuing required medical treatment and was uncooperative with her medical providers, creating gaps in her treatment to the detriment of her bodily injury claim.

The respondent’s letter of June 2, 2005, contained confidential information concerning his representation of the client. A copy of the letter was sent to the client’s motor vehicle insurer by the respondent’s secretary, who had been working part-time in her first law office employment for only four months. The respondent had not requested that a copy of the letter be sent to the insurer and was not aware that the copy would be sent.

The secretary was still being trained on general legal requirements and policies and misunderstood the respondent’s instructions concerning the letter. The respondent failed to review the letter to be sure that it complied with his instructions but simply signed the letter near a “cc” clearly indicating the insurer’s name and address.

Although the letter contained disparaging comments about the client and her case, the gaps in her medical treatment would be evident in her medical records. Shortly after the respondent received a copy of successor counsel’s bar grievance for comment in late June of 2005, he forwarded the client’s full file to successor counsel.

The respondent’s disclosure of confidential client information was in violation of Mass. R. Prof. C. 1.6(a) (lawyer shall not reveal confidential information relating to representation of a client).

The respondent’s refusal to provide successor counsel with any file documents without reimbursement for his costs in obtaining medical records was in violation of Mass. R. Prof. C. 1.16(e)(3) (upon client’s request for file, lawyer may withhold pending payment of out-of-pocket costs only those investigatory documents such as medical records for which client has not reimbursed the lawyer).

The respondent’s conduct in failing to assure that his secretary did not send a copy of the letter to the insurer was in violation of Mass. R. Prof. C. 1.1 (lawyer shall provide competent representation to client) and 5.3(b) (lawyer shall make reasonable efforts to assure that conduct of non-lawyer staff is compatible with lawyer’s professional obligations).

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


ADMONITION NO. 07-21

CLASSIFICATIONS:
Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Client’s Lawful Objectives or Abide by Client’s Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2a]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]

SUMMARY:
The respondent was retained to represent tenants in defending a housing court summary process action. The clients had been served with a summons and complaint designating October 30, 2003, as the date for the hearing on the complaint. On October 17, 2003, the respondent timely filed with the court and served on the landlord’s counsel an appearance, an answer and counterclaim and a motion for discovery.

The respondent’s motion for discovery only requested that the court grant the clients “Discovery”. The respondent did not include in the motion or in any other papers any interrogatories, requests for admissions or requests for the production of documents. Rule 7(b) of the Uniform Summary Process Rules provides that the hearing of a summary process action shall be automatically postponed for two weeks upon the filing of a demand for discovery in accordance with Rule 7(a), but the discovery demands must be in the form of written interrogatories, requests for admissions and requests for the production of documents. Consequently, the respondent’s motion for discovery was inadequate to postpone the hearing.

The respondent mistakenly believed that the summary process hearing would be automatically postponed because she filed a motion for discovery. The respondent made no attempt prior to October 30, 2003, to confirm that the hearing had been postponed. She advised her clients not to appear on October 30, 2003, and attended a hearing on that day in an unrelated matter in another court.

Because the respondent’s motion for discovery was not in conformity with Rule 7, the hearing of the summary process action went forward on October 30, 2003, and the court entered a default judgment for possession of the premises. Late that afternoon, the landlord’s counsel informed the respondent that a default judgment had been entered against her clients.

On October 31, 2003, the respondent filed a motion to remove the default judgment. After a hearing on November 13, 2003, the court entered an order scheduling an evidentiary hearing on the summary process complaint for November 20, 2003, with the judgment to remain in place if the plaintiff’s evidence established entitlement to possession; otherwise the complaint would be dismissed. The court ordered the clients to pay $350 toward the landlord’s attorneys’ fees and ruled that they had waived their right to discovery.

On November 20, 2003, the parties entered into a settlement agreement in which the tenants agreed to vacate the premises by January 30, 2004. The respondent paid the landlord’s attorney the $350 ordered by the court and returned a $400 retainer paid to her by the tenants.

The respondent’s failure to research the Uniform Summary Process Rules to determine the requirements for discovery requests, her failure to file demands for discovery in conformity with Rule 7 of the Uniform Summary Process Rules and her failure to confirm whether the hearing would be postponed were in violation of Mass. R. Prof. C. 1.1, 1.2(a) and 1.3.

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


ADMONITION NO. 07-22

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Failing to Cooperate in Bar Discipline Investigation [Mass. R. Prof. C. 8.4(g); S.J.C. Rule 4:01, § 3]

SUMMARY:
In 2000, the Committee for Public Counsel Services (CPCS) appointed the respondent to investigate a potential motion to withdraw a guilty plea on behalf of a convicted felon. In 1989, the client had pled guilty and had been convicted of over 50 counts of child rape. The client was sentenced to life imprisonment on six of those offenses. Prior to the respondent being appointed, the client filed a pro se motion to withdraw his guilty plea and seek a new trial. The pro se motion was denied, and no appeal was taken.

In December 2002, the respondent filed a renewed motion to withdraw the guilty plea and seek a new trial in Suffolk Superior Court. This motion was denied by the superior court. In June 2003, the respondent filed with the Appeals Court an appeal brief and record appendix. In January 2004, the appeal was denied by the Appeals Court.

The client requested that the respondent file an application for further appellate review. The respondent agreed to file an application for further appellate review. The respondent drafted the application for further appellate review but failed to file it. The respondent also failed to respond to the client’s repeated requests for the status of his appeal, and for a copy of the application for further appellate review.

The respondent searched for the application for further appellate review, but could not locate the draft. After her client filed a complaint with bar counsel, the respondent told her client and bar counsel that she would file the application for further appellate review, as well as a motion to enlarge time, with the Supreme Judicial Court. The respondent did not file the motions and also failed to appear before bar counsel under subpoena. As a result, the respondent was administratively suspended by the Supreme Judicial Court pursuant to S.J.C. Rule 4:01, § 3, for non-cooperation with bar counsel.

The respondent thereafter appeared at the office of bar counsel, produced the draft of the application for further appellate review and the motion, and was reinstated by the court. CPCS appointed successor counsel to represent the client and an application for further appellate review was filed.

In mitigation, during the relevant time period, the respondent’s mother had serious health problems that contributed to the respondent’s neglect of the client matter and to her failure to cooperate with bar counsel.

The respondent’s conduct in failing to act with reasonable diligence and in failing to adequately communicate with her client violated Mass. R. Prof. C. 1.3, 1.4. Her failure to cooperate with bar counsel’s investigation was in violation of Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01. § 3.

The respondent was admitted in 1992 and has no history of discipline. She accordingly received an admonition for her misconduct conditioned upon her attendance at a CLE program designated by bar counsel.


ADMONITION NO. 07-23

See In the Matter of an Attorney - SJC-09667


ADMONITION NO. 07-24

CLASSIFICATIONS:
Failing to seek client’s lawful objectives or abide by Client’s decisions to settle or enter plea [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Improper permissive withdrawal [Mass. R. Prof. C. 1.16(b)]
Withdrawal without tribunal’s permission [Mass. R. Prof. C. 1.16(c)]
Failure to cooperate in bar discipline investigations [SJC Rule 4:01 §3]

SUMMARY:
A client made an offer to purchase land in a small town in western Massachusetts. The town had a 120-day right of first refusal. The client contacted the respondent for legal assistance because he claimed that the town had improperly exercised the right of refusal eight days late. The respondent agreed to represent the client at an hourly rate and filed suit against the town on behalf of the client in the Land Court on March 5, 2005.

The respondent stopped working on the client’s case in or around August 2005, because the client was unwilling to pay him for his services. The respondent became angry at the client and stopped communicating with him. The respondent effectively withdrew from representation of the client without seeking court approval. The respondent’s conduct was in violation of Mass. R. Prof. C. 1.2(a), 1.3, 1.4 and 1.16 (b) and (c).

The client attempted to contact the respondent for a status report on the matter and the respondent did not reply to his telephone calls. The client filed a grievance with the Office of Bar Counsel in May 2006. Bar counsel sent letters to the respondent on June 1 and June 27, 2006, requesting a reply to the allegations made by the client. The respondent failed to respond to bar counsel’s letters, necessitating a subpoena for the respondent’s appearance at the Office of Bar Counsel. The respondent’s failure to cooperate with bar counsel’s investigation was in violation of SJC Rule 4:01 § 3.

The respondent re-established his relationship with the client in September 2006 and resumed prosecution of the client’s claim. The client suffered no ultimate harm.

In mitigation, the respondent’s conduct was partially a result of depression caused by financial difficulties and a physical injury that had restricted his physical activities for months. The respondent has sought treatment through Lawyers Concerned for Lawyers.

The respondent was admitted to the Bar in December 1991. He had no prior discipline. The respondent received an admonition for his conduct in this matter conditioned upon his attendance at a CLE program designated by bar counsel.


ADMONITION NO. 07-25

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)]

SUMMARY:
The respondent was appointed counsel in four criminal cases. The respondent was required to complete a “Notice of Assignment of Counsel” (“NAC”) for each case. The NAC contained a box to be checked if the appointment was for purposes of bail or arraignment only. For three of the cases, the respondent was appointed for purposes of bail only; in the fourth case the respondent was appointed for all purposes. The respondent correctly completed the NACs and submitted them to the court.

The respondent later reviewed the NACs and noticed that, on one, the “bail only” box had not been checked. The respondent believed that he had been appointed for purposes of bail on all four matters, and consequently put a check on the NAC that was in his file. The respondent failed, however, to amend the other copies of the NAC, including the one submitted to the court and the one submitted to the Committee For Public Counsel Services.

At a meeting with the client, the respondent incorrectly advised the client that the respondent had been appointed for bail purposes only. The respondent told the client he would have to retain counsel and offered to handle the matter for a small sum. The client interviewed other lawyers, but none of them would agree to handle the case for the fee charged by the respondent. The client returned to the respondent and asked him to handle the case.

The manual for the Committee for Public Counsel Services provides that appointed counsel may not be “privately retained in a case in which s/he was previously assigned” unless the attorney is “appointed…for bail purposes only, [and] then the attorney may be privately retained by the client at the request of the client” only after the attorney has “fully explain[ed] to the client that representation…may create the appearance of impropriety, solicitation, or overreaching by the attorney”, and the attorney has “obtain[ed] a written consent signed by the client, stating the client’s understanding of his/her right to seek other counsel.” Even if the respondent had actually been assigned for bail purposes only, he failed to abide by this requirement by failing to advise the client that the representation might present the appearance of impropriety and by failing to obtain written consent to the representation stating that the client understood the right to seek other counsel.

At the next court appearance, the judge informed the respondent that the NAC in the court’s file indicated that the respondent had been appointed to represent the client for all purposes. The respondent submitted to the court the NAC that was in his file and then learned of his error. The respondent immediately withdrew from the representation and refunded the entire fee to the client. The respondent’s action did not result in any prejudice to the client’s case.

The respondent’s conduct in changing the NAC without confirming the conditions of his appointment with the court, his offering to represent the client when he had in fact been appointed to handle the matter for all purposes, and his failure to obtain the client’s written consent to the representation violated Mass. R. Prof. C. 1.3 (lawyer shall act diligently in his representation of a client) and 1.4(b) (lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation), and 8.4(d) (conduct prejudicial to the administration of justice).

The respondent was admitted in 1994, and had no disciplinary history. The respondent received an admonition for his conduct in this matter, conditioned on his attendance at a continuing legal education course designated by bar counsel.


ADMONITION NO. 07-26

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

SUMMARY:
In June 2000, the probate court appointed the respondent special administrator for the estate of an individual who had died in 1997. From 1997 to 2000, the three heirs had failed to make progress probating the estate, because they could not agree on who should administer the estate or how it should be administered. In October 1999, they filed resignations as co-executrixes.

The respondent took over the administration of the estate in mid 2000, but did not meet with the heirs’ attorneys until February 2001. At that initial meeting, the attorneys provided the respondent with stock certificates, bank account information, and other pertinent information needed to begin administration of the estate. The decedent’s real and personal property had an estimated value of $532,103.

The respondent did not take steps to safeguard these assets or otherwise administer the estate promptly. The respondent did not timely transfer the stock into the name of the estate or the heirs, and as a result over $100,000 in stock and unclaimed dividends escheated to the state in November 2001. It took the respondent until August of 2003 to recover these assets. He did not distribute the recovered stock or any of the other stock owned by the estate until the fall of 2003.

The decedent’s Massachusetts home had been sold in 1998 for $122,000 and the proceeds deposited into a trust account maintained by one of the attorneys for the heirs. The respondent did not authorize the attorney to disburse any of the house proceeds to the heirs until 2004. The respondent also did not distribute the funds from several smaller bank accounts until 2004. The respondent did not file any fiduciary tax returns until 2004, at which time he filed returns for 2000 through 2003. He filed the 2004 fiduciary tax return in 2005.

By failing to administer this simple estate promptly, the respondent violated Mass. R. Prof. C. 1.3. In mitigation, some of the delay is attributable to the heirs’ inability to agree on many matters pertaining to the distribution of assets. In further mitigation, the respondent has refunded a portion of his fees to the beneficiaries and completed the inventory, a first and final account, and an amended 2004 U.S. final fiduciary tax return. The respondent was admitted to practice in 1982 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. 07-27

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

SUMMARY:
In July 2004, the respondent owned real estate in his own name that he had acquired in 1998 prior to his current marriage. The respondent’s wife, a paralegal by profession, wished to be named on the deed and prepared a deed conveying the property from the respondent to the respondent and to her, as tenants by the entirety. The wife also drafted a standard notary clause which affirmed that the respondent personally appeared before the notary and signed the deed.

On July 7, 2004, the respondent signed the deed. At that time, there was no notary present. The respondent was aware of the notary clause, which at that time was unexecuted. The respondent also knew that his signature, as grantor, had to be notarized before the deed was recorded. After he signed the deed, the respondent gave the deed to his wife to have his signature notarized and to record the deed.

On July 14, 2004, the wife recorded the deed, or caused it to be recorded, at the Norfolk County Registry of Deeds with a notary’s signature affixed. The notary subsequently denied the genuineness of his signature. On August 1, 2005, the respondent and his wife conveyed the property back to the respondent. That deed was properly executed.

The respondent’s signing a deed expecting that his signature would be later notarized when he would not be present before the notary is conduct in violation of Mass. R. Prof. C. 8.4(c).

The respondent was admitted in 2000 and has no prior discipline. The respondent received an admonition for his misconduct conditioned upon attendance at a CLE program recommended by bar counsel.


ADMONITION NO. 07-28

Order (admonition) entered by the Board on January 8, 2007

HEARING REPORT

A petition for discipline was filed by bar counsel on January 26, 2006, against the respondent, James Doe. The respondent, appearing pro se, filed an answer on March 9, 2006. On October 2, 2006, the respondent, represented by counsel, filed an amended answer. The parties filed a stipulation of facts on November 21, 2006. A hearing was held on November 28, 2006. Eleven exhibits were admitted into evidence, and the respondent testified on his own behalf. The parties filed proposed findings, conclusions of law and recommendations on January 25, 2007.

I. Findings of Fact

  1. The respondent, James Doe, was admitted to the Massachusetts bar on January 17, 2001. (Stip. ¶ 1) For about a year after his admission, the respondent worked as an associate in a small firm where he focused primarily on criminal defense, with some divorce and civil litigation. (Tr. 9-10) Thereafter, he took over a solo practice from another attorney who wanted to retire. (Tr. 10-11) However, he was unable to collect on the accounts receivable and the real estate and litigation cases he took over were in disarray. (Tr. 11) The respondent started doing appointive criminal appellate work, but found that it generated little income. (Tr. 12)
  2. In the fall 2004, the respondent agreed to represent Mary Moe in her divorce. (Stip. ¶ 2) Ms. Moe’s previous attorney had filed the divorce in September 2004 in the Middlesex Probate Court. (Stip. ¶ 2; Ex. 3) There were no marital assets or children and the marriage had been of short duration. (Stip. ¶ 2)
  3. On or about October 18, 2004, the respondent and Ms. Moe entered into a written agreement in which the respondent agreed to complete the divorce for a flat fee of $1,000. (Stip. ¶ 3; Ex. 1, Ex. 3)
  4. The respondent entered an appearance for Ms. Moe in mid-October 2004. (Stip. ¶ 4; Ex. 3) On October 25, 2004, the husband’s counsel noticed the wife’s deposition. (Ex. 3) The respondent thought the case should be settled with written discovery and without the need for depositions. (Tr. 19-20) He tried to discuss this with the husband’s counsel, but his telephone calls were not returned. (Tr. 19-20) On October 31, 2004, in response to the notice of the wife’s deposition, the respondent noticed the husband’s deposition. (Stip. ¶ 4; Ex. 3) The depositions were postponed several times and never occurred. (Stip. ¶ 4; Tr. 20) The respondent performed some legal research on the issue of whether Ms. Moe’s dowry claim was enforceable. (Stip. ¶ 4; Tr. 14, 18) From October through December 2004, Ms. Moe was in frequent – almost daily – contact with respondent. (Tr. 18, 21)
  5. By January 2005, the respondent’s practice was “basically nonexistent” and he was making no money. (Tr. 22) In addition, his marriage was failing. (Tr. 22-23) His wife left him that month and returned in March 2005; they have since separated permanently. (Tr. 22-23) Also at that time, the respondent was drinking in excess, close to a bottle of scotch every day. (Tr. 23) Furthermore, he was gambling on the internet, using money he had won from gambling earlier in the year. (Tr. 23)
  6. During this period, Ms. Moe was calling almost daily and she was very upset with the postponements of the depositions. (Tr. 21-22) By January 2005, the respondent found Ms. Moe to be overly emotional and difficult to deal with. (Stip. ¶ 5) He did no further work on Ms. Moe’s divorce, he discontinued communications with her, and he did not complete her divorce. (Stip. ¶ 5)
  7. In addition, in January 2005, the respondent disconnected his telephone and closed his office. (Stip. ¶ 6) The respondent did not notify Ms. Moe that he intended to close or had closed his office. (Stip. ¶ 6) During January and early February 2005, Ms. Moe made many attempts to contact the respondent by telephone and e-mail. (Stip. ¶ 6) The respondent did not respond to those telephone and e-mail messages. (Stip. ¶ 6)
  8. Ms. Moe filed a complaint with the Office of Bar Counsel on February 16, 2005. (Stip. ¶ 8) This complaint was forwarded to the respondent by bar counsel on February 24, 2005. (Ex. 10) In a letter to bar counsel dated March 15, 20051 (Ex. 1), the respondent offered to return the unearned portion of the retainer, and, in a letter dated May 19, 2005 (Ex. 2), the respondent offered to return the entire $1,000 retainer to Ms. Moe.
  9. We credit the respondent’s testimony that, in May 2005, he received a call from successor counsel who requested Ms. Moe’s file. (Tr. 25, 36-37) In response, on May 19, 2005, the respondent sent successor counsel the file together with a withdrawal of his appearance. (Ex. 3) We credit the respondent’s testimony that he assumed that successor counsel would be filing an appearance and would file the withdrawal at the same time, thus obviating any need for a motion to withdraw.2 (See Tr. 25, 36-37, 43-45 respondent)
  10. On September 29, 2005, successor counsel filed her notice of appearance, the parties filed a separation agreement, and a judgment of divorce nisi was entered. (Ex. 5, Ex. 7, Ex. 8, Ex. 9)
  11. The respondent made restitution of $50.00 to the client in October 2005. (Tr. 4 [stipulation], 5 [admission by bar counsel], 32, 38, 42 [respondent]) The respondent gave his counsel $500 in October 2006 and $450 in November 2006, a total of $950, which was sent to Ms. Moe on November 21, 2006. (Stip. ¶ 8) Thus, the respondent has refunded her fee in full. (Tr. 32, 38, 42-43)
  12. II. Conclusions of Law

  13. Bar counsel charges that by failing to complete the complainant’s divorce, as he had agreed to do, the respondent failed to provide competent representation, in violation of Mass. R. Prof. C. 1.1; failed to seek the lawful objectives of his client, in violation of Mass. R. Prof. C. 1.2(a); and failed to provide diligent representation, in violation of Mass. R. Prof. C. 1.3. In our view, the “failure to complete” a divorce or other matter cannot constitute a violation of the disciplinary rules in and of itself, because an attorney can withdraw from a case and a client can obtain successor counsel, as occurred here. However, the respondent’s abandonment of the case and the closing of his office constitute violations of Mass. R. Prof. C. 1.2(a) and 1.3. On the facts presented here, we find no evidence of a violation of Mass. R. Prof. C. 1.1.
  14. Bar counsel charges that by failing to respond, after December 2004, to his client’s e-mails and telephone calls, the respondent violated Mass. R. Prof. C. 1.4(a) (lawyer shall keep client reasonably informed about status of a matter and promptly comply with reasonable requests for information). There was no evidence presented as to any change in status obligating the respondent to contact his client. There was no evidence presented as to the nature of the e-mails and telephone calls from the client and thus, there is no showing that the respondent failed to respond to reasonable requests for information. As a result, we conclude that bar counsel has failed to prove these allegations. However, even if the respondent’s conduct constituted a violation of the charged disciplinary rule, it would not alter our recommended sanction.
  15. Bar counsel charges that by terminating his representation of his client without notifying her, taking reasonable steps to protect her interests, promptly surrendering her papers, or refunding the unearned portion of his fee, the respondent violated Mass. R. Prof. C. 1.16(d) and engaged in conduct adversely reflecting on his fitness to practice law, in violation of Mass. R. Prof. C. 8.4(h). The respondent has admitted that he terminated his representation of his client without notifying her and thus, he violated the charged disciplinary rules. There is no question that an attorney should refund any unearned portion of his fee upon termination, but there was no evidence presented in this case that the respondent did not earn his fee under quantum meruit,3 particularly given the frequency of his contact with the client during the fall 2004. We therefore can make no findings concerning what amount, if any, was unearned. Furthermore, there was no evidence that the respondent unreasonably delayed in providing the file to successor counsel. Indeed, as set forth above, he sent the file to successor counsel along with his withdrawal of appearance within a couple of weeks after first hearing from successor counsel.
  16. Bar counsel charges that, by terminating his representation of his client in a court proceeding without obtaining permission of the court to do so, the respondent violated Mass. R. Prof. C. 1.16(c) (if rules of a tribunal require permission for withdrawal from employment, lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission). However, the respondent reasonably believed that Ms. Moe had obtained successor counsel and that successor counsel would file an appearance with the court at the same time as his notice of withdrawal. In accordance with that belief, the respondent sent successor counsel a notice of withdrawal at the same time that he provided the file. As set forth above, under Mass. R. Dom. P. 11, this was the proper procedure and obviated any need for a motion. Consequently, we do not find a violation of the charged disciplinary rules. We do not find that a delay of a few months to see if Ms. Moe obtained successor counsel was unreasonable. However, even if the respondent’s conduct constituted a violation of the charged disciplinary rule, it would not alter our recommended sanction.
  17. III. Factors in Mitigation and Aggravation

  18. As set forth above, we credit the respondent’s testimony that, by January 2005, he and his wife were having marital problems, and he was drinking excessively and gambling. (Tr. 22-23) We credit his testimony that these personal problems were a contributing factor in his closing of his office, his termination of representation, and his failure to communicate with his client. (Tr. 22-24) We further credit his testimony that he stopped gambling in April 2005 and stopped drinking in July 2005. (Tr. 30-32)
  19. The respondent agreed in May 2005 that he would make a full refund of the $1,000 paid in legal fees. (Ex. 2) The respondent has since made complete repayment, and we credit his testimony that he was unable to do so earlier because he did not have the money.4 (Tr. 32-33)
  20. Bar counsel presented no evidence of any harm to the client resulting from the respondent’s misconduct. Indeed, the client was able to obtain successor counsel in May 2004 (see Ex. 3), within several months of his abandonment of her case, and her divorce was granted in September 2004. (Ex. 5, Ex. 7, Ex. 8, Ex. 9)
  21. The respondent showed remorse for his misconduct in abandoning his client. (Tr. 28)

IV. Recommendation for Discipline

Bar counsel seeks a public reprimand. At the hearing, bar counsel stated that, if the respondent had made restitution promptly, as he promised, bar counsel would have sought an admonition, not a public reprimand. (Tr. 49-50)
The respondent seeks an admonition.

The respondent terminated his representation of his client without notifying her and failed to return her calls. Approximately four months elapsed between the termination and contact from successor counsel. Upon request by successor counsel, the respondent forwarded the file and a signed withdrawal of appearance. The respondent made a full refund of the fee to the client, and the client suffered no harm as a result of his misconduct. In mitigation, the respondent was suffering from personal problems at the time, which contributed to the misconduct, and he has since rehabilitated himself. He cooperated with bar counsel and creditably expressed remorse. Finally, the respondent has no history of prior discipline.

We have reviewed the cases cited by both parties. In our view, the cases cited by bar counsel in support of a public reprimand involve significantly more egregious misconduct. In Matter of Ribley, 21 Mass. Att'y Disc. R. 568 (2005), the attorney neglected a client’s two personal injury cases. In one, he failed to file suit prior to the expiration of the statute of limitations and did not tell the client of his failure. In the other, the attorney took no action beyond a letter of representation to the insurer. Thereafter, he closed his law practice and relocated out of state. He did not inform the client of his move and did not return the client’s files. After the client filed a complaint, the attorney returned the files. In aggravation, the attorney had received a prior admonition for inadequate preparation. The Board adopted the parties’ stipulation for a public reprimand.

In Matter of Nealon, 21 Mass. Att'y Disc. R. 509 (2005), the attorney neglected a civil matter, resulting in a judgment of dismissal without prejudice as to the entire case. The attorney misread the judgment and believed it applied only to the party he had previously stipulated to dismiss. Several months later, he learned of the dismissal of the entire case and agreed to try to reinstate the claims against the other party. However, he did not do so. The client terminated the representation, but the attorney did not promptly return the file or provide an accounting as requested. About a month later, after the client filed a complaint, he returned the file and reimbursed the client for the retainer. Thereafter, by agreement with the client, he filed a motion to vacate the dismissal. In aggravation, the attorney received an admonition in 2001, an informal admonition in 1986, and a private reprimand in 1988. The parties stipulated to a public reprimand conditioned on the attorney’s attendance at a CLE course and the Board accepted the stipulation.

In Matter of Boyd, PR-2006-8, 22 Mass. Att'y Disc. R. ___ (2006), the attorney appealed a decision of a DIA hearing officer to superior court, but despite several opportunities, failed to file timely a motion for judgment, resulting in dismissal. The attorney thereafter failed for several months to respond to his client’s efforts to contact him. After a complaint was filed with bar counsel, the attorney returned an uncashed fee check. In mitigation, at the time the attorney was suffering from an anxiety disorder for which subsequently he had received treatment. The parties stipulated and the Board adopted the stipulation of a public reprimand conditioned on a CLE course.

Each of these cases involves more serious misconduct than in the instant case, namely, the neglect occurred over a longer period, it resulted in harm and, in the first two cases, the attorneys had histories of prior discipline.

In contrast, we find the admonition cases cited by the respondent to be more analogous to the respondent’s misconduct. In AD-06-05, 22 Mass. Att'y Disc. R. __ (2006), the attorney, representing the wife in a divorce action, filed a complaint for divorce and obtained temporary orders, including support and health insurance, in January 1995. In November 1995, the attorney requested a continuance to have an expert evaluate the value of the husband’s pension. Thereafter, the attorney took no action of substance until 1997 when, on receipt of notice that the case was being placed on inactive status, she requested an up-dated financial statement from the husband, restoring the case to active status. In July 2000, the court sent a second notice due to inactivity. The attorney did not respond and the case was dismissed in September 2001, thereby terminating the temporary orders. In October 2001, when the support payments ceased, the client learned of the dismissal and retained successor counsel who filed a new complaint and obtained new temporary orders. The attorney’s failure to act lasted for six years and resulted in harm for the client, namely, termination of her support and health insurance for a period, yet the attorney received an admonition. In comparison, the respondent’s misconduct here was much less serious.

In AD-5-13, 21 Mass. Att'y Disc. R. 698 (2005), the attorney undertook to represent a client in two matters and failed to execute written contingent fee agreements. In addition, in the second matter, a products liability case, the attorney failed to take any action other than two letters to the insurer. As a result, the client discharged him, and requested the return of the files, as well as the defective product. The attorney did not return these items for five months; doing so only after a complaint was filed with bar counsel. The statute of limitations had not run on the second matter and the client was able to obtain successor counsel.

In AD-5-14, 21 Mass. Att'y Disc. R. 700 (2005), the attorney was retained to represent the client in deportation proceedings. He then failed to appear twice for scheduled court appearances due to court obligations elsewhere. He did not file a motion for continuance as to the first appearance, but did so as to the second, one day before the hearing. It was, however, not timely; the hearing was held and the client ordered deported. Successor counsel was able to challenge the client’s conviction underlying the deportation order, and prevented the deportation. The attorney failed to respond to bar counsel’s inquiry necessitating the issuance of a subpoena. In a second matter, the attorney, by appointment, represented a client who, after trial, was convicted and sentenced to a term in prison. The attorney agreed take the steps to pursue an appeal and filed a timely notice of appeal, along with motions to withdraw and for appointment of substitute counsel. The court failed to act on the motions; the attorney did not pursue the matter and failed to respondent to the client’s inquiries. After the client filed a complaint with bar counsel, the attorney again failed to respond to bar counsel, necessitating the issuance of another subpoena. Thereafter, the attorney took action to ensure that the court acted on the motions.

In AD-06-07, 22 Mass. Att'y Disc. R. __ (2006), the attorney was retained in April 2005 to obtain permanent resident status for the client’s son. Within weeks, the attorney relocated to California and did not notify the client. In June 2005, after learning of the relocation, the client discharged the attorney and requested a refund of his flat fee. Although the attorney had performed no services for the client, he did not refund the retainer until August 2005, after a complaint had been filed with bar counsel’s office. In addition, the attorney used deceptive letterhead.

Moreover, the ABA Standards for Imposing Lawyer Sanctions, § 4.44 supports the imposition of an admonition here: “Admonition is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes little or no actual or potential injury to a client.” In contrast, § 4.43 provides for imposition of a public reprimand “when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.” In this case, bar counsel has failed to prove any injury to the client resulting from the respondent’s misconduct: the client was able to obtain successor counsel and was divorced within nine months from the time of the misconduct.

For the foregoing reasons, we recommend that the respondent receive an admonition.


FOOTNOTES:
1 It appears that bar counsel’s letter of March 18, 2005, stating that the respondent had failed to reply to the February 24 letter, must have crossed in the mail with the respondent’s March 15 letter (which is date stamped “received” by bar counsel’s office on March 23, 2005). (See Ex. 1, Ex. 10, Ex. 11) Subsequently, the respondent appeared, when requested, at bar counsel’s office. There is no allegation that the respondent failed to cooperate with bar counsel.
2 Mass. R. Dom. Rel. P. 11 is identical to Mass. R. Civ. P. 11, which provides that an attorney may withdraw, without leave of court, where there are no motions then pending and no trial date set, by filing written notice together with an appearance by successor counsel. Inexplicably, successor counsel here did not file her appearance until September 29, 2005, when the judgment of divorce nisi entered. (Ex. 5)
3 See Salem Realty v. Matera, 384 Mass. 803 (1981) (rescript), aff'g 10 Mass. App. Ct. 571 (1980).
4 At the hearing, bar counsel stated that, if the respondent had refunded the fee promptly, as he promised, bar counsel would have sought an admonition, as opposed to the public reprimand she was now seeking. (Tr. 49-50) Thus, bar counsel contends that the respondent’s delay in refunding the fee should be considered a factor in aggravation, warranting an increase in the sanction. However, in her proposed findings she argues only that the delayed restitution should not be considered in mitigation, citing Matter of Lansky, 21 Mass. Att'y Disc. R. (2005). In that case, the single justice concluded that the repayment, two years after bar counsel started the investigation, of the penalties and interest due on the Massachusetts estate tax return because of the attorney’s delay, should not be considered a mitigating factor. In support of this conclusion, the single justice compared two sections of the ABA Standards, § 9.32(d) (“timely good faith effort to make restitution or to rectify consequences” considered in mitigation) with § 9.4 (“forced or compelled restitution” is neither aggravating nor mitigating). In this case, the respondent’s refund of the fee was not “forced or compelled,” but simply delayed due to the respondent’s financial situation. In our view, the matter would be different had the respondent had the financial wherewithal to make the payment, but then failed to do so. Contrast, Matter of Shea, 14 Mass. Att'y Disc. R. 708, 725 (1998) (“There were also substantial aggravating circumstances. …Worse, the respondent pled poverty as an excuse for the delay in making restitution, even though …a few months after he acknowledges he was aware that the holdback funds had been expended, he was able to obtain a $6,000 bank loan to replace the windows on his house.”); Matter of Hollingsworth, 16 Mass. Att'y Disc. R. 227, 236 (2000) (“This is not a case where a remorseful attorney scuffled to come up with the money to make restitution to his injured client. [Citations omitted.] On the contrary, the respondent sought to obstruct [the client’s] efforts to recover his money. Recovery obtained through court action and despite the respondent’s lack of cooperation is not ‘restitution’ for purposes of choosing the appropriate sanction.”) In any event, the respondent’s delay in refunding the fee here should not be considered as an aggravating factor. Moreover, as set forth below, regardless of whether the repayment is viewed as mitigating, a public reprimand for the respondent’s misconduct would constitute a disparate sanction from those imposed for similar misconduct. See Matter of Alter, 389 Mass. 153, 156, 3 Mass. Att'y Disc. R. 3, 6-7 (1983)


ADMONITION NO. 07-29

CLASSIFICATIONS:
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g)]
Failure to Cooperate in Bar Discipline Investigation [S.J.C Rule 4:01 § 3]

SUMMARY:
The respondent represented a client in a divorce action. The client discharged the respondent, a fee dispute ensued, and the client complained to bar counsel that the respondent had not transmitted his complete file to successor counsel. Bar counsel ultimately determined that the respondent did in fact transfer every document that he had to successor counsel and that the fee dispute did not implicate a violation of any disciplinary rule.

However, the respondent failed to timely cooperate with bar counsel’s investigation of the client’s grievance and, on February 12, 2007, the Board of Bar Overseers was required to serve a subpoena to compel the respondent’s appearance and testimony concerning the complaint. The respondent appeared in response to the subpoena and provided sufficient information and documentation to permit bar counsel to complete the investigation.

The respondent’s failure to cooperate in a bar discipline investigation is conduct in violation of Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01 sec. 3.

The respondent was admitted in 1980 and has no prior discipline. However, on September 6, 2006, the respondent was cautioned by bar counsel in an unrelated matter as to his obligation to cooperate. Accordingly, the respondent received an admonition, conditioned upon his attendance at a CLE program designated by bar counsel.


ADMONITION NO. 07-30

CLASSIFICATIONS:
Handling 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]
Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4c]

SUMMARY:
The respondent was certified by CPCS to provide private representation to indigent clients in children and family matters. On or about February 23, 2001, the respondent was appointed to represent a client in a care and protection proceeding (C & P). Between February 23 and June 21, 2001, the respondent represented client in the C & P.

CPCS required the respondent to keep accurate and contemporaneous records of her time. The respondent failed to record all the time she spent on the case.

On or about June 28, 2001, the respondent submitted a request for payment to CPCS for services rendered in the C & P between February 23 and June 21, 2001. The respondent billed for services performed but not recorded in her time records. The respondent signed a statement certifying that she had “provided the services…described on the dates and for the times listed,… and that all charges for legal services reflected on [the] bill [were] based upon [her] contemporaneous time records…” The respondent knew that all of her legal services had not been recorded on her time sheets. Nevertheless, the respondent had provided all of the services for which she billed.

On or about July 2, 2001, CPCS authorized payment of the respondent’s bill.

Bar counsel asked the respondent to explain the discrepancies between the respondent’s bill and her time records. The respondent was able to provide independent corroboration for all but $536 of services. The respondent paid CPCS those funds.

By failing to maintain adequate time records, the respondent violated Mass. R. Prof. C. 1.1 and 1.3. By submitting a bill to CPCS in which she certified that her bill reflected services recorded on her contemporaneous time records, the respondent violated Mass. R. Prof. C. 8.4(c).

The respondent was admitted to the practice of law in the Commonwealth on December 18, 1985. The respondent had no history of prior discipline. She received an admonition and was required to attend a continuing legal education course designated by bar counsel.


ADMONITION NO. 07-31

See In the Matter of an Attorney - SJC-09598.


ADMONITION NO. 07-32

CLASSIFICATIONS:
Failing to Communicate Adequately with a Client [Mass. R. Prof. C. 1.4]
Withdrawal without Tribunal’s Permission [Mass. R. Prof. C. 1.16(c)]

SUMMARY:
In or around March 2002, a client retained the respondent to represent him on serious criminal charges. The client was arraigned in Middlesex Superior Court and released from custody upon payment of a cash bail in the amount of $5000.00.

In early September 2003, while the superior court matter was still pending, the client was arrested on new criminal charges and arraigned in Framingham District Court. Separate counsel was appointed to represent the client in this matter. As a result of the new arrest, the client’s bail was revoked by the district court pursuant to MGL 276 § 58.

The client telephoned the respondent to advise him about the new arrest and to ask the respondent to assist him in getting the bail reinstated. The respondent correctly advised the client that nothing could be done under Section 58 for sixty days.

Over the next sixty days, the client’s girlfriend telephoned the respondent on numerous occasions and left messages. The respondent did not return most of the calls partly because there was nothing that he could do on behalf of the client during this period. In one call, the girlfriend informed the respondent that the client intended to seek new counsel, and the respondent understood this to mean that he had been discharged by the client. The respondent believed that the girlfriend was acting under the client’s direction. He did not confirm his discharge with the client and did not file a motion to withdraw as counsel. In fact, the client did not intend to discharge him.

In the fall of 2003, the respondent was defending a murder case and was in court on that case for pre-trial proceedings or trial on most days from September 18 through December 23. The respondent is a sole practitioner and the case was very stressful and time-consuming.

The client’s sixty-day bail revocation period expired on November 3, 2003. The client’s girlfriend continued unsuccessfully to try to reach the respondent. The respondent, who was still on trial in the murder case, continued to believe that he had been discharged and did not return the calls. The client also consulted with other lawyers about taking over his case. On November 19, 2003, the client’s new district court criminal charges were dismissed, but the district court judge refused to reinstate the client’s bail on the superior court case.

The client’s bail was reinstated and he was released from custody on December 12, 2003, when he was in court at a hearing on a motion to suppress that had been filed by a co-defendant. The respondent was not present at this hearing. The prosecutor informed the court that he would not oppose reinstatement of the client’s bail.

After the client filed a grievance with bar counsel against the respondent, the respondent apologized to the client. They agreed that the respondent would resume the representation on the pending criminal charges. After several more months, a disagreement developed between them regarding defense strategy and the respondent filed a motion to withdraw on or about May 20, 2005. The motion was allowed on July 16, 2005.

The respondent’s failure to confirm his discharge with the client and his withdrawal without court permission violated Mass. R. Prof. C. 1.4 and 1.16(c).

The respondent has been a member of the bar since 1976 and has no history of discipline. He received an admonition for his misconduct in this matter.


ADMONITION NO. 07-33

See In the Matter of an Attorney - BD-2007-032.


ADMONITION NO. 07-34

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

SUMMARY:
In February 2005, the client retained the respondent to represent him as the administrator of his late brother’s estate. The client as well as his other brother, a beneficiary, made several telephone calls to the respondent for a status on the estate. The respondent failed to return their telephone calls. The respondent filed the petition for probate then did nothing further on the case.

The respondent returned all files to the client, and refunded the unearned portion of his retainer. The client has not suffered any harm from the respondent’s neglect.

In mitigation, the respondent admitted to suffering from depression and alcoholism. During the relevant time-period, the respondent was hospitalized and then entered a detoxification program. The respondent provided bar counsel with medical records showing she was receiving medical care and ongoing therapy for her conditions during the time of the neglect.

Following therapy, the respondent provided bar counsel with an evaluation determining that the respondent is in sustained remission for alcoholism, and her depression is in remission. In addition, the respondent’s doctor concluded that the respondent suffers from no psychiatric condition at this time, which would negatively impact her cognition, judgment, motivation, or otherwise impair her ability to practice her profession.

The respondent’s failure to act with reasonable diligence and promptness in representing her client, and her failure to communicate with her client is a violation of Mass. R. Prof. C. 1.3 and 1.4.

The respondent has been a member of the bar since January 7, 2003 and has received no prior discipline. She accordingly received an admonition for the above violations, conditioned upon satisfactory completion of a monitoring agreement with Lawyers Concerned for Lawyers.


ADMONITION NO. 07-35

CLASSIFICATIONS:
Improper Disclosure of Confidential Information [Mass. R. Prof. C. 1.6(a)]

SUMMARY:
A client hired the respondent in January of 2006 to represent him in connection with custody issues surrounding a modification of divorce judgment. The respondent and the client signed a fee agreement where the client agreed to pay the respondent an hourly fee of $220/hour plus costs. The respondent represented the client until November of 2006, when the matter was resolved by a stipulation for judgment.

After the stipulation had been submitted and approved by the Court, the respondent sent the client a bill seeking payment of approximately $18,000 in outstanding charges. On November 7, 2006, the client sent the respondent an email authorizing the respondent to “put the $18,000 on my credit card.” On November 8, 2006, the respondent put through the $18,000 charge on the client’s credit card.

Thereafter, the client notified his credit card provider (“the bank”) that he disputed the charge of $18,000 to his account. The bank notified the respondent, who, on January 25, 2007, sent a letter to the bank asking that the charge be reinstated. With his letter, the respondent sent a copy of the client’s November 7, 2006 email authorizing the charge, and the fee agreement, which included the following provision: “The Client further agrees that any payment made towards their account will not be stopped or disputed after such payment is made or authorized, whether said payment is made by cash, check, credit card, wire transfer or any other method.”

On February 18, 2007, the client filed a complaint against the respondent with the Office of Bar Counsel, and wrote again to the bank, enclosing a copy of his B.B.O. complaint. In his letter, he asked that the bank keep his fee dispute in effect pending the outcome of the B.B.O. investigation and the “resolution of the fee dispute”. He also asked the bank to place his prior payment of $10,000 to the respondent by credit card on January 9, 2006 in dispute.

On March 20, 2007, the respondent sent a second letter to the bank, responding to the charges made by the client in his latest correspondence. In his second letter, the respondent revealed highly confidential information about the client learned in the course of the representation. This information was not necessary to establish the respondent’s claim for legal fees. After receiving the respondent’s letter, the bank honored the charge. Subsequently, at the client’s request, the respondent agreed to submit the fee dispute to voluntary fee arbitration.

By disclosing confidential information about the client that was unnecessary to the collection of his fee, the respondent violated Mass. R. Prof. C. 1.6(a). The respondent was admitted to practice in 1999, and had no prior discipline. The respondent received an admonition for his conduct.


ADMONITION NO. 07-36

CLASSIFICATIONS:
Failing to Seek Client’s Lawful Objectives [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
IOLTA Violation [Mass. R. Prof. C. 1.15(e)(5)]

SUMMARY:
In 1998, while a passenger in a car driven by his wife, the client was injured in a two-car accident. In early 1999, the client and the respondent entered into a contingent fee agreement. Shortly after being retained, the respondent reached a settlement with the wife’s automobile insurance carrier and, after taking his fee, the respondent deposited the balance of the settlement proceeds into his IOLTA account.

The respondent was unable to settle the claim against the driver and the owner of the other car and filed suit against them in August 1999. The respondent knew, or should have known, that a quick settlement of the law suit was unlikely, but he did not transfer the settlement proceeds to a segregated interest-bearing account with interest payable to the client.

In 2002, the client died, leaving his wife as the sole beneficiary of his estate. Thereafter, the respondent entered into a contingent fee agreement with the executors of the client’s estate. In 2003, a settlement was reached in the law suit. After taking his fee, the respondent deposited the balance of the settlement proceeds into his IOLTA account.

By the time of the final settlement, Medicare had placed a lien on the proceeds. The respondent had agreed to handle negotiations with Medicare to reduce the lien so that the estate would receive at least one-third of the settlement proceeds. The respondent knew that settling the lien would take additional time, but he did not deposit the settlement proceeds, by now amounting to slightly more than $66,000.00 to a segregated, interest-bearing account.

The respondent learned that the wife could apply for a hardship waiver of all or a portion of the lien. The respondent secured the application, but he failed for several months to take any steps of substance to complete the application and file it with Medicare. At the same time, he failed to return telephone calls from the executors asking for information regarding the status of the Medicare lien. The wife’s circumstances satisfied many of the criteria considered by Medicare in granting a partial or full waiver.

Due to the respondent’s failure to file an application for hardship waiver, Medicare referred the matter to the Department of Treasury. Once the referral was made, the wife was ineligible to qualify for any waiver. In addition, interest and penalties accrued on the amount due.

The executors eventually discharged the respondent and hired a new lawyer. The new lawyer was able to convince the government to waive the interest and penalties, but the estate had to pay the entire amount of the lien, which was automatically discounted for the respondent’s fee.

The respondent’s failure to deposit the settlement proceeds in a separate interest-bearing account when he knew that he would be holding the funds for a considerable period of time and that the interest earned would be more than negligible violated Mass. R. Prof. C. 1.15(e)(5) . The respondent’s failure to complete and file the hardship waiver application violated Mass. R. Prof. C. 1.2 (a) (lawyer shall seek the lawful objectives of his client) and Mass. R. Prof. C. 1.3 (lawyer shall act with reasonable diligence in representing a client), and. The respondent’s failure to respond to the executors’ requests for information, and his failure to advise either the executors or the wife that he had not filed the application for waiver violated Mass. R. Prof. C. 1.4.

The respondent was admitted in 1980, and had no disciplinary history. After the complaint was filed with bar counsel, the respondent sent the estate a payment equal to the approximate amount that the estate would have realized had the respondent timely filed the hardship waiver. In consideration of the action taken by the respondent to rectify the consequences of his misconduct, the respondent received an admonition for his conduct.


ADMONITION NO. 07-37

CLASSIFICATIONS:
IOLTA Violation [Mass. R. Prof. C. 1.15(e)(5)]
Failure to Maintain Disputed Funds in Trust Account [Mass. R. Prof. C. 1.15(b)(2)]

SUMMARY:
The respondent represented a lender at a real estate closing and withheld $5,000.00 of the seller’s proceeds to cover the estimated cost to clear title defects. Seven months later, the seller filed a complaint at the Office of Bar Counsel because the respondent had not released the $5,000.00. The respondent adequately explained the delay and subsequently released the escrow funds to the seller.

In connection with bar counsel’s investigation, the respondent submitted records concerning a “mortgage distribution account” in which he had held the escrow funds. These records showed that the account, which the respondent opened in June 2000, was a pooled interest-bearing client fund account that was not designated as an IOLTA account. The respondent’s use of this account was in violation of Mass. R. Prof. C. 1.15(e)(5) (Mass. R. Prof. C. 1.15(e) prior to July 1, 2004). The respondent’s account records also showed that he failed to withdraw earned legal fees from the account in violation of Mass. R. Prof. C. 1.15(b)(2) (Mass. R. Prof. C. 1.15(d) prior to July 1, 2004).

The respondent has opened an IOLTA account and no longer deposits clients’ funds into the “mortgage distribution account.” He has withdrawn his earned legal fees from the account, has issued a check to the IOLTA Committee for all the interest earned on the client funds in the account and is in the process of distributing the remaining client funds held in the account.

The respondent was admitted to the bar on December 15, 1975. He has no history of discipline. He received an admonition for his conduct in this matter, conditioned upon his attendance at a CLE course designated by bar counsel.


ADMONITION NO. 07-38

CLASSIFICATIONS:
Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Client’s Lawful Objectives or Abide by Client’s Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2a]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]

SUMMARY:
The respondent was engaged in 1999 to represent a client in claims arising from the death of her teenage daughter. The daughter was a passenger in a car that went off the road, breached a railing, and plunged into a river. There was only minimum liability insurance coverage on the driver’s car. The respondent collected the available liability insurance and underinsured-motorist benefits. In addition, the respondent presented a wrongful death claim to the Commonwealth on allegations of negligent inspection, maintenance or repair of the roadway and the railing. The respondent lacked sufficient expertise to handle the claim against the Commonwealth. He failed to investigate and prepare the claim adequately. Although he consulted an expert, the respondent failed to have the expert inspect the roadway and railing or render an opinion as to the causes of the accident.

In 2002, the respondent commenced an action for the client against the Commonwealth in the superior court. Over the next two years, the respondent failed to propound discovery or take other action of substance to advance the claims. The respondent also failed to respond to the Commonwealth’s discovery requests.

In the spring of 2004, the action against the Commonwealth was dismissed under Mass. R. Civ. P. 33(a) for failure to answer interrogatories. The respondent received timely notice of the dismissal. A few months later, the respondent moved to vacate the judgment of dismissal and supported the motion with interrogatory answers and document responses. The Commonwealth opposed the motion to vacate on the basis that the respondent’s discovery responses were substantially inadequate. Among other problems, the respondent had not answered interrogatories seeking the identity and qualifications of the plaintiff’s expert, the substance of the facts and opinions as to which the expert was expected to testify, and a summary of the grounds for each opinion. The Court denied the motion to vacate without prejudice to renew it upon submission of complete discovery responses, including complete expert answers.

In the fall of 2004, the respondent renewed his motion to vacate the dismissal and submitted further answers to the expert interrogatories. The respondent identified the expert in the further answer but was unable to provide the remaining information required because he had never obtained an expert opinion. The Commonwealth opposed the renewed motion, and it was denied for failure to supply complete answers.

The respondent’s failure to provide competent representation to the client violated Mass. R. Prof. C. 1.1. The respondent’s failure to seek his client’s lawful objectives through reasonably available means violated Mass. R. Prof. C. 1.2(a). His failure to act with reasonable diligence and promptness in representing the client violated Mass. R. Prof. C. 1.3.

The respondent informed the client of the dismissal and advised her that she could initiate a claim against him with his malpractice insurer. The case against the Commonwealth presented substantial issues of liability, however, and the client’s likelihood of recovery was questionable.

The respondent had no history of discipline. He received an admonition for his misconduct conditioned on his attendance at a CLE program designated by bar counsel.


ADMONITION NO. 07-39

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. 1.16d]

SUMMARY:
A client hired the respondent in May of 2006 to assist him in transferring a Massachusetts property the client owned to a trust, and to address potential zoning issues related to the transfer and improvements the client wanted to make to the property. In June 2006, the client paid the respondent’s firm $1,250, which was to cover a $240 bill from the firm for the first client meeting. The rest of the funds were to be held as a retainer.

Between May of 2006 and February of 2007, the respondent failed to perform the services for which he was retained. After July of 2006, the respondent also failed to respond to a number of telephone calls from the client, who called the respondent’s office requesting information about the status of his matter. On or about December 2, 2006, the client sent a letter to the respondent terminating the representation, and requested that his retainer be returned. The respondent did not reply to the letter, and did not promptly refund the unearned retainer.

On February 27, 2007, the client filed a grievance with bar counsel. After being notified of the grievance, the respondent paid the client $1,250.

By failing to diligently perform the services for which he had been retained, the respondent violated Mass. R. Prof. C. 1.3. By failing to respond to his client’s reasonable requests for information about the status of his matter, the respondent violated Mass. R. Prof. C. 1.4(a). By failing to promptly return the unearned retainer to the client upon the termination of the representation, the respondent violated Mass. R. Prof. C. 1.16(d).

The respondent was admitted to practice in 1980, and had no prior discipline. The respondent received an admonition for his conduct, conditioned upon attendance at a CLE program designated by bar counsel.


ADMONITION NO. 07-40

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 1995, an elderly woman retained the respondent to represent her in a dispute with her town over road improvements that diverted water onto her property. The client and the respondent first spoke in late 1994 about the matter, and the respondent told the client that before he could do anything, he needed a favorable engineer’s report, which the client obtained in March 1995. The town took remedial measures, but they were inadequate in the client’s opinion. In May 1995, the client and her adult son met with respondent to discuss the client’s options, and the client thereafter decided to engage the respondent to file suit against the town. In June 1995, the client sent the respondent an initial retainer of $3,000.

The respondent did not file suit, but rather attempted to negotiate a resolution with the town. The respondent’s efforts in this regard were not successful, and he concluded that nothing further could be done. The respondent did not communicate this opinion to the client.

After several years, the client became frustrated with the lack of progress, but was unable to reach the respondent, who did not return her calls. The client’s health declined in 2002, and she died in 2003. The client’s son filed a complaint with bar counsel in 2005 after going through his mother’s effects and discovering that the respondent had never filed suit.

In a second case, a client in July 2004 retained the respondent for $1,000 to help her settle a matter involving a small parcel of undeveloped land. The client believed that neighbors on one side were encroaching. Because the client was considering selling the property to neighbors on the other side, she wanted to resolve the encroachment issue.

The client, who lives outside Massachusetts, first spoke to the respondent by telephone in July 2004 and then provided him with documents pertaining to the property. After July 2004, however, she never again spoke to the respondent, although she called him repeatedly in 2004 and 2005 to obtain a status report. The respondent did not return any of her calls, and in February 2005, when she was going to be in the area, she scheduled an appointment to meet with the respondent in March 2005. The respondent’s office cancelled the appointment on the morning of the scheduled meeting and never rescheduled it. The client filed a complaint with bar counsel in September 2005, and the respondent refunded the client’s fee in full in November 2005.

By failing to file suit in the first case and by failing to address the boundary dispute with the encroaching neighbors in the second case, the respondent failed to act diligently, in violation of Mass. R. Prof. C. 1.3. By failing to respond to his clients’ inquiries in both cases, the respondent failed to adequately communicate with his clients in both matters, in violation of Mass. R. Prof. C. 1.4.

In mitigation of the second matter, the respondent was diagnosed with an advanced stage of cancer in 2004 and underwent major surgery and chemotherapy for a year. This occurred at the same time that the respondent was representing the client in the second matter. The respondent has recently had a recurrence of serious health problems.

The respondent was admitted to practice in 1977 and has no prior history of discipline. He received an admonition for his misconduct in this matter, conditioned upon his attendance at a continuing legal education course designated by bar counsel and his refunding of the $3,000 retainer paid by the client in the first case.


ADMONITION NO. 07-41

CLASSIFICATIONS:
Failure to Maintain Disputed Funds in Trust Account [Mass. R. Prof. C. 1.15(b)(2)]
Conflict with Former Client in Substantially Related Matter [Mass. R. Prof. C. 1.9(a)]
Conflict of Interest Between Lawyer and Client [Canon Five, DR 5-101]

SUMMARY:
The respondent is a sole practitioner admitted to practice in 1992. Bar counsel charged him with misconduct in connection with three separate matters.

Count One arose from the respondent’s representation of the buyer of a lot from a developer, whom the respondent had previously represented and continued to represent in connection with the purchase of the parcel to be subdivided. The hearing committee found that the respondent fully disclosed his prior and present representation of the developer to the client, that he fully advised the client concerning the issues affecting building on the lot, and that he adequately protected his client’s interests. The hearing committee concluded that he engaged in a conflict of interest in representing the developer, the broker, and himself in responding to a G.L. c. 93A demand letter sent by the former client, in violation of Canon Five, DR 5-101, and Mass. R. Prof. C. 1.9(a).

In Count Two, the respondent was charged with intentionally refusing to pay money owed to a third party. The charges arose from a closing in which the respondent represented the sellers, who were underpaid by $1,000. The respondent tried to get the buyers and the closing attorney to rectify the situation, but was unsuccessful. As a result, he sued both in small claims court. The attorney defaulted, and the buyers agreed to pay $450, providing that they received repayment if the closing attorney paid the $1,000 default judgment. Later that month, the closing attorney paid the default judgment in full. The hearing committee credited the respondent’s testimony that he thought he had instructed his secretary to return the $450 to the buyers. Several months later, the buyers wrote to the respondent asking whether he had received payment. The hearing committee credited the respondent’s testimony that he did not see the letter at the time. When contacted by bar counsel, the respondent immediately repaid the buyers. The hearing committee concluded that this conduct did not violate Mass. R. Prof. C. 1.15(b), 8.4(c) or 8.4(d) because the respondent’s failure to pay the buyers was not intentional, the buyers were not his clients, and the money was not held in escrow. The respondent had simply failed to comply with a contract.

Count Three arose from an estate matter in which the respondent represented two sisters whose third sister had filed a complaint in equity charging them, as temporary co-executors, with breach of fiduciary duties. The respondent and opposing counsel retained a third attorney to handle tax issues. The third sister filed a complaint with bar counsel against the respondent. The respondent, believing the complaint was a litigation tactic, charged his clients for his time spent responding to the complaint, and, when his clients disputed the charge, failed to place the disputed funds in escrow. Upon being informed by bar counsel that the charge was improper, the respondent refunded the money to his clients. The hearing committee concluded that the failure to hold disputed funds in escrow violated Mass. R. Prof. C. 1.15(b)(2). The hearing committee rejected a number of other charges of misconduct in connection with the handling of this estate.

The hearing committee recommended that the respondent receive an admonition. Neither party filed an appeal from the hearing committee report, and the Board of Bar Overseers voted to adopt the hearing report and recommendation. Accordingly, the respondent received an admonition.


ADMONITION NO. 07-42

CLASSIFICATIONS:
Handling Legal Matter when not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Client’s Lawful Objectives [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
The respondent is a sole practitioner admitted to practice in 1967. Bar counsel charged him with misconduct in connection with a single matter. The respondent represented a client in connection with her divorce. Post-divorce, a contempt complaint was filed against the ex-wife for failing to comply with the divorce judgment in which the ex-wife was required to either sell the marital property or buy out the ex-husband’s interest upon the child’s graduation from high school or turning eighteen, whichever occurred later. The ex-wife retained the respondent to represent her in connection with the contempt petition. The respondent filed an answer to the contempt complaint and filed a complaint for modification of the support order, seeking contribution for costs of college and an increase in support. The appraisal performed in 1996 valued the marital home at $116,000 and, under the agreement, the ex-wife would have to pay one-third of that to the ex-husband, less any deductions for arrearages owed.

The ex-husband then filed a chapter 7 bankruptcy petition, and the respondent retained an attorney to assist him in advising the ex-wife concerning the bankruptcy. The attorney advised the ex-wife to make an offer to purchase the ex-husband’s interest in the marital home from the trustee. After a discussion with his client in which she agreed to initially offer $7,500, and if rejected, to increase the offer to $10,000, in December 1997, the respondent wrote to the trustee conveying the initial offer. In April 1998, after several calls and letters from the respondent, the trustee responded that he would sell the ex-husband’s interest in the marital home for $10,000. The respondent sent a copy of the response to his client, and then met with her. She agreed to accept the counteroffer. However, the hearing committee found that she did not have the funds to pay the $10,000 and was hoping to reduce the amount actually paid by the amount she claimed as a priority creditor.

The hearing committee credited the respondent’s testimony that he tried to contact the trustee on several occasions, but received no response. However, the respondent never followed up with any letter to the trustee. At the hearing, the trustee could not recall whether he received any communication from the respondent in response to the counteroffer, and admitted there was nothing in his file to indicate any effort on his part to follow up with the respondent.

From March through August 2000, the client called the respondent and left messages but received no reply. In August 2000, she sent a letter to the respondent asking him about the status of her case. In late September 2000, having received no reply, she sent a letter to the respondent by certified mail, followed up by a telephone call in which she was able to schedule a meeting with the respondent, which took place in early November.

The contempt and modification complaints were eventually scheduled for trial in November 2000. A new appraisal valued the property at $135,000. When the ex-wife met with the respondent to prepare, she failed to provide him with the exhibits detailing the amounts she contended she was owed for home repairs and unreimbursed medical expenses. On the morning of the trial, the client discharged the respondent and represented herself.

The hearing committee concluded that the respondent’s failure to timely advise the bankruptcy trustee that his client had accepted the counteroffer violated Mass. R. Prof. C. 1.1, 1.2, and 1.3. The hearing committee also concluded that the respondent’s failure to respond to the client’s telephone calls and letters requesting a status report on her case and his failure to adequately explain to his client what she needed to do to purchase her ex-husband’s share of the marital home from the bankruptcy estate violated Mass. R. Prof. C. 1.3 and 1.4. The hearing committee found that the respondent’s misconduct did not cause any harm to his client. The hearing committee rejected bar counsel’s allegations that the respondent’s failure to file a complaint or counterclaim for contempt against the ex-husband for failing to pay for home repairs and uninsured medical expenses of their child violated Mass. R. Prof. C. 1.1, 1.2, and 1.3. In so finding, the hearing committee reasoned that it appeared the client had not complied with the terms of the agreement, and that the failure to file a complaint or counterclaim did not necessarily preclude future recovery.

The hearing committee recommended that the respondent receive an admonition. Neither party filed an appeal from the hearing committee report, and the Board of Bar Overseers voted to adopt the hearing report and recommendation. Accordingly, the respondent received an admonition.


ADMONITION NO. 07-43

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

SUMMARY:
In January 2004, the respondent terminated her association with another attorney and incorporated a new legal entity for her own law practice. The primary focus of the new law firm was the representation of lenders in real estate closings.

The new law firm employed a paralegal who had also been employed by the predecessor law firm. On May 28, 2004, the respondent signed a letter addressed “to whom it may concern” on the letterhead of her law practice. The letter stated that the paralegal was an employee of the law practice and that she worked 35 hours a week at $17.00 an hour. The paralegal was a tenant in subsidized housing for families of low income that was owned and operated by a housing authority and she used the letter to verify income with the housing authority to establish her monthly rent.

An employee who is paid $17 an hour for 35 hours of work would earn gross wages of $595 per week. The paralegal’s gross weekly pay from January 1 through May 28, 2004 in fact ranged from a low of $720 to a high of $1955.50. The increases in the total weekly compensation reflected the fact that, in addition to $17 per hour, the paralegal was also paid $125 for each closing package (HUD-1 settlement statement and title insurance policy) that she prepared. The housing authority became aware of the paralegal’s actual earnings several months later when it checked the records of the Department of Revenue.

The basis of the paralegal’s salary that was provided by the respondent in the letter was stated as a fact upon personal knowledge, when that was not so. The respondent relied upon the person doing the payroll. The arrangement under which the paralegal was paid an additional sum for each closing package was the result of an earlier agreement between the paralegal and the respondent’s former law partner made while the paralegal worked for the predecessor law firm and carried over to the new firm unbeknownst to the respondent. The new firm’s payroll was prepared weekly by another member of the support staff for submission to a payroll service and the respondent never signed or saw the paralegal’s paychecks. The respondent executed the letter to the housing authority without reviewing the payroll service records and upon hearsay information that she did not verify.

The respondent’s conduct in signing the letter of May 28, 2004 constituted a misrepresentation in violation of Mass. R. Prof. C. 8.4(c). However, although this matter involved the respondent’s law firm, it did not arise from the representation of a client or the practice of law. The respondent accordingly received an admonition for her misconduct in this matter.


ADMONITION NO. 07-44

CLASSIFICATIONS:
Trust Account Violation [Mass. R. Prof. C. 1.15]
Improper Method of Withdrawal [Mass. R. Prof. C. 1.15(e)(3)]
Fee Check Not Payable to Lawyer or Firm [Mass. R. Prof. C. 1.15(e)(4)]

SUMMARY:
The respondent maintained a business account and an IOLTA account at the same bank. The checkbooks for her accounts were similar in appearance. The respondent’s law practice rarely required her to hold trust funds.

In October 2006, the respondent received a retainer from a client, which she deposited to her IOLTA account. The respondent had been retained in September and was entitled in October to pay herself for work she had already performed. The respondent earned the entire retainer by November 2006. The respondent failed promptly to remove her earned fees from the account.

In early January, the respondent paid herself all but $200 of her fee by writing a check to payable to “cash” from the IOLTA account. In late January 2007, the respondent accidentally switched her IOLTA account checkbook with her business account checkbook and began depositing personal funds to her IOLTA account and writing personal checks from that account. The respondent realized her error a few weeks later when a check written from the IOLTA account was dishonored for insufficient funds. There were no client funds in the IOLTA account when this error occurred.

The respondent is currently not handling any client funds.

By failing to remove earned fees from the IOLTA account within a reasonable time, the respondent violated Mass. R. Prof C. 1.15(b)(2)(ii)(commingling of personal and client funds). By depositing personal funds into the IOLTA account and writing checks to pay personal expenses directly from the designated IOLTA account, the respondent violated Mass. R. Prof. C. 1.15(b)(2)(improper use of a designated trust account). By writing a check for the payment of legal fees from the IOLTA account payable to cash, the respondent violated Mass. R. Prof C. 1.15(e)(3)(writing a check from a trust account for the payment of legal fees payable to cash) and Mass. R. Prof. C. 1.15(e)(4)(a check from a trust account for the payment of legal fees must be payable to the attorney or the attorney’s firm).

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


ADMONITION NO. 07-45

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a)]
Failure to Notify of Receipt or to Disburse Promptly [Mass. R. Prof. C. 1.15(c)]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]

SUMMARY:
The respondent represented a client in a divorce. The divorce was tried in June 2006, and judgment entered on July 19, 2006. The representation ended when judgment entered. Between October 2006 and April 2007, the client made numerous attempts to obtain his file from the respondent. He left her telephone messages and wrote to her, requesting his file. In March 2007 he sent two letters requesting his file, by certified mail. The respondent did not reply to the client and did not cause the file to be sent to him.

Pursuant to the final divorce decree, the client and his ex-wife sold their house. At the closing, on September 6, 2006, the parties agreed that, pending resolution of certain issues, the ex-wife’s attorney would hold $25,000 of the proceeds of the sale in escrow. On October 26, 2006, the ex-wife’s attorney filed a motion for clarification to resolve the ownership of the escrowed $25,000. Not knowing that the respondent no longer represented the client, the ex-wife’s attorney served a copy of the motion on the respondent, and did not serve the client. The client was unaware that his ex-wife had filed the motion for clarification. The respondent did not oppose the motion, inform the client that his ex-wife had filed the motion or forward the motion to the client. However, it is very unlikely that the division of the proceeds would have been affected by an opposition to the motion. The court entered the order sought by the ex-wife. Following issuance of the order, the ex-wife’s attorney wrote to the respondent on several occasions informing her that, unless she objected, he would distribute the escrow funds in accordance with the court order. The respondent did not reply to the letters of the ex-wife’s attorney or forward the letters to the client. Thus, the ex-wife’s attorney issued a check to the client in an amount consistent with the court order, and sent the check to the respondent.

The respondent received the check in late January 2007. She did not inform the client she had received the check; nor did she forward it to him. The respondent retained the check, but did not attempt to negotiate it. On April 3, 2007, the client learned, through direct communication with the ex-wife’s attorney that a check had been issued in January and sent to the respondent.

On April 4, 2007, the client filed a request for investigation with the Board of Bar Overseers. Bar counsel sent a copy of the request to the respondent. After receiving the communication from bar counsel, the respondent promptly arranged for the delivery of the file and the check to the client.

By failing to promptly deliver to the client the check intended for him, the respondent violated Mass. R. Prof. C. 1.15(c).

By failing, within a reasonable time following the termination of her representation of the client and the client’s request for his file, to furnish him with his file or copies thereof, the respondent violated Mass. R. Prof. C. 1.16(e).

By failing to respond to and/or inform the client of the opposing party’s motion for clarification and of the communications from opposing counsel, the respondent violated Mass. R. Prof. C. 1.3 and 1.4(a).

During the fall of 2006 and the winter 2007, the respondent was suffering from a severe depression, compounded by other personal issues. She sought treatment for depression and began attending regular counseling sessions at Lawyers Concerned for Lawyers (“LCL”). The respondent has no previous discipline. She received an admonition for her misconduct in this matter, conditioned on continuing her participation in LCL for at least one year.


ADMONITION NO. 07-46

CLASSIFICATIONS:
Responsibilities Regarding NonLawyer Assistants [Mass. R. Prof. C. 5.3]
Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4(c)]
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4(h)]

SUMMARY:
The respondent is a sole practitioner admitted to practice in 1997. Bar counsel charged him with two counts of misconduct arising from a single matter. The charges in both counts were primarily contingent on proving that the respondent had an attorney-client relationship with a couple whose home and commercial property were both in foreclosure, and that he improperly used that relationship and information he obtained to his advantage and to their detriment. The special hearing officer rejected the allegation that the respondent had an attorney-client relationship with the couple, finding the couple’s testimony generally not credible.

The special hearing officer found that the couple had approached the respondent to see if he could assist them with financing or purchase the commercial property himself. In order to obtain information about the couple’s outstanding mortgage obligations, the respondent misrepresented to the lenders and to the lenders’ attorneys that he was representing the couple. When the couple was unable to secure new financing, the respondent and his wife entered into a purchase and sale agreement with the couple for the commercial property. Bar counsel had charged that the purchase and sale agreement was fabricated, but withdrew the allegation during closing argument. The respondent’s wife was not present when the P&S agreement was signed before the respondent’s secretary, a notary public. The respondent did not instruct his secretary separately to notarize his wife’s signature when she signed the P&S agreement the following day.

The husband later refused to go through with the sale of the commercial property, claiming that it had been a sham to stave off foreclosure – a claim that the special hearing officer did not credit. Subsequently, the respondent bid successfully for a client at a foreclosure sale of the couple’s residential property.

The special hearing officer concluded that the respondent’s representations to lenders that he was the couple’s attorney, made in order to obtain pay-off information needed to determine the financing requirements, constituted knowing misrepresentations to third parties, in violation of Mass. R. Prof. C. 8.4(c) and (h). The special hearing officer also concluded that the respondent’s failure to require his secretary to execute a second notarization on the purchase and sale agreement for a signature executed the following day violated Mass. R. Prof. C. 5.3. In mitigation, the respondent was inexperienced in the practice of law at the time of the misconduct.

The special hearing officer recommended that the respondent receive an admonition. Neither party filed an appeal from the hearing report, and the Board of Bar Overseers voted to adopt the hearing report and recommendation. Accordingly, the respondent received an admonition.


ADMONITION NO. 07-48

CLASSIFICATIONS:
Handling Legal Matter when not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Client’s Lawful Objectives [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
The client is an alien working legally in the United States under an H1B visa. She hired the respondent in July 2005, to file a PERM application on her behalf with the Department of Labor (“DOL”). A PERM application is a method of obtaining permanent resident status for an employee, on the basis of the employer’s certification that it is unable to fill the position held by the employee with a United State citizen or permanent resident. Both the client and respondent understood that client’s employer, a local school district, would be the applicant, as only the employer can file such an application. The employer agreed to cooperate in filing the application.

In the pre-application process, the employer had to define the position, establish a salary, and post and advertise the position in compliance with very specific regulations. The PERM application then had to be filed within a specific time frame after the advertising was completed. The required advertising was accomplished by June 2006. The respondent then completed the application and transmitted it to the employer for submission, but the employer did not sign the application until September, and it was not submitted until September 21, 2006.

On or about November 3, 2006, DOL notified the employer that the application had been denied because two lines of the application had not been completed. Those two lines did not actually need to be completed because they pertained to a college or university position, but the respondent had checked an incorrect box above, thus triggering the requirement to complete the two boxes. DOL did not notify the respondent or his client that the application was denied, but the employer sent the letter to the respondent on November 7, 2006.

The respondent did not promptly advise his client that the application had been denied or that an appeal from the DOL decision had to be filed with thirty days of the date of the decision. The client contacted the respondent on November 12, inquiring about the status of the application. The respondent replied to the client on November 14, saying that he “had a letter from [the employer]” and that he would get back to her. The respondent did not inform the client that the application had been denied and he did not contact the client again until December 11, when he sent her an e-mail stating that the DOL was “having issues” with her application. The respondent never informed the client of the reason for the denial.

During November and December 2006, the respondent investigated the options available to the client. The respondent was advised by the specialists he consulted that an appeal was a poor option because such appeals rarely or never succeeded, and because the client would be barred from filing a new application while the appeal was pending. The option of re-filing based upon the previous summer’s advertisements was not available because the advertisements were now “stale” under the regulations. Thus, the respondent concluded that the only viable option was to start from the beginning of the advertising process. The respondent did not share his conclusion with the client.

By e-mail on December 13, the respondent finally told the client that the application had been denied. By then, the time for filing an appeal had expired. On Dec`ember 19, the respondent informed the client that the employer would have to first re-advertise the position and then submit a new application. The client made several requests of the respondent for the details of the denial and a copy of the DOL letter. The respondent did not respond, and the client eventually obtained the DOL letter from the employer.

At some point in mid to late January, the respondent told the client that he would re-file the application. The client pressed the respondent to do so promptly, but the respondent took no action in the following weeks. By mid-February, the client had become impatient and informed the respondent of her intention to file a complaint with the Board of Bar Overseers. On February 26, 2007, the respondent sent the client’s file to her and told her that he would no longer represent her. The client then consulted with other immigration counsel.

By failing to promptly notify the client that her PERM application had been denied, failing to inform her of the reason for the denial, and failing on a timely basis to inform the client of her right of appeal, the respondent violated Mass. R. Prof. C. 1.4(a) (lawyer shall keep a client reasonably informed about the status of a matter), and (b) (lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.)

By failing to properly complete the application and failing to promptly restart the application process after he had promised to do so, the respondent violated Mass. R. Prof. C. 1.1 (lawyer shall provide competent representation); 1.2(a) (lawyer shall seek the lawful objectives of his client through reasonably available means); and 1.3 (lawyer shall act with reasonable diligence and promptness in representing a client.)

The respondent had no prior discipline. He received an admonition for his conduct in this matter, conditioned upon his attendance at a CLE course designated by bar counsel. The respondent also refunded a substantial part of the complainant’s legal fees.


ADMONITION NO. 07-49

CLASSIFICATIONS:
Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Client’s Lawful Objectives or Abide by Client’s Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2a]
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. 1.16d]

SUMMARY:
On or about March 24, 2004, the respondent was consulted by a client who was not a United States citizen and was seeking authorization to work temporarily in the United States. The client was lawfully in the United States, but did not have permission to engage in employment. The client advised the respondent that she had been offered and wished to accept as quickly as possible employment by a Massachusetts company. The client also informed the respondent that she did not wish to immigrate to the U.S., and would eventually return to her own country. The client paid the respondent for this service.

The client was eligible for a temporary worker visa, but the respondent did not consider this option. Instead, the respondent initiated the process for permanent residency (a green card). Although application for a green card was a much more lengthy process, the respondent did not inform the client of this fact or explain the options available to the client.

After forwarding the green card application to the employer, the respondent performed no other work of substance in the matter. In late August and early September 2004, the client and the employer inquired of respondent through voicemail and email about the completion of the application and when a decision could be expected from INS. The respondent did not timely respond to these requests for information.

On or about September 26, 2004, the client terminated the respondent’s services and demanded a refund. The respondent did not refund the unearned portion of the client’s fee. On or about November 22, 2004, the client filed a complaint with the Office of Bar Counsel. Subsequent to the client’s complaint, the respondent refunded a portion of the fee. The respondent later agreed to refund the remainder of the fee, but the client could not be located.

By failing to investigate and initiate the proper application process, the respondent violated Mass. R. Prof. C. 1.1 and 1.2(a). By failing to explain to the client the consequences of pursuing a green card and failing to respond to her requests for information, the respondent violated Mass. R. Prof. C. 1.4(a) and (b). By failing to pursue the client’s objectives, the respondent violated Mass. R. Prof. C. 1.3. By failing to refund promptly the unearned portion of the fee upon discharge, the respondent violated Mass. R. Prof. C. 1.16(d). In mitigation, during the time she was representing the client, the respondent was in the process of being divorced and had medical problems.

The respondent received an admonition for her conduct, conditioned on her attendance at an MCLE course designated by bar counsel.



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