Admonitions

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

SUMMARY:
In June 1999, the respondent was consulted concerning the filing of a Chapter 13 bankruptcy petition. The clients’ primary financial problem was a judgment and execution entered against them in 1995 for $65,000. The clients decided against filing for bankruptcy and instead asked the respondent to remove the judgment against them by negotiating a settlement with the judgment creditor.
In August 1999, the judgment creditor, who lived in Florida, agreed with the respondent to settle the matter for $3,000. On September 2, 1999, the respondent sent the settlement proceeds to the creditor. In October 1999, at the creditor’s request, the respondent’s office sent a release to the creditor in Florida with a request that he sign the release in front of a notary. The creditor returned the signed release to the respondent, but he had not had his signature notarized. The respondent called the creditor, who confirmed over the telephone that the signature was his. The respondent then signed the jurat on the release stating that the creditor had “appeared before [the respondent]…and acknowledged the foregoing to be [his] free act and deed[.]” The respondent sent a copy of the release to his clients, but he did not take any action of substance to remove the outstanding judgment and execution.
In February 2001, the clients obtained their credit reports, which showed the outstanding judgment. One of the clients learned from the court clerk that it would be necessary to file a motion to dismiss in order to close the matter.
On April 23, 2001, the clients contacted the respondent, who agreed to take action to file a motion to dismiss. A month later, the respondent sent the creditor a motion to dismiss with a request that the creditor assent to the motion. The creditor had since moved, and the letter was returned. The respondent obtained the creditor’s correct address and resent the motion on two or three occasions, but he did not receive a reply. The respondent took no further action of substance to dismiss the judgment.
In December 2001, the clients and the creditor spoke directly by telephone. The creditor signed the assent on the motion to dismiss and mailed it to the clients, who then forwarded the motion to the respondent. The respondent signed the motion, returned it to the clients, who filed it with the court. The case was dismissed at the end of December 2001.
The respondent’s conduct in signing a false jurat violated Mass. R. Prof. C. 8.4(c). The respondent’s failure promptly to secure dismissal of the judgment violated Mass. R. Prof. C. 1.1 and Mass. R. Prof. C. 1.2(a).
The respondent received an admonition for the above violations, conditioned upon attendance at a CLE 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

The Respondent, Richard Roe, was admitted to the Massachusetts bar on December 18, 1980. (Ans. ¶2¹)

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)

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

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)

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)

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)

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)

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)

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)

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)

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)

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)

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:

that given the previous course of treatment undertaken by the plaintiff, the ethmoidectomy performed by the defendants was unnecessary and unwarranted.

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.

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.”

(Ex. 3)
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)
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)
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)
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)
On July 20, 1995, Attorney Doe sent the previously signed supplemental answers to Attorney Poe. (Doe Tr. II:92-94; Ans. ¶23; Ex. 5)
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.
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.)
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)
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)
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)
On January 4, 1996, the Respondent did not appear for the pretrial conference in Jones. (Roe Tr. III:128; Ans. ¶31)
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)
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.
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)
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)
On or about January 12, 1996 (see ¶27 supra), the Respondent knew of the March 26^th 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.
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)
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)
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)
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)
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)
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)
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)
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

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
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.
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
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
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.
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.
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.
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
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.
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.
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.)
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

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)
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.

(Ans. ¶53)

Count Two – Conclusions of Law

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.
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

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)
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)
In August 1995, Attorney Doe was charged in a federal information. (Ans. ¶63; Ex. 50)
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)
On or about September 29, 1995, Attorney Doe waived indictment and pleaded guilty to the federal information. (Ans. ¶65; Ex. 50)
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)
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)
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)
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)
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

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.
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.
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

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)
In mitigation, the Respondent claims that he collapsed due to exhaustion in April 1996, and we credit this testimony. (Roe Tr. III:149-50)
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)
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.

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:

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.

A lawyer shall not:

Handle a legal matter without preparation adequate in the circumstances.

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

A lawyer shall not:

Neglect a legal matter entrusted to him.

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

A lawyer shall not intentionally:

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.

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.

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.

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.

In appearing in his professional capacity before a tribunal, a lawyer shall not:

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.

A lawyer shall not:

Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

²⁷ Canon One, DR 1-102 Misconduct.

A lawyer shall not:

Engage in conduct that is prejudicial to the administration of justice.

²⁸ Canon One, DR 1-102 Misconduct.

A lawyer shall not:

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.

In his representation of a client, a lawyer shall not:

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.

In his representation of a client, a lawyer shall not:

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.

A lawyer who receives information clearly establishing that:

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.

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.

In appearing in his professional capacity before a tribunal, a lawyer shall not:

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.

Except when permitted under DR 4-101(C), a lawyer shall not knowingly:

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.

In his representation of a client, a lawyer shall not:

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.

A lawyer who receives information clearly establishing that:

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.

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.

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.

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.

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, th