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2008 Admonitions



ADMONITION NO. 08-01

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]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16d]

SUMMARY:
A client who was a citizen of Ukraine retained the respondent on July 1, 2005 to assist her with transferring her H-1B nonimmigrant visa from one employer to another employer. In the first two weeks of July, 2005, the client paid the respondent $1,500, and sent him her file from her prior H-1B visa case. The respondent was supposed to file for the new visa prior to August 4, 2005, because that was the starting date for the client’s new job.

The respondent prepared the necessary forms and mailed them to the client in August of 2005. The client did not receive the forms because the respondent mailed them to an incorrect address. In August and September, the client made multiple calls to the respondent to check on the status of the matter. The respondent did not reply to the calls, or take steps to ensure that the forms had been received by the client and were being appropriately processed by her employer. The respondent erroneously believed that because the client’s current H-1B visa authorized her to stay through January 31, 2008, she was not in danger of deportation. In fact, the client’s prior visa required her to petition for a new visa if she changed employment, and she was subject to deportation if the new visa was not approved.

On September 27, 2005, the client spoke to the respondent by telephone and asked him to send the forms to her immediately so that she could deliver them to her employer. On September 28, 2005, the respondent sent a packet of documents to the client by overnight mail. The packet included a Non Immigrant Petition for Alien Worker (Form I-129) and a labor condition application to be submitted by the employer to the Department of Labor. The respondent did not explain to the client or to the employer that the employer was required to submit the labor condition application to the Department of Labor and obtain an approved labor certification form as a precondition to submitting the employee’s application to the U.S. Citizenship and Immigration Services (USCIS).

On October 6, 2005, the respondent filed the Form I-129 and the uncertified labor condition application with the USCIS. The respondent did not file an appearance on behalf of the client and effectively withdrew from representing her. The respondent did not, however, notify the client of his withdrawal and that he would no longer handle her application.

On October 25, 2005, the employer received a notice from the USCIS that the petition was incomplete because it did not contain a certified labor condition application from the Department of Labor. The employer was given twelve weeks to submit the required form. The employer immediately contacted the client, and also faxed the notice to the respondent. The respondent assured both the client and the employer that the client could continue to work for the employer while the petition was being processed. Both the client and the employer assumed that the respondent would be taking steps to supply the missing labor certification to the USCIS. The respondent did not notify the client or the employer that he had withdrawn from the representation and would not be taking any further action in the matter.

On March 15, 2006, the employer received notice from the USCIS that the I-129 petition had been denied because the approved labor certification form had not been received. The client retained new counsel, who filed a motion to reopen. On May 22, 2006, the client’s H-1B visa was approved.

The client filed a grievance with bar counsel concerning the respondent’s conduct. The respondent returned to the client the $1,500 fee she had paid, and he reimbursed the client for the cost of her appeal.

The respondent’s failure to adequately prepare and to be diligent in handling the H-1B visa petition violated Mass. R. Prof. C. 1.1 and 1.3. The respondent’s failure to explain to the client and her employer the requirement that the employer obtain a certification from the Department of Labor prior to filing the H-1B visa petition violated Mass. R. Prof. C. 1.4(a) and (b). The respondent’s failure to respond to his client’s reasonable requests for information about the status of the matter violated Mass. R. Prof. C. 1.4(a). By withdrawing from his client’s representation without giving reasonable notice to the client, the respondent violated Mass. R. Prof. C. 1.4(b) and 1.16(d).

The respondent was admitted to practice in 1991, and had not previously been disciplined.

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


ADMONITION NO. 08-02

See In The Matter of an Attorney - SJC-09757.


ADMONITION NO. 08-03

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

SUMMARY:
In September of 1995, the respondent agreed to represent a client in a claim to recover damages arising from an August 23, 1995 automobile accident. Between September of 1995 and August of 1998, the respondent did no work of substance on the case. The respondent also failed to respond to multiple requests from his client requesting information about the status of her case.

During this period, the client was treating with her primary care physician, and incurred approximately $3,800 in medical charges. The respondent did not file an application on behalf of his client for personal injury protection (PIP) benefits. On August 27, 1998, shortly before the statute of limitations was due to expire, the respondent filed suit in district court against the driver of the other car.

In 1999, the respondent failed to turn over his client’s medical treatment records to the defendant’s counsel in response to a request for production of documents. On September 27, 1999, defendant’s counsel filed a motion to compel the plaintiff to produce her medical records. The respondent did not oppose the motion, and on November 1, 1999, the court allowed the motion and ordered that the documents be produced by December 1, 1999, or the plaintiff would be “precluded from any testimony or evidence re: treatment” from her doctor. The respondent did not produce the requested medical records, and did not inform his client of his failure to do so and the impact it might have on her case.

Between 1999 and 2002, the respondent did not perform any work of substance on the case. During this period, the client began to experience psychiatric problems. By 2002, the client’s husband communicated with the respondent on behalf of his wife pursuant to a durable power of attorney. Between 1999 and 2002, the respondent failed to respond to multiple requests from the client and her husband for information about the status of the case.

In 2002, the respondent resumed his efforts to settle the case with the insurer. In October of 2002, the insurer made a settlement offer of $7,500. The respondent informed the client’s husband of this offer, and the husband declined to settle for that amount. Due to the client’s psychiatric condition, the respondent did not attempt to move the case forward to trial. The respondent did not discuss this issue with the client’s husband and obtain his informed consent to the decision. The respondent continued efforts to settle the case intermittently between 2002 and 2004.

On October 6, 2004, the defendant filed a motion to dismiss the plaintiff’s case with prejudice due to the plaintiff’s failure to produce her medical records concerning the 1995 automobile accident. The respondent did not inform the client’s husband of this motion. The defendant’s motion to dismiss was allowed without opposition on October 21, 2004. The respondent filed a request for reconsideration. After a hearing on November 30, 2004, the court affirmed the dismissal.

The respondent informed the client’s husband that the case had been dismissed with prejudice. The respondent paid $10,000 to the client for her loss due to his lack of diligence. The client’s doctor did not pursue payment of his bill by the client.

By failing to handle his client’s case with reasonable diligence, 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 agent regarding the status of the case, the respondent violated Mass. R. Prof. C. 1.4(a). By failing to explain a matter to the extent reasonably necessary to permit the client or her agent to make informed decisions about the case, the respondent violated Mass. R. Prof. C. 1.4(b).

The respondent was admitted to practice in 1962 and had no prior discipline. The respondent received an admonition for his conduct, on the condition that he attend a continuing legal education program designated by bar counsel on legal ethics.


ADMONITION NO. 08-04

CLASSIFICATIONS:
Improper Fee-sharing with Non-lawyer [Mass. R. Prof. C. 5.4(a)]

SUMMARY:
The respondent is a sole practitioner who operated a general law practice. In or about November 2000, the respondent signed an agreement that his administrative assistant, a non-lawyer, had drafted which stated that the respondent would pay the administrative assistant 1/3 of his earned fees. In August 2002, the respondent received a $10,000 fee from a client. The respondent gave one third of the $10,000 fee to his administrative assistant.

The respondent’s agreement to share fees with a non-lawyer and his sharing the $10,000 fee with a non-lawyer is a violation of Mass. R. Prof. C. 5.4(a). In light of the above violation, the respondent received an admonition for his conduct in this matter.


ADMONITION NO. 08-05

CLASSIFICATIONS:
Withdrawal of Fees Without Accounting [Mass. R. Prof. C. 1.15 (d) (2)]

SUMMARY:
The client hired the respondent in August, 2006, to represent her in a divorce. The client paid the respondent an initial $5,000 retainer, and she signed a fee agreement with the respondent on August 28, 2006. The fee agreement called for the client to be billed at a rate of $250 per hour against the retainer, and once the retainer was exhausted, the client was to promptly pay additional fees as they were incurred.

When the original retainer was exhausted, the client was notified and she paid additional retainer funds totaling $2,500 to the respondent on November 6, 2006. The respondent was obligated to provide the client with an itemized bill and an accounting as he drew down the retainer, but failed to provide the client with any itemized bill despite the client’s requests.

Because she was displeased with the progress of her case, the client discharged the respondent and retained new counsel. The respondent withdrew from the case on February 22, 2007. The respondent provided the client with an itemized bill for his services shortly after his withdrawal. Soon thereafter the client disputed the fees that she was charged by the respondent. The client filed a complaint with bar counsel on March 14, 2007. The respondent placed the disputed portion of his fee in an escrow account, and the parties thereafter agreed to arbitrate the fee dispute.

By failing to deliver an itemized bill or other accounting showing the services rendered, and a written notice of amount and date of withdrawal, and a statement of the balance of the client’s funds in the trust account after the withdrawal, the respondent violated Mass. R. Prof. C. 1.15 (d) (2).

The respondent was admitted to practice in 1961. The respondent received an admonition for his conduct, on the condition that he attends a program designated by bar counsel on the subject of handling client funds.


ADMONITION NO. 08-06

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 represented a client in a contested divorce. A pretrial order required the disclosure of potential witnesses fourteen days before the trial date stated in the order. The respondent did not make a timely disclosure of all of his witnesses. The respondent subpoenaed his witnesses to the trial, but the ones who had not been seasonably disclosed were not allowed to testify. The respondent was forced to begin the trial, but the judge later declared a mistrial. The client retained successor counsel and later settled the case. The respondent wrote off $5,625.40 in time and expenses, thereby compensating the client for having to retain successor counsel.

By failing to disclose in a timely manner some of his witnesses (resulting in their being excluded at trial), the respondent 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 previously received a private reprimand in 1991 for unrelated conduct. Therefore, the respondent received an admonition for the above conduct.


ADMONITION NO. 08-07

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

SUMMARY:

The client was divorced in 1995. The divorce decree provided that her ex-husband would cause the client to be named as an alternate payee on her ex-husband’s pension, so that she would receive a monthly payment. To accomplish this, the court had to issue a Qualified Domestic Relations Order (“QDRO”), and the QDRO had to be received by the plan administrator of the ex-husband’s pension plan.

In August 2005, the client engaged the respondent to assist her in obtaining the pension payments to which she was entitled under the divorce decree. In October, 2005, the respondent contacted the pension plan administrator, who informed the respondent of the company’s requirements for implementing the QDRO. The respondent took no action until March 30, 2006, when he wrote to the client’s ex-husband, enclosing a QDRO for the ex-husband’s signature. The ex-husband signed it and returned it to the respondent. The respondent obtained the court’s endorsement and, on June 22, 2006, forwarded the endorsed QDRO to the plan administrator.

On June 30, 2006, the plan administrator informed the respondent that the QDRO was not compliant with company’s requirements. The respondent delayed further action until December 6, 2006, when he sent the ex-husband a revised QDRO. The ex-husband signed the QDRO and returned it to the respondent in January 2007. Through inadvertence, the respondent did not cause the revised QDRO to be endorsed by the court and sent to the plan administrator until October 9, 2007. The plan administrator commenced making payments to the client in December 2007. The client suffered no ultimate financial harm.

From the fall of 2005 through the summer of 2007, the client telephoned the respondent on many occasions and left messages for him to return her calls. The respondent, with very few exceptions, did not return the client’s telephone calls, nor otherwise communicate with her about the cause of the delay.

By failing to cause a duly-endorsed QDRO, compliant with the requirements of the plan administrator, to be received by the plan administrator within a reasonable time after he agreed to do so, the respondent failed to seek the reasonable objectives of the client, and failed to provide diligent representation, in violation of Mass. R. Prof. C. 1.2(a) and 1.3.

By failing to return the client’s telephone calls and keep her reasonably informed of the reasons for delay in obtaining the QDRO, the respondent violated Mass. R. Prof. C. 1.4(a).

The respondent was admitted to the Massachusetts Bar in 1966. He received a private reprimand in 1991. 7 Mass. Att’y Disc. R. 406 (1991). The respondent received an admonition for his misconduct in this matter conditioned upon his attendance at a CLE course designated by bar counsel.


ADMONITION NO. 08-08

CLASSIFICATIONS:
Conflict with Former Client in Substantially Related Matter [Mass. R. Prof. C. 1.9(a)]
Failure to Withdraw Generally [Mass. R. Prof. C. 1.16(a)(1)]

SUMMARY:

In December 2003, the respondent was appointed in the district court to represent a client (the “complainant”) on several motor vehicle violations, including operating under the influence of alcohol (“OUI”). On January 27, 2004, sufficient facts were found on the OUI charge, and the complainant’s case was continued without a finding for one year. On January 22, 2005, the complainant’s case was dismissed.

In the fall of 2007, the respondent sued the complainant in the probate court on behalf of another client who was seeking to establish paternity and obtain visitation with the complainant’s minor child. Due to the respondent’s representation of the complainant in the OUI case, there was a substantial likelihood that he gained confidential information material to the dispute between the parties. The respondent failed to appreciate that the two matters were, therefore, substantially related, and he failed to get the complainant’s consent after consultation to his representation of the new client.

When the complainant was served with a copy of the complaint, she immediately notified the respondent that she objected to his representing the opposing party in the matter and requested that he withdraw. The respondent refused the complainant’s request.

On December 19, 2007, the complainant filed, pro se, a motion with the court requesting that the respondent be disqualified due to his prior representation of the complainant in the criminal matter. On December 27, 2007, the respondent filed a motion claiming that the complainant’s motion to disqualify was “frivolous” and asking that she be required to pay his attorney’s fees.

On January 8, 2008, after a hearing, the probate court allowed the complainant’s motion to disqualify the respondent and denied the respondent’s motion for fees. The respondent promptly withdrew from the matter.

The respondent’s conduct in representing a client in a matter adverse to a former client when the two matters were substantially related without his former client’s consent violated Mass. R. Prof. C. 1.9(a). The respondent’s refusal to withdraw from the case when continued representation resulted in the violation of the rules of professional conduct violated Mass. R. Prof. C. 1.16(a)(1).

The respondent was admitted in 1974. The respondent received an admonition for his conduct in this matter, conditioned on his attendance at a continuing legal education course designated by bar counsel.


ADMONITION NO. 08-09

CLASSIFICATIONS:
Improper Disclosure of Confidential Information [Mass. R. Prof. C. 1.6]
Improper Disclosure of Confidences of Lawyer’s or Firm’s Former Client [Mass. R. Prof. C. 1.9 (c)]

SUMMARY:

In two separate matters, the respondent provided divorce clients with former clients’ divorce documents without the consent of the former clients. The documentation provided included an unredacted marital history and a financial statement of the former clients. The respondent provided these items to the clients only as exemplars to educate and aid them in preparing their own marital histories and financial statements, but inadvertently failed to delete identifying personal information.

By revealing the confidential information of former clients to other clients, the respondent violated Mass. R. Prof. C. 1.6 and 1.9(c).

The respondent was admitted to practice in 1963 and has no prior discipline. In mitigation, during the relevant time the respondent was distracted by serious family health problems and did not notice that the documents that he provided were unredacted. He received an admonition for his conduct.


ADMONITION NO. 08-10

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

SUMMARY:

On October 24, 2006, the respondent agreed to represent a client pursuant to a written contingent fee agreement. The client alleged that she received soft tissue injuries and experienced severe back pain as a result of an automobile accident that occurred on April 10, 2004 in Brockton. Liability was reasonably clear as the client was rear ended.

Prior to being represented by the respondent, the client was represented by another attorney. Prior counsel obtained personal injury protection benefits, but those benefits were cut off effective July 11, 2005, based on an independent medical examination conducted on that date that concluded that a maximum medical improvement had been reached and that there was no objective evidence of injury. The client did reach the medical expenses tort threshold for bringing a bodily injury claim.

By the end of November 2006, the client gave the respondent her file and all of the documents and information that the respondent had requested of her, including a narrative medical report from a chiropractor and correspondence exchanged between prior counsel and the insurance carrier. By letter dated August 4, 2005, the carrier had invited a demand package from prior counsel. Prior counsel had not sent any demand package prior to the respondent’s representation.

Between December 2006 and February 2007, the client sent e-mails to the respondent and left one phone message inquiring as to the status of her case. The respondent received the e-mails and the phone message but did not respond.

Sometime in early February of 2007, the client contacted the insurance carrier for the at-fault driver directly and was informed that they had received no communication from the respondent indicating that he was representing her. On or about February 15, 2007 the respondent notified the insurance carrier that he was representing the client but did not forward any demand package.

On March 20, 2007, the client sent an e-mail to the respondent and again complained of the lack of communication and warned that she understood that the deadline for filing suit was April 2007. On April 7, 2007, the client sent a letter to the respondent that he received on April 9, 2007, again complaining about the lack of communication. The respondent received the correspondence but did not respond. The respondent did not file a civil complaint on behalf of the client prior to the expiration of the statute of limitations.

On August 27, 2007, the respondent informed his client that he had not filed the case within the statute of limitations. The respondent settled the client’s claim of loss with her for an amount that substantially exceeded the settlement value of the case.

The respondent’s lack of reasonable diligence and his failure to adequately communicate with his client, as described above, was in violation of Mass. R. Prof. C. 1.3 and 1.4(a).

The respondent was admitted on December 19, 1980. In aggravation, the respondent received a prior admonition in May 2007 for a failure to cooperate with bar counsel. The misconduct in this case pre-dated the respondent’s failure to cooperate resulting in the prior admonition. The respondent has now undertaken to obtain assistance in law office management to assist in his personal injury caseload.

The respondent received an admonition conditioned upon attendance at a CLE program recommended by bar counsel.


ADMONITION NO. 08-11

CLASSIFICATIONS:
Imputed Disqualification Generally [Mass. R. Prof. C. 1.10(a)]

Board Memorandum:

The increasing complexity of our largest law firms and the matters they handle pose concomitant challenges in the detection, anticipation, and resolution of conflicts of interest. These challenges must be met by a conflict-detection system commensurate to the task, not by a relaxing of ethical standards. A violation of the disciplinary rules in a two-person partnership in a small town is equally a violation in a thousand-lawyer professional corporation with offices worldwide. Difficulty of detection is not an excuse, but rather a mandate to increase the sophistication of the system for detecting them.

In this case, the respondents’ law firm, a large international professional corporation, initially failed to enter into its conflict system database the name of one client as well as certain entities wholly owned by its clients. As a consequence of those failures, the firm rendered legal services directly adverse to its own client. When tardily apprised of the fact, the firm offered its own failure to detect the problem sooner as an excuse not just for the past conduct, but also for continuing the conflicting representation. A number of the firm’s partners, including its conflicts and ethics committee, had a hand in encouraging this conduct. As discussed below, if it were permitted under our rules, we would discipline the firm for what is truly a systemic failure.

As firm discipline is not an option open to us, we believe admonition is the proper discipline for the individual lawyers who, after the full extent of the conflict was brought to their attention, chose to foist the burden of the firm’s failure on the client who was wronged by that failure. Such a result may seem unfair to lawyers who apparently acted in good faith reliance on their firm’s detection system and on the advice of the firm’s ethics committee. We believe, however, that it is of benefit to all similarly situated attorneys that they be placed squarely on notice that they have substantial stake in seeing that adequate procedures are promulgated and followed for the detection of conflicts and that ethics committees are encouraged to give disinterested and appropriate advice.

Factual Background

What follows is a summary of the hearing committee’s detailed findings of fact, which we adopt and incorporate by reference.

A husband and wife retained a partner1 in the trusts and estates department of a large Boston law firm (A&B LLP) to do their estate planning. The estate lawyer prepared wills and trusts for the couple, who executed them. When the husband died in October 2003, the wife retained the estate lawyer to represent her as executrix of her husband’s estate and to prepare necessary probate and tax filings.

The principal asset of the husband’s estate was the X Corporation, a wholesale distributor of industrial packaging equipment and supplies to businesses in New England. All of the stock of X was held by a business trust, and the husband owned all the shares of the business trust. Under the will, his interest in the business trust passed to a testamentary trust for the benefit of the wife and his two adult children. Following his death, the wife became the executor of his estate, the sole trustee of the business trust, and the trustee as well as a beneficiary of the testamentary trust that owned the business trust. She also became the president of X, which she ran from October 9, 2003, until April 12, 2004, when its assets were sold.

During the fall of 2003, the wife discussed with the estate lawyer problems she was having in running the X Corporation. She voiced her concerns that some employees, including one Jones, who was the vice president for marketing and sales, were resisting her efforts as president. The estate lawyer advised her that she controlled the business, that the employees worked for her, and that she could fire anyone she chose.

The wife decided to sell X. In February 2004, she signed a letter of intent to sell its assets to Y, Inc., one of its competitors. On February 13, she informed Jones and other X employees of her intention. Believing Jones was trying to interfere with the sale, she sought employment advice from another law firm, and on March 1, 2004, she fired him.

Two days later, Z Corporation, another competitor of X, retained one of the respondents, this one in the employment department of A&B LLP (the employment lawyer), to provide employment advice. Z wanted to hire Jones. Z particularly wanted an opinion concerning the enforceability of the non-competition clause of Jones’ employment agreement with X. The employment lawyer ran a quick conflict check listing Z and Jones as the proposed clients and X as the adverse party. He was advised that no conflict existed. A more complete conflicts check followed, with the same result. While the wife – the president and owner of X – was a client of A&B LLP, it is apparent from the results of the conflict checks that neither she nor X Corporation was listed as a client or as an interested or affiliated party in the firm’s database. Thus falsely reassured that there was no conflict, the employment lawyer proceeded to advise Z in a matter that was indisputably and directly adverse to X and the wife. The employment lawyer concluded that Jones’ employment agreement was arguably unenforceable. So advised, Z hired Jones.

Later that same month, Z asked the employment lawyer for advice about hiring three other X employees, sales representatives who were being laid off in connection with the upcoming asset sale to Y. All three sales representatives had signed non-competition agreements with X. Because the agreements did not expressly provide that X’s rights under them would inure to the benefit of its successors and assigns, the employment lawyer advised Z to wait until after the asset sale to hire them. Z followed his advice.

Employment counsel for X wrote two letters to Z asserting that Jones’ employment agreement barred his employment by Z.2 Z forwarded the letters to the employment lawyer, who responded to them. In late April, Y closed on its purchase of X’s assets. X remained in existence but ceased doing business as a wholesale distributor.

On May 6, Y sued Z, Jones, and the three former X sales representatives now employed by Z. Suing in its capacity as X’s successor, Y alleged that the four former X employees had breached their non-competition agreements and had committed various business torts, including breach of fiduciary duty, conversion of confidential business information, and interference with contractual relations. Simultaneously, Y filed a motion for a preliminary injunction to prohibit Z from employing the sales representatives, from soliciting X’s customers, and from using X’s confidential business information. Y supported its motion with four affidavits, including one from the wife in her capacity as president of X. Y obtained a short order of notice for a hearing on May 11.

The employment lawyer agreed to represent Z in the matter on Friday, May 7, the day after the action was filed. The wife learned that same day that A&B LLP had been representing Z. She voiced her objection to the estate lawyer, who told her he would look into it. He called the employment lawyer, who ran another conflicts check, this time including the wife’s name. Again he was told there was no conflict, apparently because the firm’s listing for the estate matter identified only her late husband and his estate as clients. The employment lawyer then called the chair of the firm’s conflicts and ethics committee (the ethics advisor) and left a message for him.

The employment lawyer informed Z that the wife had objected to the representation and that his conflicts check had not disclosed the problem. He warned that Y might use a motion to disqualify as a distracting maneuver in the litigation. Undeterred, Z asked the employment lawyer to continue representing it. He then asked a senior partner in A&B LLP’s litigation department (the trial lawyer) to assist him with the litigation. The employment lawyer explained the wife’s objections to the representation to the trial lawyer.

Both the employment lawyer and the trial lawyer (collectively, the respondents) believed that, while the wife had given an affidavit in support of the motion for preliminary injunction, they would not have to depose or cross-examine her. They concluded that she did not have any personal knowledge of relevant facts, i.e., those relating to the employees’ alleged conversion of confidential information and the enforceability of the non-competition agreements. They understood that non-competition litigation is typically resolved at the preliminary injunction stage. Among the papers they filed in opposition to Y’s injunction motion, however, was an affidavit by Jones that contradicted the wife’s affidavit in certain respects.

On Monday, May 10, the respondents met with Z’s president and the four former X employees. The respondents again explained that Y might use the wife’s objection to their representation as a tactical maneuver. The clients reaffirmed their desire to be represented by them.

That same day, with the injunction hearing scheduled for the following day, the respondents and the estate lawyer met several times with A&B LLP’s ethics advisor. The estate lawyer explained (1) that he had not given the wife any advice about the subject matter of the Y litigation or specifically about Jones’ employment, (2) that he had done no work on the asset sale, and (3) that he had obtained no confidential information relevant to the litigation. The respondents described the litigation to the ethics advisor and told him that the employment lawyer had been advising Z about the former X employees since March 2004, before X sold its assets to Y.

The ethics advisor advised the respondents that no conflict existed. The next day they received a letter from X’s trial counsel, who argued to the contrary. The ethics advisor did not change his opinion, and the respondents did not seek the wife’s consent to their continued representation of Z and the former X employees.

At some point before the preliminary injunction hearing, the respondents learned that, in addition to making a lump sum payment for X’s assets, Y was obligated to pay X approximately five percent of its net sales to former X customers. Further, they learned that X had agreed to pay up to $50,000 of Y’s attorney’s fees in any lawsuit Y filed for misappropriation of proprietary business information or for breach of any restrictive covenant between X and Jones. X’s interest in Y’s net sales and the former’s obligation to pay some of the latter’s attorney’s fees thus gave the wife a financial stake in the outcome of the litigation between Y and Z. The propinquity of the wife’s stake became the decisive issue, as viewed by the parties to this bar discipline proceeding, in determining whether the respondents had engaged in an impermissible conflict of interest by simultaneously representing the wife in the estate matter and Z in the litigation against Y, X’s successor in interest.

On May 11, the respondents obtained a continuance of the motion hearing to May 13. The wife engaged new counsel, who on May 12 told the trial lawyer that he would appear at the motion hearing and seek their disqualification on four grounds: (1) that the wife had provided confidential information about X to the estate lawyer; (2) that the litigation could affect the stream of payouts to X under earn-out provision of the asset-purchase agreement; (3) that the respondents’ firm was simultaneously representing a party adverse to its client, the wife; and (4) that the wife would be a witness. The ethics advisor had already considered and rejected the first three grounds when he advised the respondents that no conflict existed, and the respondents themselves had already considered and rejected the fourth ground. After researching whether the wife could intervene as a party, the respondents concluded that her contingent economic interest in the outcome of the litigation did not confer standing.

The preliminary injunction hearing proceeded on May 13. While the court declined to enforce the non-competition agreements, it issued an injunction prohibiting Z and the former X employees from contacting X customers who were not also Z customers as of March 1, 2004, the date Jones was fired. The court briefly heard the wife’s lawyer on the request to disqualify the respondents. The court declined to disqualify them because the wife was not a party and had not moved to intervene.

The wife’s lawyer later filed a motion to intervene and a motion to disqualify the respondents. The motion to disqualify was mooted when Z discharged them. The wife discharged the estate lawyer in October 2004.

Disciplinary Proceedings

Bar counsel filed a petition for discipline against the employment lawyer and the trial lawyer. The petition faulted the employment lawyer for undertaking to represent Z about the enforceability of X’s employment contracts with Jones and the sales representatives at the same time his partner, the estate lawyer, was representing the wife, who had a substantial financial interest adverse to that of Z with respect to the enforceability of the contracts. Further, bar counsel charged that the employment lawyer’s representation of Z might have been materially limited by his firm’s representation of the wife. Such conduct, the petition alleged, violated Mass. R. Prof. C. 1.10(a), which provides that “[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c) or 1.9.”

In applying these rules to conduct taking place before the asset sale, the hearing committee agreed with bar counsel that giving employment advice to Z about hiring Jones and the sales representatives was directly adverse to the wife, who was then president of their employer, X. The committee found, however, that this representation was not undertaken “knowingly” because the employment lawyer was not aware of the facts giving rise to the conflict. See ABA Center for Professional Responsibility, A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2005 240 (2005) (term “knowingly” inserted into conflicts rule in 1982 because “a lawyer cannot comply with the rule until a conflict is known to exist”). See also Matter of Berkowitz & Matter of Dugan, 642 A.2d 389, 395 (N.J. 1994) (per curiam); Matter of Wenz, 87 P.3d 376, 379 (Mont. 2004). Because the employment lawyer had made good faith efforts to seek out such facts – by relying on the results of A&B LLP’s system for detecting the existence of conflicts – the committee concluded that the employment lawyer’s conduct in representing Z before the asset sale did not violate Rule 1.10(a) as charged.

As for the respondents’ representation of Z during litigation after the asset sale, the hearing committee found the wife and her husband’s estate were not adverse parties to Z and the former X employees within the meaning of the rule because their interest in the litigation was indirect, speculative, and economic. Adversity requires a conflict about the “legal rights and duties of two clients vis-à-vis one another,” and conflicting economic interests, without more, do not create an impermissible conflict of interest. ABA Formal Op. 05-434, at 2. See also ABA Formal Op. 05-435; ABA Formal Op. 95-390. Because the committee found reasonable the respondents’ expectation that the employment litigation would be resolved at the preliminary injunction phase, it also rejected the charge that a conflict inhered in the prospect of cross-examining or taking discovery from the wife. Finding, as a consequence, no violation of the conflict rules before or after the asset sale, the committee recommended that the petition for discipline be dismissed.

Bar counsel appealed.

Discussion

Waiving any objection to the committee’s conclusions with regard to legal services provided before the asset sale, bar counsel focuses on the respondents’ representation of Z in the litigation commenced after the asset sale. She asks us to find a violation in the adversity created by the earn-out provision of the asset-purchase agreement, by X’s liability for some of Y’s attorney’s fees in that litigation, and by the reasonable likelihood that the respondents would have to counter the wife’s testimony as a witness against Z, whether through discovery or cross-examination. Oral argument was held before the entire board on the issue thus framed.

Bar counsel’s waiver notwithstanding, we discern an impermissible – and unexcused – conflict of interest in A&B LLP’s representation of Z on employment matters adverse to the wife before the asset sale. Our inquiry in this respect is informed by imagining what our response would have been if these lawyers had been members of a two-lawyer firm in a small town. We are confident that we would not listen indulgently as one of them told us he was not aware that his partner was representing his adversary in another matter. This is not because we would not believe him but because we would expect him to have inquired intelligently of his partner, who, we would also have expected, would have apprised him of the obvious conflict in undertaking the representation. We certainly would not have treated their failure to have had such a discussion as constituting an excusable absence of “actual knowledge” of the facts giving rise to the conflict. We would have expected them to ask, and we would have expected them to know.

How should our inquiry differ, then, when the lawyers are members of one of the largest firms in Boston, with hundreds of lawyers in different cities, and whose clients are so numerous and far-flung that potential conflicts can only be detected with the aid of sophisticated, state-of-the-art computer software? We should look, as we would with regard to a two-lawyer firm, at the extent and reasonableness of efforts made to ascertain the relevant facts that disclose the conflict.

So viewed, A&B LLP’s system for detecting conflicts of interest was deficient. The firm’s data system did not identify X Corporation as a client – or, if it was not a client, as an affiliated or interested party – against which no adverse matter could be taken on. It did not even list the wife by name, though she was one of the clients given estate planning advice and the executor of the estate governed by the wills and other instruments she and her husband had signed as clients of the firm. The database listed only the husband and his estate as clients.

The failure to include such information does not amount to excusable ignorance of the facts giving rise to the obvious conflict of interest that attended A&B LLP’s representation of Z before the asset sale. A&B LLP, in other words, violated the rules charged in the petition for discipline. The very first paragraph of the official Comment to Rule 1.7 addresses this situation by admonishing lawyers to “adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the parties and issues involved and to determine whether there are actual or potential conflicts of interest.” That statement informs the meaning of the rule’s prohibition against representing a client if that representation will be adverse to another client. Without client consent, the prohibition is absolute, and one cannot claim the representation was not “knowingly” undertaken if appropriate procedures were not adopted and followed.

We do not take issue with the hearing committee’s finding that the asset sale reduced the wife’s direct and legal interest in the employment issues to an indirect and contingent economic interest – an interest confined to the amount of X’s earn-out and of the payment of Y’s legal fees. In other circumstances, such an interest by itself might indeed be too remote to constitute the requisite legal adversity to trigger a violation of Rule 1.10(a). But it does not stand by itself. A&B LLP found itself in this position only because it impermissibly undertook to represent a party in an employment matter that was directly adverse to the client in the first place. It should not now be allowed to bootstrap from that ethical lapse – whether excused or not – to the “innocent” position, post asset sale, of opposing “only” the economic interests of a client it had clearly wronged before the sale.

In this regard, A&B LLP’s position is analogous to the “hot potato” conflict cases, in which a firm drops one client in order to represent another adverse to it and then seeks to defend the new representation under the standards that govern conflicts with former clients because those are more permissive than those for current clients. See, e.g., E.F. Hutton & Co. v. Brown, 305 F. Supp. 371 (S.D. Ex. 1969). Courts have generally rejected such maneuvers because the rules are “also intended to protect justified client expectations of lawyer loyalty.” C.W. Wolfram, Modern Legal Ethics § 7.4.2(b), at 362 (1986). So here, having already breached their loyalty to the wife by advising her adversaries to defer employment decisions until after the asset sale, the respondents should not now be heard to argue that continuing their representation after the sale should be judged by the more permissive standards pertaining to “economic” adversity because the sale made those interests more remote.

For these reasons, we believe bar counsel has proved that A&B LLP violated the rules charged by undertaking a representation adverse to its own client. Had we authority to do so, we would discipline A&B LLP. Our rules, however, appear not to contemplate the discipline of a law firm as opposed to individual lawyers. See S.J.C. Rule 4:01, § 1(1) (disciplinary jurisdiction extends to “[a]ny lawyer or foreign legal consultant admitted to, or engaging in, the practice of law in this Commonwealth”). Despite intermittent proposals before the American Bar Association to make law firms disciplinable entities under the ABA Model Rules, New York and New Jersey are the only states that currently grant authority to impose corporate discipline.

Our inability to discipline the firm does not mandate dismissal of the petition, however. The respondents’ insistence, despite the wife’s requests, on compounding their breach of loyalty by continuing to represent Z in its litigation against Y is not excused. Once made aware that deficiencies in their firm’s conflict-detection system had involved them in a representation directly adverse to an existing client, the respondents should have taken steps to withdraw from further representation immediately.

Our conclusion in this respect is strengthened by the nature of the wife’s involvement as a witness in the Y litigation. We express no disagreement with the hearing committee’s opinion that such litigation almost is always resolved at the preliminary injunctions stage – as, it turns out, apparently happened in this case. As a consequence, it was unlikely that they would need to take discovery from the wife and or to cross-examine her as a live witness. As the respondents maintained and the committee agreed, the wife apparently did not possess personal knowledge of facts directly relevant to the preliminary injunction motion.

Yet the wife did file an affidavit in support of the motion, and the respondents have not adequately explained why they felt the need to file an affidavit from Jones that challenged supposedly irrelevant statements she made in hers. At the very least, the filing of Jones’ affidavit casts doubt on their notions of relevance. Worse, the act of filing an affidavit to contest the veracity of their own client was itself an act of disloyalty to the client. And in any event, the need to decide whether to file such an affidavit or not – or to take other similar measures later to shore up Z’s position at her expense – elucidates the dilemma they faced because of the conflict of interest: that their need to represent Z diligently in that matter could be materially limited by their concurrent obligation of loyalty to the wife. They should have withdrawn when they learned that the firm had improperly given advice adverse to the wife before the asset sale.

Conclusion

For the reasons stated, we unanimously adopt the hearing committee’s findings of fact, but we modify its conclusions of law to find violations of Mass. R. Prof. C. 1.10(a). The respondents, John Doe and James Smith, shall be and hereby are admonished.

Footnotes

1 Because we have decided not to impose public discipline against the lawyers charged with misconduct in this proceeding, we have not identified them here and have given their law firm a pseudonym. See S.J.C. Rule 4:01, § 20(3)(d); Board Rule 3.22(b)(4).

2 The letters did not mention the wife.


ADMONITION NO. 08-12

CLASSIFICATIONS:
Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4(c)]
Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)]
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4(h)]

SUMMARY:

The respondent is an accountant and an attorney. In the course of litigation, he discovered that his ex-wife and a former employee had each failed to report income to the IRS and DOR. Over a period of time, he sent to the IRS and DOR letters and returns that disclosed the unreported income, but that purported to be filed by his ex-wife and former employee. Bar counsel did not contest the accuracy of the reporting, only the fact that the reporting appeared to come from the ex-wife or former employee, not the respondent. The hearing committee credited the respondent’s testimony that he submitted the documents in this manner to avoid triggering a criminal investigation of his ex-wife and former employee, to avoid being implicated in their fraud, and to protect the taxing authorities from fraud. It also found, however, that he was motivated by personal interests, including avoiding involvement in a criminal investigation.

The hearing committee concluded that the respondent’s conduct in submitting documents to taxing authorities that falsely appeared to be documents submitted by his ex-wife or by his former employee constituted dishonesty, fraud, deceit, or misrepresentations in violation of Mass. R. Prof. C. 8.4(c) and conduct adversely reflecting on fitness to practice in violation of Mass. R. Prof. C. 8.4(h). The hearing committee concluded that the conduct did not violate Mass. R. Prof. C. 8.4(d).

In mitigation, the misconduct occurred solely in connection with the respondent’s personal life and was unconnected to the practice of law. In addition, his conduct caused no unwarranted harm to the taxpayers.

The hearing committee recommended that the respondent be publicly reprimanded. Neither party filed an appeal from the hearing committee report. The Board of Bar Overseers made a preliminary determination to adopt the hearing committee’s findings of fact and conclusions of law, but to reject a public reprimand as too harsh given (1) the respondent’s right to report to the taxing authorities, (2) the absence of any finding that the information reported was false, and (3) the absence of any connection to the practice of law. The parties filed briefs in response to the preliminary vote. The Board then voted, for the reasons stated in the preliminary vote, to confirm its determination to issue an admonition.


ADMONITION NO. 08-13

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

SUMMARY:

At all relevant times, the respondent was a salaried associate in a small firm. In about 1995, a client retained the firm through the respondent to pursue a personal injury claim arising from injuries sustained by the client in a November 1994 car accident. Although liability was not in issue, the client’s damages were disputed due to his pre-existing condition and subsequent surgery for an unrelated problem, and no settlement was obtained with the liability insurer.

In November 1997, exactly three years after the accident, the respondent signed a civil complaint that was to be delivered to the court for filing by the firm’s paralegal that same day. Unbeknownst to the respondent, however, the complaint was not entered by the court until the next day, after the expiration of the statute of limitations. The respondent failed to assure that the complaint was timely filed and failed to check on the status of the action thereafter. He also failed to effect service of the complaint, which was dismissed in the fall of 1998.

In the spring of 1999, the client asked the respondent what was happening in the case. The respondent, then unaware of the late filing or the dismissal, sent the client a copy of the superior court complaint and, without investigating the status of the matter, told the client that the case was proceeding. The respondent subsequently learned that the suit had been dismissed but failed to notify the client of the dismissal. Instead, the respondent informed his employer, who was to notify the client and the firm’s malpractice insurer. Thereafter the respondent avoided the client’s inquiries about the status of the case because he believed the matter was being handled by his employer and the malpractice carrier. The respondent did not ask the employer whether the client had been informed. In fact, the employer never notified the client of the loss, never reported the loss to the carrier, and never took other action to rectify the loss. The client did not learn of the late filing, dismissal, and loss of his claim until after the respondent had left the firm in 2004.

The respondent’s failure to pursue and protect the client’s claim violated Mass. R. Prof. C. 1.1 (duty to provide competent representation), 1.2(a) (duty to seek client’s lawful objectives through reasonably available means) and 1.3 (duty to act with reasonable diligence and promptness) and, prior to January 1, 1998, DR 6-101(A)(2) and (3). Regardless of what he told his employer, the respondent himself had a duty to inform himself of the status of the claim and notify the client of the dismissal and loss of the claim. His failure to do so violated Mass. R. Prof. C. 1.1 and 1.4 (a) and (b) (duty to keep client reasonably informed of status of matter and to explain the matter to the extent reasonably necessary to permit client’s informed decisions).

The respondent left the practice of law in 2004. He received an admonition for his misconduct conditioned on his attendance at the MCLE course on ethics and law office management if he returns to practice.


ADMONITION NO. 08-14

CLASSIFICATIONS:
Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4(c)]
Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)]
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4(h)]

SUMMARY:

A California resident who fraudulently obtained a default judgment against a Massachusetts resident in Superior Court in California retained the respondent to help him collect on the California judgment. The respondent was not involved in or aware of the client’s fraudulent procurement of the California judgment.

The respondent filed an action against the defendant in the superior court in Massachusetts to collect on the foreign judgment. In support of a motion to attach the defendant’s real estate, the respondent submitted to the court an “Affidavit Under Oath For Calculation of Damages.” With the client’s permission, the respondent signed the client’s name to the affidavit. The respondent did not indicate in the affidavit that he had signed on the client’s behalf or that the signature on the affidavit was not the client’s. When questioned by the court about the signature, the respondent readily admitted that he had signed on his client’s behalf.

An attorney cannot sign another person’s name to an affidavit, or any other document signed under oath, even with authorization. By filing an affidavit that appeared to have been signed by the client under the pains and penalties of perjury, but which the respondent knew had not been signed by the client, the respondent violated Mass. R. Prof. C. 8.4(c) (conduct involving misrepresentation), 8.4(d) (conduct prejudicial to the administration of justice), and 8.4(h) (conduct adversely reflecting on fitness to practice).

The respondent was admitted in 2002 and had no prior discipline. The respondent received an admonition for his conduct conditioned on attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 08-15

CLASSIFICATIONS:
Handling Legal Matter When Not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Client’s Lawful Objectives [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16d]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]

SUMMARY:

In November of 2006, the respondent agreed to represent a client in seeking a court order modifying his child support obligation. Under the terms of the parties’ separation agreement, the client was responsible for child support and one-third of each son’s college tuition and expenses until emancipation. Emancipation was defined as the first to occur of several events, including graduation from high school if the son were not enrolled in an institution of higher learning, four years of higher education, or attainment of age twenty-three. The client was seeking court confirmation that he no longer had an obligation to pay child support because one of his sons, who was then twenty years old, was attending school part time. Neither the separation agreement nor a 2005 judgment of modification specified the effect of a child’s part-time attendance at school on the client’s support obligation.

On December 7, 2006, the respondent filed a complaint for modification seeking to have the client’s support obligation reduced because one son was attending college on a part-time basis. In December 2006, the client lost his job. On January 5, 2007, the respondent filed an amended complaint for modification, seeking also to have the client’s support obligation reduced because the client was unemployed.

Beginning in November 2006, the client stopped paying the full amount of child support. After the client lost his job in December 2006, the client further reduced the amount of child support he was paying due to his reduced income. The client was unemployed until February of 2007. The respondent’s client lived in New York and was employed there after February of 2007.

In about January of 2007, the client’s ex-wife retained counsel to represent her. The ex-wife’s lawyer accepted service on behalf of his client of the modification complaint. In January 2007, the respondent and the ex-wife’s lawyer agreed that each would accept service on behalf of his or her client of any subsequent pleadings in the matter.

On March 17, 2007, the ex-wife filed a contempt petition charging the respondent’s client with failing to pay the full amount of his child support obligation. By letter dated April 7, 2007, the ex-wife’s lawyer sent the respondent a copy of the contempt petition and the original contempt summons, which was returnable at the contempt hearing on May 7, 2007. The respondent received the contempt petition and summons in due course, but failed to notify her client of the scheduled contempt hearing and to note the event in her calendar. The respondent also did not accept service of the contempt complaint and return the contempt summons to the ex-wife’s counsel with an acknowledgement. Neither the respondent nor her client attended the contempt hearing on May 7, 2007, which was attended by both the ex-wife and her lawyer.

The ex-wife’s lawyer obtained another contempt summons on May 9, 2007, with a new return date of June 18, 2007. He had the contempt summons served on the respondent’s client directly in New York and sent a copy to the respondent by fax and first class mail on June 14, 2007. The ex-wife’s lawyer also filed a motion seeking attorney’s fees and costs due to the client’s failure to appear for the May 7, 2007 contempt hearing.

The respondent received notice of the contempt hearing and a copy of the motion for attorney’s fees in due course. The respondent did not file a written opposition to the motion for attorney’s fees, and she did not file an answer to the contempt complaint on behalf of her client.

On May 25, 2007, the client notified the respondent that his new job would be jeopardized if he had to take a day off from work to attend the court hearing on June 18, 2007. The client asked the respondent to seek permission from the court to waive his appearance or allow him to participate by telephone. The respondent agreed to do so, and on June 7, 2007, the respondent sent an email to the client advising that “if the Court does not [sic] waive your appearance, there will be a new hearing date scheduled.” However, the respondent did not file a motion to waive the client’s appearance, and she did not inform the client that he risked being found in contempt if he did not attend the hearing.

On June 18, 2007, the respondent appeared at the hearing without her client. She then filed a motion in court to waive her client’s appearance. The court denied the respondent’s motion to waive the client’s appearance and the contempt hearing went forward on June 18, 2007. After hearing, the court entered an order holding the client in contempt. The court found the client to be $1,321 in arrears in child support and $712 in arrears in college expenses, and ordered the client to pay his ex-wife’s attorney $2,486.25 in counsel fees and $85 in costs for his failure to appear in May.

On July 6, 2007, the respondent sent the client the contempt order, and informed him that she intended to withdraw as his counsel. In August of 2007, the client hired new counsel to represent him and filed a request for investigation with bar counsel. On about August 20, 2007, the successor counsel wrote to the respondent to request a complete copy of the client’s file. The respondent provided copies of documentation relating to the pending contempt and modification matters, but did not provide the rest of the file.

Despite repeated requests by the client’s new lawyer, the respondent did not provide the remainder of the file until April 2008, after bar counsel intervened.

After a hearing on October 18, 2007, at which the client appeared to testify, the court reversed the contempt order. The court found that the client was not in contempt for reducing his support payments after his son started attending school part time. However, the court determined that the client still owed $2,045.00 in support arrears, payable at $50.00 per week for forty weeks, because he had reduced his support payments without first obtaining court approval.

By failing to promptly notify her client about the May 7, 2007 contempt hearing, and by failing to appear at the May 7, 2007 contempt hearing, the respondent violated Mass. R. Prof. C. 1.1 (obligation to provide competent representation to a client), 1.2(a) (obligation to seek the lawful objectives of a client), 1.3 (obligation to act with reasonable diligence in representing a client), and 1.4(a) and (b) (obligation to reasonably communicate with a client about a matter). By failing to file a motion to excuse her client’s appearance at the June 18, 2007 contempt hearing, and by failing to notify her client that the court had not excused him from appearing, the respondent also violated Mass. R. Prof. C. 1.1, 1.2(a), 1.3, and 1.4(a) and (b). By failing to promptly return her client’s file after withdrawing from his representation and upon request of his successor counsel, the respondent violated Mass. R. Prof. C. 1.16(d) and (e).

The respondent was admitted to practice in 1988, and had no prior discipline. In mitigation, the respondent was suffering from various health problems at the time of the misconduct that affected her ability to manage her practice. The respondent obtained medical assistance for her health problems and limited her practice.

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


ADMONITION NO. 08-16

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]
Failing to Withdraw Generally [Mass. R. Prof. C. 1.16(a)]

SUMMARY:

On May 20, 2003, the Committee for Public Counsel Services (CPCS) assigned the respondent to represent a defendant in the appeal of his criminal conviction in the district court. The defendant had been represented at trial by a privately retained attorney, and by the time the respondent was assigned to represent the defendant, he had served the committed portion of his sentence and was no longer in custody.

Shortly after she was assigned to her client’s case, the respondent requested a cassette recording of the trial. Within days, the court provided the respondent with cassette recordings of the trial. The respondent forwarded the cassettes to a stenographer for transcription. By no later than August 23, 2003, the stenographer provided the respondent with transcripts of the cassettes, and the respondent forwarded the transcripts and copies of the cassettes to the clerk of the district court.

The respondent submitted the transcripts and cassettes to the clerk and did not retain copies of the cassettes. The respondent did not review the transcripts before doing so and was not aware that closing arguments were not included as part of the transcripts.

The respondent knew that that the appeal was due to be entered in the Appeals Court and that she would be receiving a notice of entry within a few weeks of filing the transcripts. The record was not transmitted to the Appeals Court, however, and the respondent did not receive any further notice concerning the case. The respondent took no action to discover the cause of delay for the next three years.

On August 11, 2006, the lower court transmitted the record of the proceedings to the Appeals Court, and the respondent received a notice of entry shortly thereafter. The respondent sought and received an extension of time to January 15, 2007, to file a brief on her client’s behalf.

In late 2006, the respondent suffered a neck injury that impaired her ability to work. The respondent sought a further extension, which was granted to March 2, 2007. Because of the injury, the respondent did not complete the brief. The respondent knew that she continued to be impaired and would not be able to complete the brief. The respondent failed to withdraw from the case or notify her client or CPCS of her continued impairment. Instead, on or about March 21, 2007, the respondent sought a third extension of time to file the brief again citing her injury. On March 30, 2007, the court denied the respondent’s request and ordered the respondent to withdraw from representing the defendant and directed CPCS to reassign the case to another lawyer.

On April 4, 2007, the respondent withdrew from representing the client. CPCS reassigned the client’s case and the Appeals Court granted the client leave to file a brief on his appeal.

By failing to act with reasonable diligence to ensure that the record of her client’s trial was complete and that it was timely transmitted to and the matter entered in the Appeals Court, the respondent violated Mass. R. Prof. C. 1.1 and 1.3.

By failing to notify CPCS and her client of her inability to complete the appeal and to withdraw when her physical condition impaired her ability to represent her client, the respondent violated Mass. R. Prof. C. 1.4 and 1.16(a)(2).

The respondent was admitted to the bar of the Commonwealth on December 18, 1997. The respondent received an admonition for her misconduct conditioned upon her attendance at a MCLE program designated by bar counsel.


ADMONITION NO. 08-17

CLASSIFICATIONS:
Handling Legal Matter When Not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Client’s Lawful Objectives [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Withdrawal without Tribunal’s Permission [Mass. R. Prof. C. 1.16(c)]
Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)]

SUMMARY:

In July of 2006, the respondent agreed to represent a client in opposing a modification complaint filed by her ex-husband, who was seeking visitation rights with respect to the couple’s daughter. The couple’s 2003 divorce judgment awarded sole custody of the daughter to the mother, and ordered the father to pay child support. The mother opposed the father’s request for visitation, due to his failure to pay child support and his alleged drug habit.

On July 13, 2006, the respondent filed an appearance on behalf of the mother. On the appearance form, the respondent listed his home address on Cape Cod. The respondent also maintained an apartment in Boston that he used as his business address. The respondent did not notify the court of his Boston address.

After the October 23, 2006 hearing, the court entered orders granting the father supervised visitation with the daughter every weekend for two hours. On October 26, 2006, the court mailed copies of the orders to the lawyers for the parties. The orders scheduled a review hearing for December 22, 2006.

In the fall of 2006, the respondent was diagnosed with Type II diabetes, for which he sought medical tests and treatment. In order to be nearer to his doctors, the respondent lived and worked from his apartment in Boston. The respondent failed to make arrangements to regularly collect his mail from his home on Cape Cod. As a result, the respondent did not receive notice of the December 22, 2006 review hearing, and he did not notify his client of the hearing.

On December 22, 2006, the father and his lawyer appeared for the scheduled review hearing. Neither the respondent nor his client appeared. At the hearing, the father reported that he had been denied supervised visitation by the mother and that the mother had moved with the child to New Hampshire.

On December 22, 2006, the court ordered the parties and their counsel to appear for a hearing on February 2, 2007. The order specifically stated that “the Order that the Defendant [the mother] and her attorney appear is binding on each and independent of the appearance of the other.” On January 2, 2007, the court mailed copies of the order to the parties and their counsel. The respondent did not receive a copy of the order directing him to appear for the February 2, 2007 hearing, because the respondent did not collect the mail from his Cape Cod address. The mother received a copy of the order at her new address.

Neither the respondent nor his client appeared for the February 2, 2007 hearing. The court entered an order scheduling the case for review on March 2, 2007, in Lowell, and reported the matter to the office of bar counsel. Bar counsel mailed a copy of the grievance to the respondent at his Boston address, and the respondent received the correspondence in due course. The respondent learned about the missed hearings for the first time when he received a copy of the grievance from bar counsel.

Both the respondent and his client appeared at court on March 2, 2007. The respondent did not stay for the hearing, but instead filed a notice of withdrawal using the court’s Notice of Appearance form, and scratching out the word “Appearance” and writing “Withdrawal” in its place. He did not file a motion to withdraw, and did not wait to receive the court’s permission before withdrawing from the representation. The respondent’s client did not oppose the respondent’s withdrawal. The client filed a notice of appearance on March 2, 2007, indicating that she was representing herself pro se.

On March 2, 2007, after the respondent left the courtroom before the call of the list, the court entered an order sanctioning the respondent $500.00 in counsel fees to be paid to the father’s counsel for the respondent’s failure to appear and represent his client. The father’s counsel did not notify the respondent of the order, and the respondent was not aware that the sanctions had entered until he was informed by bar counsel in May of 2008. The respondent then contacted the father’s counsel, and resolved the matter of the outstanding sanctions for attorney’s fees.

After the March 2, 2007 hearing, the respondent’s client continued to represent herself pro se. She returned to Massachusetts in about April of 2007, and visitation resumed.

The respondent’s failure to take proper steps to receive notices of hearing from the probate court and his subsequent violation of the order to appear violated Mass. R. Prof. C. 1.1 (obligation to provide competent representation to a client), 1.2(a) (obligation to seek the lawful objectives of a client), 1.3 (obligation to act with reasonable diligence in representing a client), and 8.4(d) (conduct prejudicial to the administration of justice). By withdrawing from his client’s representation in a proceeding before a court without the court’s approval, the respondent violated Mass. R. Prof. C. 1.16(c).

The respondent was admitted to practice in 1973, and had no prior discipline.

The respondent received an admonition for his conduct, on the condition that he attend a continuing legal education course designated by bar counsel.


ADMONITION NO. 08-18

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Improper Contingent Fee [Mass. R. Prof. C. 1.5(c)]

SUMMARY:

On May 29, 2002, an individual (the “client”) was injured when the car that she was driving was rear-ended by a second car. In October 2002, the respondent was retained to represent the client in the recovery of damages that resulted from the injuries sustained by the client in the car accident. The respondent’s fee was to be contingent upon the successful resolution of the matter. The respondent never entered into a written contingent fee agreement with the client.

On May 27, 2002, the respondent filed suit in the district court against the owner and the driver of the car that had hit the client. The respondent failed to serve either defendant with a summons or the complaint. On September 20, 2005, the court, sua sponte, entered an order dismissing the client’s suit without prejudice. The respondent failed to inform the client that the case had been dismissed.

In June 2006, the client and/or someone acting on behalf of the client called the district court and learned that the case had been dismissed. On July 26, 2006, the client, represented by new counsel, filed a motion to vacate the judgment of dismissal. On August 8, 2006, the court entered an order vacating the judgment of dismissal.

In September 2007, after an arbitration hearing, new counsel was able to resolve the client’s case for $28,000.00.

The respondent’s failure to serve the defendants with a summons or the complaint, which resulted in the client’s suit being dismissed without prejudice, violated Mass. R. Prof. C. 1.3. The respondent’s failure to inform the client that her case had been dismissed violated Mass. R. Prof. C. 1.4(a). The respondent’s failure to execute a written contingent fee agreement violated Mass. R. Prof. C. 1.5(c).

The respondent was admitted in 1983 and has no disciplinary history. The respondent received an admonition for his conduct in this matter.


ADMONITION NO. 08-19

CLASSIFICATIONS:
Improper Business Transaction with Client [Mass. R. Prof. C. 1.8(a)]

SUMMARY:

Between 1998 and 2003, the respondent represented a client in various legal matters. The client had owned a single-family home and converted it to a two-family home. After the conversion, the client decided to convert the two units to condominiums.

The respondent offered to purchase the first floor unit for $280,000. He agreed to prepare the condominium documents for the client. The respondent and the client agreed to close on the sale of the unit to the respondent prior to the respondent obtaining his financing. At the closing on June 3, 2002, the respondent paid the client $120,000.00 in cash, and gave the client a 90-day note in the amount of $160,000.00 at 8% interest. The note was secured by a mortgage on the condominium. The respondent also agreed to pay the interest in advance.

In proposing the purchase and loan arrangement to the client, the respondent did not inform the client that he was not representing her in the matter and advise her to seek her own counsel in the transaction. Although the terms of the transaction were fair and reasonable to the client, the respondent did not disclose all of the terms of the transaction to the client in writing, he did not give the client an adequate opportunity to seek the advice of independent counsel, and he did not obtain the client’s consent in writing to the transaction and to the conflict of interest involved in his entering into a business transaction with a client.

By entering into a business transaction with a client without transmitting the terms to the client in writing, giving the client a reasonable opportunity to seek the advice of independent counsel, and obtaining the client’s informed consent in writing, the respondent violated Mass. R. Prof. C. 1.8(a).

In aggravation, the respondent, who was admitted to practice in 1977, received an admonition in 1999 for failing to diligently obtain and record two loan discharges. Admonition No. 99-64, 15 Mass. Att’y Disc. R. 770 (1999).

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


ADMONITION NO. 08-20

CLASSIFICATIONS:
Improper Business Transaction With Client [Mass. R Prof. C. 1.8(a)]

SUMMARY:

The client engaged the attorney to advise her with respect to a variety of matters, including the feasibility of subdividing a parcel of real estate owned by the client. The client informed the attorney that she had almost no cash on hand from which to pay her ongoing expenses or her outstanding debts.

The attorney agreed to loan the client $25,000 for ninety days. The client agreed to refinance her real estate and repay the loan, without interest, and pay the attorney an additional $12,000 to be held for her costs and attorney’s fees on the subdivision.

On June 12, 2007, the attorney gave the client a check in the amount of $25,000 on the account of a real estate management company that was owned and operated by the attorney. The attorney then prepared, and the client signed, a promissory note to the management company and a $25,000 mortgage on two real estate parcels owned by the client, including the one that the client was considering subdividing.

The promissory note secured by the mortgage was inartfully drafted to include, in a confusing manner, the fees and expenses not yet incurred. The transaction and terms on which the attorney loaned the client $25,000 and acquired the interest in the client’s real estate were therefore not fully disclosed and transmitted in writing to the client in a manner that the client could reasonably understand. The attorney did not give the client a reasonable opportunity to seek the advice of independent counsel before she signed the promissory note and mortgage and she did not give her informed consent to the transaction after consultation. The respondent has now discharged the mortgage on one of the properties and agrees that he is owed only the principal sum of $25,000 plus reasonable interest.

The respondent’s conduct as described above was a business transaction with a client in violation of Mass. R. Prof. C. 1.8(a). He received an admonition for this misconduct.


ADMONITION NO. 08-21

CLASSIFICATIONS:
Failing to Seek Client’s Lawful Objectives or Abide by Client’s Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a) & (b)]

SUMMARY:

The respondent was retained as successor counsel to represent a client in a civil action to obtain money damages against an incorporated auto dealership arising out of its alleged failure to pay off an automobile loan in the context of a motor vehicle trade. The complaint had been filed on October 4, 2000 by predecessor counsel and the dealership was defaulted on June 7, 2001. On August 23, 2004, the respondent filed an appearance on behalf of the client as well as a request for assessment of damages. A judgment was entered on October 12, 2004 against the dealership in the amount of $12,904.35 and an execution was issued and sent to the respondent. The respondent took no action to collect on the execution.

In June, 2005, after receiving inquiry from the client regarding the status of the case, the respondent realized that the original execution was lost or misplaced. After repeated inquiries from the client, to most of which the respondent did not reply, the respondent filed a Motion for Replacement of Lost Execution on December 6, 2006. The motion was allowed on January 26, 2007. On February 8, 2007, the client terminated the services of the respondent due to the claimed lack of diligence and the respondent’s failure to promptly and reasonably communicate with the client during the period of representation.

The respondent’s failure to take action to collect the judgment against the corporation in a timely fashion was in violation of Mass. R. Prof. C. 1.2(a) and 1.3. The respondent’s failure to keep the client reasonably informed about the status of the proceedings and failure to return telephone calls from the client constitutes a violation of Mass. R. Prof. C. 1.4(a) and (b).

The respondent was admitted to the Massachusetts bar in 1998 and has no prior disciplinary history. The respondent received an admonition for this misconduct conditioned upon attendance at a CLE course designated by bar counsel.


ADMONITION NO. 08-22

CLASSIFICATIONS:
Failing to Seek Client’s Lawful Objectives or Abide by Client’s Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a) & (b)]

SUMMARY:

The respondent was retained in 2002 to represent a client in a civil action to recover money owed the client for work performed at two construction projects. The client paid the respondent a retainer of $1,500.00. The respondent filed an appearance and complaint in the district court on behalf of the client on October 31, 2002. Thereafter the respondent took no action of substance to advance the case which remained dormant as a result of the failure of the court to apply its time standards. In 2007, when the respondent mistakenly believed the case had been dismissed, he filed a motion to reinstate the case which was treated by the court as a motion to restore the case to the trial list. The court restored the case to the trial list at the respondent’s request upon payment of costs by the respondent to the defendant. Upon request of the client, the respondent then filed a motion to withdraw in June, 2007.

Throughout the course of representation of the client, the respondent failed to communicate the status of the case to the client. Upon withdrawal from the case, the respondent refunded $1,238.00 of the retainer paid by the client, deducting the filing fee and litigation fee paid to the court.

The respondent’s failure to advance the litigation filed on behalf of the client was in violation of Mass. R. Prof. C. 1.2(a) and 1.3. The respondent’s failure to keep the client reasonably informed about the status of the case constitutes violation of Mass. R. Prof. C. 1.4(a) & (b).

The respondent was admitted to the Massachusetts bar on June 27, 1991 and has no prior disciplinary history. The respondent received an admonition for this misconduct conditioned upon attendance at a CLE course designated by bar counsel.



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