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2010 Admonitions



ADMONITION NO. 10-01

CLASSIFICATIONS:
Mass. R. Prof. C. 1.15(b)(2) [IOLTA Violation]

SUMMARY:
In October 2007, bar counsel received notice that a check drawn on the respondent’s IOLTA account was dishonored for insufficient funds. On multiple occasions between August 1, 2007and June 1, 2008, the respondent deposited personal funds into his IOLTA account. While there were also client funds in the account during this time period, those funds were properly disbursed and not misused. The respondent’s conduct in depositing personal funds in his IOLTA account violated Mass. R. Prof. C. 1.15(b)(2).

The respondent was admitted in 1975 and had no prior discipline. He received an admonition and attended a class on trust accounting designated by the Office of Bar Counsel.


ADMONITION NO. 10-02

CLASSIFICATIONS:
Mass. R. Prof. C. 1.15(f)(1)(C) [Record-keeping violation]
Mass. R. Prof. C. 1.1 [Handling legal matter when not competent or without adequate preparation]
Mass. R. Prof. C. 1.3 [Failing to act diligently]

SUMMARY:
In February and March 2009, the respondent represented lenders in eight closings where he recorded the closing documents in the registry of deeds prior to verifying that the funds for the closing were received in his IOLTA account. Each closing was later funded by the lender. The respondent’s conduct in recording the deed prior to having good funds in his IOLTA account violated the “good funds” statute.

The respondent’s conduct in recording the buyer’s mortgage and the deed prior to his receipt of good funds as required by the “good funds” statute, G.L. c. 183 § 63(B), violated Mass. R. Prof. C. 1.1 and 1.3.

The respondent’s conduct in authorizing disbursements from his IOLTA account before funds were available for withdrawal violated 1.15(f)(1)(C).

The respondent was admitted in 1969 and had no prior discipline. He received an admonition for his conduct in this matter and attended a class on trust accounting designated by the Office of Bar Counsel.


ADMONITION NO. 10-03

CLASSIFICATIONS:
Improper Communication with Unrepresented Person [Mass. R. Prof. C. 4.3]

SUMMARY:
In June 2007, the respondent met with a long-standing client and her mother. The client informed the respondent that her mother was terminally ill and her death imminent. The two women informed the respondent that they had reached an agreement that they wanted the respondent to memorialize concerning a house the mother owned.

The respondent understood that his client had agreed to let her mother live with her and that the client would fund a trust for the children of the mother’s other daughter in return for the mother’s transfer of her home to the client. The mother’s home was then uninhabitable.

The agreement that the respondent drafted called for the client to fund the trust within two years and had no practical means for enforcement. In addition, the agreement had no provision requiring the client to have her mother live with her or remedy for the mother if she did not. The client paid the respondent a minimal fee for drafting the agreement.

The respondent failed to clearly explain to the mother that he was not representing her interests. The mother reasonably believed that the respondent was providing legal services to her as well as to her daughter. The mother did not understand that, without a provision in the agreement requiring her daughter to have her live with her, her interest in living with her daughter or in having her daughter provide similar care was not protected. The respondent should have known that the client’s mother might have misunderstood his role as the client’s lawyer only, but he did not make reasonable efforts to correct her misunderstanding and did not advise her that the only advice he could give her was the advice to retain counsel.

By August 2008, a dispute arose between the client and her mother. The client’s mother was forced to move from the client’s home. In October 2008, the client sold the property. The client’s mother died in January 2009.

The respondent’s failure to explain his role sufficiently to the client’s mother when he reasonably should have known that she misunderstood his role in the matter violated Mass. R. Prof. C. 4.3(a).

The respondent received an admonition for his misconduct in this matter conditioned on attendance at an MCLE course designated by bar counsel.


ADMONITION NO. 10-04

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

SUMMARY:
The respondent met with a client regarding her collections matter in December of 2008. At that time, he placed a call to the debtor corporation and sent a demand letter on behalf of the client. At the end of this meeting, the respondent prepared a contingency fee agreement for the client and agreed to file a complaint on her behalf and pursue all legal action required to collect the debt. Within the month, the client signed and returned the fee agreement by mail. The respondent took no further action of substance on behalf of the client.

Over the next several months, the client left messages for the respondent and requested information on the status of her complaint and copies of all correspondence with the corporation. The respondent failed to provide any correspondence with the corporation. The client made a number of attempts to reach the respondent for updates on her case, but he failed to return a number of her telephone calls.

At the beginning of June, the client called the respondent and requested that he return her file. The respondent assured the client that he would get back to her right away. After she did not hear from the respondent for a few more weeks, the client discharged the respondent and requested the return of her file. Upon receiving her file, the client discovered that it contained only the documents that she had provided to the respondent.

The respondent’s failure to diligently pursue his client’s claim violated Mass. R. Prof. C. 1.3. The respondent’s failure to communicate the status of his client’s case or forward any documentation related to that case violated Mass. R. Prof. C. 1.4(b).

The respondent was admitted to practice in 1990 and has received no prior discipline. Based on the foregoing, the respondent received an admonition for the above violations.


ADMONITION NO. 10-05

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)]
Failure to Act Diligently [Mass. R. Prof. C. 1.3]

SUMMARY:
The client was a foreign-born resident under a grant of asylum. The client’s father engaged the respondent in November 2007 to prevent the client from being deported due to the client’s convictions in superior court in March 2007. The client’s father paid the respondent $4,500 to file and argue the appropriate motions.

The client had pleaded guilty to, among other charges, two counts of violating G. L. c. 266, § 25(a), a felony offense for committing larceny against a person sixty-five years old or older regardless of the amount taken. The docket entries and the summons to the client cited G. L. c. 266, § 25(a). The indictments returned against the client, however, charged the client with violations of G. L. c. 266, § 30(5), which prohibits larceny against a person at least sixty years old and is a felony only if the amount taken is at least $250. One of these indictments, count 6, specified that the amount was under $250 and that the client was charged with a misdemeanor. The other indictment, count 7, was charged as a felony.

The Commonwealth, defense counsel, and the trial court all proceeded at the plea hearing and sentencing on the mistaken understanding that the client had been charged with violating § 25(a). On count 7, the Commonwealth proffered as a factual basis that the client had taken a purse containing fifty dollars and “other items.” This factual basis was at least arguably insufficient to support the felony conviction. The trial court sentenced the client to concurrent terms of two years and a day in state prison on both the misdemeanor and felony larceny charges.

The client gave the respondent a file that contained, among other things, the docket entries, the indictments, and records of the client’s successful participation in programs to treat his addiction to heroin. The file also contained a notice from the Department of Homeland Security that the client was subject to deportation for having been convicted on March 21, 2007 of an “aggravated felony,” namely larceny from a person in violation of G. L. c. 266, § 25(a), for which he had been sentenced to at least a year in prison. For the purposes of deportation, an “aggravated felony” is any crime involving moral turpitude for which a sentence of a year or more has been imposed.

The respondent failed to review the documents provided by the client sufficiently to detect the discrepancy between the indictments and the convictions shown on the docket entries. He also failed adequately to review the court file, which would have shown the same discrepancy. In addition, the respondent failed to order the plea transcript. The respondent filed a motion on March 3, 2008 styled “Defendant’s Motion to Reopen Case and Reduce All Charges to Misdemeanors,” supported by an affidavit from the client that repeated the allegations of the motion. The respondent cited no rule or statute authorizing the relief requested. A motion to revise or revoke the sentence under Rule 29 was not available as the motion had not been filed within sixty days of imposition of the sentence, a jurisdictional requirement. Even if the motion had been timely filed, the court was not authorized under Rule 29 to strike a finding of guilt, as had been made clear by the Supreme Judicial Court’s decision on January 24, 2008 in Commonwealth v. McCulloch, 450 Mass. 483 (2008). The respondent also failed to allege grounds warranting a new trial under Rule 30. Since he was unaware of the discrepancy between the indictments and the docket entries, the illegal sentence imposed on the misdemeanor conviction, and the arguably inadequate factual basis for the felony larceny conviction, the respondent did not raise these defects in his memorandum.

The Commonwealth filed an opposition pointing out the deficiencies in the respondent’s pleadings. The respondent forwarded the opposition to the client, who then recognized that the respondent’s motion and the supporting affidavit had no legal support. The client immediately requested that the respondent refund the $4,500 fee paid to the client’s father, but the respondent refused to do so and advised the client that he would address the Commonwealth’s arguments in a reply brief. The respondent did file a reply brief, but it failed to address the primary obstacles to relief cited by the Commonwealth and did not present the substantive grounds available to the client.

The trial court denied the client’s motion. The client immediately discharged the respondent, demanded a refund, and hired an immigration lawyer to address the threatened deportation. CPCS assigned a new lawyer to handle the client’s criminal convictions. Successor counsel discovered the discrepancy between the charges set forth in the larceny indictments and the docket entries and filed a motion to strike the illegal sentence. Once he obtained the plea transcript, successor counsel also filed a motion to set aside the felony larceny conviction based on the inadequate factual basis provided by the Commonwealth. The superior court granted the motion as to count 6 but upheld the sentence imposed on count 7. The client appealed from that decision. The immigration lawyer was able to prevent deportation and secure permanent residency for the client.

The respondent’s failure to conduct sufficient research to understand the means by which to achieve the client’s objectives, his failure to conduct an adequate review of the documents provided by the client and the court file, his failure to order and review the plea transcript, and his failure to raise the client’s substantive arguments to strike the convictions and reform the sentences imposed violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3.

The respondent was admitted to practice in 1992. He had no prior discipline. He refunded to the client’s father the entire fee paid to him. The respondent received an admonition conditioned upon his attendance at CLE courses designated by bar counsel.


ADMONITION NO. 10-06

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 was retained by a client after the client and his wife were divorced. The client had just been released from jail where he had been incarcerated for contempt of a probate court order to pay support. The respondent assisted the client in preparing a series of financial statements, approximately one a month for five months. The financial statements were handwritten, mostly by the client, although the respondent sometimes filled in information obtained from the client. Four of the five financial statements were filed with the probate court in connection with various pending proceedings.

The financial statements contained numerous mistakes and many entries were left blank. The information was often mutually inconsistent; for example, the alternating financial statements listed or did not list the client’s 401K, which was supposed to be liquidated. The statements also contained inconsistent information about the client’s motor vehicle, its value and any car loans. The client’s job situation fluctuated and some of the respondent’s errors were made in trying to extrapolate the client’s income from part-time jobs; other mistakes resulted from the respondent’s misreading of the probate court rules, such as the failure to include non-dependent, non-biological minor children living with the client. The respondent nevertheless relied upon his client and signed off on all of the financial statements, stating in each instance that he had no knowledge that anything contained therein was false.

The respondent knew that efforts had been made to liquidate the client’s retirement account (to pay the back support payments). However, he failed to inquire as to the exact status of those efforts and the payments made. He also should have verified the client’s actual employment status and income as he acknowledged that his client was not a reliable source of information. The last financial statement submitted by the respondent was substantially correct except for the missing information about the client’s retirement account that was supposed to be liquidated, and the value of the client’s car, which was listed as “uncertain.” The ex-wife was not misled as she knew she had not received the funds from the client’s retirement account.

The respondent’s conduct in failing to carefully review and adequately investigate domestic relations financial statements and his certification of financial statements without reasonable inquiry as to inconsistencies and errors, constituted inadequate preparation and lack of reasonable diligence in violation of Mass. R. Prof. C. 1.1 and 1.3.


ADMONITION NO. 10-07

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

SUMMARY:
In April 2005, the client retained the respondent to represent her regarding injuries she sustained in a May 2003 car accident. In March 2006, the respondent filed a complaint in superior court on the client’s behalf against the driver of the other vehicle and against the owner of that vehicle.

The defendants were represented by the same counsel, but insured by different companies. The first insurer offered to settle the matter for the policy limit of $20,000. In February 2008, the respondent met with his client and reported that he had received an offer of $20,000 from one insurer and expected to have an offer from the second insurer within a few weeks.

In late February 2008, on the day before a pre-trial conference was to occur, the respondent reported to the court that the case was settled. The respondent had not received an offer from the second insurer. The court entered an order of dismissal nisi on February 28, 2008. The first insurer sent the respondent a release, releasing both defendants for $20,000. The respondent took no steps to negotiate a settlement with the second insurer in the following months. In mid-May, 2008, the complaint was dismissed.

The respondent took no steps to reinstate the case and did not inform the client that the case had been dismissed. Between late May and late October 2008, the respondent took no action on the client’s case, other than to determine the amount of a medical lien. In late November 2008, the respondent sent the release to his client to sign and return. The client brought to the respondent’s attention that the proposed release improperly named the defendant from whom a settlement offer had not yet been received. The client and the respondent agreed that the client should not execute that release.

In April 2009, the respondent filed a motion to vacate the 2008 dismissal of the case, informing the court that the matter had been inadvertently reported settled. The court allowed the motion. The respondent eventually settled the case with both defendants, in an amount satisfactory to the client, and the client suffered no ultimate harm.

By reporting that the case had been settled when it had not been settled, allowing the case to be dismissed, and sending the client a release to sign under which she would have released both defendants when only one insurer had offered a settlement, the respondent failed to provide diligent representation, in violation of Mass. R. Prof. C. 1.3. By failing to inform his client that her case had been dismissed by the court and that he had had no communication with the second insurer, the respondent violated Mass. R. Prof. C. 1.4(a) and 1.4(b).

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


ADMONITION NO. 10-08

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

SUMMARY:
The respondent represented a collection agent and the holder of an unpaid student loan in a collections matter. After obtaining a default judgment in court against the debtor, the respondent levied on certain real property and retained a sheriff to sell the property.

The property seized belonged to unrelated third parties. One of the owners of the property had the same name as the debtor, but a different address was listed for the owner of record title and he was not the debtor. The co-owner had a different first name. The respondent failed to perform more than a cursory title search and failed to investigate the identities of the property owners. The property was sold to neighboring landowners, and the net proceeds were distributed to the note holder and its collection agent.

Once the third parties realized that their property had been sold, they retained counsel. The respondent assured counsel that he would correct his mistake and make the third parties whole. The buyers agreed to return the property if they were reimbursed the amount they had paid. The respondent thereafter did not take adequate steps to fix the situation until a complaint was filed with the Office of Bar Counsel. The buyers have since been reimbursed in full and the property deeded back to the co-owners.

The respondent’s failure to perform a competent, accurate, and diligent title search for the debtor’s property violated Mass. R. Prof. C. 1.1 and 1.3.

The respondent was admitted in 2006 and had no prior disciplinary history. Accordingly, the respondent received an admonition for this misconduct.


ADMONITION NO. 10-09

CLASSIFICATIONS:
Handling Legal Matter Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Client’s Lawful Objectives [Mass. R. Prof. C. 1.2(a)]
Failure to Act Diligently [Mass. R. Prof. C. 1.3]

SUMMARY:
The client hired the respondent in 2007 to stop a foreclosure sale of the client’s home by a lender claiming to be the assignee of the mortgage on the property. The respondent failed to consider or take steps to determine whether the assignment was valid. In fact it was not, and the lender had no right to institute foreclosure.

The respondent recommended that the client should file for bankruptcy protection and the client agreed. The respondent then prepared and filed Chapter 13 bankruptcy petition for the client, but he did not file supporting schedules and documents within two weeks, as required, and the court dismissed the petition.

Two months later, as a new foreclosure sale was about to take place, the respondent filed a Chapter 7 petition, but the respondent again did not file the required supporting documentation. The client subsequently filed a pro se petition, which was also dismissed by the court. The client’s home was then purchased by the lender at a foreclosure sale, but the lender was unable to resell the property.

In about 2009, the client retained the services of new counsel, who discovered that the lender had commenced foreclosure proceedings before it received a valid assignment of the client’s note from the original lender. The new lawyer then filed a Chapter 13 bankruptcy petition for the client and an adversary proceeding against the lender that had foreclosed on the client’s property. In the adversary proceeding, the client recovered title to his house.

By failing to investigate the right of the lender to foreclose on the client’s home before filing bankruptcy petitions for the client and by not filing the necessary documentation to support the client’s bankruptcy petitions, the respondent violated Mass. R. Prof. C. 1.1 (competence), 1.2(a) (failure to seek lawful objectives of client) and 1.3 (diligence).

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


ADMONITION NO. 10-10

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

SUMMARY:
In 2004, the client, an experienced teacher, retained the respondent to represent her in an employment discrimination matter. In 2005, the respondent filed a complaint on behalf of the client with the Massachusetts Commission Against Discrimination (MCAD). The complaint alleged constructive termination, religious discrimination, and age discrimination. In 2007, the respondent withdrew the MCAD complaint and filed suit on behalf of the client in superior court alleging employment discrimination.

The client provided the respondent with a list of eleven individuals who the client believed would support her claims of discrimination and a hostile work environment. The respondent failed to interview the client’s witnesses or develop the evidence on her behalf.

In October of 2008, the defendants filed a Motion for Summary Judgment. The following January, the respondent filed Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment. The opposition did not include any affidavits based on personal knowledge or any other affirmative evidence as required by Rule 56. During this time, the client had trouble reaching the respondent and questioned his interest in her case.

The court granted the defendants’ motion and dismissed the client’s case with prejudice because the respondent failed to submit any evidence in opposition to the motion for summary judgment. The respondent’s motion in opposition merely restated the facts of the complaint.

The client subsequently received a letter from the respondent notifying her of the decision and her option for appeal. The respondent also submitted a Notice of Appeal on the client’s behalf. After speaking with another attorney about the legal ramifications, the client directed the respondent to withdraw her appeal.

The respondent’s failure to interview prospective witnesses, to attempt to develop the necessary evidence on his client’s behalf and to include evidence of a hostile work environment in his opposition to the defendant’s motion for summary judgment violated Mass. R. Prof. C. 1.3. The respondent’s failure to keep the client reasonably informed about the status of her matter and his failure to communicate adequately with his client to explain the matter to the extent reasonably necessary to permit the client to make informed decisions violated Mass. R. Prof. C. 1.4(b).

The respondent has been a member of the bar since 1982 and has no prior discipline. In mitigation, the respondent was distracted by family problems and a contentious personal divorce at the relevant time. The respondent received an admonition for his misconduct in this matter, conditioned upon his attendance at a continuing legal education course designated by bar counsel.


ADMONITION NO. 10-11

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

SUMMARY:
The respondent was retained to represent a client in connection with a complicated immigration matter. The respondent received an initial retainer of $10,000 in August of 2006, and a second retainer of $10,000 in February of 2007, both of which he deposited to an IOLTA account. From January through December of 2007, the respondent periodically withdrew his earned fees and expenses from the retainer. The respondent, however, was behind on his billing. At no time on or before any such withdrawal was made did the respondent provide the client with written notice of the dates and amounts of the withdrawals, an itemized statement of the services rendered or the balance of the retainer remaining. The respondent later sent an accounting to the client for some, but not all, of the work done and, in response to the client’s bar complaint, has documented that he had earned the full retainer before it was depleted.

The respondent received an admonition for violation of Mass. R. Prof. C. 1.15(d)(2) by withdrawing fees due to the lawyer without delivering on or before the dates of the withdrawals an itemized bill or accounting showing the services rendered, written notice of the amount and date of the withdrawal, and a statement of the balance of the funds in the trust account after withdrawals. The admonition was conditioned on the respondent attending a class on trust accounting designated by the Office of Bar Counsel.


ADMONITION NO. 10-12

CLASSIFICATIONS:
Improper Acquisition of Interest in Litigation [Mass. R. Prof. C. 1.8(j)]

SUMMARY:
The respondent was representing a client in a variety of matters pending in district, juvenile and probate courts. The client was not able to pay the respondent’s bills as they accrued. The respondent drew up a document captioned “Notice of Attorney’s Lien...pursuant to the provisions of M.G.L. Chapter 221, Section 50.” The Notice stated that the respondent declared a lien for the “reasonable attorney’s fees and expenses incurred by [the client] in the above captioned matters for legal services rendered by [the respondent].” The matters referred to in the caption were seven separate cases on which the respondent was representing the client. One case included claims relating to the client’s real estate; the remaining matters were not proceedings in which the client sought damages.

On August 12, 2005, the respondent, with the client’s consent, caused the document to be recorded at the Registry of Deeds. By the terms of the document, a lien adverse to the client purported to be placed on all of the client’s real property in the county.

G.L. c. 221, §50 states, in relevant part, that

[T]he attorney who appears for a client in such proceeding shall have a lien for his reasonable fees and expenses upon his client’s cause of action, counterclaim or claim, upon the judgment of the decree or other order in his client’s favor entered or made in such proceeding and upon the proceeds derived therefrom. Upon request of the client or of the attorney, the court in which the proceeding is pending or, if the proceeding is not pending in a court, the superior court, may determine and enforce the lien.
The respondent did not have a lien under G.L. c. 221, § 50 for attorney’s fees for representing the client in any matter but the matter involving the real estate. Moreover, the statute does not authorize an attorney to file the lien in the registry of deeds.

By acquiring a proprietary interest in real estate that was the subject matter of litigation that the respondent was conducting for the client, the respondent violated Mass. R. Prof. C. 1.8(j). The lien filed by the respondent was not “granted by law” and thus did not fall within exception set forth in 1.8(j)(1).

The respondent was admitted to the bar in 1987 and had no prior history of discipline. The respondent received an admonition for his conduct conditioned on attending a continuing legal education course designated by bar counsel.


ADMONITION NO. 10-13

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

SUMMARY:
In October 2006, the client retained the respondent to prepare and send a demand letter to a contractor who had failed to meet a contractual obligation in regard to the renovation of a house owned by the client in Vermont. The respondent sent out the demand letter in December 2006, but the contractor did not respond. In December 2007, the respondent informed the client that he would charge him $225 per hour to pursue the claim in a lawsuit and that he required a $5000 retainer. The client sent no additional funds until May 2008.

In May 2008 the client sent the respondent $500. Shortly thereafter, the respondent filed a complaint against the contractor in superior court, but did not cause the complaint to be served on the defendant. In August 2008, the respondent filed a motion to enlarge time to serve the complaint, but took no further action to serve the defendant. The respondent did not inform the client that he had not made service on the defendant.

On several occasions between September 2008 and March 2009, the client, by e-mail, asked the respondent about various legal matters, including the status of the lawsuit against the contractor. The respondent failed to respond to the client’s inquiries about the lawsuit.

In April 2009, the client learned that the respondent had not made service on the defendant, but that the case was still pending. The client took no action. In November, 2009, the lawsuit was dismissed without prejudice for lack of service pursuant to Superior Court Standing Order 1-88 (as amended March 1, 2007).

The respondent’s conduct in failing to maintain adequate communication with his client was in violation of Mass. R. Prof. C. 1.4(a) and 1.4(b). The respondent’s failure to serve the defendant violated Mass. R. Prof. C. 1.3.

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


ADMONITION NO. 10-14

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

SUMMARY:
A client retained the respondent in 2004 to pursue claims arising from the termination of her employment. In July 2007, the respondent filed suit for the client in the district court against the employer and the client’s former supervisor. The complaint alleged causes of action in contract and tort. The district court dismissed the action on the ground that the damages exceeded the jurisdictional limit.

The respondent next commenced an action for the client in the superior court, but the superior court case was dismissed without prejudice in January 2008 for lack of service. By then, the three-year statute of limitations had run on the tort claims, leaving only the contract claim against the employer, with a six-year limitations period, still actionable.

For several months thereafter the respondent failed to seek relief from judgment, failed to file a new action on the contract claim, and failed to inform the client of the dismissal or otherwise respond adequately to her inquiries. The client contacted the court for information in July 2008 and discovered that her case had been dismissed. The client nevertheless decided that she wanted the respondent to continue representing her. The respondent subsequently filed a new action for the client against the employer on the contract claim, which is proceeding. The client likely would not have prevailed on the time-barred causes of action in tort.

The respondent’s failure to serve the superior court complaint and failure timely to seek relief from the resulting dismissal violated Mass. R. Prof. C. 1.3. His failure to respond promptly to the client’s inquiries and inform her promptly that the superior court complaint had been dismissed violated Mass. R. Prof. C. 1.4 (a) and (b).

The respondent had no history of discipline but had received prior warnings from bar counsel for failure to maintain adequate communication with his clients. His inattention was mitigated in part by psychological and marital problems. The respondent has since addressed his problems and become an associate in a firm where he receives direct and ongoing supervision. He received an admonition for his misconduct conditioned on obtaining an evaluation by Lawyers Concerned for Lawyers and following any recommendations for additional counseling.


ADMONITION NO. 10-15

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)]
Withdrawal Without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
The respondent was retained in 2003 to represent a client in a claim for personal injuries sustained in a motor vehicle accident. The respondent obtained the medical records of the client and drafted a demand letter in which a demand in the amount of $15,000 was made. The respondent then determined that liability was not clear and that there were issues relating to the damages claimed based upon pre-existing medical conditions of the client. He decided not to pursue the case but failed to communicate this decision to the client.

After the expiration of the statute of limitations, the respondent met with the client and admitted to the client that he failed to pursue his claim and that the statute of limitations had expired. The respondent paid the client a sum satisfactory to the client based upon the amount the client could reasonably have expected to recover if the claim had been pursued.

The respondent’s failure to either pursue the client’s claim or to inform the client of his decision not to do so was in violation of Mass. R. Prof. C. 1.2(a), 1.3, 1.4(a) and (b) and 1.16(d).

The respondent was admitted to the Massachusetts bar on December 7, 1977 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. 10-16

CLASSIFICATIONS:
Handling Legal Matter When Not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failure to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
In May 2005, the respondent was hired by a husband and wife to represent them in two related lawsuits. In the first, the husband was a defendant in an action to enforce an arbitration award obtained by the plaintiff in another state. A default judgment had already entered in that action. In the second, the same plaintiff sued both clients and attached property they had transferred to a corporation controlled by the wife, claiming that the clients had made the transfer to avoid the judgment against the husband in the first case.

The validity of the underlying arbitration award and the sufficiency of service in Massachusetts were subject to attack. The respondent lacked experience in the relevant legal areas, but he failed to research the issues or associate himself with competent counsel.

Over the next several months, the respondent failed to enter an appearance in either case, seek to vacate the judgment in the first case, or file an answer in the second case. A default was entered in the second action, and the plaintiff moved for assessment of damages and entry of a default judgment. The respondent failed to appear for a hearing on that motion. A default judgment for about $24,500 was entered against the clients in the second case in March 2006. The respondent said nothing about these events to the clients until May 2006, when he informed them of the status of the matter and advised them to retain counsel to attack the arbitration award in the forum state. Thereafter the respondent failed to take further action for the clients in Massachusetts.

The plaintiff obtained an execution on the second judgment, levied on the house, and scheduled a sheriff’s sale for the fall of 2006. By then, the clients were litigating the validity of the arbitration award in the forum state. At that point the respondent referred the clients to other counsel, who put off the sale and worked out an agreement whereby the clients placed $25,000 in escrow, and the plaintiff put off the sale and ceased all collection efforts pending the resolution of the arbitration issues. In 2008, new counsel for the clients had the Massachusetts cases dismissed on the ground that the arbitration award had not been confirmed timely in the forum state and was therefore unenforceable in Massachusetts.

The respondent’s lack of competence and diligence violated Mass. R. Prof. C. 1.1 and 1.3. His failure to inform the clients promptly and adequately concerning the status of their cases violated Mass. R. Prof. C. 1.4(a) and (b).

The respondent had no prior discipline. He refunded the fees paid by the client, and his misconduct did not result in ultimate harm. The respondent received an admonition, conditioned on his attendance at a continuing legal education course designated by bar counsel.


ADMONITION NO. 10-17

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

SUMMARY:
This matter came before the Board of Bar Overseers on the report of a hearing committee without appeal by either party.

The respondent, admitted to the Massachusetts bar on December 19, 1979, represented a divorce client through final judgment. The divorce judgment required the opposing party to transfer retirement funds to the client under a Qualified Domestic Relations Order. Counsel for that party sent the respondent a letter indicating that he and his client would not be preparing the QDRO. The respondent replied with a letter identifying the QDRO preparer she typically used and his fees. She sent a copy of the letter to her client, but did not advise the client she considered QDRO preparation to be post-judgment work outside the scope of her engagement.

After several years, the client again contacted the respondent. The respondent confirmed that the transfer had not occurred, and obtained a contempt judgment against the recalcitrant ex-spouse at no charge to the client. By then, the ex-spouse had withdrawn all but a negligible amount from the retirement account.

In all the circumstances, including the client’s continued inaction in the face of imputed knowledge that the transfer had not occurred, and the ex-spouse’s general refusal to cooperate and his relocation outside of the Commonwealth soon after the divorce judgment, the committee declined to find that the respondent had caused any loss.

The committee found that the respondent had not failed to act competently or diligently and had not failed to seek the lawful objectives of the client. The respondent did, however, violate Mass. R. Prof. C. 1.4(a), (b), and 1.16(d), by failing to communicate to the client the limits of her representation and that she would not be causing the QDRO to be prepared, warranting an admonition.

On July 12, 2010, the Board of Bar Overseers voted to adopt the committee’s findings of fact, conclusions of law, and recommendation.


ADMONITION NO. 10-18

CLASSIFICATIONS:
Conflict Directly Adverse to Another Client [Mass. R. Prof. C. 1.7(a)]
Imputed Disqualification Generally [Mass R. Prof. C. 1.10(a)]

SUMMARY:
Respondents A and B were partners in a law firm. In 2003 and 2004, Respondent A represented a trust management firm and two members of the management firm who were co-trustees of a charitable trust. These trustees were involved in a dispute over control of the charitable trust with two other trustees (“adverse trustees”) who had left the trust management firm but wanted to retain their position as trustees. The dispute centered on investment strategy for the assets of the trust (“management dispute”). The adverse trustees were represented by their own attorney, and knew that Respondent A represented the co-trustees in the management dispute.

In December 2003, the co-trustees and the adverse trustees each made a presentation to the beneficiaries regarding managing the trust assets. The parties’ lawyers did not attend this meeting. While they continued to disagree on investment strategy, all the trustees and the beneficiaries agreed that the trust should be reformed to increase the distribution of trust assets to the beneficiaries.

In about March 2004, Respondent A brought Respondent B to a meeting with the trustee-clients and the charitable beneficiaries of the trust to discuss the impasse over management. The beneficiaries and co-trustees favored eliminating the adverse trustees and considered adding a fifth trustee to overcome their control. They also discussed reforming the trust to increase payments, an issue on which all four trustees had expressed agreement. It was decided that Respondent B would draft a complaint on behalf of the beneficiaries and co-trustees to reform the trust to increase the distribution of trust assets and that the beneficiaries would later attempt to add a fifth trustee to override the decisions of the adverse trustees.

Respondent B prepared a complaint on behalf of the client-trustees and the beneficiaries to reform the trust. In about May 2004, the adverse trustees requested that Respondent B add them to the complaint as plaintiffs, and thereby became clients of Respondent B and the firm for purposes of the complaint. The adverse trustees were at all times represented by separate counsel. Respondent B did not inform the adverse trustees that she and the firm continued to represent the co-trustees and the beneficiaries in an effort to oust them or dissipate their influence over the trust or that their communications might be shared with the firm clients but that the firm clients’ communications would not be shared with the adverse trustees. Instead, Respondent B told the adverse trustees that there was no conflict of interest because all four trustees and the beneficiaries shared a common interest in seeking reformation. Respondent A approved this advice. The adverse trustees therefore did not give consent to the conflict of interest after consultation.

Respondent B added the adverse trustees to the complaint for reformation she had prepared and sent it to them to review. The adverse trustees asked Respondent B to disclose information gained in the course of representing the co-trustees and the beneficiaries. Respondent B answered these inquiries by telling the adverse trustees to ask the co-trustees for this information. Respondent B filed the complaint, incorporating changes requested by the adverse trustees, who had consulted a lawyer about the complaint. The complaint was allowed in due course.

The respondents continued to advise the beneficiaries and the co-trustees about the management dispute. In March 2005, Respondent B drafted a complaint on behalf of the beneficiaries to add a fifth trustee to resolve the impasse among the four trustees. She sent the draft to the attorney for the adverse trustees for his review. Later in 2005, before the complaint was filed, the adverse trustees filed in court a petition to remove their co-trustees and a complaint for instructions, naming the co-trustees and the four beneficiaries as defendants in these actions. Represented by another law firm, the co-trustees filed an answer to the petition and complaint and counterclaims seeking either the appointment of a fifth trustee or the removal of the adverse trustees as trustees of the trust. Subsequently, the Probate and Family Court denied the petition of the adverse trustees to remove their co-trustees and, instead, ordered the adverse trustees to resign their fiduciary appointments.

Respondent A violated Mass. R. Prof. C. 1.10(a) by representing the beneficiaries and the trustee-clients when Respondent B was disqualified from doing so. Respondent B violated Mass. R. Prof. C. 1.7(a) and 1.10(a) by representing the adverse trustees in the reformation action while her firm was representing the beneficiaries and the co-trustees in a separate matter against the adverse trustees without the consent of the adverse trustees after consultation.


ADMONITION NO. 10-19

CLASSIFICATIONS:
Imputed Disqualification Generally [Mass. R. Prof. C. 1.10(a)]
Responsibilities of Partner or Supervisory Lawyer [Mass. R. Prof. C. 5.1]

SUMMARY:
For many years prior to May 2009, the respondent’s law firm had represented members of a family in numerous business and family matters. Among other things, the law firm represented one family member in a lawsuit to recover funds due his father’s estate and on criminal charges in 1998 of violating a restraining order. This family member (father) was the father of a child whose mother had sole legal and physical custody of the child. The father was required to pay child support.

In 2009, the father filed a complaint for modification seeking joint legal custody and visitation rights. A hearing was scheduled for June 12, 2009, on the father’s motion for temporary orders on his complaint for modification. In May 2009, the firm was retained by the mother to oppose the motion and the modification.

The respondent did not insure that his firm had in place measures giving reasonable assurance that all lawyers in the firm avoided engaging in a conflict of interest. No one in the firm conducted an investigation to determine whether or not the firm had previously represented the father.

The respondent filed an appearance and several responsive pleadings in the probate court on the mother’s behalf, including a counterclaim requiring the father to obtain a $100,000 life insurance policy to be maintained until the child was emancipated. The pleadings alleged that the father was unsuitable for joint custody due to a recent arrest, prior OUI convictions, and other unfavorable information obtained from the mother.

The father had not retained a lawyer. He filed, pro se, a motion to disqualify the respondent due to the firm’s prior multiple representations of the father and his family. The disqualification motion was marked for hearing on June 25, 2009.

After receiving the disqualification motion, the respondent intentionally did not conduct an investigation at his firm to determine whether any person still in the firm had previously represented the father. In fact, the partner who had represented the father in the estate and criminal matter was still in the firm. The respondent’s decision not to conduct a conflicts check constituted willful blindness of the conflict. The respondent did not seek the consent of the father to continue the representation, and, on June 12, 2009, the respondent appeared with the mother at the hearing on the visitation motion.

Following the hearing, the father retained counsel, who informed the respondent that she was filing an appearance and would be pursuing the disqualification motion. Without conducting any investigation at his firm, the respondent filed an opposition to the disqualification motion denying personal knowledge of information that could be used to the father’s disadvantage in the case. Shortly before the hearing on the disqualification motion, the father filed a supplemental affidavit disclosing that the respondent’s firm had represented him in 1998 in connection with a criminal matter and that the firm possessed significant financial information about his family that could be used adversely to him.

After hearing on June 25, 2009, the court allowed the father’s motion to disqualify the respondent as counsel to the mother. The father incurred approximately $1,000 in legal fees in obtaining the respondent’s disqualification as counsel.

The respondent’s failure to make reasonable efforts to ensure that his firm had in place measures giving reasonable assurance that the firm would not engage in a conflict of interest violated Mass. R. Prof. C. 5.1(a). The respondent violated Mass. R. Prof. C. 1.10(a) by knowingly representing a client when a member of the firm would be prohibited from doing so by Mass. R. Prof. C. 1.9.

The lawyer received an admonition for his conduct.


ADMONITION NO. 10-20

CLASSIFICATIONS:
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4h]

SUMMARY:
The respondent was admitted to the practice of law in Massachusetts on December 16, 2002.

In 2008, the respondent was involved in a personal relationship with an inmate at a correctional facility in Massachusetts. At the inmate’s request, the respondent undertook to consult with his minor sister about a potential legal matter. On April 27, 2008, the respondent went to visit the inmate at the correctional facility. As a routine procedure, the respondent was required to fill out a Request to Visit Inmate form. The respondent did not represent the inmate in any legal matter, although she potentially represented the inmate’s sister. The respondent failed to adequately evaluate who she was representing. She negligently misrepresented on the Request to Visit Inmate form, under the pains and penalties of perjury, that she was the inmate’s attorney.

By misrepresenting to the officials of the correctional institution that she was the inmate’s attorney, the respondent engaged in conduct that adversely reflected on her fitness to practice law in violation of Mass. R. Prof. C. 8.4(h).

The respondent has apologized to the Department of Corrections for her conduct. She received an admonition for her misconduct.



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