Order Entered by the Board on December 8, 2003 Dismissing Petition for Discipline.
Board Memorandum
Bar Counsel has appealed from the decision of a hearing committee, which recommended the dismissal of a petition for discipline filed against the respondent, John Doe. Bar Counsel has also moved to strike certain statements made in the report. The respondent urges us to adopt the hearing committee’s report and dismiss the petition. The full Board heard oral argument on this matter on October 13, 2003. We reject Bar Counsel’s appeal, deny the motion to strike, and dismiss the petition for discipline.
The gist of the charges against the respondent was that he violated Mass. R. Prof. C. 1.3 by failing to act with reasonable diligence and promptness in handling a prisoner’s appeal of his conviction for second-degree murder. It is uncontested that the client was difficult and demanding, bombarding the respondent with correspondence, questions, and demands regarding the brief and other motions to be filed. The respondent did not neglect him. As the committee put it, he “persisted valiantly” in attempting to address the issues his client raised. In addition, the respondent had to review the voluminous transcripts of two separate trials (a first conviction had been reversed) as well as transcripts of grand jury testimony, police reports, and witness statements. He also had to consider the client’s demands that he file a new trial motion and initiate state court habeas proceedings. All this, of course, was in addition to the duties of his regular law practice, which were heavy. It cannot be said that he neglected the matter.
The respondent entered his appearance in the case (he was not the client’s first appellate counsel) on December 10, 1999, not long after the Appeals Court announced a change in policy regarding extensions for filing briefs. The Court stated its intention to limit appellate counsel to a single extension of up to 120 days. Before the respondent entered his appearance, the Court had already allowed one extension of approximately sixty days, to February 28, 2000, with the notation, “No further enlargements.”
Three days before the due date, the respondent moved for a second extension. Notwithstanding its admonition regarding further enlargements, the Court allowed the motion, giving him until May 1, 2000. Since enlargements thus had already exceeded the 120 days allowed under the new policy, the respondent reasonably believed that the Court would not enforce the policy in this murder case.
On May 1, 2000, in reliance on that belief, the respondent moved for an additional extension of thirty days. The motion was allowed. This time the Court advised that if the brief was not filed by May 31, “the first step of Standing Order 17A will enter forthwith.” The respondent continued work on the brief. By May 31, his draft had run to about forty pages but was not ready for filing.
On June 2, 2000, the Court invoked Standing Order 17A by giving notice to the parties that the appeal would be dismissed unless the clerk received a motion to enlarge time and a supporting affidavit within 30 days after the notice. The respondent complied with the Standing Order by filing, within the thirty-day limit, a motion for an extension until July 31, 2000, along with a supporting affidavit. The Court denied his motion and entered an order dismissing the appeal on July 6, 2000. The respondent’s immediate motion to reconsider the denial of his motion did not convince the Court to grant him more time. In response to his client’s subsequent pro se motion to supplement arguments, the Court advised him—as CPCS had already advised the respondent—that a motion could be filed to reinstate the appeal. The respondent advised his client that he intended to complete the brief and submit it to the Court with a motion to reinstate the appeal.
Before he could do so, the client retained private counsel. The respondent dutifully withdrew his appearance and forwarded his draft brief, now over sixty pages long, to successor counsel. Successor counsel eventually filed a brief, some ten months later, after filing a motion to reinstate the appeal and obtaining yet another continuance.
Given these circumstances, we cannot fault the hearing committee’s finding that the respondent worked diligently on the appeal and acted in the reasonable belief that the Appeals Court would not apply its new policy regarding extensions to this case. There was no neglect of the client, a difficult person to whom the respondent nonetheless accorded respect and solicitude consonant with the highest standards of professional conduct. Bar Counsel’s suggestion that the respondent should have ignored his client’s concerns and filed a Moffet brief, see Commonwealth v. Moffet, 383 Mass. 201 (1981), is inapt because there is no showing on this record that the client’s issues were frivolous. The respondent did the best he could with the client and the situation, all with the reasonable expectation that needed extensions would be granted. It bears noting that the criminal appeal was never in real jeopardy, as the Court had advised the respondent and his client how to get it reinstated.
Further, none of the cases cited by Bar Counsel support an admonition here. His cases involved either substantial neglect, see AD 97-95, 13 Mass. Att’y Disc. R. 1003 (1997) (appeal dismissed because lawyer stopped requesting extensions after obtaining nine of them), or unilateral decisions by appellate counsel to allow a weak appeal to be dismissed. AD 97-3, 13 Mass. Att’y Disc. R. 868 (1997). We agree with the hearing committee that there was no misconduct and the petition for discipline should be dismissed.
As a separate matter, Bar Counsel has moved to strike certain statements from the hearing committee’s report. The challenged statements were to the effect that the charges were “frivolous” and lacked “a scintilla of credible evidence or a modicum of merit,” and were accompanied by an expression of regret that the committee could not award the respondent his attorney’s fees for having to defend the petition. We are aware of no authority that would permit us to “strike” such comments, which cannot be described as scurrilous or scandalous. Accordingly, we deny the motion. We do express our disagreement with the sentiments expressed by the hearing committee. The petition for discipline was approved for admonition by a reviewing Board member, who passed on their sufficiency, see S.J.C. Rule 4:01, § 3; Rules of the Board of Bar Overseers, Section 2.8, and the facts alleged raised substantial questions regarding the respondent’s conduct. See Matter of McCabe, 13 Mass. Att’y Disc. R. 501, 515-519 (1997). His actions, while not violative of the Rules of Professional Conduct, exhibited an almost cavalier disregard of the admonitions of the Appeals Court. Under all these circumstances, we cannot say that the charges were frivolous or unsupported by any evidence.
Conclusion
For all of the foregoing reasons, we reject Bar Counsel’s appeal and adopt the hearing committee’s findings of fact, conclusions of law, and recommendation as to disposition. Bar Counsel’s motion to strike is denied. The petition for discipline against the respondent, John Doe, shall be and hereby is dismissed.
Respectfully submitted,
THE BOARD OF BAR OVERSEERS
By: ___________________________
James B. Re
Secretary
Approved: December 8, 2003
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