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Commonwealth of Massachusetts

N0. BD-2001-018

IN RE: ANDREW B. ESTRINE

S.J.C. Order of Term Suspension entered by Justice Spina on April 10, 2001, with an effective date of May 10, 2001 1

SUMMARY2

In July 1992, the respondent was retained on the basis of a contingent fee to represent a client in two personal injury cases, both of which involved an injury to the client's left hand. The first case involved a fall at a Stop & Shop supermarket in January 1992. The second matter arose in January 1990 and involved a slip on ice in the parking lot of a racetrack in which the client was already represented by counsel.

In August 1992, the client delivered to the respondent the other attorney's file in the racetrack claim. Correspondence to the insurer in that case disclosed that the client had surgery on his left hand in July 1991, but continued to suffer some pain in the hand at least up to March 1992. There was no mention of the client's January 1992 accident at Stop & Shop.

The respondent notified Stop & Shop of the client's claim, but did not interview witnesses, seek treatment records or medical reports concerning the Stop & Shop injury or conduct any investigation of either claim. On November 25, 1992, the respondent filed suit against Stop & Shop in Middlesex Superior Court, alleging that the client sustained severe personal injuries in January 1992 when he slipped in a puddle on the floor. The complaint did not claim aggravation of any pre-existing injury or condition. On November 27, 1992, the respondent filed a complaint against the racetrack in Bristol Superior Court, alleging that the client's January 1990 fall in the parking lot caused severe personal injuries which continued to affect him.

In July and August 1993, the respondent served on the defendants in both cases intentionally false and misleading interrogatory answers signed by the client. In the Stop & Shop case, the response to questions about any other personal injury claims or prior periods of disability failed to disclose the racetrack injury and claim. In the racetrack case, the response to questions about other injuries and medical conditions failed to disclose the subsequent re-injury at Stop & Shop. In August 1993, the respondent's secretary accidentally sent the client's document production in the racetrack case to counsel for Stop & Shop.

Stop & Shop noticed the client's deposition in August 1993. The client acknowledged in the deposition that he had fallen at the racetrack in January 1990 and had required surgery on his left hand as a result of that fall. The client denied that he had any other lawsuits pending, and testified that, after the surgery, and before his fall at Stop & Shop, his hand felt "wonderful." The respondent did not call upon his client to correct these false statements, and he did not otherwise take steps to correct the record or to withdraw.

In December 1993, the racetrack took the client's deposition. The client testified under oath that he had never sued anyone else and that his hand still felt "paralyzed" and had not improved after the surgery. The respondent did not call upon the client to correct the record and continued to represent the client in the case. The racetrack was not aware of the claim against Stop & Shop, and, in February 1994, settled the client's case with the respondent for $25,000.

In 1994, the Stop & Shop case was remanded for trial to the West Roxbury District Court. On May 21, 1996, the respondent and his client appeared for a jury-waived trial. The respondent had no expert to testify concerning the client's medical condition or to connect the client's condition to his fall at Stop & Shop.

On direct examination, the respondent elicited from the client that his hand was "perfect" on the day he fell at Stop & Shop. This testimony contradicted the client's deposition testimony in the racetrack case. On cross-examination, Stop & Shop exposed this and many other discrepancies in the client's statements under oath and brought out other information reflecting adversely on the client's credibility.

After requesting a recess to consult with his client, the respondent asked the court's permission to withdraw as the client's counsel, and Stop & Shop moved for dismissal. The court dismissed the case, and, alluding to possible fraud and perjury, announced that he was referring the matter to the Suffolk County District Attorney's office and the Board of Bar Overseers.

Stop & Shop then moved for sanctions, seeking $29,000 in costs and attorney's fees. In response, the respondent filed an affidavit in which he intentionally misrepresented under oath that he had no knowledge of inconsistencies in the client's testimony until the trial and that he had personally notified Stop & Shop of the dog track case by deliberately forwarding the documents produced for the racetrack to Stop & Shop.

The respondent's service of false and deceptive interrogatory answers violated Canon One, DR 1-102(A)(4) - (6), and Canon Seven, DR 7-102(A)(3) and (7) and his intentional failure to disclose medical records of the client's fall at Stop & Shop to the racetrack violated Canon One, DR 1-102(A)(4) - (6), and Canon Seven, DR 7-102(A)(3), (5), and (7).

The respondent's failing to call upon the client to correct his false sworn testimony at both depositions, in his interrogatory answers and at trial, and the respondent's failure to withdraw from representation constituted violations of Canon Two, DR 2-110(B)(2), and Canon Seven, DR 7-102(B)(1).

The respondent's conduct in adducing false testimony from the client at the Stop & Shop deposition violated Canon One, DR 1-102(A)(4), (5), and (6), and Canon Seven, DR 7-102(A)(7), and at the Stop & Shop trial violated Canon One, DR 1-102(A)(4), (5), and (6), and Canon Seven, DR 7-102(A)(4) and (6).

The respondent's filing an affidavit in which he falsely claimed that he had intentionally provided the racetrack document response to Stop & Shop and that he had no knowledge of discrepancies in the client's story until the trial violated Canon One, DR 1-102(A)(4) - (6).

The respondent's conduct in pursuing two personal injury cases in which his client was making contradictory claims regarding the effects of the injuries; his failure to investigate these claims or obtain the client's medical records; his failure to engage any medical expert witness in the Stop & Shop case; his assisting his client in giving false testimony and information under oath; and his failure to counsel the client about the risk of criminal prosecution for perjury and fraud or to act to protect the client from those accusations violated Canon Six, DR 6-101(A)(2), and Canon Seven, DR 7-101(A)(1), (2), and (3).

On December 26, 2000, the parties filed a stipulation of facts and an agreement that a two and one-half year suspension was the appropriate level of discipline. On February 12, 2001, the Board of Bar Overseers voted to accept the parties' stipulation and proposed sanction. On March 29, 2001, the Board filed an information with the Supreme Judicial Court for Suffolk County. On April 10, 2001, the county court entered an order suspending the respondent from the practice of law for thirty months, effective May 10, 2001.

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 Compiled by the Board of Bar Overseers based on the record before the Court.



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