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Commonwealth of Massachusetts

N0. BD-2001-021

IN RE: DAVID M. MCCARTHY

SJC Order of Term Suspension (One year and one day) entered by Justice Cordy on April 20, 2001 1

SUMMARY2

On June 20, 1995, the client retained the law firm in which the respondent was employed as an associate to bring a medical malpractice claim against Harvard Community Health Services for injuring her ear during a routine procedure performed in June 1994. The respondent was assigned to handle the case. At the respondent's request, the client signed medical releases for Harvard, the Lahey Clinic, and Massachusetts General Hospital, where the client had sought treatment following the procedure at Harvard.

On June 21, 1995, the respondent sent letters of representation and the medical releases to Harvard, the Lahey Clinic, and Mass General. The requests for medical records properly identified the client by name, social security number, and date of birth. Neither Harvard nor Mass. General responded to the request for medical records. On July 10, 1995, the Lahey Clinic responded to the request for medical records with records that were for another patient with the same first and last name as the client's but with a different middle initial, social security number, and date of birth, who was treated for an entirely different medical problem. The respondent failed to notice that the records were not the client's and he never obtained the records from the other providers.

After June 21, 1995, the respondent took no further action of substance in the client's case. Over the next two years, the respondent and the client had sporadic contact. When the respondent did speak with the client, he falsely represented to her that he was reviewing her treatment records from the three institutions.

In late April 1997, shortly before the client's claim would be barred by the statute of limitations, the respondent falsely represented to the client that he had reviewed her records with an expert whose opinion was that the client did not have a basis to proceed with a malpractice claim. In mid-May, the client obtained her file from the respondent, but was unable to obtain successor counsel before her claim against Harvard was barred by the statute of limitations.

On August 27, 1997, the client filed a complaint with the Office of the Bar Counsel alleging that the respondent had neglected her case. On August 29, 1997, a copy of the complaint was sent to the respondent.

Over the next three months, the respondent falsely represented to Bar Counsel that he had reviewed "voluminous records" of the client's treatment and he identified an expert in otolaryngology from Ohio, he claimed had told the respondent that a malpractice action would not be successful. When asked to produce records documenting his telephone conversation with the expert, the respondent falsely represented to Bar Counsel that he had spoken with the expert from a pay phone and not from his office.

The respondent eventually acknowledged his misrepresentations to Bar Counsel. In late 1997, the respondent left the practice of law.

On November 15, 2000, Bar Counsel filed a petition for discipline along with the respondent's Answer and a stipulation of the parties in which the respondent admitted to the misconduct described above. The respondent further admitted that his persistent neglect of the client's case and his misrepresentations to the client to cover up that neglect violated Canon One, Disciplinary Rules 1-102(A)(4) and (6); Canon Six, Disciplinary Rule 6-101(A)(3) and 6-102(A); and Canon Seven, Disciplinary Rules 7-101(A)(1), (2), and (3). The respondent also admitted that his false representations to the Bar Counsel violated Canon One, Disciplinary Rules 1-102(A)(4), (5),and (6). The parties recommended that the respondent be suspended from the practice of law for one year and one day.

On March 12, 2001, the Board of Bar Overseers voted to accept the parties joint recommendation and to file an Information with the Supreme Judicial Court recommending that the respondent be suspended from the practice of law for one year and one day. On April 20, 2001, the Supreme Judicial Court for Suffolk County entered judgment suspending the respondent from the practice of law for one year and one day.

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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