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Commonwealth of Massachusetts

NO. BD-2002-043

IN RE: ARNOLD I. ABELOW

S.J.C. Order of Term Suspension entered by Justice Cordy on August 20, 2002, with an effective date of September 19, 2002.1

SUMMARY2

On December 2, 1996 the respondent was retained to represent a client charged in Superior Court with selling heroin and selling heroin in a school zone to an undercover police officer. On December 19, 1996, pursuant to Mass. R. Crim. P. 11, the respondent and the prosecutor filed a joint pre-trial conference report. The report required the defendant to provide the prosecutor with notice of any alibi defense in accordance to Mass. R. Crim. P. 14(b)(1).

On May 9, 1997, after a pre-hearing conference, the client informed the respondent, for the first time, that the client may have been working on the day of the incident. The client worked for a company that cleaned carpets. At this time, the respondent did not ask the client for the name, address or telephone number of the employer. The respondent also did not notify the prosecutor of the potential for an alibi defense.

On May 10, 1997, the respondent sent the client a letter describing the results of the pre-hearing conference and informing the client that they needed to meet to discuss the case. The respondent scheduled office meetings in June and July 1997, but the client did not appear for the meetings or notify the respondent that he could not be present. On July 14, 1997, the respondent and the client met at the scene of the alleged crime. Neither the respondent nor the client mentioned the potential alibi defense at this meeting.

Trial was scheduled for August 18, 1997. On August 12, 1997, the respondent called his client and spoke with him on the telephone. The client informed the respondent that his employer would testify for him and provide an alibi, specifically, that he was at a work site on the day of the alleged offenses. The client gave the respondent his employer’s name and address and asked the respondent to contact him. The respondent informed the client that he had not given timely notice of alibi and therefore his employer’s testimony might not be admissible.

The respondent did not contact the employer prior to the trial date and took no steps to obtain any records that the employer might have concerning the client’s whereabouts on the day in question. Further, the respondent did not inform the employer of the trial date or take any other action to secure the testimony of the employer and again did not notify the prosecution that he might call an alibi witness. On August 18, 1997, after a lobby conference and unsuccessful plea negotiations, the case was called for trial.

On August 19, 1997, trial resumed. After the client testified to his alibi, the respondent and the client telephoned the employer. The court allowed the employer to testify despite the lack of any prior notice to the prosecution. The employer voluntarily came to court and testified on direct examination that the client was probably working at a job site on October 28, 1996, the day in question. However, the employer admitted on cross-examination that the records that he brought to court were incomplete. The respondent did not ask for a continuance to enable the employer to obtain complete records.

The client was found guilty after trial. Represented by other counsel, the client then filed a motion for new trial alleging ineffective assistance of counsel based in part on the respondent’s failure to contact a critical witness prior to trial. Attached to the motion was an affidavit of the employer and an exhibit not introduced at trial documenting that a work crew was at a specific work site on the day of the incident, a substantial distance away from the events in question. The exhibit did not document the identities of the work crew. The trial judge denied the motion for new trial without hearing, based in part on his opinion that the business record would not have necessarily enhanced the employer’s testimony. The trial judge also found that any such error was harmless in light of the eyewitness testimony of an undercover police officer.

In November 1999, the Massachusetts Appeals Court reversed the trial court and remanded the motion for new trial to the trial court for an evidentiary hearing. In June 2002, the motion was denied by the trial court. The trial court found that even if the respondent “did not have a suitable reason for not conferring with [the employer] timely, that failure would not have resulted in the production of better records.”

The respondent’s failure to make any reasonable effort to investigate the circumstances of a potential alibi defense, to contact an alibi witness who might be available, to examine business records that might provide a substantial ground of defense or to ask for a continuance to obtain complete records constituted neglect and inadequate preparation in violation of Canon Six, DR 6-102(A)(2) and (3).

In aggravation, the respondent received an informal admonition in 1990 for neglect of a landlord/tenant matter. In 1993, the respondent received an admonition for neglect of a civil collection case and, in 1994, the respondent received a public reprimand for neglect of a personal injury auto claim. In none of these cases was there any demonstrable harm.

The parties stipulated that the appropriate sanction was a three-month suspension. On July 8, 2002, the Board of Bar Overseers voted to adopt the parties’ stipulation and proposed sanction and to file an information with the Supreme Judicial Court recommending that the respondent be suspended from the practice of law for three months. On August 20, 2002, the Court so ordered.

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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