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Commonwealth of Massachusetts

NO. BD-2002-061

IN RE: WILLIAM H. SHAUGHNESSY

S.J.C. Order of Term Suspension (one year and one day) entered by Justice Sosman on June 10, 2003, with an effective date of July 10, 2003.1

MEMORANDUM OF DECISION

Bar Counsel initiated this matter by filing with the Board of Bar Overseers (board) a petition for discipline against attorneys James A. McDonald2 (McDonald) and William H. Shaughnessy ("Shaughnessy"). The hearing committee (committee) found that Shaughnessy had, among other things, neglected his client's case, thereby allowing her claims to be dismissed, and made misrepresentations to his client and his co-counsel, McDonald. The Committee ruled that Shaughnessy violated Canon One, DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit or misrepresentation) and (A)(6) (conduct that adversely reflects on fitness to practice law), Canon Six, DR 6-101(A)(2) (handling a legal matter without adequate preparation) and (A)(3) (neglecting a legal matter entrusted to him), and Canon 7, DR 7- 101(A)(1) (intentionally failing to seek the lawful objectives of his client through reasonable means) and (A)(3) (prejudice to client in the course of the professional relationship). The committee recommended a six-month suspension for Shaughnessy. Both Shaughnessy and bar counsel appealed from the Committee's report; the former requested that the board dismiss the petition against him or grant him a new hearing before a new hearing committee, and the latter requested a suspension of at least one year and one day.

After consideration of their appeals, the board unanimously adopted the committee's findings of fact and conclusions of law and determined that a six-month suspension was appropriate.

1. Facts. The following facts were found by the committee and adopted by the board.

Shaughnessy was admitted to the Massachusetts bar in 1967. In 1994, Shaughnessy received a private admonition for neglect, inadequate preparation, withholding information, and failing to provide zealous representation in three tort cases that he handled between 1992 and 1994. AD No. 94-73, 10 Mass. Att'y Discipline Rep. 458 (1994) .

On February 27, 1989, Julie Furtado (Furtado) was injured in a fall on a sidewalk in the vicinity of the Massachusetts Bay Transportation Authority (MBTA) Haymarket bus station and the Government Center Garage. In March of 1989, Furtado engaged McDonald to represent her in claims arising from her fall. On behalf of Furtado, McDonald sent notices of claim to the city of Boston (city) and the MBTA, alleging that Furtado's fall resulted from a depression in the sidewalk and from untreated snow and ice conditions.

On May 7, 1990, McDonald filed a complaint on Furtado's behalf in Suffolk Superior Court. The city and the MBTA answered the complaint and filed crossclaims against each other. On October 3, 1990, the city's attorney sent McDonald the city's motion for summary judgment with supporting materials. That motion was based, in part, on the ground that the city did not own the land upon which the accident occurred. The supporting materials included a copy of a deed indicating that the city had conveyed the Government Center Garage to the trustees of the Government, Center Garage Realty Trust (garage owners) before the incident. McDonald failed to respond with any opposition to this motion. On February 21, 1991, the city filed the summary judgment motion, along with a certificate indicating that there was no opposition received pursuant to Superior Court Rule 9A. McDonald still took no action. Then, on March 11, 1991, the MBTA served a similar summary judgment motion, also based on the MBTA's lack of ownership. Again, there was no opposition, and the MBTA ' s unopposed motion and certificate were filed with the court on April 2, 1991.

Sometime prior to April 9,1991, McDonald, without Furtado's knowledge or permission, entered into an arrangement with Shaughnessy whereby Shaughnessy would handle and pursue the Furtado litigation. Shaughnessy understood that he had become Furtado's attorney for the case and had obligations to her that were co-extensive with those of McDonald. McDonald gave Shaughnessy the only copy of the Furtado case file. Although Shaughnessy has no record or memory of the actual date upon which he entered into this arrangement with McDonald, he believed that the motions for summary judgment were still outstanding when he received the case. Despite his awareness of the time deadlines for filing an opposition to those motions, he took no action towards filing any opposition or any request for an extension of time.

On April 9, 1991, Shaughnessy called the city's attorney and told him that he was now representing Furtado. He asked to postpone a pretrial conference scheduled for that day and agreed to let the city out of the action if it responded to discovery. That same day, he filed a motion for extension of time in order to postpone the hearing on the summary judgment motions until that summer, but still filed no opposition to either motion or any request to extend the time for submitting his opposition. In fact, the court had already allowed the city's unopposed motion back on March 12, 1991, but, for reasons that are unclear, notice of that ruling had not been sent. Despite the prior allowance of the city's summary judgment motion, the court allowed the motion to postpone the hearing and set the pretrial conference for sometime in August.

On April 22, 1991, the court allowed the MBTA's unopposed motion for summary judgment. On April 29, 1991, the court entered judgment of dismissal for the city, and, on July 9, 1991, the court entered judgment of dismissal for the MBTA. McDonald received notice of the dismissals and informed Shaughnessy. They failed, however, to inform Furtado of these developments.

After conducting legal research, Shaughnessy concluded that neither the city nor the MBTA was liable for Furtado's injuries, so he decided not to seek reconsideration of the summary judgment rulings or to vacate either judgment. On August 8, 1991, despite this conclusion about the lack of merit in Furtado's claims, Shaughnessy filed a notice of appeal from the judgment in favor of the MBTA.

On December 27, 1991, a fire in Shaughnessy's office caused the loss and destruction of materials in the Furtado file. Around the same time, despite final judgment for the city and the noticed appeal of the judgment for the MBTA, Shaughnessy filed a belated motion to amend the complaint so that he could add the garage owners as a party. He claims that the motion was allowed, although the motion appears nowhere on the court's docket. Whatever the filing status of that motion and its alleged allowance, Shaughnessy never served any amended complaint on the garage owners, and never even notified the garage owners of Furtado's claims. In short, he did not complete the steps necessary to add the garage owners as a party to the original case, nor did he commence any separate action against the garage owners. The statute of limitations for filing a suit against the garage owners expired on February 27, 1992.

In May of 1992, Shaughnessy entered the appeal of the MBTA judgment in the Appeals Court. Thereafter, Shaughnessy took no further steps to pursue that appeal, despite receiving notice that the appeal would be dismissed if no brief were filed. On August 18, 1992, the Appeals Court dismissed the appeal for lack of prosecution. Despite Furtado's repeated calls to McDonald throughout 1991 and 1992, neither Shaughnessy nor McDonald informed her of the dismissal of her case against the city and the MBTA, the dismissal of the appeal, or the expiration of the statute of limitations on any claim against the garage owners. Furtado ultimately met with Shaughnessy in November, 1992. At that meeting, Shaughnessy misrepresented to Furtado that her case was proceeding to trial and would be reached in about one year. At another meeting in 1993, Shaughnessy again misrepresented to Furtado that her case was still proceeding.

Between 1992 and July of 1994, McDonald made periodic inquiries to Shaughnessy about the Furtado case. Shaughnessy advised McDonald that he had taken or was taking some action to reactivate the case with the garage owners as a party. During that time, Furtado also repeatedly called McDonald for further information about her case, but McDonald never informed her of the true status of the case.

On or about July 22, 1994, Furtado again met with Shaughnessy. Shaughnessy still did not inform her of the unopposed summary judgment motions, the judgments of dismissal, the filing and dismissal of the appeal, his failure to add the garage owners as a party, or his failure to commence any separate action against them. Rather, Shaughnessy told her that her claims no longer had any merit because the law had changed. To add credibility to his explanation about a change in the law, he gave Furtado copies of two Massachusetts decisions on liability for failure to remedy snow and ice conditions, Sullivan v. Brookline, 416 Mass. 825 (1994) and Aylward v. McCloskey, 412 Mass. 77 (1992). This was the last time that Furtado heard from either Shaughnessy or McDonald.

That same day, Shaughnessy filed a second motion to amend the Furtado complaint to add the garage owners as a defendant, arguing that the statute of limitations did not bar Furtado's claim against the garage owners because of the "relation back" doctrine. The motion was never served on anyone and, presumably because it pertained to a case that had long since been closed, the court took no action on that motion.

After her last meeting with Shaughnessy, Furtado asked attorney Kenneth DeMoura (DeMoura) to look into her case. DeMoura met with Shaughnessy on September 12, 1994. Shaughnessy told DeMoura about the dismissal of the original case and explained that he was trying to add the garage owners as a party. However, he failed to tell DeMoura that the dismissals had occurred more than three years earlier, that they were the product of unopposed summary judgment motions, that the appeal had been dismissed, and that no steps had been taken to vacate those dismissals.

Furtado retained DeMoura as counsel, and DeMoura proceeded to investigate and uncover the true procedural history of Furtado's case. In May, 1995, DeMoura sent Shaughnessy a G. L. c. 93A demand letter claiming that Shaughnessy was responsible for the loss of Furtado's case and demanding that Shaughnessy compensate Furtado for that loss. In his June 25, 1995, response, Shaughnessy denied any errors or omissions in his handling of the case and threatened a counterclaim against DeMoura under G. L. c. 93A if any claim was made against either himself or McDonald. The basis for the counterclaim, Shaughnessy suggested, was that DeMoura had failed to pursue Furtado's claims and had prejudiced her rights. As a result of that letter from Shaughnessy, DeMoura concluded that he could not pursue any claims on Furtado's behalf against Shaughnessy or McDonald because the threatened claim against him had placed him in a position of conflict. He further determined and advised Furtado that it would be too costly to pursue a legal malpractice action against them, and Furtado therefore pursued no malpractice action.

2. Discussion. The above facts support the conclusion that Shaughnessy committed the multiple violations found by the board. Shaughnessy's sole argument against the finding of violations is that Furtado's claims had no chance for success, and that he was therefore justified in neglecting her case and could not have caused her any harm. This argument is unavailing. To the extent that Shaughnessy believed that Furtado's claims had no merit, it was his duty to inform her of that opinion. Such a belief would not justify neglecting her claims and misrepresenting the status of the proceedings.

Shaughnessy's argument is premised on the assumption that harm to a client must be shown in order to establish a violation of the disciplinary rules. That assumption is erroneous. See, e.g., Matter of Garabedian, 416 Mass. 20, 21, 23 (1993) (finding that respondent had violated disciplinary rules for neglect and failure to cooperate with bar counsel despite the fact that client suffered no harm); Matter of Gustus, 8 Mass. Att'y Discipline Rep. 89, 89-90 (1992) . Thus, his "no harm, no foul" argument fails as a matter of law.3

3. Appropriate sanction. Having concluded that Shaughnessy violated the Canons of Ethics and Disciplinary Rules, I turn to the question of the appropriate disciplinary sanction for this case. "The primary factor for consideration is 'the effect upon, and perception of, the public and the bar.' " Matter of Concemi, 422 Mass. 326, 329 (1996), quoting Matter of Mclnerney, 389 Mass. 528, 535 (1983) . Thus, I am to consider what disciplinary measures are necessary to deter future misconduct and preserve public confidence in the bar, bearing in mind that the discipline imposed should not be markedly disparate from that imposed in comparable cases. See Matter of Clooney, 403 Mass. 654, 658 (1988), and cases cited.

Shaughnessy argues that a six-month suspension or greater would be markedly disparate from what has been ordered in similar cases. In particular, Shaughnessy contends that this case is to be viewed under the pre-Kane standards of punishment, and, therefore, the only suitable punishment is a public reprimand. See Matter of Kane, 13 Mass. Atty's Discipline Rep. 321, 325, 327 (1997) ("[i]n order to achieve the objective implicit in the unanimity of the Board's preliminary vote -- that is, to establish stiffer sanctions for neglect and lack of zealous representation, especially where aggravated by recidivism, misrepresentations, and failure to cooperate with Bar Counsel's investigation -- the Board now adopts new principles involving sanctions to be imposed"). See also Bar Counsel v. Fitzgerald, 16 Mass. Att'y Discipline Rep. 164, 174 (2000) (describing Kane as setting forth new standards for future neglect cases).

While Shaughnessy correctly concludes that this case should be viewed under pre-Kane standards, I do not accept Shaughnessy's argument that the appropriate sanction for a pre-Kane case of neglect is automatically limited to a public reprimand. Where, as here, there are aggravating factors beyond simple neglect of a single case, many pre-Kane matters resulted in suspension, not merely in reprimand. See In Re Leary, 15 Mass. Att'y Discipline Rep. 352, 355-56 (1999) (six-month suspension "far too lenient" yet consistent as a pre-Kane punishment where attorney neglected case and had prior discipline, despite mitigating factor of severe medical problems); Matter of Ryan, 7 Mass. Att'y Discipline Rep. 257, 259 (1991) (six-month suspension for neglect of three cases and misrepresentation, despite mitigating factors of emotional problems, good reputation, and court-appointed representation of indigent criminal defendants); Matter of Wagner, 8 Mass. Att'y Discipline Rep. 251, 254 (1992) (five-month suspension for neglect and misrepresentation where attorney had prior discipline); Garabedian, supra (six-month suspension for neglect of single matter and failure to cooperate with bar counsel where attorney had prior discipline) ; Matter of Chambers, 421 Mass. 256, 259-261 (1995) (same). Thus, Shaughnessy' s suggestion that pre-Kane standards mandate a maximum sanction of public reprimand is incorrect. Indeed, in light of the above cases, a public reprimand would be markedly disparate in its leniency.

I consider any factors in aggravation or mitigation when determining the appropriate sanction. See, e.g., Matter of King, 409 Mass. 590, 608 (1991) . In aggravation, Shaughnessy has a history of related discipline. He received an admonition in 1994 for neglect, inadequate preparation, withholding of information, and failure of zealous representation in three tort cases that he handled between 1992 and 1994. AD No. 94-73, 10 Mass. Att'y Discipline Rep. 458 (1994). "Prior discipline, 'even if unrelated to the current charges, is a significant aggravating factor.’ " Matter of Gross, Jr., 435 Mass. 445, 453 (2001) quoting Matter of Dawkins, 412 Mass. 90, 96 (1992). Clearly, Shaughnessy's behavior here bears a strong resemblance to his prior misconduct; both cases involve neglect and the withholding of information. Therefore, I afford his prior history of discipline great weight in determining the appropriate sanction.

Shaughnessy argues that his prior discipline cannot be considered as a matter in aggravation because his misconduct in the Furtado case occurred before the entry of his prior admonition. The argument is both factually and legally incorrect. The significance of a prior admonition does not diminish merely because its entry date coincided with or even occurred after his misconduct in this case. See, e.g., In re Kerlinsky, 428 Mass. 656, 665 (1999) (considering prior public censure of respondent even though it occurred years after some of his misconduct in case at bar). "That the respondent continued to engage in the unethical behavior at issue in this case during the pendency of and subsequent to his earlier disciplinary proceedings warrants more severe discipline." Id. See Matter of Catalano, SJC-BD-95-035, *4 (January 8, 1999) (where misconduct occurred "while bar counsel was investigating the very claims that gave rise to the suspension in the previous disciplinary proceeding," attorney was "on plain notice that his conduct was unacceptable").

Here, bar counsel's investigation of Shaughnessy's earlier misconduct -- an investigation of which Shaughnessy was no doubt aware -- took place between the spring of 1992 and the spring of 1994. AD No. 94-73, 10 Mass. Att'y Discipline Rep. 458 (1994). Shaughnessy's misconduct in the Furtado case began in 1991 and continued until 1995. Thus, the admonition predates much of his misconduct in this case and, even prior to the actual imposition of that admonition, the ongoing disciplinary proceedings would have made Shaughnessy especially aware of his wrongdoing. See Kerlinsky, supra.

In addition, Shaughnessy committed multiple disciplinary offenses. He engaged in a pattern of repeated misrepresentations and neglected his client's case over a span of more than two years. He threatened to file a baseless counterclaim against another attorney in order to impede that attorney's efforts to assist his (Shaughnessy's) former client. Finally, he continues to exhibit a lack of insight into the wrongful nature and implications of his conduct.

In mitigation, an extensive fire in Shaughnessy's office in December of 1991 caused a significant disruption of his law practice, and the death of Shaughnessy's wife in 1985 left him as the sole supporter of five sons. While these events certainly caused a great deal of stress, sadness, and disturbance, I afford them little weight as mitigating factors. His wife's death occurred years before any of Shaughnessy's misconduct in this case. As to the fire, Shaughnessy had already committed serious neglect of Furtado's case prior to the fire, and engaged in further neglect and misrepresentation for years thereafter.

Lastly, I consider the board's recommendation in determining the appropriate sanction. Here, the board recommended a suspension of six months. While the board's recommendations relative to discipline are entitled to substantial deference, I am not bound by them. On review of the board's recommendation and examination of similar cases, I conclude that a six-month suspension would be markedly disparate in its leniency and would not serve the purposes of protection and deterrence.

First, the cases relied upon by the board are distinguishable from the present case. In Matter of Chambers, 421 Mass. 256 (1995), the respondent received a six-month suspension for neglect of a single case, misrepresentation of the status of the case to the client and his friends and family, and failure to cooperate with bar counsel. Id. at 257-58, 261. Like Shaughnessy, the respondent had a prior related history of discipline. Id. at 259. Unlike Shaughnessy, however, the respondent acknowledged his wrongdoing and stipulated that he had violated disciplinary rules and ethical canons. Id. at 258-259. In Matter of Garabedian, 416 Mass. 20 (1993), the respondent received a six month suspension for neglect of a matter, where he had been less than fully cooperative with bar counsel (but not so uncooperative as to constitute failure to cooperate with bar counsel). Id. at 21, 25-26. In aggravation, the respondent had a prior history of discipline for failing to cooperate with bar counsel, and in mitigation, his neglect did not harm the client. Id. at 23, 25. Here, Shaughnessy not only neglected his client and has a prior disciplinary history for similar offenses, but he made multiple misrepresentations to both his client and co-counsel, and presents additional aggravating factors.

This case is most similar to those pre-Kane cases in which the respondent received a one-year suspension. See Matter of Kane, 13 Mass. Atty's Discipline Rep. 321, 325 (1997). For example, in In re Oates, Jr., 3 Mass. Att'y Discipline Rep. 166, 166-68 (1983), the respondent received a one year suspension for repeatedly misrepresenting to his clients that their case was progressing. At the hearing in the matter, the respondent admitted that he could not excuse his failure to file a complaint and noted that he had been in the hospital for two months during his representation of the clients. Id. He also had a history of prior discipline for similar conduct. Id. Similarly, in In re Berman, 7 Mass. Att'y Discipline Rep. 16, 16-17 (1991), the respondent received a one year suspension for neglect of a case and misrepresentation. In particular, he had failed to take any substantive action to enable a sale of real estate and, in an effort to hide his inaction, forged certificates that would enable the sale. Id. Even though forgery was perhaps more diabolical than Shaughnessy's extensive misrepresentations, there were no aggravating factors in the Berman case. See also In re Bachorowski, 2 Mass. Att'y Discipline Rep. 7, 7-8 (1981) (one year suspension for neglect in three cases, advancing own funds to client in anticipation of settlement, misrepresentation, with mitigating factor of alcoholism); In re Walsh, 6 Mass. Att'y Discipline Rep. 322, 322-325 (1990) (one year suspension for neglect, misrepresentation, practice of law after suspension, failure to cooperate with bar counsel, with mitigating factor of having commenced psychiatric treatment); In re Cohen, 5 Mass. Att'y Discipline Rep. 69, 69-74 (1988) (one year suspension for neglect and misrepresentation in several cases, failure to cooperate with bar counsel, with mitigating factor of personality disorder and family illness); In re Kelly, 5 Mass. Att'y Discipline Rep. 165, 166 (1986) (one year suspension for neglect in three cases, failure to cooperate with bar counsel, and prior discipline); Matter of McCarthy, No. BD-2001-021 (April 20, 2001) (suspension of one year and one day for pre-Kane neglect, misrepresentation to client, misrepresentation to bar counsel, all of which respondent acknowledged and admitted). Cases in which the vast majority of the misconduct occurred before Kane also indicate that a one-year suspension would be appropriate here. See In Re Sterritt. No. BD-2001-052 (August 9, 2001) (suspension of one year and one day for neglect of cases while not having malpractice insurance that occurred between 1992 and 2000, with mitigating factor of having achieved sobriety in 1999 after severe alcoholism); In Re Sullivan, Jr., No. BD-2001-066 (December 11, 2001) (suspension of one year and one day for neglect, failure to cooperate with bar counsel, and related prior discipline, most of misconduct occurring between 1992 and 1997) ; In Re Neri, No. BD-2001-025 (May 11, 2001) (suspension for one year and one day for misrepresentation to investor and bar counsel, with mitigating factors of inexperience, client pressure, and reimbursement of some of bar counsel's costs).

Accordingly, it is ordered and adjudged that the respondent William H. Shaughnessy be suspended from the practice of law for one year and one day.

______________________
Martha B. Sosman
Associate Justice
Entered: June 10, 2003

FOOTNOTES:

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

2 The hearing committee imposed an admonition on James A. McDonald (McDonald). As part of the factual background, it is necessary to set forth McDonald's role. However, only the discipline of William H. Shaughnessy (Shaughnessy) is before me.

3 It appears that Shaughnessy never gathered enough information to make an adequate assessment of Furtado's claims. Moreover, his assertion that her claims had no conceivable merit is inconsistent with his having taken actions - albeit belatedly and without adequate follow-up - to assert a claim against the garage owners.



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