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Commonwealth of Massachusetts

NO. BD-2002-072


S.J.C. Order of Term Suspension entered by Justice Sosman on November 15, 2002, with an effective date of December 15, 2002.1


The respondent was admitted to the Bar of the Commonwealth on December 22, 1975.

In or about June of 1995, a client retained the respondent to represent her in a slip and fall matter. The client and the respondent signed a contingent fee agreement providing that the respondent would receive 33 1/3% of the gross amount collected. On June 29, 1995, the respondent wrote to the defendant’s insurer that he was representing the client. The respondent took no other action of substance to advance the client’s claims for damages until February 1997, when he filed a civil action on behalf of the client in Suffolk Superior Court. On February 14, 1997, the summons and complaint were served in hand on the defendant. The respondent never filed the return of service with the court. The respondent took no further action of substance in the case.

On June 16, 1997, the court entered a judgment dismissing the case without prejudice for failure to complete service by the deadline. The respondent received notice that the case had been dismissed in due course. The respondent did not notify the client that her case had been dismissed, and did not file a motion to vacate the dismissal or undertake any other legal steps to revive the case or protect the client’s interests.

On November 24, 1997, the client wrote a letter to the respondent requesting an update on the status of her case. The respondent received this letter in due course. The respondent did not inform the client that the case had been dismissed. In the spring of 1998 the respondent falsely told the client that the defendant’s insurer had offered to settle the case for $211,000. The client agreed to settle the case for this amount.

The respondent fabricated a release in favor of the defendant and the insurer in return for payment of $211,000 to the client. On April 21, 1998, the respondent arranged to have the client sign the fabricated release at his office. Before she signed the release on April 21, 1998, the client asked the respondent when she could expect to receive her share of the settlement proceeds. The respondent did not disclose to the client that there was no settlement and that there would be no payment of $211,000 from any source. The respondent falsely informed the client that she would have a check within six weeks.

Between April 21, 1998, and the end of June 1998, the client did not receive any communication from the respondent and did not receive any funds. In or about late June 1998, the client began calling the respondent and scheduling meetings with him in an attempt to obtain an explanation for the delay in paying her the funds. Between July 1998 and September 1998, the respondent did not respond to many of the client’s telephone calls and cancelled scheduled meetings with her. When the respondent did speak with the client, he intentionally misrepresented to her the reasons for the delay, claiming, among other things, that the check had been processed by the insurance company but not yet received by him, and later that he had received the check but wanted to deliver it to the client in person.

On September 17, 1998, the respondent issued a check to the client in the amount of $140,667. The respondent drew this check from his office account. The respondent knew that the office account did not have sufficient funds to cover the check. The respondent’s check to the client was returned due to insufficient funds in the account. The client called the respondent and told him that his check to her had bounced. The respondent did not tell the client that there had been no settlement and that the case had been dismissed. The respondent misrepresented to the client that he would send to her a certified check. The respondent never sent any funds to the client.

On October 8, 1998, the client filed a grievance with Bar Counsel. The client also initiated a civil suit against the respondent for malpractice, fraud and deceit, among other claims. In December of 2001, the respondent and the client settled their civil suit when the respondent agreed to pay the client $22,500. The respondent paid the client $7,500 up front and gave the client a note for $15,000 to be paid over 18 months, secured by a mortgage on the respondent’s house.

By neglecting his client’s case, by failing to timely file a return of service resulting in the dismissal of the case, by failing to seek to vacate the dismissal and by failing to respond to his client’s inquiries about the case, the respondent engaged in conduct violating Canon Six, DR 6-101(A)(3), and Canon Seven, DR 7-101(A)(1), (2) and (3). For conduct occurring on and after January 1, 1998, the respondent violated Mass. R. Prof. C. 1.1, 1.2(a), 1.3 and 1.4. By falsely representing to his client the status of her case, by falsely informing the client that the case had settled when it had not, by fabricating a release for his client to sign, and by giving his client a purported settlement check written on the respondent’s office account when the respondent knew that the account held insufficient funds to cover the check, the respondent violated Canon One, DR 1-102(A)(4) and (6), for conduct occurring before January 1, 1998, and Mass. R. Prof. C. 8.4(c) and 8.4(h) for conduct on and after January 1, 1998.

In a second matter, on August 6, 1996, the respondent accepted an appointment to represent a client concerning criminal charges of assault and battery and threatening to commit a crime, stemming from an incident that occurred on June 14, 1996, in Boston, Massachusetts. On or about August 6, 1996, the client informed the respondent that he was in Florida on June 14, 1996, and that he had witnesses to corroborate his alibi. On August 6, 1996, the client's prior counsel handed the respondent a notarized affidavit dated August 1, 1996, from the client's landlord in Florida, placing the client in Florida on June 14, 1996.

On or about October 23, 1996, at the pre-trial conference, the respondent and the prosecutor agreed to a pre-trial conference report. In the report, the Commonwealth specified the time, date and place of the alleged offenses, and the respondent agreed to notify the Commonwealth at least two weeks before trial and in writing where the client claimed to have been when the offenses occurred and to identify by name, address, and date of birth any alibi witnesses.

On October 23, 1996, the respondent filed a motion for funds to hire a private investigator. The motion was allowed the same day. In about November of 1996, the respondent hired an investigator to investigate the client's alibi defense. The respondent provided the investigator with the names and telephone numbers of additional alibi witnesses, including the client's employer in Florida. By letter dated December 17, 1996, the investigator informed the respondent that the client's employer confirmed that the client was in Florida on June 14, 1996, and that he was willing to collect notarized affidavits from other witnesses that would place the client in Florida on June 14, 1996. In February of 1997, the client informed the respondent that he had gone to Florida to collect statements from other witnesses. When he returned from Florida, the client gave the respondent signed statements from two other individuals that placed the client in Florida on June 14, 1996.

On March 20, 1997, the Court adopted the pre-trial conference report as an order, and set the case for trial. Despite his knowledge of his client's wish to present an alibi defense and the existence of evidence demonstrating that the client was in Florida on June 14, 1996, the respondent did not notify the Commonwealth prior to the day of trial of the client's alibi defense and alibi witnesses. The respondent’s conduct in this regard was not in compliance with the pre-trial order and Mass. R. Crim. P. 14.

In preparing his client’s case, the respondent did not seek to obtain documentary evidence showing the client's trips to and from Florida, or that the client had been living and working in Florida during the relevant time period. The respondent also did not file with the court a motion to summon out-of-state witnesses, nor did he file a motion for funds for the same. The client was entitled to apply for these funds as an indigent defendant.

The case was called for trial on May 30, 1997, in the district court. On the first day of trial, the respondent moved for a continuance until “later in the summer.” In support of this motion, the respondent informed the court that the defendant would testify that he was in Florida at the time of the alleged offense, and that, if given more time, he could produce witnesses to support that alibi. The judge denied the respondent’s motion, and the case proceeded to trial.

During the trial, the respondent attempted several times to introduce evidence of his client’s alibi. The judge prohibited the respondent from putting on an alibi defense through his client’s testimony, or from presenting an alibi defense in his closing. The respondent focused his defense instead on misidentification.

The jury returned guilty verdicts on both counts. The Court imposed a sentence on Count A (assault and battery) of two and one-half years committed to the house of correction, and on Count B (threatening to commit a crime) of two and one-half years to the house of correction, six months to serve on and after Count A, with the balance suspended until November 26, 2002. On or about May 30, 1997, the respondent filed a notice of appeal. On or about June 6, 1997, the respondent filed a motion for stay of execution of sentence pending appeal, which was heard and denied. On or about June 6, 1997, the respondent's motion to withdraw was allowed.

On or about May 27, 1998, appellate counsel filed a motion for a new trial, claiming ineffective assistance of counsel. On or about June 11, 1998, the motion for a new trial was heard and denied. On or about June 12, 1998, appellate counsel filed a notice of appeal from the denial of the motion for a new trial, which in or about November of 1998 was consolidated with the client's direct appeal.

On September 7, 1999, on the client's direct appeal, the Appeals Court reversed the judgment and set aside the verdicts in Commonwealth v. Cutty, 47 Mass. App. Ct. 671 (1999). The Court ruled that the judge had committed prejudicial error by prohibiting defense counsel from mentioning the defendant’s alibi testimony in closing argument as a penalty for noncompliance with the notice of alibi procedures. The Appeals Court dismissed the appeal from the denial of the new trial motion as moot. The Appeals Court also stated, “… [W]e are not persuaded that the judge erred in rejecting the contention that defense counsel was ineffective, but we need not separately address the issue ....”

On or about September 16, 1999, the client was released from incarceration over two years after his conviction in May, 1997. On or about February 22, 2000, the client filed a civil suit against the respondent alleging professional malpractice. After the respondent had defaulted and the court had entered a judgment of $150,000 against him, in or about December of 2001, the respondent reached a settlement with the client and paid him $40,000.

By failing to summon or subpoena the alibi witnesses or to obtain documentary evidence supporting his client’s alibi defense, and by failing to timely comply with the pre-trial order and notice of alibi procedures, the respondent handled a legal matter without preparation adequate in the circumstances, neglected a legal matter entrusted to him, and failed to seek the lawful objectives of his client, resulting in prejudice to the client, in violation of Canon Six, DR 6-101(A)(2) and (3), and Canon Seven, DR 7-101(A)(1), (2), and (3).

In mitigation, during the period in question the respondent acted as the primary caregiver for a number of close family members who suffered from serious illnesses, in several cases resulting in death. In addition, the respondent fully cooperated with and assisted the efforts of appellate counsel to seek a new trial for the criminal defense client. The respondent also paid the first client $22,500 to compensate her for her injuries, and paid the criminal defense client $40,000 in settlement of the malpractice judgment the client had obtained against the respondent.

In aggravation, the respondent received a public reprimand on July 14, 1997 for conduct similar to the facts in the first matter, during the same time period that he was neglecting the first matter. See Matter of Paul D. Wallins, 13 Mass. Att’y Disc. R. 824 (1997). In addition, the second client served over two years in the house of correction before the Appeals Court overturned his conviction.

On September 25, 2002, Bar Counsel filed a petition for discipline. The respondent filed an answer admitting to the allegations of the petition for discipline, and the parties stipulated that a term suspension of two years was the proper sanction. On October 21, 2002, the Board of Bar Overseers voted to accept the stipulation of the parties. On November 15, 2002, the Court entered an order suspending the respondent from the practice of law in the Commonwealth of Massachusetts for two years, effective thirty days after the entry of the order.

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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