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Commonwealth of Massachusetts

NO. BD-2003-066

IN RE: CLYDE E. LINDSAY

S.J.C. Order of Term Suspension entered by Justice Sosman on November 13, 2003, with an effective date of December 13, 2003.1

SUMMARY2

This matter arises from the respondent's misconduct in two cases.

Case I. In 1997, the respondent was retained to represent a client's company in claims arising from company's purchase of allegedly defective bulk goods. The client, as sole officer and shareholder of the company, had refused to take possession of most of the goods. The respondent brought suit on behalf of the company in the district court for the return of the purchase price and damages under G.L. c. 93A. The seller denied liability and counterclaimed for storage charges. The respondent failed to answer the counterclaim or respond to the seller's interrogatories, document requests and requests for admission.

In early 1998, the seller filed an application for dismissal under Mass.R.Civ.P. 33(a), a motion for deeming of admissions, and a motion to dismiss for failure to produce documents. The respondent subsequently served late interrogatory answers but failed to provide the remaining discovery or oppose the motions, which were allowed in March 1998. The respondent filed and served a motion to set aside the deemed admissions in April 1998 but then failed to mark the motion for a hearing, and the court never ruled on it.

In June 1998, the court entered a judgment dismissing the company's complaint. The respondent received timely notice of the dismissal but failed to inform the client. When the client learned of the judgment on his own, the respondent falsely represented to the client that he had timely filed the required discovery responses and that the court had dismissed the complaint in error. The respondent told the client that he would move to vacate the dismissal but failed to do so and failed to take other action of substance to restore the company's claims.

The trial of seller's counterclaim was set for October 1998. A few days before the scheduled trial date, the respondent presented a motion to continue the trial in order to permit a request for relief from the judgment of dismissal. The court denied the motion as untimely and ordered the trial of the counterclaim to proceed. On the date of the trial, the respondent entered into a settlement of the counterclaim whereby the company was required to take possession of the disputed goods.

The company subsequently brought a malpractice action against the respondent. In early 2003, the respondent agreed to the entry of a judgment against him in that action in the principal amount of $35,000. The respondent satisfied that judgment in full.

The respondent's failure to provide diligent representation to the company, seek the client’s lawful objectives, and maintain reasonable communications with the client violated Mass. R. Prof. C. 1.2(a), 1.3 and 1.4(a). The respondent's misrepresentation of the reasons for the dismissal to the client constituted conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct otherwise reflecting adversely reflects on fitness to practice law in violation of Mass. R. Prof. C. 8.4(c) and (h).

Case II. In the spring of 2001, the respondent was engaged by a client to appeal the denial of her asylum claim. The respondent charged a fee of $2,500 fee for these services, to be paid by the client in installments. The respondent prepared a notice of appeal, which the client filed timely. The client also made timely payment of the installments and thereby paid the respondent his entire fee.

In September 2001, the client received a briefing schedule setting the deadline for submission of her appeal brief in late October 2001. The client promptly gave the briefing schedule to the respondent, but he failed to note the deadline and failed to prepare or file a brief on her behalf. Over the next year, the client periodically asked the respondent about the status of her appeal. The respondent, having forgotten his receipt of the briefing schedule and believing that the schedule was yet to be issued, failed to recognize that the deadline for the appeal brief had expired. Without reviewing his file or ascertaining the true status of the matter the respondent erroneously advised the client that her appeal was progressing.

In November 2002, the client received notice that the denial of her asylum application had been summarily affirmed without opinion. She promptly informed the respondent of the decision on appeal. Without reviewing his file or recognizing that the summary affirmance had resulted from his failure to submit a brief on the client's behalf, the respondent referred her to another attorney for consideration of a further appeal. That attorney discovered the respondent's failure to file a brief and so informed the client. The respondent subsequently remitted $2,500 to the client as a full refund of her fee payments.

The respondent's failure to provide diligent representation to the client, seek the client’s lawful objectives, and maintain reasonable communications with the client violated Mass. R. Prof. C. 1.2(a), 1.3 and 1.4(a).

In aggravation, the respondent had received private reprimands in 1992 for negligent client fund practices without misuse, PR-92-20, 8 Mass. Att’y Disc. R. 303 (1992), and in 1991 for a business transaction with clients without full disclosure, No. PR-91-9, 7 Mass. Att’y Disc. R. 335 (1991). In mitigation, the respondent fully compensated the company in the first case for its claimed losses, including interest and attorneys’ fees, by paying a total of about $59,600 in satisfaction of the malpractice judgment.

The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and an agreed recommendation for a one-year suspension. The Board voted to accept the stipulation and recommendation. On November 13, 2003, the Supreme Judicial Court entered an order of suspension for one year in accordance with the stipulation and recommendation.

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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