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Commonwealth of Massachusetts

NO. BD-2003-079

IN RE: JOHN P. SHYAVITZ

S.J.C. Order of Term Suspension entered by Justice Spina on January 13, 2005.1

SUMMARY2

The respondent was suspended from the practice of law for three years based on a complaint filed during the period of his previous suspension for a year and a day.

In September 1998, a client retained the respondent on a contingent fee basis to represent him in a claim against his own automobile insurance company arising out of a motor vehicle accident that occurred in August 1998. The client is a chef. He broke his finger in the accident and was in a cast. The insurance company had paid any sums to which the client was entitled under his personal injury protection or medical payments coverage, but the client wished to make a claim for damages against his bodily injury coverage.

The underlying occurrence was a one car accident in which the client was the driver and was at fault. The respondent knew or should have known that the client had no further claim for damages, but he advised the client that the claim was legitimate and that the respondent would demand $75,000 from the insurer on the client’s behalf.

In or about 2000, the client was advised by the respondent that the insurer had refused to settle and that the respondent would file suit. The respondent subsequently intentionally misrepresented to the client that suit had been filed in the district court. Over the next several years, the client called the respondent frequently to find out when the case would be reached for trial. The respondent repeatedly and falsely provided the client with nonexistent court dates for hearing or trial, then later advised the client on each occasion that the court dates had been cancelled.

By order dated December 17, 2003, and effective January 17, 2004, the respondent was suspended from the practice of law for neglect of another client’s cases that resulted in the dismissal of two lawsuits and for misrepresentations, both negligent and intentional, to that client as to the status of the cases. The respondent’s partner, Gerald Shyavitz, was also suspended at that time, although for unrelated misconduct. Their law firm, Shyavitz & Shyavitz, was closed.

In violation of the terms of the order of suspension and of Supreme Judicial Court Rule 4:01, § 17, the respondent did not give the client notice of his suspension or list the client on the required affidavit of compliance filed with bar counsel on February 27, 2004.

The respondent falsely informed the client in the spring of 2004 that another court date had been set. The respondent still did not tell the client that he had been suspended from the practice of law. The day before the supposed hearing, the respondent misrepresented to the client that the judge had been in an accident and that the hearing was again cancelled.

After discovering that the telephone number for the law firm had been disconnected, the client called the district court and learned from the clerk’s office that there was no record of his case having been filed and that the respondent had been suspended from practice. The client then telephoned the respondent at his home or cell phone number. The respondent returned his telephone call and falsely advised the client that only Gerald Shyavitz had been suspended, not the respondent. The respondent also falsely advised the client that the clerk’s office was mistaken and that his case was pending.

After confirming with bar counsel that the respondent was suspended, the client again spoke with the respondent. The respondent then admitted that he was suspended, but falsely insisted that the client’s case was pending and that it had been referred to another lawyer. The respondent promised to fax the client the court docket number, but never did so.

The respondent’s intentional misrepresentations to the client as to the viability of his tort claim, the status of his ostensible case, and the status of the respondent’s license to practice law after his suspension constitute conduct in violation of Mass. R. Prof. C. 8.4(c) and (h).

The respondent’s failure to comply with the December 17, 2003 order of suspension by failing to timely notify the client as required by Supreme Judicial Court Rule 4:01, §17(7), is conduct in violation of Mass. R. Prof. C. 8.4(d).

In aggravation, and in addition to December 17, 2003 order of suspension, the respondent has a history of prior discipline. He received an informal admonition for neglect on two files in 1987. He received a second informal admonition for neglect of another matter in 1991. He received a private reprimand in 1990 for neglect of two additional matters. PR-90-45, 6 Mass. Att'y Disc. R. 461 (1990). He received a public censure on two matters in 1993, for neglect in one case and neglect, failure to refund an unearned fee, and failure to provide an accounting in the second. Matter of Shyavitz, 9 Mass. Att’y Disc. R 291 (1993).

Bar counsel filed a petition for discipline against the respondent on September 27, 2004. The respondent failed to file an answer to the petition. By letter dated October 19, 2004, the Board of Bar Overseers notified the respondent that the allegations in the petition were deemed admitted and that he had waived his right to be heard in mitigation. The respondent’s failure to cooperate in the disciplinary process was considered as a matter in aggravation.

On December 13, 2004, the Board voted to recommend to the Supreme Judicial Court that the respondent be suspended for a period of three years. The Court so ordered on January 13, 2005.

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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