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Commonwealth of Massachusetts

NO. BD-2003-079


S.J.C. Order of Term Suspension entered by Justice Spina on December 17, 2003, with an effective date of January 17, 2004.1

In or before 1989, the respondent was retained to represent two clients in a claim against a New Hampshire town arising out of a regrading of the road on which the clients’ home is located that had affected the drainage on their property. The respondent is not a member of the New Hampshire bar but he has frequently represented clients in the New Hampshire courts by associating with local counsel. The clients were aware that the respondent was not a member of the New Hampshire bar.

On May 9, 1990, the respondent, with local counsel and in accordance with New Hampshire procedure, filed two actions in Rockingham County Superior Court involving the drainage problems on the clients’ property. The first, a civil action commenced by writ, sought damages. The second, a “bill in equity,” sought orders requiring the town to make repairs.

From 1990 until 1993, the respondent negotiated with town counsel and counsel for the town’s insurer. Although agreement in principle was reached as to the needed repairs to the road, no agreement was reached on damages. There accordingly was no final settlement and no repairs were made or damages paid.

In or about December 1991, the respondent received notice from the Rockingham Superior Court that he was required to file a pre-trial statement in the civil action by February 1992. The respondent failed to file the pre-trial statement and the civil action was dismissed by the court on April 20, 1992. The court sent notice of the dismissal to the respondent, but he failed to take any action to reinstate the case or to notify the clients that the matter had been dismissed.

On or about August 5, 1994, the defendant town, with notice to the respondent, filed a motion to dismiss the equity action. The respondent failed to file objections to the motion and, on August 18, 1994, the court dismissed the case. The court sent notice of the dismissal to local counsel, who immediately faxed the notification to the respondent. The respondent failed to take any action to reinstate the case or to notify the clients that the matter had been dismissed.

On or about August 18, 1995, local counsel wrote to the respondent asking whether the cases could be closed out in their office. The respondent did not reply.

Between 1995 and 2000, one of the clients, by telephone and by letter, made repeated inquiries to the respondent concerning the status of the cases. The respondent did not review his file or check the court dockets in response to the client’s inquiries and did not remember that the cases had been dismissed. He negligently misrepresented to the client that the matters remained pending in court and had not been reached for trial.

In February 2001, in response to the client’s continued telephone calls, the respondent on multiple occasions intentionally misrepresented the status of the litigation. On February 5, 2001, the respondent falsely advised the client that the matter was no. 4 on the court’s list and indicated that the client should call him the next day. On February 13, 2001, the respondent falsely told the client that the matter was on the list for that day “to see when it goes.” The client called the respondent again on February 15 and the respondent told him to call the following week. On February 21, the client called the respondent and the respondent falsely advised him that the case was on the list “day by day.” In June 2001, the client called the Rockingham Superior Court and learned for the first time from the clerk’s office that his cases had long since been dismissed.

The respondent’s neglect of the clients’ cases resulting in dismissal of both suits, his failure thereafter to apprise the clients that their cases had been dismissed or to take action to reinstate the cases, and his subsequent negligent misrepresentations to the clients from 1995 through 2000 that their claims remained pending, was in violation, prior to 1998, of Canon Six, DR 6-101(A)(3) and Canon Seven, DR 7 101(A)(1),(2),(3) and, after 1998, of Mass. R. Prof. C. 1.3 and 1.4. The respondent’s intentional misrepresentations to the clients in 2001 that their case was high on the trial list was in violation of Mass. R. Prof. C. 8.4(c),(h).

In aggravation, the respondent has an extensive prior disciplinary history. 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. Private Reprimand No. PR-90-45, 6 Mass. Att'y Disc. R. 461 (1990). He received a public censure for neglect of one case and neglect, failure to refund an unearned fee, and failure to provide an accounting of a second matter. Matter of Shyavitz, 9 Mass. Att’y Disc. R 291 (1993). The public reprimand was conditioned upon, among other terms, the satisfactory completion of a peer review agreement, but unknown to Bar Counsel or the peer review monitor, one of the cases giving rise to the current disciplinary proceedings had already been dismissed.

In mitigation, at all times relevant to these proceedings, the respondent has suffered from a serious chronic health problem. His condition is currently stable.

This matter came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation that the respondent be suspended for a year and a day. On December 8, 2003, the Board voted to accept the stipulation and to recommend the agreed-upon disposition to the Supreme Judicial Court. The Court so ordered on December 17, 2003.

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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