B.B.O. File No. C2-03-0187

Order Entered by the Board on March 12, 2007 Dismissing Petition for Discipline.

HEARING REPORT

On December 23, 2005, Bar Counsel filed a petition for discipline against the Respondent, John Doe. The petition charges, in essence, that when a client complained to Bar Counsel that the Respondent had not returned his file and an unearned retainer, the Respondent presented fraudulent documents in his defense. Bar Counsel also charges that the Respondent failed to hand over the client’s file promptly.

The Respondent filed a pro se answer on January 18, 2006. His counsel filed an appearance on April 20, 2006.

We granted the Respondent’s motion to exclude from evidence any private conversations between spouses, G.L. c. 233, § 20, First, but reserved ruling on any particular conversations. At the hearing, we allowed Richard Roe, the complaining witness, to testify about any conversations with his wife that occurred over the telephone while Mr. Roe was in prison, because prison regulations permitted them to be monitored. Tr. I:21-22. We also allowed Mr. Roe to testify to any conversations intended merely as a conduit for communications to or from a third party. Id.

Hearings were held on August 2, 3, 8 and 15, 2006. Ninety-five exhibits were admitted, and seven witnesses testified.

Bar Counsel filed her proposed findings, conclusions and recommendations on October 12, 2006. The Respondent filed his proposed findings, conclusions and recommendations on October 16, 2006.

Based on our subsidiary findings, below, we recommend that the petition for discipline be dismissed and that no discipline be imposed.

Findings of Fact

There are unknowns in this case that will never be known, and they outnumber the knowns. The one critical fact that is known – because it has been stipulated to -- is that a signature on a fee agreement, purporting to be that of the wife of the Respondent’s client, is a forgery. After carefully considering the evidence, however, we find that we do not know whether the purported signature of the Respondent’s secretary, Susan Smith, is a forgery, when the known forgery occurred, who committed it, and who knew that it had been committed. The charge that the Respondent committed or caused the forgery and then knowingly presented it to Bar Counsel is a serious one, and it cannot be sustained on the evidence before us. We also do not find that the Respondent committed the other violations charged.

1. The Respondent was admitted to practice in the Commonwealth of Massachusetts on December 14, 1988. Tr. III:71 (Doe); Ans. ¶ 2.¹ Before his admission in Massachusetts, he practiced law in New York and Pennsylvania. Tr. III:69-71 (Doe).
2. From around 1995 to early 2004, with a break not pertinent here, the Respondent employed Susan Smith as his secretary and office manager. Tr. III:77-78 (Doe).
3. Sometime around September 25 or 26, 2001, Mary Roe met with the Respondent to discuss representation for her husband, Richard Roe, on appeal from a state criminal conviction for which he was then serving a prison sentence. Tr. I:5-7, 11-12 (Mr. Roe), Tr. II:26-29 (Ms. Roe), Tr. III:81-82 (Doe); Ans. ¶¶ 3, 4; Ex. 11 (entry for 9-26-01), Ex. 17 at 0050-51, Ex. 89. Ms. Roe speaks Spanish; the Respondent does not. Tr. II:27 (Ms. Roe); Tr. III:77 (Doe). Ms. Smith, who is bilingual, translated for the Respondent and Ms. Roe. Tr. II:27, 42 (Ms. Roe); Tr. III:77, 80 (Doe).
4. The Respondent quoted a range of costs for an entire appeal, which Ms. Roe said she could not afford. Tr. II:29 (Ms. Roe: $5,000 to $10,000), Tr. III:81 (Doe: $10,000 to $15,000). In that meeting or at a later meeting, the Respondent and Ms. Roe agreed that for a flat fee of $3,500, payable immediately, he would review the trial transcripts and advise Mr. Roe whether there were issues for appeal. Tr. II:29-30, 44-45 (Ms. Roe), Tr. III:84-86 (Doe); Ex. 89.
5. Between September 27 and October 11, 2001, Ms. Roe paid the Respondent a total of $3,500. Tr. II:30-31 (Ms. Roe), Tr. III:86-87, Tr. IV:72 (Doe); Ans. ¶ 4; Ex. 2, Ex. 3, Ex. 4, Ex. 5, Ex. 11, Ex. 85, Ex. 86, Ex. 89. We credit Ms. Roe’s testimony that she was never asked to sign a fee agreement. Tr. II:30-32, 33-34 (Ms. Roe).
6. We do not credit Mr. Roe’s testimony concerning the terms of the Respondent’s engagement, finding his testimony to be based on second-hand information and self-contradictory. Tr. I:50-57 (in several of his letters, Mr. Roe said that the Respondent had received $5,000 as the price for the entire appeal), 66, 73 (Mr. Roe testified that the Respondent received $3,500 to start the case, but wanted $7,000 for the entire appeal); Tr. I:57-58 (Mr. Roe) and Ex. 98 (Mr. Roe wrote to Bar Counsel that the Respondent agreed to handle the entire appeal for $3,500).
7. On December 27, 2001, the Respondent visited Mr. Roe at MCI Concord. Tr. III:94; Ans. ¶ 7; Ex. 1, Ex. 11 (entry for 12/27/2001). The Respondent had asked Ms. Smith to interpret for him, but she did not clear the prison’s background check. Tr. III:94-96 (Doe); Ex. 12; Ex. 13 at 0027-28; Ex 80, at 3^rd page, Ex. 81. As a result, the Respondent visited Mr. Roe without an interpreter, and concluded that without one he was unable to communicate well with Mr. Roe. Tr. I:17-18 (Mr. Roe), Tr. III:96-97 (Doe); Ans. ¶ 7.
8. Around April 9, 2003, the Respondent received and reviewed the transcript of Mr. Roe’s trial. Tr. III:92-93, 103-106 (Doe); Ans. ¶ 8; Ex. 11 (entry for 4-9-03), Ex. 89. Bar Counsel does not charge that the delay in obtaining the trial transcripts resulted from any misconduct.
9. Sometime around April 30, 2003, the Respondent told Ms. Roe that Mr. Roe did not have a basis for an appeal. Tr. II:42-46 (Ms. Roe), Tr. III:105-107 (Doe); Ex. 11 (entry for 4/30/03), Ex. 89. The Respondent offered to send the transcripts to another attorney for a second opinion. Tr. II:46 (Ms. Roe), III:107 (Doe). Ms. Roe reported the Respondent’s opinion to Mr. Roe. Tr. I:28-30, 43 (Mr. Roe).
10. Around May 7 or 8, 2003, the Respondent sent Mr. Roe a copy of the trial transcripts. Tr. I:30 (Mr. Roe), Tr. III:106 (Doe); Ex. 11 at 0020, Ex. 71, 7^th page from the end, Ex. 89 (entry for May 8, 2003).
11. Around May 8, 2003, Mr. Roe wrote to the Respondent, discharging him. Ex. 92. Mr. Roe’s letter demanded his file and $3,000, which Mr. Roe characterized as the unearned portion of the retainer. Tr. I:31-33 (Mr. Roe), Tr. III:119 (Doe); Ex. 92.
12. On May 21, 2003, Mr. Roe complained to Bar Counsel that the Respondent had been paid a flat fee of $3,500 to prosecute the entire appeal but had done nothing, and had not yet refunded the unearned retainer or turned over the file. Ans. ¶ 11, Ex. 98.
13. On May 22, 2003, the Respondent wrote back to Mr. Roe that he had fulfilled his contract; he did not turn over the file. Tr. III:108-109; Ex. 11 at 0020, Ex. 89 (entry for May 22, 2003), Ex. 93.
14. On May 31, 2003, Mr. Roe sent another letter to the Respondent demanding his file. Ans. ¶ 13.
15. On June 12, 2003, an Assistant Bar Counsel spoke with the Respondent concerning Mr. Roe. Ans. ¶ 14.
16. Sometime on or before June 18, 2003, the Respondent sent Mr. Roe a copy of a “Fee Agreement” dated December 27, 2001, purportedly signed by Ms. Roe on behalf of Mr. Roe, and by Ms. Smith as witness. Tr. III:129-130 (Doe); Ex. 8, Ex. 11 at 0021. The Fee Agreement contained the terms agreed between Ms. Roe and the Respondent. Tr. III:86, 131, Tr. IV:71-72 (Doe); Ex. 8.
17. On June 18, 2003, the Respondent wrote to Bar Counsel. Ans. ¶ 15. He denied that he had been retained to prosecute the entire appeal, asserted that he had fulfilled his contract, and enclosed a copy of an itemized statement and the Fee Agreement. Ans. ¶ 16, Ex. 8, Ex. 11. The itemized statement showed 23 hours of work at $200 per hour and, therefore, indicated that the Respondent had earned the $3,500 retainer by his services, before considering expenses. Ans. ¶ 18; Ex. 11. The statement also listed about $200 in expenses, including $150.00 for an interpreter’s services on December 27, 2001. Ans. ¶ 18; Ex. 11. We credit the Respondent’s testimony and his representations in Exhibit 14 (letter to Bar Counsel) that when he sent the itemized statement to Bar Counsel he had a memory of bringing an interpreter with him to visit Mr. Roe, and mistakenly believed that he had done so on December 27, 2001. Tr. III:99 (Doe); Ex. 14.
18. Around June 18, 2003, the Respondent mailed Mr. Roe his file and the itemized statement, which Mr. Roe received on or about June 21, 2003. Tr. I:34-35, 40-41 (Mr. Roe); Tr. III:119, 129-130, 136 (Doe); Ans. ¶ 15; Ex. 11 at 0021, Ex. 94.
19. On July 2, 2003, in response to a letter from Mr. Roe, the Appeals Court notified Mr. Roe that it had not yet received a notice of assembly of the record, and that the forty-day period for filing an appellate brief had not yet begin to run. Ex. 105 at 1.
20. On September 2, 2003, Bar Counsel wrote to the Respondent, asking if he had used an interpreter during his December 27, 2001 visit to Mr. Roe. Ans. ¶ 20; Ex. 77, 101.
21. On September 17, 2003, the Respondent wrote back to Bar Counsel. Ex. 14. He wrote that he had been mistaken about the date when he brought an interpreter to visit Mr. Roe; it was not on December 27, 2001, but instead some time after April 22, 2002. Ex. 14 at 2. We credit the Respondent’s testimony that he found evidence in his files that he had cleared an interpreter to visit the prison in April 2002, and formed the mistaken but honest belief that the interpreter was for Mr. Roe. Tr. III:99-101, 138 (Doe); Ex. 13, Ex. 14.
22. On January 26, 2004, the Respondent sent Bar Counsel a copy of a letter to him from the Department of Corrections, dated January 20, 2004. Ex. 15. The letter listed more visits to Mr. Roe than the Respondent claimed. Ex. 15. Also, the letter does not support the Respondent’s claim that he had brought an interpreter to visit Mr. Roe during April of 2002. Ex. 14. Bar Counsel argues that the Respondent disclosed an intent to deceive by forwarding this letter. Bar Counsel’s Proposed Findings of Fact, etc., at 8, ¶ 45. We find that the Respondent forwarded the January 20, 2004 letter to Bar Counsel without careful review, and without fraudulent intent.
23. On February 17, 2004, the Department of Corrections wrote to the Respondent that its January 20, 2004 letter contained an error, enclosing a copy of its record of visits to Mr. Roe. Ex. 16. Bar Counsel argues that the Respondent withheld this letter, citing Tr. IV:57 (Doe), and asks us to infer intent to deceive. Bar Counsel’s Proposed Findings of Fact, etc., at 8-9, ¶ 46. We find that in the cited testimony the Respondent only denied sending the original document to Bar Counsel. The Exhibit itself confirms the Respondent’s later testimony that he sent Bar Counsel a copy. Tr. IV:62 (Doe). The date stamp Bar Counsel placed on Exhibit 16 shows receipt on February 23, 2004, at or about the time Mr. Doe would have received it, but the document does not indicate that the Department of Corrections copied or blind-copied Bar Counsel. It must have come from the Respondent. We do not infer that the Respondent had fraudulent intent concerning incurring the interpreter’s fee in April 2002. Tr. III:100 (Doe).
24. Mr. Roe eventually obtained successor counsel, who briefed his appeal. Tr. I:43 (Mr. Roe); Ex. 105. The Appeals Court affirmed Mr. Roe’s conviction. Tr. I:62 (Mr. Roe).
25. Bar Counsel charges that when the Respondent sent Bar Counsel and Mr. Roe the Fee Agreement he knew that it was fraudulent. Petition ¶¶ 17, 24; Ex. 8, Ex. 76. The Respondent stipulated that Ms. Roe’s signature on the Fee Agreement is not authentic, Tr. III:12 (stipulation by counsel), and Bar Counsel asks us to infer guilty knowledge from this stipulation. Bar Counsel’s Proposed Findings of Fact, Conclusions of Law and Recommendation for Discipline, ¶ 28 at 5-6. Considering the pre-hearing discovery provided to the Respondent and the tactical reasons why he might have given the stipulation, we find insufficient evidence to support the proposed inference. Bar Counsel presented no evidence that the Respondent could have recognized that Ms. Roe’s signature was forged even if he had nothing to do with the forgery. Bar Counsel argues primarily that the Respondent knew of the forgery because he committed it, and Bar Counsel attempted to prove this by attempting to prove that the Respondent fabricated the Fee Agreement and forged Ms. Smith’s signature on it. Petition, ¶¶ 17, 24, Bar Counsel’s Proposed Findings of Fact, etc., ¶¶ 24, 31.
26. There is insufficient evidence that the Respondent fabricated the Fee Agreement. Bar Counsel’s expert offered no opinion about the authenticity of the entire document. Tr. III:63 (Shough). We are not persuaded by differences between the Fee Agreement and other agreements in evidence. Bar Counsel’s Proposed Findings of Fact, etc., ¶¶ 32, 33; and see Exhibits 25-30. Those differences cut the other way. If the Respondent intended to fabricate evidence, we would expect him to have adhered more strictly to customary forms concerning signature lines and other details. Further, the other agreements presented to us concerned representation at trial. The absence of a fixed total price for Mr. Roe’s appeal is consistent with the Respondent’s testimony, which we have credited, that he did not agree to handle the entire appeal.
27. Bar Counsel’s position that the Respondent fabricated the Fee Agreement demands that we accept as true a highly unlikely series of events. A letter from the Respondent to Mr. Roe purports to enclose the Fee Agreement for Mr. Roe’s signature on October 27, 2002. Ex. 9. On March 31, 2004, the Respondent told Bar Counsel that he sent the Fee Agreement to Mr. Roe with that letter. Ex. 17. The October 27, 2002 letter cannot be authentic if the Respondent fabricated the Fee Agreement in 2003. Further, if the Respondent committed perjury about the Fee Agreement, we are left to speculate why the Respondent would testify that he had no present recollection of sending the Fee Agreement to Mr. Roe with the October 27, 2002 letter. Tr. III:116-117 (Doe). Bar Counsel’s position, therefore, requires that we conclude that the Respondent (i) fabricated the Fee Agreement and forged two signatures on it, (ii) fabricated the October letter to Mr. Roe, (iii) lied to Bar Counsel about mailing the Fee Agreement to Mr. Roe with the October letter, then (iv) perjured himself before this committee about the Fee Agreement, but then later (v) either forgot his lie about the October 2002 letter, or chose not to repeat it to this committee. While the Respondent’s conduct might appear suspicious, we find the evidence insufficient to support an inference of fraud, forgery or deceit.
28. For the following reasons, we conclude that Bar Counsel has not carried the burden of proving that Ms. Smith’s signature was forged.
29. The Respondent denied forging the signatures or causing them to be forged. Tr. III:66. He testified that he told Susan Smith to draft the Fee Agreement incorporating the terms agreed between him and Ms. Roe and to get it signed, as was his usual practice. Tr. III:79-80, 85-86, 129 (Doe). The Respondent testified, consistently with his correspondence with Bar Counsel, that he simply found the Fee Agreement in his file, and believed the signatures on the Fee Agreement were authentic because Ms. Smith told him they were. Tr. III:66, 129-32, 137-139, IV:69-70 (Doe); Ex. 17 at 0050-51, Ex. 18 at 0053. The Respondent testified that the Fee Agreement accurately reflects the terms of his engagement on behalf of Mr. Roe, Tr. III:86, 131, Tr. IV:71-72 (Doe), and we credit this testimony, finding Ms. Roe’s testimony to be consistent with it. Tr. II:29-30, 44-45 (Ms. Roe).
30. Bar Counsel presented the opinion testimony of Jane Shough, a document examiner, that the purported signature of Susan Smith was not authentic. Tr. III:37, 63 (Shough). Ms. Shough, however, acknowledged that document analysis is fallible, and that two qualified document examiners can reach different conclusions concerning the authenticity of a signature. Tr. III:43-47 (Shough). She acknowledged that the various examples of Ms. Smith’s signatures that she examined displayed variety in the formation of the letters, Tr. III:55 (Shough), including some instances in which the last letters of Ms. Smith’s last name trailed off, as they do on the Fee Agreement. Tr. III:61-62 (Shough). In addition, Ms. Shough noted significant differences between Ms. Smith’s purported signature and Ms. Roe’s: whereas it appears that whoever forged Ms. Roe’s signature made an effort to make it look like Ms. Roe’s, the purported signature of Ms. Smith does not display evidence of an effort to copy an original. Tr. III:37-39 (Shough). Considering all of this evidence, we do not conclude that the differences Ms. Shough noted as between the samples of Ms. Smith’s handwriting from Bar Counsel and the signature on Exhibit 8 indicate forgery, rather than variations caused by external conditions affecting Ms. Smith’s own handwriting.
31. [Deleted per Board vote.]
32. For the following reasons, we find that Bar Counsel has not proved that the Respondent forged Ms. Roe’s signature on the Fee Agreement.
33. Because we cannot conclude that Ms. Smith’s signature was forged, we cannot eliminate with any reasonable degree of certainty the likelihood that Ms. Smith herself forged Ms. Roe’s signature. The Respondent offered into evidence Ms. Smith’s hand-written notes during November and December of 2001. Tr. IV:42-43 (Doe); Ex. 102. According to these notes, one of Ms. Smith’s many tasks was to obtain client signatures on fee agreements. If she failed to get Ms. Roe’s signature, she could have signed for Ms. Roe, thinking that the issue would never come to light.
34. Even if we had found that Ms. Smith’s signature was forged, we could not find that the Respondent forged her and Ms. Roe’s signatures. Bar Counsel’s proof that the Respondent forged both signatures rests on its proof that only the Respondent and Ms. Smith could have forged the signatures on the Fee Agreement and its proof that Ms. Smith’s signature is forged. From these facts, Bar Counsel constructs the following argument: If Ms. Smith forged Ms. Roe’s signature, then her own signature would not be forged. But her signature is forged. Therefore, she did not forge Ms. Roe’s signature. It follows that the Respondent, as the only other person who could have forged Ms. Roe’s signature, must have forged that signature. Bar Counsel’s Proposed Findings of Fact, etc., ¶¶ 26, 29. The evidence, however, does not narrow the possible forgery suspects down to only the Respondent and Ms. Smith. The passage cited to this effect, Tr. III:78-79 (Doe), concerns office staffing at the time when Ms. Roe first came to see the Respondent. There was no evidence that two years later, when the Respondent allegedly forged the signatures, only the Respondent and Ms. Smith had the opportunity to forge signatures on the Fee Agreement. That is a fatal gap in Bar Counsel’s argument and proof.

Conclusions of Law

35. We do not find that the Respondent failed to turn over Mr. Roe’s file after being discharged, and within a reasonable time after Mr. Roe’s request, in violation of Mass. R. Prof. C. 1.16(d) and (e).⁴ The Respondent turned the file over within about a month of Mr. Roe’s request. Mr. Roe had already received the most crucial materials for his appeal, i.e., the trial transcripts, when he requested his file. The Appeals Court had not yet established a briefing schedule. Therefore, it was not necessary to send Mr. Roe his file immediately to avoid prejudice. In all of the circumstances, we find that the Respondent did not violate Mass. R. Prof. C. 1.16(d) and (e) as charged.
36. The Respondent made an honest mistake when he told Bar Counsel that he used an interpreter for Mr. Roe. He did not know his statements were false, and did not intend to mislead Bar Counsel. Mass. R. Prof. C. 8.1(a),⁵ and 8.4(c)⁶ require knowing or intentional misrepresentation. See Matter of Zimmerman, 17 Mass. Att’y Disc. R. 645-46 (2001) (decided under precursor to Rule 8.4(c)). Therefore, we do not find that the Respondent intentionally misrepresented to Bar Counsel in connection with a disciplinary matter that he had incurred an expense of $150.00 by hiring an interpreter, in violation of Mass. R. Prof. C. 8.1(a), and 8.4(c).
37. The Respondent is also charged with violating Mass. R. Prof. C. 8.4(d) and (h)⁷ by intentionally misrepresenting to Bar Counsel that he had incurred expense for an interpreter. Where, as here, there is no other misconduct concerning that matter, we may find a violation under Rule 8.4(d) only if we find that the Respondent engaged in conduct so egregious and flagrantly violative of accepted professional norms as to undermine the legitimacy of the judicial process. In the Matter of the Discipline of an Attorney, 442 Mass. 660, 668, 20 Mass. Att’y Disc. R. 585, 594 (2004). We do not find such conduct where the evidence only supports a finding of mere error and overly hasty production of potentially relevant documentary evidence. For the same reason, we do not find that the Respondent’s conduct concerning the charges for an interpreter otherwise reflects adversely on his fitness to practice in violation of Rule 8.(h).
38. The Respondent is charged with providing a fraudulent fee agreement to Bar Counsel in connection with a disciplinary matter, in violation of Mass. R. Prof. C. 8.1(a),⁸ and 8.4(c).⁹ We have found the evidence insufficient to sustain the charge that the Respondent forged signatures on the Fee Agreement, or knew that they were forged. Therefore, we do not find that the Respondent violated Rules 8.1(a) and 8.4(c) as charged.
39. The Respondent is also charged with providing a fraudulent fee agreement to Bar Counsel to justify his fee in connection with a disciplinary matter, in violation of Mass. R. Prof. C. 8.4(d) and (h).¹⁰ The evidence before us concerning the Respondent’s submission of the Fee Agreement to Bar Counsel does not sustain charges under Rules 8.4(d) and (h).

Matters in Aggravation and Mitigation

We address mitigation and aggravation to complete the record.
40. The Respondent offered evidence of his good reputation for truthfulness, Tr. III:112-113 (Pantelakis), Tr. III:124-125 (Hallinan), and for competent, aggressive advocacy. Tr. III:124 (Hallinan). These are “typical” matters in mitigation, and do not warrant substantial departure from a sanction that would be appropriate otherwise. Matter of Dasent, 446 Mass. 1010, 1013, n. 4 (2006); Matter of Finn, 433 Mass. 418, 425-26, 17 Mass. Att’y Disc. R. 200, 213-14 (2001); Matter of Alter, 389 Mass. 153, 157, 3 Mass. Att’y Disc. R. 3, 7-8 (1983).
41. Bar Counsel argues in aggravation that the Respondent demonstrated lack of candor and offered knowingly false evidence. We have not credited all of the Respondent’s testimony, but Bar Counsel did not carry the burden of proving that the portion that we do not credit was knowingly false. Matter of Hoicka, 442 Mass. 1004, 1006, 20 Mass. Att'y Disc. R. 239, 243 (2004) (rescript); Matter of Eisenhauer, 426 Mass. 448, 456, 14 Mass. Atty. Disc. R. 251, 261, cert. denied 524 U.S. 919 (1998). The Respondent did not himself assert that Ms. Roe’s signature was authentic, and therefore did not inexplicably change his position when he stipulated that it had been forged. Compare Ex. 17 and Ans. ¶ 4 (“A copy of the agreement that appeared to be signed by Mary Roe … was found in the file.”). To be sure, even after the Respondent had affirmatively conceded that Ms. Roe’s signature was not authentic, he continued to offer into evidence Ms. Smith’s statements that both she and Ms. Roe had signed the Fee Agreement. Bar Counsel’s Proposed Findings of Fact, etc., at 12, ¶ 56. The import of that evidence, however, was that when the Respondent provided the Fee Agreement to Bar Counsel, he had reason to believe that it was genuine. Finally, we do not find that the Respondent demonstrated lack of candor by asking the committee to believe that Ms. Smith attempted to “disguise” her own signature. Bar Counsel’s Proposed Findings of Fact, etc., at 6, ¶ 29, citing to Tr. IV:11 (Doe). The cited testimony may equally be understood to express the Respondent’s belief that when Ms. Smith signed the Fee Agreement, she was not exercising caution to ensure that her signature had its usual appearance. Compare Tr. III:133 (Doe). Based on the foregoing, we do not find that Bar Counsel carried the burden of proving as an aggravating factor that the Respondent displayed a lack of candor before the committee. Rules of the Board of Bar Overseers, § 3.28 (burden of proof is on Bar Counsel on all matters except affirmative defenses and mitigation); Matter of Ferguson, 21 Mass. Att’y Disc. R. 231, 247 (2005) (applying burden of proof against Bar Counsel on matter in aggravation). Nevertheless, and while we consider that the Respondent represented his client appropriately, his dealings with Bar Counsel while acting pro se were not of the highest order, helpful, or in his own best interest.
42. The parties present no other matters in aggravation or mitigation.

Recommended Disposition

We recommend that the petition for discipline brought against the Respondent be dismissed and no discipline be imposed.

FOOTNOTES

¹ The transcript shall be referred to as “Tr. _:_” with the first number referring to the volume and the second number referring to the page(s); the answer shall be referred to as “Ans. ¶_”; and the exhibits shall be referred to as “Ex._.”

² Deleted per Board vote.

³ Deleted per Board vote.

⁴ Rule 1.16: Declining or Terminating Representation

4. Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned.
5. A lawyer must make available to a former client, within a reasonable time following the client's request for his or her file, the following:
1. all papers, documents, and other materials the client supplied to the lawyer. The lawyer may at his or her own expense retain copies of any such materials.
2. all pleadings and other papers filed with or by the court or served by or upon any party. The client may be required to pay any copying charge consistent with the lawyer's actual cost for these materials, unless the client has already paid for such materials.
3. all investigatory or discovery documents for which the client has paid the lawyer's out-of-pocket costs, including but not limited to medical records, photographs, tapes, disks, investigative reports, expert reports, depositions, and demonstrative evidence. The lawyer may at his or her own expense retain copies of any such materials.
4. if the lawyer and the client have not entered into a contingent fee agreement, the client is entitled only to that portion of the lawyer's work product (as defined in subparagraph (6) below) for which the client has paid.
5. if the lawyer and the client have entered into a contingent fee agreement, the lawyer must provide copies of the lawyer's work product (as defined in subparagraph (6) below). The client may be required to pay any copying charge consistent with the lawyer's actual cost for the copying of these materials.
6. for purposes of this paragraph (e), work product shall consist of documents and tangible things prepared in the course of the representation of the client by the lawyer or at the lawyer's direction by his or her employee, agent, or consultant, and not described in paragraphs (2) or (3) above. Examples of work product include without limitation legal research, records of witness interviews, reports of negotiations, and correspondence.
7. notwithstanding anything in this paragraph (e) to the contrary, a lawyer may not refuse, on grounds of nonpayment, to make available materials in the client's file when retention would prejudice the client unfairly.

⁵ Rule 8.1: Bar Admission and Disciplinary Matters

1. lawyer in connection with … a disciplinary matter, shall not:
1. knowingly make a false statement of material fact;

⁶ Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:

3. engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; …

⁷ Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:

4. engage in conduct that is prejudicial to the administration of justice;

…
8. engage in any other conduct that adversely reflects on his or her fitness to practice law.

⁸ See n. 5, supra.

⁹ See n. 6, supra.

¹⁰ See n. 7, supra.

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