Order Entered by the Board on January 8, 2007 Dismissing Petition for Discipline.
HEARING REPORT
On November 3, 2005, bar counsel filed a petition for discipline against the respondent, John Smith1, alleging that the respondent failed to pursue his client’s lawful objectives, made intentional misrepresentations to his client and to bar counsel to conceal his neglect, failed to safegu and return his client’s property, fabricated letters, and failed to obey a lawful court order necessitating the issuance of a capias. The respondent, pro se, filed an answer on November 28, 2005. Bar counsel amended the petition on February 13, 2006, and the respondent, now represented by counsel, filed an amended answer on March 17, 2006. A hearing was held in this matter before a hearing committee on June 7, 8, and 9, 2006. Thirty-three (33) exhibits were admitted into evidence and seven (7) witnesses testified at the hearing. On July 28, 2006, the respondent filed his proposed findings of fact, conclusions of law and recommendation for discipline, and on August 1, 2006, bar counsel filed her proposed findings of fact, conclusions of law and recommendation for discipline.
I. FINDINGS OF FACT
1. The respondent John Smith was admitted to the Massachusetts bar on December 20, 1996. (Am.Ans. 22)
2. At all relevant times, the respondent was engaged in the practice of law, either at the firm known as ABC Co. in Anytown, MA or in solo practice in Smalltown, MA. (Smith Tr. II:173)
3. Ms. Jane Doe, now known as Jean Doe, had been employed at the Massachusetts Department of XYZ (“XYZ”) from July 1999 to January 2002, when she left to enter law school. (Doe Tr. I:27) During her period of employment, Ms. Doe was promoted from Worker I to Worker II or III. (Doe Tr. I:30)
4. Ms. Doe’s last day of employment with XYZ was January 29, 2002, and the last paycheck she received was for her time worked through January 24 or 25, 2002. (Doe Tr. I:32-33) We credit Ms. Doe’s testimony that she expected to receive one more paycheck from XYZ for her remaining personal time, compensatory time, and vacation time, that would also be adjusted to reimburse XYZ for a past overpayment. (Doe Tr. I:34-35, 37, 39)
5. While Ms. Doe was employed at XYZ, a new union contract was signed for a pay increase effective in July 2001, but due to state budget constraints, the pay increases would not be paid to XYZ employees until January 2002. (Doe Tr. I:35-36) We credit Ms. Doe’s testimony that during January 2002, XYZ employees began to receive checks at home representing their lump sum retroactive pay increase under the new collective bargaining agreement. (Doe Tr. I:36) We also credit Ms. Doe’s testimony that while she did not know how much retroactive pay she would receive, she did not believe there was any issue or dispute regarding her entitlement to a lump sum payment. (Doe Tr. I:37-38)
6. We credit Ms. Doe’s testimony that by mid-February 2002, when she still had not received her last paycheck from XYZ, she began calling XYZ on multiple occasions3, but without any success. (Doe Tr. I:38, II:57) In mid-April 2002, Ms. Doe sought the advice of a law professor at school, who recommended that she consult with an employment specialist and referred her to the respondent. (Doe Tr. I:40)
7. Ms. Doe contacted the respondent, and he agreed to meet with her on April 18, 2002 at a coffee shop in Bigtown, MA. (Doe Tr. I:40, II:45-46; Smith Tr. II:175-76) We credit Ms. Doe’s testimony that at this initial meeting, she gave the respondent her original pay stubs for the last two pay periods and her collective bargaining agreement book. (Doe Tr. I:41; Smith Tr. II:187-88)
8. We find that during this initial meeting, the respondent generally described to Ms. Doe the procedures for pursuing a claim under the wage statutes, including the need for a right to sue letter from the Attorney General’s Office and the potential for treble damages. (Smith Tr. II:179-80, III:75-79) We credit the respondent’s testimony that he made no assurances to Ms. Doe that she would receive treble damages for her claim, but that Ms. Doe nonetheless became entirely focused on the possibility of treble damages.4 (Smith Tr. II:179-80, 187, III:77-79)
9. At the end of their initial meeting, the respondent agreed to represent Ms. Doe for a flat fee of $350.00, which was the equivalent of two billable hours, but if the matter took less than two hours of the respondent’s time, then he would refund the amount unearned. (Doe Tr. I:42, II:46; Smith Tr. II:177) We credit the respondent’s testimony that he did not keep track of his billable hours in this matter because it was a flat fee case and because he did not believe there would be any chance of recovering legal fees against XYZ. (Smith Tr. II:183, III:78)
10. We find that the respondent was retained by Ms. Doe to recover the monies owed to her by XYZ, and that at some point the respondent’s representation also included recovery of Ms. Doe’s retroactive pay increase. (Doe Tr. I:41-42; Smith Tr. II:176-78) Based upon our observation of Ms. Doe’s character and demeanor at hearing, we do not believe Ms. Doe would have agreed to pay the respondent a fee of $350.00 to recover only approximately $480.00 in unpaid vacation, personal and compensatory time, and therefore we do not credit Ms. Doe’s testimony that the respondent was only retained to recover her last paycheck.5 (Doe Tr. II:53)
11. The respondent gave Ms. Doe his office telephone number and his cell phone number. (Doe Tr. I:43-44; Smith Tr. II:218-19) Ms. Doe admitted, and we so find, that she was “overly enthusiastic” in calling the respondent for updates on the progress of her matter.6 (Doe Tr. I:45, II:47)
12. We credit the respondent’s testimony that he sent a demand letter dated April 29, 2002 to the Office of Labor Relations at XYZ on behalf of Ms. Doe.7 (Smith Tr. II:185; Ex. 1) We credit the respondent’s testimony that he e-mailed this demand letter to Ms. Doe for her review before it was mailed to XYZ.8 (Smith Tr. II:185) We also credit the respondent’s testimony that he had a discussion about the demand letter with Ms. Doe the previous week, during which he strongly recommended that a demand letter be sent to XYZ, although this was not a legal prerequisite to filing suit, and that he advised Ms. Doe that if she did not agree to sending the demand letter that she should consider hiring a different attorney. (Smith Tr. II:186, 188, III:27-28, 62-63)
13. Between April 30 and May 11, 2002, Ms. Doe called the respondent four times, spoke with the respondent on three of the four times that she called, and the respondent left at least one telephone message in return. (Ex. 24) In these telephone conferences with the respondent, Ms. Doe answered the questions posed by the respondent, promised to mail him his $350 fee, and asked for a copy of the demand letter to XYZ and about the status of her XYZ money. (Doe Tr. I:48-50; Ex. 24) We find that the respondent engaged in all of the foregoing work yet did not receive payment of his flat fee until May 6, 2002. (Doe Tr. II:48-49; Smith Tr. II:192; Ex. 2)
14. We credit the respondent’s testimony that about May 16, 2002, he received an envelope from XYZ addressed to him, which contained an envelope addressed to Ms. Doe with a check inside for approximately $1,600, which constituted Ms. Doe’s retroactive pay increase. (Smith Tr. II:194-96, III:37-38, 61, 71; Ex. 3) We credit the respondent’s testimony and specifically find that XYZ made this payment to Ms. Doe through her counsel as a direct result of the respondent’s efforts in making demand upon XYZ. (Smith Tr. II:196) We also credit the respondent’s testimony that he mailed out the XYZ check to Ms. Doe immediately, without a cover letter or making a copy of the check for his file. (Smith Tr. II:195-96, III:31, 62)
15. Ms. Doe’s testimony is that on May 11, 2002, she received a green card for a certified letter from XYZ mailed to her home address. (Doe Tr. I:54) Because Ms. Doe thought she might jeopardize her potential lawsuit with XYZ, she claims she spoke with the respondent about her reluctance to pick up the certified letter from XYZ, and the respondent instructed her to pick up the certified letter. (Doe Tr. I:62) We do not credit this testimony because Ms. Doe admitted in cross-examination that she did not have this specific conversation with the respondent until May 20, 2002, after she had received two notices from the post office, and because Ms. Doe’s own notes from May 20, 2002 corroborate her testimony on cross-examination, all of which we credit. (Doe Tr. II:66-67; Ex. 24) In addition, Ms. Doe’s entry for May 16, 2002 noted her receipt of a second notice from the post office, as well as receipt of the XYZ letter and retroactive payment. (Ex. 24) Since Ms. Doe admitted on cross-examination that she did not discuss the certified mailing with the respondent until May 20, 2002 and that she did not pick up the certified letter from the post office until after her conversation with the respondent on May 20, 2002, this May 16, 2002 entry in fact supports the respondent’s testimony that he mailed the XYZ check to her, supports Ms. Doe’s testimony on cross-examination that she received a second notice from the post office before speaking with the respondent, and contradicts Ms. Doe’s testimony that the XYZ check was contained in the certified letter she picked up on May 20, 2002. (Doe Tr. I:56, II:66; Ex. 3) We also note that neither bar counsel nor Ms. Doe submitted into evidence the certified mail notices or the certified mail envelope from XYZ. In light of our observation of Ms. Doe’s character and demeanor at the hearing, and her propensity to track and keep all documents and information relating to her dealings with XYZ, Ms. Doe’s failure to retain and produce the certified mail envelope from XYZ is out of character for her and further undermines her direct testimony, which, as stated above, we do not credit.
16. A request to the Attorney General’s Office for a right to sue letter signed by Ms. Doe on May 13, 2002 was mailed by the respondent on May 17, 2002 via certified mail, return receipt requested. (Doe Tr. II:68; Ex. 4, Ex. 5) We credit the respondent’s testimony that he previously had drafted and e-mailed the request letter to Ms. Doe for her review and signature, that she made at least one set of edits, that he then made those corrections and sent her back the letter via e-mail, which she then dated May 13, 2002, printed, signed, and possibly faxed, but definitely mailed back to the respondent. (Doe Tr. I:53-54, 65-66, 75, II:51-52; Smith Tr. II:192-93, III:65) Ms. Doe received from the respondent a copy of the cover letter sent to the Attorney General’s Office dated May 17, 2002 enclosing her request letter, but did not receive a copy of her request letter dated May 13, 2002, which had been e-mailed by the respondent and presumably was already on her personal computer. (Doe Tr. I:68-69, II:74; Smith Tr. II:193-94; Ex. 25)
17. Ms. Doe expressed her frustration about her case to the respondent on May 22, 2002, who told her he would perform some calculations and call her back. (Ex. 24) When she did not receive a telephone call back, she called on May 28, 2002 and left a message. (Ex. 24) The respondent then called her back the same day and left her a message. (Ex. 24) Eventually on May 28, 2002, Ms. Doe spoke with the respondent who suggested another demand letter to XYZ, which Ms. Doe adamantly opposed. (Ex. 24) When the respondent warned her that the Attorney General’s Office could take 30-45 days to respond to her request, Ms. Doe said she would wait. (Ex. 24)
18. However, rather than wait, Ms. Doe called her state representative on May 28, 2002, and spoke to a staff person about the waiting period for the Attorney General’s Office. (Ex. 24) On May 29, 2002, the staff person told Ms. Doe that the Attorney General’s Office had not received anything from the respondent. (Ex. 24) Ms. Doe then called and left a message for the respondent to call her back on May 30, 2002, but the respondent did not call. (Ex. 24)
19. On May 30, 2002, Ms. Doe sent her own separate request letter to the Attorney General’s Office, using the respondent’s previous draft letter as a template, but deleting any mention of seeking the retroactive pay increase, which she had already received from XYZ. (Doe Tr. II:69-70, 76; Ex. 23) On May 31, 2002, Ms. Doe received from the respondent a copy of the May 17, 2002 letter sent by certified mail by the respondent to the Attorney General’s Office. (Ex. 24, Ex. 25)
20. The respondent received a letter dated June 4, 2002 from the Attorney General’s Office granting Ms. Doe a private right of action against XYZ. (Doe Tr. II:70-71; Smith Tr. II:197; Ex. 6) Ms. Doe received a response from the Attorney General’s Office dated June 6, 2002 that referred her to the letter previously sent to the respondent. (Doe Tr. II:70-71; Ex. 26) In reviewing these two letters from the Attorney General’s Office, we specifically find that Ms. Doe’s right to sue XYZ was the direct result of the respondent’s efforts on her behalf.
21. According to Ms. Doe’s notes, between June 3 and June 11, 2002, Ms. Doe called the respondent six times, while the respondent left her messages twice, and they finally spoke on June 11, 2002. (Ex. 24) Ms. Doe claims she informed the respondent that she had filed her own request with the Attorney General’s Office, and the respondent said he would then contact the Attorney General’s Office to inform them that the damage claim by her was smaller than originally stated due to the payment of the retroactive pay increase received from XYZ. (Ex. 24) Ms. Doe then called the respondent four times between June 13 and June 18, 2002 to learn what was happening with the Attorney General’s Office. (Ex. 24) Although the respondent did call Ms. Doe twice in that period, Ms. Doe pursued her own inquiry with the Attorney General’s office on June 18, 2002. (Ex. 24) On June 19, 2002, Ms. Doe was informed by the Attorney General’s Office that she could initiate suit against XYZ in District Court. (Doe Tr. II:40; Ex. 24) We note that this advice from the Attorney General’s Office was either conveyed incorrectly or misunderstood by Ms. Doe because Ms. Doe’s suit against XYZ was not permitted to proceed in District Court and had to be filed in superior court. (Doe Tr. II:39-40)
22. The respondent’s testimony is that he called Ms. Doe to advise her about the right to sue letter he received from the Attorney General’s Office and to schedule an appointment to discuss how to proceed with her case, and that Ms. Doe was upset with the respondent because she felt he had “cheated or robbed” her of her treble damages by not suing XYZ sooner. (Smith Tr. II:197-98) The respondent believes that this meeting was scheduled for July 17, 2002, and we find that the calendar entry for this meeting was entered by the respondent. (Smith Tr. II:199, 207-08; Ex. 31) We also find that the respondent believed in good faith that he had scheduled an appointment with Ms. Doe for July 17, 2002, and we do not find that the respondent fabricated this calendar entry.
23. According to Ms. Doe’s notes, she called the respondent’s office on June 19, 2002, spoke with a secretary who was not the respondent’s regular secretary, requested five specific documents from the respondent, including her original paycheck stubs, and was told the respondent would receive her message. (Ex. 24) Ms. Doe then claims that she spoke with the respondent by telephone on June 25, 2002 and requested the five documents, including her original paycheck stubs. (Doe Tr. II:24-25; Ex. 24) Ms. Doe claims that in this telephone conference with the respondent a meeting was scheduled for August 2, 2002. (Doe Tr. II:44, 72; Ex. 24) However, the appointment on the respondent’s calendar for August 2, 2002 appears to have been scheduled by the secretary and not the respondent. (Smith Tr. II:208-09; Ex. 31) In addition, the respondent testified that he scheduled the appointments for July 17, 2002 and August 20, 2002, but had no recollection of any appointment for August 2, 2002, which appears to have been scheduled by his secretary. (Smith Tr. II:209-10, III:51-52; Ex. 31) In any event, despite any inconsistencies in the testimony about who, when and how meetings were scheduled between the respondent and Ms. Doe, we decline to infer or to find that the respondent fabricated his calendar entries concerning his meetings with Ms. Doe.
24. While the respondent was on vacation in early July 2002, he was told by his secretary Carol Coe that Ms. Doe had called again requesting documents from her file. (Doe Tr. II:25-26; Smith Tr. II:199-200, III:48-49) We credit the respondent’s testimony that he instructed Ms. Coe to copy Ms. Doe’s file. (Smith Tr. II:200) Ms. Doe was on vacation in Europe from July 12 through July 28, 2002. (Ex. 24, Ex. 29) As a result, it is not material to our conclusions or our recommendation whether Ms. Doe was told by someone in the respondent’s office that the copies would be mailed to her in early July, or whether the copies were held in anticipation of Ms. Doe’s appointment on July 17, 2002, which she did not attend. (Doe Tr. II:26-27, 79; Smith Tr. II:200) The respondent also testified that while on vacation, he prepared a receipt letter regarding the flat fee payment for Ms. Doe in response to her specific request.9 (Smith Tr. II:200, III:48-49)
25. The respondent received a letter dated July 31, 2002 from Ms. Doe in which she requested several enumerated documents from the respondent, and also complained of the respondent’s delay in pursuing her right to sue letter from the Attorney General’s Office. (Smith Tr. II:212-13; Ex. 7) The respondent testified that he instructed Ms. Coe to copy the documents and mail them to Ms. Doe without a cover letter. (Smith Tr. II:214-15)
26. We credit Ms. Doe’s testimony that on August 5, 2002, she received a package from the respondent postmarked August 2, 2002 containing only the original collective bargaining agreement book and a copy of the right to sue letter from the Attorney General’s Office dated June 4, 2002. (Doe Tr. II:12-13; Ex. 8, Ex. 24) In a letter dated August 5, 2002, Ms. Doe again requested that the respondent return her original pay stubs along with copies of specific documents. (Doe Tr. II:16, 89; Smith Tr. II:215; Ex. 9, Ex. 24)
27. We credit the respondent’s testimony that by cover letter dated August 6, 2002, he mailed to Ms. Doe copies of the requested documents, enclosed a check for $175.00 in partial refund of her retainer, and advised her he would no longer represent her in this matter. (Smith Tr. II:217-18, 221, III:3-4, 23-24, 53, 68-69; Ex. 10, Ex. 11)
28. We do not find that the respondent fabricated his August 6, 2002 cover letter to Ms. Doe enclosing the documents she had requested. Although we credited Ms. Doe’s testimony that she received an incomplete package of documents from the respondent on August 5, we nonetheless find that the respondent proceeded to rectify the situation by mailing out another package of documents on August 6, 2002. We find that the respondent acted diligently and reasonably in his representation and communications with Ms. Doe and in his efforts to send her the requested documents, especially in light of her unreasonable and erroneous expectations and demands as a client. We also find that the respondent mailed Ms. Doe’s original pay stubs to her in one of his mailings. Regardless of whether Ms. Doe actually received her original pay stubs back is irrelevant because Ms. Doe ultimately suffered no harm as she was able to settle her case with XYZ.
29. We credit Ms. Doe’s testimony that on August 28, 2002, she telephoned the respondent and again demanded her documents. (Doe Tr. II:17; Ex. 24) We credit the respondent’s testimony that in response, he reassembled the entire package from August 6 and mailed it to Ms. Doe via certified mail. (Smith Tr. III:5; Ex. 12)]
30. On August 29, 2002, Ms. Doe received a package from the respondent by certified mail that appeared to have been opened or tampered with by the post office, but which contained copies of the requested documents. (Doe Tr. II:18-19; Ex. 11)
31. In response, Ms. Doe sent a letter by certified mail dated September 8, 2002 to the respondent seeking a full refund of her retainer. (Doe Tr. II:21-22, 49-50, 90; Smith Tr. III:6; Ex. 12) The respondent admitted that he did not respond to Ms. Doe’s September 8th letter because he felt a full refund, in light of his efforts in reviewing her documents, drafting her letter to the Attorney General’s Office, and responding to her numerous telephone inquiries, was completely inappropriate. (Smith Tr. III:7) We agree with the respondent, and find that as a direct result of his efforts on behalf of Ms. Doe, she received her retroactive pay increase and a right to sue letter from the Attorney General’s Office.
32. On October 11, 2002, Ms. Doe filed a small claims action against the respondent, seeking to recover the legal fee she had paid to him.10 (Doe Tr. II:28; Smith Tr. III:7; Ex. 20) The hearing was scheduled for December 19, 2002. (Doe Tr. II:29; Smith Tr. III:7; Ex. 20) Although the respondent received a copy of the complaint in the mail, he did not attend the small claims hearing. (Smith Tr. III:7) As a result, a default judgment entered against the respondent in the amount of $364.00, the legal fee sought plus the court costs. (Doe Tr. II:29-30, 50; Ex. 21) The respondent still had not paid the default judgment by the payment review date on January 18, 2003 so a capias issued against the respondent. (Doe Tr. II:31-32; Ex. 28)
33. We credit the respondent’s testimony that he intended to pay the judgment amount to Ms. Doe, but that he was not aware of the judgment amount against him until the capias was served upon him. (Smith Tr. III:8-9, 40) We note that no evidence was introduced by bar counsel to show that the respondent had knowledge of the judgment amount prior to the service of the capias upon him, and therefore do not infer or find that the respondent acted in deliberate disregard of a court order against him.
34. After the capias was served upon the respondent, he paid Ms. Doe the judgment in full. (Doe Tr. II:34, 50; Smith Tr. III:9-10) Ms. Doe sought payment from the respondent of the $30.00 capias service fee by the constable, and when he did not reimburse her this expense, she initiated another small claims action for the capias service fee, the certified mailing fee, and the interest on her original judgment due to the respondent’s delay in payment. (Doe Tr. II:35-36, 83; Smith Tr. III:9-10)
35. The respondent appeared for the small claims hearing on July 17, 2003, and judgment entered for $34.42 against the respondent. (Doe Tr. II:37, 83-84) Ms. Doe received payment in full by July 31, 2003. (Doe Tr. II:37-38, 50, 83-84)
36. Subsequently, Ms. Doe pursued her claim against XYZ for her remaining compensatory time, vacation time, and personal time using a different attorney, and, after filing suit in Superior Court, the case was settled for approximately $748.00 before taxes. (Doe Tr. II:38-40, 114)
II. CONCLUSIONS OF LAW
37. Bar counsel charges that by failing to make demand on XYZ, by misrepresenting to Ms. Doe that he had sent a demand letter to XYZ on her behalf, and by failing to inform Ms. Doe that he had never sent a demand letter to XYZ, the respondent violated Mass. R. Prof. C. 1.2(a)11, 1.312, 1.4(a)13, 1.4(b)14 and 8.4(c).15 In light of our findings above that the respondent made demand on XYZ with the knowledge of Ms. Doe and which resulted in XYZ’ payment of Ms. Doe’s retroactive pay increase, and that the respondent did not fabricate the XYZ demand letter dated April 29, 2002, we conclude that the respondent did not violate the disciplinary rules charged here.
38. Bar counsel charges that by failing to preserve Ms. Doe’s original pay stubs and by failing to return Ms. Doe’s file promptly upon request and by certified mail as requested, the respondent violated 1.15(b)16 and 1.16(e).17 In light of our findings above that the respondent made reasonable efforts to return Ms. Doe’s original pay stubs to her and that her claimed failure to receive them did not result in any harm to her, and our findings that Ms. Doe was unreasonable in her expectations and demands as evidenced by her own recorded notes, we conclude that the respondent did not violate the disciplinary rules charged here. However, we note that in dealing with a difficult and demanding client like Ms. Doe, the respondent would be better served by communicating in writing and maintaining more complete records of his communication efforts, despite the $350 fee.
39. Bar counsel charges that by fabricating or causing to be fabricated the letter to Ms. Doe dated August 6, 2002 and by intentionally misrepresenting to Ms. Doe that he had sent her file on August 6th, the respondent violated Mass. R. Prof. C. 8.4(c).18 In light of our findings above that the respondent did not fabricate his August 6, 2002 letter to Ms. Doe and that the respondent did mail to Ms. Doe the documents she requested, we conclude that the respondent did not violate the disciplinary rule charged here.
40. Bar counsel charges in the alternative, that by sending Ms. Doe’s original papers by first class mail, the respondent failed to adequately safeguard Ms. Doe’s property in violation of Mass. R. Prof. C. 1.15(a).19 There is nothing in this disciplinary rule that proscribes returning a client’s property by first class mail, and in light of our findings above, we conclude that the respondent did not violate the disciplinary rule charged here.20
41. Bar counsel charges that by fabricating or causing to be fabricated the XYZ demand letter of April 29, 2002 and sending same to Ms. Doe, the respondent violated Mass. R. Prof. C. 8.4(c).21 In light of our findings above that the respondent did not fabricate the demand letter sent to XYZ on April 29, 2002, we conclude that the respondent did not violate the disciplinary rule charged here.
42. Bar counsel charges that by failing to obey a lawful court until after a capias issued, the respondent violated Mass. R. Prof. C. 3.4(c)22, and 8.4(d)23 and (h).24 In light of our findings above that the respondent intended to pay the default judgment to Ms. Doe and did so once he had notice of the judgment amount, and bar counsel’s failure to show that the respondent had knowledge of the default judgment before being served with the capias and deliberately failed to pay the judgment to Ms. Doe, we conclude that the respondent did not violate the disciplinary rules charged here. Although we would be concerned if the respondent had deliberately or willfully ignored a judgment entered by the court, we find that bar counsel has failed to show that the respondent had knowledge of the judgment and then refused to pay it until the capias was served upon him.
43. Bar counsel charges that by submitting the fabricated letters to bar counsel and by intentionally misrepresenting to bar counsel that he had made a demand on XYZ on behalf of Ms. Doe and that he had returned Ms. Doe’s original file to her, the respondent violated Mass. R. Prof. C. 8.1(a)25, and 8.4(c)26 and (d).27 In light of our findings above that the respondent did not fabricate the April 29, 2002 demand letter to XYZ or his August 6, 2002 letter to Ms. Doe, and that the respondent in fact did the things he said he did, i.e., make demand on XYZ and mail Ms. Doe’s documents to her, we conclude that the respondent did not violate the disciplinary rules charged here. The respondent is not responsible for problems with mail service, and we believe the respondent acted appropriately in mailing to Ms. Doe her documents upon her various requests. Ultimately Ms. Doe was not prejudiced in her case against XYZ by not having her original pay stubs as evidenced by her settlement with XYZ.
III. FACTORS IN MITIGATION AND AGGRAVATION
44. In light of our recommendation that this matter be dismissed as set forth below, we make no findings in mitigation or aggravation.
IV. RECOMMENDATION FOR DISCIPLINE
The respondent seeks a dismissal, while bar counsel recommends a suspension of one year and one day. We recommend that the petition for discipline brought against respondent John Smith be dismissed and no discipline be imposed.
As discussed in our report above, we do not find that the respondent fabricated letters or made misrepresentations to Ms. Doe about his actions on her behalf. The fact that XYZ employees were not able to locate the demand letter sent on behalf of Ms. Doe, even though the Office of Labor Relations did exist at the relevant time period and its mail was handled separately from other XYZ departments, does not support an inference or finding that no such letter was ever sent by the respondent. The fact that Ms. Doe did not receive the original August 6, 2002 letter and enclosed documents also does not support an inference or finding that the respondent fabricated this letter or did not mail it. We specifically did find that the respondent acted diligently and reasonably in his representation of Ms. Doe, and in his dealings and communications with her. Ms. Doe was a demanding and unreasonable client with erroneous expectations of how quickly her case would proceed, and the likelihood that she would recover treble damages against XYZ. Although we would suggest that the respondent consider more detailed written communication with his clients in the future, we do not find the respondent’s conduct here to have violated the disciplinary rules charged.
As discussed in our report above, we would be concerned if the respondent had deliberately ignored a court judgment entered against him, but we believe and credit the respondent’s testimony that he intended to pay the judgment amount to Ms. Doe and had no knowledge of the judgment amount until he was served with the capias. Bar counsel submitted no evidence that the respondent had knowledge of the court judgment before being served with the capias, and therefore did not prove that the respondent knowingly ignored a court order.
In AD-02-51, 18 Mass. Att’y Disc. R. 734 (2002), the attorney failed to pay a court reporter for a deposition transcript, was sued in small claims court by the court reporter, failed to appear and a default judgment entered against the attorney. Despite receiving notice of the judgment, the attorney failed to pay it and also failed to appear at the payment hearing, and did not pay the judgment until a month after a capias had issued and after a grievance had been filed with the Office of Bar Counsel. The attorney received an admonition. Similarly, in AD-99-25, 15 Mass. Att’y Disc. R. 694 (1999), the attorney failed to pay a stenographer for two client depositions, was sued in small claims court by the stenographer, entered into a written settlement agreement to pay the stenographer over time which was entered as a court order, and then failed to make the required payments in compliance with that court order. Despite evidence that the notice of default was mailed to both parties, the attorney failed to appear at a show cause hearing and the court issued a capias for his arrest. The attorney received an admonition for willfully ignoring the court’s orders both to pay the stenographer and to appear for the show cause hearing. Because there has been no showing in this matter that the respondent was notified of the default judgment entered against him, we do not infer or find that the respondent knowingly or willfully disobeyed the court’s order to pay Ms. Doe, and therefore no discipline is warranted. Compare also AD-04-28, 20 Mass. Att’y Disc. R. 712 (2004), where an attorney received an admonition for failing to pay a small claims judgment and to appear at a supplementary process hearing, resulting in the issuance of a capias, for failing to promptly return a client’s unearned retainer, and for failing to cooperate with bar counsel.
Finally, we are concerned with the time and resources that this matter consumed when the evidence in this case clearly did not support its initiation and prosecution, not to mention the anguish and embarrassment to Attorney Smith. If there had been better or more evidence of the respondent’s fabrication of documents or his knowing failure to comply with a court order, we would have liked to have heard it. We also wish to express our dismay with bar counsel’s attempts to discredit the respondent by delving into a matter that was not raised on direct examination, and for which she expressed no credible basis for asserting its admissibility. This is not a tactic that we condone, and it is one that bar counsel, like Caesar’s wife, should not employ.
Filed: November 9, 2006
FOOTNOTES
1 The respondent’s and complainants’ names, as well as the names of other persons and entities involved in the factual background of this case, have been changed throughout this opinion to preserve confidentiality.
2 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 amended answer shall be referred to as “Am.Ans. _”; and the exhibits shall be referred to as “Ex. _.”
3 In Ex. 30, an account prepared by Ms. Doe detailing her communications with XYZ, between February 26 and April 11, 2002, Ms. Doe noted ten telephone conversations with XYZ personnel, nine additional telephone messages left for various XYZ personnel, and three telephone messages left for Ms. Doe by XYZ personnel.
44 We do not credit Ms. Doe’s testimony that the only time the respondent discussed treble damages with her was on May 28, 2002, after she received her retroactive pay increase from XYZ. (Doe Tr. II:116) (See n.4 below.)
5 Although Ms. Doe contends that she was willing to pay the respondent his fee of $350 because she thought she would be awarded treble damages on her last paycheck (Doe Tr. II:58), this testimony is wholly inconsistent with Ms. Doe’s testimony (although not credited by this hearing committee) that she did not discuss treble damages with the respondent until well after the initial meeting when she retained the respondent. (Doe Tr. II:116) (See n.3 above.)
6 In Ex. 24, an account prepared by Ms. Doe detailing her communication with the respondent in this matter, between April 17 and August 28, 2002, Ms. Doe noted fourteen telephone conversations with the respondent, sixteen additional telephone messages left for the respondent, and eight telephone messages left for Ms. Doe by the respondent.
7 Although bar counsel called several witnesses from XYZ (Patty Poe, Rita Roe, and Mike Moe), who all testified that they could not locate a demand letter from the respondent on behalf of Ms. Doe (Poe Tr. II:121, 127-29, 130; Roe Tr. II:144-45, 148; Moe Tr. II:159-60, 167), we do not infer from these witnesses and do not find that the respondent did not ever send such a letter to XYZ or that the respondent fabricated the demand letter, especially since Ms. Roe testified, and we credit her testimony, that an Office of Labor Relations had previously existed at XYZ (Roe Tr. II:149), that mail to that office was handled separately from the human relations department (Roe Tr. II:150-51), and that no search for the demand letter was conducted of the records belonging to the former Office of Labor Relations. (Roe Tr. II:143-44,146-47)
8 We decline to address the issue of who originally provided the figures and calculations for the amounts sought from XYZ on behalf of Ms. Doe because this fact is not material to our findings or recommendation. (Doe Tr. II:53-56; Smith Tr. II:219-20) Regardless of who originally obtained or calculated the amounts demanded of XYZ, Ms. Doe did not complain to the respondent that they were inaccurate, and in fact used the same figures in her own later letter to the Attorney General’s Office. (Doe Tr. II:114-15; Ex. 23) In any event, as set forth below, Ms. Doe received payment in full by XYZ for her retroactive pay increase, and subsequently settled her remaining claims with XYZ. (Doe Tr. II:38-40, 112-14)
9 We credit the respondent’s testimony that he normally would not prepare a receipt if a client paid by check. (Smith Tr. II:202)
10 Ms. Doe testified that she never received the August 6, 2002 package sent by the respondent which contained a check for $175 in partial refund of her original flat fee. (Doe Tr. II:17-20, 49-50)
11 Mass. R. Prof. C. 1.2 Scope of Representation
(a) A lawyer shall seek the lawful objectives of his or her client through reasonably available means permitted by law and these rules. A lawyer does not violate this rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his or her client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.
12 Mass. R. Prof. C. 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client. The lawyer should represent a client zealously within the bounds of the law.
13 Mass. R. Prof. C. 1.4 Communication
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
14 Mass. R. Prof. C. 1.4 Communication
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
15 Mass. R. Prof. C. 8.4 Misconduct
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
16 Mass. R. Prof. C. 1.15 Safekeeping Property
(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
17 Mass. R. Prof. C. 1.16 Declining or Terminating Representation
(e) 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.
18 See n.14 supra.
19 Mass. R. Prof. C. 1.15 Safekeeping Property
(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the State where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of the receipt, maintenance, and disposition of such accounts and other property shall be kept by the lawyer from the time of receipt to the time of final distribution and shall be preserved for a period of six years after termination of the representation.
20 We point out that in light of Ms. Doe’s propensity to strategically ignore certified mail (see 15 above), bar counsel’s charge seems particularly unwarranted.
21 See n.14 supra.
22 Mass. R. Prof. C. 3.4 Fairness to Opposing Party and Counsel
A lawyer shall not:
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
23 Mass. R. Prof. C. 8.4 Misconduct
It is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice;
24 Mass. R. Prof. C. 8.4 Misconduct
It is professional misconduct for a lawyer to:
(h) engage in any other conduct that adversely reflects on his or her fitness to practice law.
2525 Mass. R. Prof. C. 8.1 Bar Admission and Disciplinary Matters
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
26 See n.14 supra.
27 See n.22 supra.
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