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Commonwealth of Massachusetts

NO. BD-2004-006


S.J.C. Order of Term Suspension entered by Justice Cordy on January 16, 2004, with an effective date of February 15, 2004.1
(Order of Reinstatement entered by Justice Cordy on June 23, 2009)


The respondent was suspended for 30 months for misconduct described in an eight-count petition for discipline.

Count One of the petition arose from the following facts. Commencing in or after June 1985, the respondent represented a woman and her husband ("the clients") in claims, respectively, for personal injury and loss of consortium arising out of an automobile accident. The claims were settled in 1988 for $17,000.

In September 1990, the respondent filed suit on behalf of the clients against their insurance carrier, claiming property damage, emotional distress, and loss of consortium as a result of the company's alleged failure to pay certain property damages arising from the 1985 motor vehicle accident.

On April 22, 1992 and pursuant to Superior Court Rule 9A, the defendant filed a motion for summary judgment, along with the plaintiff's opposition. The motion was allowed by the court on October 19, 1992. The respondent filed a motion for reconsideration, which was also denied. The trial court's denial of the motion for reconsideration was affirmed on appeal by the Appeals Court by summary disposition and further appellate review was denied by the Supreme Judicial Court. Final judgment against the clients entered on May 25, 1994.

In or about June 21, 1994, the respondent filed an action in U.S. District Court on behalf of the clients against both the Massachusetts Appeals Court and a single justice of the court. The gravamen of the claim was that the Appeals Court had denied the clients due process by not granting a hearing on the appeal. On motion by the defendants, this claim was dismissed by the U.S. District Court on March 14, 1995 and the respondent's motion for reconsideration was denied on April 27, 1995.

The respondent did not advise the clients of the dismissal of this second action. Instead of telling the clients that their claims were legally concluded, the respondent commenced a pattern of deception and lies that persisted for seven more years. Only after the clients retained successor counsel in 2002 did they learn that their cases had been dismissed in 1995.

In the interim between 1995 and 2002, the respondent made repeated false representations to the clients, leading them to believe that the claim against the insurer was still viable and, ultimately, that the case was pending in the Supreme Judicial Court. The respondent repeatedly misrepresented that a decision would soon enter. In addition, the respondent in 1995 fabricated a letter concerning the status of the federal case from the Assistant Attorney General representing the Appeals Court and provided a copy of this alleged letter to the clients.

On or about November 15, 2001, and again on February 12, 2002, the respondent signed letters to the clients confirming that the case was pending in the Supreme Judicial Court and was awaiting the publication of a judgment after rescript. These letters were written by one of the clients for the respondent's signature. The respondent also misrepresented to the clients that there had been a hearing on assessment of damages for this case and that the court had awarded the clients $2.9 million. As recently as March 21, 2002, the respondent told the clients that the judgment was not enforceable until the SJC opinion was published.

The respondent's intentional misrepresentations to his clients of the status of the case over the course of not less than seven years, with the intent of concealing from the clients that final judgment had entered against them, is conduct in violation of Canon One, DR 1?102(A)(4),(6), and Mass. R. Prof. C. 1.4 and 8.4(c), (h).

The clients' complaint was filed with Bar Counsel in 2002. The respondent had received a public reprimand in 2001 for another incident of misrepresenting the status of a case to a client and fabricating a pleading that was never filed in order to conceal the misrepresentations. Matter of Mason, Public Reprimand no. 2001-3, 17 Mass. Att'y Disc. R. __(2/12/01). After receiving the new complaint, Bar Counsel therefore made inquiry of the respondent as to whether there existed other similar problems. The respondent in reply disclosed seven additional civil matters in which he continued to misrepresent the status of cases or claims to other clients. The respondent did not finally apprise these clients of the true status of their claims until advised by Bar Counsel that he was obligated to do so.

The misrepresentations in these seven additional matters formed the basis of Counts Two through Eight of the petition for discipline. The misrepresentations in all of these cases had been ongoing for at least five years and, in several instances, more than ten years. The client's case or claim in each instance had either been dismissed, denied, or was not being pursued. The respondent's conduct in misrepresenting the status of the cases to the clients in all of these matters was in violation of Canon One, DR 1?102(A)(4),(6) and Mass. R. Prof. C. 1.4 and 8.4(c), (h). In two of the cases, the respondent also prepared inadequately, did not represent the clients zealously, and neglected the cases in violation of Canon Six, DR 6-101(A)(2),(3), Canon Seven, DR 7?101(A)(1), (2), and (3), and Mass. R. Prof. C. 1.1, 1.2, and 1.3. In another of the cases, the respondent abandoned the claim and withdrew from representing the client without protecting the client's rights and without notice to the client, in violation of Canon Two, DR 2-110(A)(2).

In mitigation, the respondent has been suffering from severe depression resulting from the death of his newborn son in 1985 and the 15-year illness of his wife, who died in 2000. His repeated misrepresentations were motivated by the fact that, in his own words, he could "not bear to share bad news" with his clients. He only recently sought individual therapy for the first time. He has also attended group counseling sessions at Lawyers Concerned for Lawyers. The respondent's forthright disclosure to Bar Counsel of the existence of the seven other similar cases was also considered as a matter in mitigation.

The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation for a suspension of 30 months. 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 January 16, 2004.

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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