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Commonwealth of Massachusetts

NO. BD-2004-044

IN RE: GORDON MIRKIN

S.J.C. Judgment of Disbarment entered by Justice Greaney on October 8, 2004.1

SUMMARY2

The respondent was disbarred for misconduct arising from neglect and misrepresentations in a personal injury case, as well as for failure to return files to clients after his April 1997 suspension in an unrelated matter. The charges were set forth in a two-count petition for discipline. After hearing, a hearing committee of the Board of Bar Overseers found the following facts and disciplinary violations.

Count One of the petition for discipline arose from the respondent’s representation of an elderly woman and her husband in the woman’s slip and fall case. The respondent failed to commence suit on behalf of the clients, and the statute of limitations expired on May 3,1996. On June 19, 1996, the respondent filed a complaint in Middlesex Superior Court on behalf of the clients. The respondent misrepresented in the complaint that the woman was injured in two identical falls, on May 3, 1993, and again on June 21, 1993, and that she “sustained severe personal injuries” as a result of each fall. The respondent’s false allegation that his client “sustained severe personal injuries” as a result of a second fall was an attempt to avoid dismissal based on the expiration of the statute of limitations. The respondent then failed without good cause to serve the complaint on the defendants within ninety days of filing the complaint.

In December 1996, attorneys for the defendants filed motions to dismiss and a motion for summary judgment. The case was remanded to Malden District Court, and the motions were scheduled for hearing. At the respondent’s request, the hearing was continued to February 14, 1997. The respondent failed to appear for the hearing, and the court allowed the defendants’ motions to dismiss and for summary judgment on the merits.

The following day, the respondent faxed to the court and opposing counsel a motion for reconsideration. In the certificate of service, the respondent requested the hearing on the motion for reconsideration be scheduled on February 21, 1997. The respondent then failed to appear for the hearing on the motion for reconsideration. The same day, the respondent sent an ex parte fax to the court and misrepresented to the court his reason for not appearing at the hearing.

The court reconsidered the matter on the papers and allowed defendants’ motion for summary judgment on the merits. The court issued a memorandum of decision and ruled that the respondent had failed to file a complaint for injuries during the applicable statute of limitations, failed without good cause to effect service in a timely manner and misrepresented his reasons for failing to appear at the hearing on February 21,1997.

The court subsequently referred this matter for investigation to the Office of Bar Counsel. The respondent failed to cooperate with bar counsel’s investigation of this matter.

The respondent’s neglect and failure to zealously represent his clients violated Canon Six, DR 6-101(A) (3), and Canon Seven, DR 7-101(A)(2). The respondent’s false claims that the client had suffered damages in a second fall in June 1993 violated Canon One, DR 1-102(A)(4), (5) and (6), and Canon Seven, DR 7-102(A)(2) and (5). The respondent’s ex parte misrepresentations to the court regarding his failure to appear for a scheduled hearing violated Canon One, DR 1-102(A)(4), and Canon Seven, DR 7-110(B). The respondent’s failure to cooperate with bar counsel’s investigation violated S.J.C. Rule 4:01 § 3, and Canon One, DR 1-102(A)(5) and (6).

Count Two arose from the respondent’s representation of two clients in personal injury matters. In April 1997, the respondent was suspended from the practice of law for misconduct unrelated to the matters described in this summary. He was never reinstated. After his suspension, the respondent failed to return files to his clients or their counsel as requested and as required by the order of suspension.

In the first matter, the respondent represented a minor in a claim for damages arising from personal injuries sustained in an automobile accident. The respondent failed to provide the client’s file to successor counsel from May 1997 until December 1998. The respondent also failed to cooperate with bar counsel’s investigation of the client’s complaint.

In the second matter, the respondent represented a mother and daughter in a claim for damages arising from injuries the daughter sustained at a restaurant. In February 1998, the client requested that the respondent forward the file to successor counsel. The respondent failed to provide his client’s file to successor counsel until after a complaint was filed with the Office of Bar Counsel in September 1998.

The respondent’s failure to return his clients’ files as requested and as required after his suspension violated Canon One, DR 1-102(A)(5) and (6), Canon Two, DR 2 110(A)(4), and, for conduct after January 1, 1998, Mass. R. Prof. C. 8.4 (d) and (g), as well as S.J.C. Rule 4:01, § 17.

In aggravation, the hearing committee found that the respondent had an extensive prior disciplinary history. The respondent was suspended from the practice of law for two years in 1978 for commingling trust funds with personal or business funds, failing to notify clients for over two years that he had received funds on their behalf, and using a portion of the funds for his own purposes. Matter of Mirkin, 1 Mass. Att’y Disc. R. 214 (1978). The respondent was reinstated to the practice of law on December 16, 1983. Matter of Mirkin, 3 Mass. Att’y Disc. R. 157 (1983). In April 1997, the respondent was suspended for three months for negligently using client funds without deprivation to the client. Matter of Mirkin, 13 Mass. Att’y Disc. R. 555 (1997).

In further aggravation, the hearing committee found that the respondent was not candid during the disciplinary hearing. He showed no insight into his misconduct and persisted in his assertions that he had done nothing wrong.

On February 9, 2004, the Board of Bar Overseers voted unanimously to adopt the hearing committee’s report and its recommendation that the respondent be disbarred. On October 8, 2004, the Court so ordered.

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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