Mass.gov
   
Mass.Gov home Mass.gov  home get things done agencies Search Mass.Gov


Commonwealth of Massachusetts

NO. BD-2005-058

IN RE: MAURICE FITZGERALD

S.J.C. Judgment of Disbarment entered by Justice Spina on June 15, 2006.1

Memorandum of Decision

The Board of Bar Overseers filed an Information pursuant to Supreme Judicial Court Rule 4:01, § 8(4), recommending that the respondent, Maurice Fitzgerald, be disbarred from the practice of law. After hearing, which Mr. Fitzgerald did not attend, I conclude that an order of disbarment should enter, for reasons that follow.

I. On April 9, 1999, the respondent filed a personal injury suit against the Massachusetts Port Authority (MPA) on behalf of Arthur Schiller. The respondent failed to secure Mr. Schiller's answers to interrogatories. This failure resulted in dismissal of the complaint. The respondent failed to inform his client that the case had been dismissed, and instead intentionally misrepresented to Mr. Schiller that the lawsuit was still pending

By failing to inform Mr. Schiller that his case had been dismissed, the respondent failed to keep his client reasonably informed about the status of a matter, in violation of Mass. R. Prof. C. 1.4. By intentionally misrepresenting to the client that his lawsuit was still active, the respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Mass. R. Prof. C. 8.4(c), and engaged in conduct adversely reflecting on his fitness to practice, in violation of Mass. R. Prof. C. 8.4(h). By failing to respond to the MPA's interrogatories and failing to pursue Schiller's claim against it, the respondent failed to provide competent representation in violation of Mass. R. Prof. C. 1.1, failed to seek the lawful objectives of the client in violation of Mass. R. Prof. C. 1.2(a), failed to act with reasonable diligence and promptness in violation of Mass. R. Prof. C. 1.3, and engaged in conduct adversely reflecting on his fitness to practice law in violation of Mass. R. Prof. C. 8.4(h).

II. On August 25, 2003, Joan Schiller retained the respondent to defend her in a contract action. The respondent failed to secure his client's answers to interrogatories or respond to the plaintiffs request for production of documents. He also failed to appear at a hearing on the plaintiffs motion to compel discovery, which was allowed. The respondent's failure thereafter to respond to the judge's order compelling discovery resulted in the entry of judgment against his client. The respondent failed to inform Mrs. Schiller of this turn of events, and she did not learn of it until a lien had been placed on her home. The respondent promised to have the lien removed by satisfying the judgment with his own funds, but failed to do so. In fact, the respondent sent his client a copy of a letter purporting to transmit a check to the plaintiffs counsel in satisfaction of the judgment. There was no original letter and there was no check.

By failing to inform Mrs. Schiller that her case had been dismissed and failing to respond to her many attempts by telephone and facsimile to contact the respondent, the respondent failed to keep his client reasonably informed about the status of a matter, and failed to comply promptly with reasonable requests for information, in violation of Mass. R. Prof. C. 1.4. By failing to complete the legal work that Mrs. Schiller hired him to do, and by failing to appear at court hearings, the respondent failed to provide competent representation in violation of Mass. R. Prof. C. 1.1, failed to seek the lawful objectives of the client, in violation of Mass. R. Prof. C. 1.2(a), failed to act with reasonable diligence and promptness in violation of Mass. R. Prof. C. 1.3, and engaged in conduct adversely reflecting on fitness to practice law in violation of Mass. R. Prof. C. 8.4(h). By intentionally misrepresenting to Mrs. Schiller that he had paid the judgment when he had not, and by sending her a fabricated letter purporting to document his payment of the lien, the respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Mass. R. Prof. C. 8.4(c), and engaged in conduct adversely reflecting on his fitness to practice law in violation of Mass. R. Prof. C. 8.4(h).

III. In the fall of 2003, Robin Green engaged the respondent to represent her in a personal injury matter. She discharged him on January 6, 2005, and specified that her file be turned over to successor counsel. The respondent failed to turn over the file for more than four months, despite repeated requests. He did so only after Bar Counsel became involved.

By failing to surrender Green's papers and turn over Green's file to her or to her attorney within a reasonable time following her request, the respondent violated Mass. R. Prof. C. 1.16(d) and (e).

IV. Bar Counsel received grievances concerning the respondent's professional conduct in the matters involving Arthur Schiller, Joan Schiller, and Robin Green. The respondent ignored bar counsel's requests that he reply to the grievances. He also ignored a subpoena duces tecum issued by the Board of Bar Overseers.

By knowingly failing without good cause to respond to requests for information from Bar Counsel, and knowingly failing to comply with the subpoena issued by the Board of Bar Overseers, the respondent violated Mass. R. Prof. C. 8.1(b)and8.4(d)and(g).

V. On July 8, 2005, Bar Counsel petitioned the Supreme Judicial Court for Suffolk County for the administrative suspension of the respondent based on his failure to cooperate with Bar Counsel's investigation of the three grievances. On July 13, 2005, the single justice ordered the administrative suspension of the respondent, effective immediately. The respondent continued to practice law and otherwise failed to comply with the terms of the order of administrative suspension, and was thereafter, on December 12, 2005, adjudged in contempt and ordered temporarily suspended from the practice of law, effective immediately. He misrepresented to one client that his suspension from the practice of law was due to a mistake or misunderstanding, and that he was allowed to continue to represent current clients.

By intentionally failing to comply with the single justice's order of immediate administrative suspension, the respondent knowingly disobeyed an obligation under the rules of a tribunal in violation of Mass. R. Prof. C. 3.4(c); engaged in the unauthorized practice of law in violation of Mass. R. Prof. C. 5.5(a); engaged in conduct prejudicial to the administration of justice, in violation of Mass. R. Prof. C. 8.4(d); and engaged in conduct that adversely reflected on his fitness to practice law, in violation of Mass. R. Prof. C. 8.4(h). By intentionally misrepresenting to the client that his suspension was due to mistake or misunderstanding, and that he was allowed to continue to represent current clients, the respondent knowingly engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Mass. R. Prof. C. 8.4(c), and engaged in conduct adversely reflecting on his fitness to practice law, in violation of Mass. R. Prof. C. 8.4(h).

VI. The respondent's conduct warrants disbarment. The respondent neglected two matters for the Schillers, misrepresented the course and status of their cases, fabricated a letter to conceal his neglect of Mrs. Schiller's matter, failed to return timely Green's file, and failed to cooperate with Bar Counsel's investigation of these matters. This misconduct warrants suspension. Matter of Kane, 13 Mass. Att'y Disc. R. 321, 328 (1997). In addition, following the respondent's administrative suspension, he engaged in the unauthorized practice of law and failed to comply with an order of the Supreme Judicial Court. This misconduct also warrants suspension. Matter of Ring, 427 Mass. 186(1998). The respondent also has failed to respond to these formal proceedings. Failure to cooperate in the disciplinary process is itself misconduct and is considered a matter in aggravation. Matter of Garfinkle, 18 Mass. Att'y Disc. R. 239 (2002) (single justice).

The cumulative nature of the respondent's misconduct must be taken into consideration on the question of sanction. Matter of Saab, 406 Mass. 315, 326- 327 (1989). "Given the respondent's demonstrated unwillingness (or inability) to conform to the basic standards of his profession,. . . disbarment is necessary both to protect the public and maintain its confidence in the integrity of the bar." Matter of Ulin, 18 Mass. Att'y Disc. R. 549, 555 (2002) (citation omitted) (disbarment for neglect of number of immigration matters, misrepresentations to clients, commingling, failure to return unearned fees, failure to cooperate with bar counsel, practicing after administrative suspension, intentional misrepresentation to judge; with harm to clients and disciplinary history); Matter of Duerr, BD-2005-055 (disbarment for pattern of serious neglect; misrepresentations to clients, bar counsel, and judge; conversation; engaging in unauthorized practice of law after administrative suspension; failure to cooperate with bar counsel); Matter of Marshall, 16 Mass. Att'y Disc. R. 299 (2000) (order of disbarment where attorney failed to return client files, failed to represent several clients zealously, failed to return unearned retainers, made misrepresentations to clients, failed to respond to bar counsel's subpoenas, failed to comply with order of administrative suspension, and failed to file answer to petition for discipline).

The respondent also has a history of discipline. In AD-00-48, the respondent received an admonition for neglect of an estate and failure to cooperate with Bar Counsel in two matters. 16 Mass. Att'y Disc. R. 522 (2000). Prior discipline is a matter in aggravation, Matter of Dawkins, 412 Mass. 90, 96 (1992).

Disbarment is the appropriate sanction in this case, and an order of disbarment shall issue forthwith.

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.



BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2006. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.