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Commonwealth of Massachusetts

NO. BD-2005-105

IN RE: JOHN KENNETH BUCK

S.J.C. Order of Term Suspension entered by Justice Spina on December 28, 2005, with an effective date of January 27, 2006.1

(S.J.C. Judgment of Reinstatement entered by Justice Spina on September 24, 2007.)

SUMMARY2

In July of 2000, the respondent agreed to represent an elderly woman in a personal injury claim on a contingent fee basis. The client had been seriously injured in an automobile accident.

The clientís injuries severely restricted her ability to care for her husband, who was disabled and suffered from Parkinsonís Disease. The respondent did not discuss with the client any potential claim her husband might have for loss of consortium and was not retained to represent the husband in any claim arising from the accident.

In May of 2001, the respondent made a settlement demand on the insurer for the other driver involved in the accident. In itemizing the clientís damages, the respondent failed to include over $10,000 in medical expenses. He also incorrectly stated that the client had reached an end medical result. The respondent had not obtained any medical reports from the clientís treating physician and had no basis on which to state any conclusions concerning her medical condition.

During the summer of 2001, the respondent did not respond to a number of calls from the client and did not maintain reasonable communication with her about the status of her claim. The client became dissatisfied with the respondent and began to consider seeking another lawyer to take over her case. By mid-August of 2001, the respondent learned that the client was considering seeking another lawyer.

In late July or early August of 2001, the respondent demanded $150,000 from the other driverís insurer to settle the clientís claim. The client still had not reached an end medical result and the respondent still had not obtained any medical reports from her treating physician. The respondent did not discuss with the client his intent to negotiate a settlement or obtain from her any authority to settle the claim for any specific minimum amount.

On August 28, 2001, the insurer offered the respondent $85,000 to settle the claim. On the next day, the insurer sent the respondent a release for $85,000, to be signed by both the client and her husband, and informed the respondent that a settlement check would issue once the executed release was returned. The release was a general release applying to all claims of the client and her husband resulting from the accident, and therefore included any claims of the husband for loss of consortium. The respondent did not represent the husband and had never discussed with the client or the husband whether the husband might have such a claim.

When the respondent received the release from the insurer, he gave the release to his secretary and instructed her to sign the clientís and husbandís names as signatories on the release. The respondent did not have authority to sign the release or have the release signed on behalf of the client or her husband. The secretary signed the names to the release and signed the release as purported witness to the signatures. The respondent notarized the signatures on the release, knowingly falsely certifying that the client and her husband had appeared before him, signed the release and acknowledged that their signatures were voluntary.

On September 4, 2001, the respondent sent the executed release to the insurer and requested a check for $85,000 to settle the claim. When he sent the release to the insurer, the respondent knew that he was not authorized to settle the claim, that he did not represent the husband, that he had not discussed a settlement offer of $85,000 with either the client or her husband, that neither the client nor her husband had signed the release, that his secretary had not witnessed the signing of the release by the client or her husband, and that the client and her husband had not appeared before him to sign the release and acknowledge their signatures.

On September 10, 2001, the respondent received notice that the client had terminated him and retained another lawyer. A few days later, the respondent received the settlement check from the insurer for $85,000. He did not inform the client that he received the check. He put the check in her file and provided the file to the new lawyer, who withdrew from representing the client when he learned that the case had been settled.

In November of 2001, the client and her husband retained another lawyer, who notified the insurer that the settlement was void because it was not authorized and because the client and her husband had not signed the release. The insurer filed an action to enforce the settlement. After a trial, the court dismissed the action and found that the client had not signed the release or agreed to the settlement and that the respondent lacked the authority to settle the claim. The client and her husband settled their claims with the insurer for $170,000. They also filed an action for malpractice, fraud and Chapter 93A violations against the respondent, which was settled for $19,900.

The respondentís conduct in failing to consult with the client about her husbandís potential claim for loss of consortium and in conducting settlement discussions with the insurer without adequate information concerning the clientís medical condition and expenses was in violation of Mass. R. Prof. C. 1.1, 1.2(a), 1.3 and 8.4(h). His conduct in failing to maintain reasonable communications with the client about the status of her claim and in failing to communicate settlement offers to her was in violation of Mass. R. Prof. C. 1.2(a), 1.4(a), 1.4(b) and 8.4(h). His conduct in causing his secretary to sign the release on behalf of the client and her husband without authorization was in violation of Mass. R. Prof. C. 5.3(b), 5.3(c), 8.4(c) and 8.4(h). His conduct in notarizing the signatures of the client and her husband on the release, knowing that neither had appeared before him and signed the release in his presence, and knowing that the signatures had been placed on the release by his secretary without authority, was in violation of Mass. R. Prof. C. 5.3(c), 8.4(c) and 8.4(h). His conduct in forwarding the release to the insurer without authority and without consulting with the client or her husband about the settlement was in violation of Mass. R. Prof. C. 1.1, 1.2(a), 1.3, 1.4(b) and 8.4(h). His conduct in forwarding the release to the insurer and requesting a check for $85,000 to settle the claim without informing the insurer that he was not authorized to settle the claim, that he did not represent the husband, that he had not discussed a settlement offer of $85,000 with either the client or the husband, that neither the client nor the husband had signed the release, that his secretary had not witnessed the signatures on the release, and that the client and her husband had not appeared before him to sign the release and acknowledge that their signatures were voluntary, was in violation of Mass. R. Prof. C. 1.1, 1.2(a), 1.3, 4.1(a), 5.3(c), 8.4(c) and 8.4(h).

In mitigation of the respondentís lack of diligence and his failure to maintain reasonable communications with his client, but not of his unauthorized settlement of his clientís case, his misconduct occurred at a time when he was experiencing a number of personal problems, including an acrimonious breakup of a law partnership, stress and conflict within his marriage, and the death of a younger sister. The respondent is an alcoholic, and his drinking increased significantly as a result of the stress of these personal problems. He maintained sobriety and attended AA meetings since February of 2002.

This matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary rule violations and a joint recommendation that the respondent be suspended from the practice of law for three months. The parties also stipulated that prior to reinstatement under S.J.C. Rule 4:01, ß 18(1), the respondent: (A) shall undergo an evaluation by Lawyers Concerned For Lawyers (LCL) and provide it to Bar Counsel, and (B) shall agree as a condition of reinstatement to abide by any recommendations of LCL for a period of one year after his reinstatement. On October 17, 2005, the Board voted to reject the proposed sanction as too lenient; three members voted against the motion, preferring to accept the stipulation. The matter then came before the Board on a stipulation of facts and disciplinary rule violations and a joint recommendation that the respondent be suspended from the practice of law for one year, with the same stipulated conditions on reinstatement. On December 12, 2005, the Board voted unanimously to accept the stipulation and the partiesí recommendation. On December 28, 2005, a single justice of the Supreme Judicial Court for Suffolk County entered an order suspending the respondent for one year.

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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