IN RE: STEPHEN R. FOLLANSBEE
S.J.C. Order of Term Suspension entered by Justice Spina on January 2, 2007, with an effective date of February 1, 2007. 1
SUMMARY2
The respondent received a thirty-day suspension subject to probationary terms for the disciplinary violations in two matters, described below.
In the first matter, on October 14, 1999, a father filed suit against his daughter alleging that she had failed to return money and personal property that she held for his benefit. The daughter retained the respondent to represent her in the matter.
The respondent’s client was not attentive to responding to discovery and as a result, on July 3, 2000, the court, on request of the plaintiff, issued a notice of application for final judgment, allowing the client thirty days in which to file her answers to interrogatories. The respondent did not forward a copy of the notice to the client or advise her that the notice had been issued.
On July 5, 2000, the client forwarded draft answers to the respondent by fax and by express mail. The respondent had no record and no memory of receipt of the draft answers to interrogatories. He nevertheless admitted that he did not adequately communicate with the client as to the status of discovery between July and September 2000.
Over the next several months and as a result of the failure to answer the interrogatories, a default was entered on request of the plaintiff, damages were assessed, and, on September 1, 2000, default judgment entered in the amount of $221,379.01. The respondent received notice of each of these actions, but never notified the client or made any attempt to undo what had occurred.
On September 18, 2000, a deputy sheriff served the execution on the respondent’s client and recorded the execution at the Registry of Deeds, thereby putting a lien the client’s home. On September 20, 2000, the client received a copy of the execution and notice of levy in the mail and learned, for the first time, that she had been defaulted and that judgment had entered against her.
In early October 2000, the client retained successor counsel and discharged the respondent. Despite numerous requests from the client and successor counsel, the respondent did not provide the client’s file to successor counsel for almost three years, until September 16, 2003.
On December 23, 2002, the client’s father died. His will left his estate to the client’s adult daughters. Each daughter released and discharged the judgment against the mother and the execution was marked as satisfied.
The respondent’s failure to provide competent representation, his failure to seek the client’s lawful objectives, his failure to act with reasonable diligence and his failure to adequately communicate with his client was in violation of Mass. R. Prof. C. 1.1, 1.2(a), 1.3 and 1.4. The respondent’s failure to withdraw from representation upon discharge was in violation of Mass. R. Prof. C. 1.16(a). His failure, after his services were terminated, to return the client’s file upon request was in violation of Mass. R. Prof. C. 1.16(d) and (e).
In the second matter, a husband and wife retained the respondent in May 1999 as successor counsel in litigation filed against the clients and others by their former employer. The clients had filed counterclaims.
The respondent did not adequately respond to the plaintiff’s requests for discovery and as a result, plaintiff’s counsel filed a motion for entry of separate and final judgment against the clients, as well as a motion for an order dismissing the clients’ counterclaims and for judgment in favor of the plaintiff. The respondent did not file an opposition or notify the clients that these pleadings had been filed. The court allowed the motions. The respondent received notice of the allowance of the motions but did not advise the clients of what had occurred.
On March 27, 2000, the plaintiff filed a motion for assessment of damages and other relief. A hearing on damages was scheduled for April 26, 2000. The respondent received the motion and notice of the hearing but did not advise his clients of these events.
Between April 11 and April 25, 2000, the clients made numerous attempts to contact the respondent to determine the status of the case but the respondent did not respond. Finally, on April 25, 2000, the respondent filed a motion to remove the default and restore the case to the trial list. The hearing on assessment of damages was continued.
On May 12, 2000, the court granted the respondent’s motion to remove the default conditioned on the clients’ full production of documents requested in discovery and on the payment of $2500 in fees and costs to opposing counsel by May 26, 2000. The respondent was aware of the sanctions order no later than June 13, 2000, but did not pay the sanctions or cause them to be paid.
On October 10, 2000, upon the request of the plaintiff’s counsel, citing the respondent’s failure to pay the sanction and alleging that not all documents had been produced, the court scheduled an assessment of damages hearing for November 15, 2000, and sent notice to the respondent. The matter was continued several times thereafter and the respondent defended the assessment of damages.
On November 21, 2000, the respondent filed a motion to allow late payment of the $2500 in costs and to restore the case to the trial list. The plaintiff filed an opposition. The respondent’s motion to allow late payment and reinstate the case was denied.
On April 24, 2001, judgment entered in favor of the plaintiff and, on March 14, 2002, an amended judgment in the amount of $416,770.80 plus $139,000 in legal fees entered against the clients. In May of 2001, the clients discharged the respondent, retained successor counsel, and filed a civil malpractice case against the respondent and his firm. On May 24, 2004, the respondent, the clients and the plaintiff reached a global settlement settling both the original case and the malpractice case and on June 8, 2004, a stipulation of dismissal of all claims was filed.
The respondent’s failure to provide competent representation, his failure to seek the client’s lawful objectives, his failure to act with reasonable diligence and his failure to adequately communicate with the clients, was in violation of Mass. R. Prof. C. 1.1, 1.2(a), 1.3 and 1.4.
In aggravation, the respondent has a prior public reprimand for failing to timely account to a client for trust funds in his possession and for failing to cooperate with bar counsel. Public Reprimand 2002-16, 18 Mass. Att'y Disc. R. 214 (2002). The misconduct described in the current matter occurred during the same time frame as the events at issue in the public reprimand and predated the respondent’s receipt of the public reprimand.
In mitigation, beginning in 1999, the respondent’s mother, who lived nearby, was diagnosed with Parkinson’s Disease. During the year 2000, the respondent’s mother began to experience dementia. The respondent was primary caretaker for his mother for five years. As a result of being sleep-deprived, distracted and depressed from the emotional stress of dealing with his mother’s illness, he lost focus and failed to pay adequate attention to managing his practice and his law office. The respondent’s mother died in 2004. The respondent has been working with Lawyers Concerned for Lawyers to address the emotional issues relating to his mother’s illness and death.
The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation for a thirty-day suspension subject to certain probationary terms, including a one-year contract with Lawyers Concerned for Lawyers, a peer review monitor, continuing legal education and other conditions. On December 11, 2006, the Board of Bar Overseers voted to accept the stipulation and to recommend the agreed-upon disposition to the Supreme Judicial Court. On January 2, 2007, 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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