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Commonwealth of Massachusetts

NO. BD-2007-027

IN RE: DOUGLAS H. KRABBENHOFT

S.J.C. Order of Term Suspension entered by Justice Greaney on April 26, 2007, with an effective date of May 29, 2007.1

HEARING REPORT

On February 24, 2006, bar counsel filed a petition for discipline against the respondent, Douglas H. Krabbenhoft, alleging in Count One that the respondent failed to appear for scheduled court hearings on behalf of his client and to keep his client reasonably informed about the status of his matter; alleging in Count Two that the respondent failed to provide competent representation and made a false representation to his client; and alleging in Count Three that the respondent failed to cooperate with bar counsel, resulting in an administrative suspension on November 30, 2005. The respondent, pro se, filed an answer on March 16, 2006. A hearing was held in this matter before a hearing committee on July 25 and 26, 2006. Twenty-eight exhibits were admitted into evidence and five witnesses testified at the hearing. On September 14, 2006, bar counsel filed her proposed findings of fact, conclusions of law and recommendation for discipline. The respondent did not file any post-hearing submission.

I. FINDINGS OF FACT

    1. The respondent Douglas H. Krabbenhoft was admitted to the Massachusetts bar on June 14, 1990. (Krabbenhoft Tr. I:932; Ans. ¶2)
    2. The respondent was administratively suspended by a single justice of the Supreme Judicial Court on November 30, 2005, and filed his Affidavit of Compliance on or about January 31, 2006 (Krabbenhoft Tr. I:94; Ans. ¶2; Ex. 1, Ex. 25), and we take official notice that he has not been reinstated.
    3. At all relevant times, the respondent was engaged in the practice of law as a sole practitioner, either in his home office in Randolph, MA or in a space-sharing arrangement with Attorney Fred Barry in Milton, MA. (Krabbenhoft Tr. I:99) The respondent’s solo practice was a general practice, with approximately 25% in probate and family law, and no tax, patent, maritime, or major criminal matters. (Krabbenhoft Tr. I:100-101)
    4. The respondent admitted that when he last moved his law practice on May 31, 2005, from Attorney Barry’s office to his home office, he failed to register his change of address with the Board of Bar Overseers. (Krabbenhoft Tr. I:91-92, 127, 129)
  1. Count One
    1. Mr. Antonio DiMaggio was divorced from Ms. Linda DiMaggio in November 1989 in the State of Connecticut. (O’Mara Tr. I:22; DiMaggio Tr. I:57; Ex. 3) Linda DiMaggio got custody of their two minor sons initially, but in 1990 or 1991, the two boys moved in with Mr. DiMaggio and were subsequently raised by him until the age of emancipation. (O’Mara Tr. I:22-23; DiMaggio Tr. I:57)
    2. Mr. DiMaggio failed to modify the divorce decree accordingly, and in June 2003, his ex-wife Linda, represented by Attorney Glen Hannington, filed a complaint in Suffolk Probate and Family Court to enforce the foreign decree, seeking the payment of back alimony, child support, and education costs totaling approximately $64,000. (O’Mara Tr. I:22; Hannington Tr. I:33; DiMaggio Tr. I:59; Ex. 3)
    3. Mr. DiMaggio originally retained Attorney James M. O’Mara, whose brother was a former partner of Mr. DiMaggio’s in the Boston Police Department, to represent him in this matter. (O’Mara Tr. I:21; DiMaggio Tr. I:58) Attorney O’Mara filed an answer on Mr. DiMaggio’s behalf. (O’Mara Tr. I:22, 23-24) However, when this matter appeared to be heading to trial, Attorney O’Mara did not feel comfortable, due his lack of trial experience, continuing in his representation of Mr. DiMaggio. (O’Mara Tr. I:22, 24)
    4. In March 2004, Attorney O’Mara referred this matter to the respondent, and accompanied Mr. DiMaggio to his first meeting with the respondent. (O’Mara Tr. I:24-26; DiMaggio Tr. I:58-59; Krabbenhoft Tr. I:102) At that time, Attorney O’Mara turned over his DiMaggio file to the respondent (O’Mara Tr. I:25), and Mr. DiMaggio paid the respondent a $1,500 fee. (Krabbenhoft Tr. I:103, 108)
    5. The pre-trial conference scheduled for April 12, 2004 was rescheduled for June 2004 due to the unavailability of a judge. (Hannington Tr. I:34) In June 2004, Mr. DiMaggio, his ex-wife Linda, Attorney Hannington, and the respondent appeared in court for the pre-trial conference, and the parties executed an agreement that was filed with the court on June 9, 2004.3 (Hannington Tr. I:33, 35-36; DiMaggio Tr. I:61-62; Krabbenhoft Tr. I:104-105; Ex. 2, Ex. 4)
    6. The agreement called for the dismissal of the complaint by the ex-wife Linda in exchange for a lump sum payment of $3,000 by Mr. DiMaggio, and the execution of a mutual release prepared by the respondent. (Ans. ¶5; Ex. 4) The respondent prepared and faxed to Attorney Hannington a form of general release that was executed by the ex-wife, notarized by Attorney Hannington, and returned to the respondent. (Hannington Tr. I:37-38; Ex. 5)
    7. In response to Mr. DiMaggio’s concerns about protecting his pension and retirement funds from his ex-wife (DiMaggio Tr. I:63), the respondent subsequently spoke with Attorney Hannington, seeking to add language to release any future claim by the ex-wife Linda against Mr. DiMaggio’s pension and retirement funds. (Hannington Tr. I:37-39; Krabbenhoft Tr. I:106; Ans. ¶6) We credit Attorney Hannington’s testimony that he told the respondent that he could not advise his client to agree to this without an increase in the settlement amount. (Hannington Tr. I:37-39) Because bar counsel has not charged the respondent with failing to provide competent representation in this count, and therefore it is not material to our findings, conclusions or recommendation in this matter, we do not address the issues of what Mr. DiMaggio was told or understood from the language of the release he was asked to execute, or the respondent’s contention that Mr. DiMaggio’s pension and retirement funds were in fact protected by the general language of the release prepared by the respondent, and that he so advised Mr. DiMaggio. In the end, Mr. DiMaggio did not sign the release or make the $3,000 payment, and the settlement fell through. (Hannington Tr. I:39; DiMaggio Tr. I:77-78; Krabbenhoft Tr. I:109; Ex. 6)
    8. In the interim, on June 14, 2004, the court entered a judgment of dismissal. (Ex. 2) When the settlement amount was not paid, on June 25, 2004, Attorney Hannington filed a motion to vacate the judgment of dismissal and a motion for attorney’s fees, which motions were scheduled to be heard by the court on July 15, 2004. (Hannington Tr. I:39-40; Ans. ¶8; Ex. 2, Ex. 6) The respondent admitted that he received a copy of the motion to vacate, but did not file any opposition or notify Mr. DiMaggio of the scheduled hearing date. (Krabbenhoft Tr. I:109-110; Ans. ¶8) We credit Mr. DiMaggio’s testimony that he never received a copy of the motion to vacate and never was told by the respondent to appear for a hearing in court. (DiMaggio Tr. I:64-65)
    9. On July 14, 2004, the respondent called Attorney Hannington, who agreed to continue the hearing on his motion if the respondent agreed to contact the court and reschedule the hearing. (Hannington Tr. I:40-41; Ans. ¶9) The respondent later advised Attorney Hannington that the new hearing date was August 26, 2004. (Hannington Tr. I:41; Ans. ¶9) Attorney Hannington subsequently learned from the court that his motion was not scheduled to be heard on August 26, and that the next available hearing date was September 2, 2004. (Hannington Tr. I:41; Ans. ¶9) By letter dated July 28, 2004, Attorney Hannington notified the respondent of the September 2, 2004 hearing date. (Hannington Tr. I:41; Ans. ¶9; Ex. 6)
    10. he respondent admitted that he still did not notify Mr. DiMaggio that a motion to vacate had been filed or that it was scheduled for a hearing on September 2, 2004. (DiMaggio Tr. I:65; Krabbenhoft Tr. I:109-110; Ans. ¶10) The respondent also admitted that he did not file any opposition to this motion. (Krabbenhoft Tr. I:109-110) On September 2, 2004, the respondent failed to appear on behalf of Mr. DiMaggio at the scheduled hearing, and the court allowed the ex-wife’s motion to vacate the judgment of dismissal. (Hannington Tr. I:42; Krabbenhoft Tr. I:110; Ans. ¶11; Ex. 2, Ex. 22) The court then scheduled a pre-trial hearing and a hearing on Attorney Hannington’s motion for attorney’s fees for October 18, 2004. (Hannington Tr. I:42; Ans. ¶11; Ex. 2, Ex. 22)
    11. The respondent admitted that he was notified of the hearing on October 18, 2004, but he did not advise Mr. DiMaggio of the hearing date. (Krabbenhoft Tr. I:110-111; Ans. ¶11) We credit Mr. DiMaggio’s testimony that he never received a copy of the motion for attorney’s fees, and that the respondent did not advise him that a court hearing had been scheduled for October 18, 2004. (DiMaggio Tr. I:65)
    12. On October 18, 2004, Attorney Hannington was the only person to appear before the court. (Hannington Tr. I:44-45; Ans. ¶11) On October 18, 2004, the court found Mr. DiMaggio guilty of contempt for neglecting and refusing to pay $3,000 in back child support, and awarded Attorney Hannington $1,620 in attorney’s fees and interest. (Hannington Tr. I:45; Ex. 6) The court ordered the total payment of $4,620 to be paid forthwith, and continued the matter to December 2, 2004, at which time a capias would issue against Mr. DiMaggio. (Ex. 6) Mr. DiMaggio received a copy of the court’s order directly from the court, and he then went to Attorney O’Mara for assistance. (DiMaggio Tr. I:65-66)
    13. On December 1, 2004, the respondent filed with the court a motion to vacate the judgment of contempt and to vacate the order for attorney’s fees on behalf of Mr. DiMaggio. (Hannington Tr. I:47-49; Ex. 2, Ex. 23, Ex. 24) These motions were not scheduled for hearing at the time of their filing (Hannington Tr. I:53-54; Krabbenhoft Tr. I:112), and the court did not take any action on these motions. (Ex. 2) Mr. DiMaggio never received a copy of these motions from the respondent. (DiMaggio Tr. I:67)
    14. Meanwhile, on December 2, 2004, the court ordered the payment of $4,620 by Mr. DiMaggio to be made by December 9, 2004 or else he would be committed to jail for thirty days. (Ex. 6) The court continued the matter to December 9, 2004 at 9:00 AM. (Ex. 6) At court on December 9, 2004, Mr. DiMaggio handed Attorney Hannington a check for $4,620. (Hannington Tr. I:47, 54; DiMaggio Tr. I:67-68) We find that this payment of $1,620 in attorney’s fees by Mr. DiMaggio as ordered by the court constitutes substantial harm to Mr. DiMaggio.
    15. The respondent admitted that Mr. DiMaggio contacted him and asked for a refund of his fee payment, and that he did not respond to Mr. DiMaggio’s request. (Krabbenhoft Tr. I:112; DiMaggio Tr. I:80-82)
  2. Count Two
    1. In December 2004, the respondent was retained by Mr. Stephen Bilbo to work on a post-divorce matter and determine the validity of his ex-wife’s financial statement concerning the value of her pension with the teachers’ retirement fund. (Krabbenhoft Tr. I:114-115; Bilbo Tr. II:7-9) Mr. Bilbo paid the respondent a legal fee of $450 (Krabbenhoft Tr. I:115; Bilbo Tr. II:7-8; Ans. ¶18; Ex. 8), and gave him a package of documents to review. (Krabbenhoft Tr. I:116-117; Bilbo Tr. II:7)
    2. We credit Mr. Bilbo’s testimony that he called and left voicemail messages for the respondent a couple of times inquiring about the status of his matter. (Bilbo Tr. II:10-11) We credit Mr. Bilbo’s testimony that he got no response from the respondent, until approximately the spring of 2005, when Mr. Bilbo spoke with the respondent on the telephone. (Bilbo Tr. II:11) We credit Mr. Bilbo’s testimony that in this telephone conversation, the respondent told Mr. Bilbo that the motion4 requiring the teachers’ retirement bureau to disclose the exact amount of his ex-wife’s pension had just been filed yesterday. (Bilbo Tr. II:11)
    3. The respondent admitted, and we credit this testimony, that at some point prior to June 1, 2005, he answered a telephone call from Mr. Bilbo and told Mr. Bilbo that he had filed a complaint for modification on his behalf. (Krabbenhoft Tr. I:118-120, II:21) We find that the respondent and Mr. Bilbo were referring to the same telephone conference in their testimony.
    4. After this telephone conversation with the respondent, Mr. Bilbo went to Plymouth Probate Court and was told by the court that nothing had been filed on his behalf. (Bilbo Tr. II:12; Ex. 28) Our own review of the docket for Mr. Bilbo’s divorce matter in Plymouth Probate Court shows no filing of any motion or document on behalf of Mr. Bilbo during 2005. (Ex. 28)
    5. At the disciplinary hearing, the respondent produced the original Bilbo file and returned it to Mr. Bilbo. (Krabbenhoft Tr. I:117, 121, II:3, 21) In reviewing the file at the hearing, the respondent admitted that there were two blank complaint for modification forms at the top of the file. (Krabbenhoft Tr. II:21) We credit the respondent’s testimony that this was the form he would have filed on behalf of Mr. Bilbo, and we credit the respondent’s admission that he never filled out the form despite telling Mr. Bilbo that the motion had been filed. (Krabbenhoft Tr. II:21-22)
    6. Although the respondent testified that he believed he had filed a complaint for modification on behalf of Mr. Bilbo at the time of their telephone conference (Krabbenhoft Tr. I:116, 118-20), we do not find this testimony credible in light of Mr. Bilbo’s testimony and the respondent’s admission, both of which we do credit. (See ¶¶21, 22 above) We do not find it plausible or reasonable that the respondent would not know what he had done or not done yesterday when he told Mr. Bilbo that he had filed the motion yesterday, and therefore we find that the respondent made an intentional misrepresentation to Mr. Bilbo about filing the motion in order to assuage his client and hide his own inaction.
    7. We credit Mr. Bilbo’s testimony, and the respondent’s admission, that Mr. Bilbo was not notified when the respondent moved his law office effective June 1, 2005. (Krabbenhoft Tr. I:120; Bilbo Tr. II:13) We credit Mr. Bilbo’s testimony that he never heard anything further from the respondent after the telephone conversation described above. (Bilbo Tr. II:17-18)
    8. On January 4, 2006, Mr. Bilbo, pro se, filed a motion in Plymouth Probate Court seeking his ex-wife’s retirement records and a clarification of the court’s original support order. (Bilbo Tr. II:14; Ex. 11) After a hearing on January 17, 2006, the court denied Mr. Bilbo’s motion. (Bilbo Tr. II:14; Ex. 11)
    9. In the meantime, in November 2005, Mr. Bilbo sought a refund of the legal fee he paid to the respondent by bringing an action in small claims court. (Krabbenhoft Tr. I:134; Bilbo Tr. II:15-16; Ex. 9) The respondent was defaulted for failing to appear, and a judgment was entered in favor of Mr. Bilbo in the amount of $2,054.47 on December 9, 2005. (Krabbenhoft Tr. I:134-135; Bilbo Tr. II:16-17; Ex. 10) On February 1, 2006, a capias issued against the respondent. (Bilbo Tr. II:17; Ex. 12) We find that the respondent’s failure to refund the legal fee paid by Mr. Bilbo, and Mr. Bilbo’s costs and expenses in pursuing a judgment in small claims court against the respondent constitute substantial harm to Mr. Bilbo.
  3. Count Three
    1. The respondent admitted that he received a copy of Mr. DiMaggio’s complaint from the Office of Bar Counsel in January 2005. (Krabbenhoft Tr. I:121-122; Ans. ¶26; Ex. 13) The respondent failed to respond to bar counsel until after a second letter was sent by bar counsel in February 2005. (Ans. ¶27; Ex. 15) The respondent replied to bar counsel by letter dated February 23, 2005, but enclosed no supporting documentation. (Krabbenhoft Tr. I:122-123; Ans. ¶27; Ex. 7)
    2. By letter dated August 8, 2005, bar counsel requested a meeting with the respondent on September 27, 2005 to discuss the DiMaggio matter, and the respondent received a copy of this letter. (Krabbenhoft Tr. I:123; Ex. 16) By letter dated September 29, 2005, bar counsel sought to reschedule this meeting when the respondent failed to appear, and the respondent admitted he received this letter. (Krabbenhoft Tr. I:126-127; Ex. 19)
    3. By letter dated September 21, 2005, bar counsel sent the respondent a copy of the Bilbo complaint and requested a response. (Krabbenhoft Tr. I:125-126; Ex. 17, Ex. 18) The respondent admitted that he did not respond to bar counsel’s request. (Krabbenhoft Tr. I:126)
    4. By letter dated September 29, 2005, bar counsel scheduled a meeting with the respondent for October 11, 2005 at the Office of Bar Counsel. (Ex. 19) The respondent admitted that he received this letter. (Krabbenhoft Tr. I:126-127) We also credit the respondent’s testimony that during this time he still had not filed a change of address with the Board of Bar Overseers, and that he knew that Attorney Barry was less and less likely to continue to forward mail to the respondent. (Krabbenhoft Tr. I:127)
    5. By letter dated October 28, 2005 sent certified mail, bar counsel attempted to serve a subpoena on the respondent to compel his presence at a meeting on November 15, 2005 at the Office of Bar Counsel to discuss both the DiMaggio and Bilbo matters. (Ex. 20) The certified letter from bar counsel was sent to the respondent’s former law office address and was refused on October 31, 2005. (Ex. 21)
    6. The respondent did not appear at the November 15, 2005 subpoena meeting. (Krabbenhoft Tr. I:129; Ans. ¶34) As a result, on November 21, 2005, bar counsel sought to administratively suspend the respondent, and on November 30, 2005, a single justice of the S.J.C. administratively suspended the respondent. (Krabbenhoft Tr. I:129-130; Ans. ¶¶35, 36; Ex. 1) We take official notice that to date, the respondent has not been reinstated to the practice of law.

II. CONCLUSIONS OF LAW

  1. Count One
    1. The respondent admitted that he failed to appear for scheduled court hearings on behalf of Mr. DiMaggio, and that this violated Mass. R. Prof. C. 1.35 (Ans. ¶16), and we agree, based on the respondent’s admissions and the findings set forth above.
    2. The respondent admitted that he failed to keep Mr. DiMaggio reasonably informed about the status of his case, and that this violated Mass. R. Prof. C. 1.4(a)6 (Ans. ¶17), and we agree in light of the respondent’s admission and the findings set forth above.
  2. Count Two
    1. Bar counsel charges the respondent with failing to provide competent representation to Mr. Bilbo, and failing to act with reasonable diligence and promptness on Mr. Bilbo’s behalf in violation of Mass. R. Prof. C. 1.17 and 1.3.8 In light of our findings above that the respondent failed to file a complaint for modification or take any other action on behalf of Mr. Bilbo, and that Mr. Bilbo had to file his own motion over a year after retaining the respondent, we conclude that the respondent violated Mass. R. Prof. C. 1.3 as charged. However, we do not find that bar counsel met the burden of proof as to Mass. R. Prof. C. 1.1 because we do not equate the respondent’s failure to act on behalf of Mr. Bilbo with the failure to provide competent representation.
    2. Bar counsel charges that the respondent’s conduct in falsely representing to Mr. Bilbo that he had filed for modification in probate court violated Mass. R. Prof. C. 8.4(c).9 In light of our findings above that the respondent made an intentional misrepresentation to Mr. Bilbo about filing a complaint for modification the previous day, when the respondent had not done so, we conclude that the respondent violated the disciplinary rule charged here.
    3. The respondent admitted that he failed to keep Mr. Bilbo reasonably informed about the status of his matter and to return Mr. Bilbo’s telephone calls, and that this conduct violated Mass. R. Prof. C. 1.4(a).10 (Ans. ¶25) In light of the respondent’s admissions and our findings set forth above, we conclude that the respondent violated the disciplinary rule as charged.
  3. Count Three
    1. The respondent admitted that his failure to cooperate with bar counsel’s investigation, resulting in an administrative suspension, violated S.J.C. Rule 4:01, Section 311 and Mass. R. Prof. C. 8.4(d)12 and (g).13 (Ans. ¶37) In light of his admission and the findings set forth above, we conclude that the respondent violated the disciplinary rules charged here.
    2. III. FACTORS IN MITIGATION AND AGGRAVATION

    3. The respondent has raised in mitigation his treatment by a licensed therapist for anxiety and depression that apparently arose from the stress of dealing with a serious family issue for the past two years. However, the letter from his therapist submitted into evidence by the respondent does not state a diagnosis, and only confirms treatment of the respondent since April 14, 2006. (Ex. 27) Although we credit the respondent’s testimony that there was a serious family issue which distracted the respondent and greatly upset him and his family (Krabbenhoft Tr. I:140-143), the respondent nonetheless failed to show that his neglect and failure to communicate in these two client matters, and his failure to cooperate with bar counsel, were causally related to his alleged anxiety and depression arising from the serious family issue. Matter of Schoepfer, 426 Mass. 183, 188 (1997) (“If a disability caused a lawyer’s conduct, the discipline should be moderated, and, if that disability can be treated, special terms and considerations may be appropriate.”) See also Matter of Johnson, 444 Mass. 1002, 1004 (2005) (“The panel of the board that heard the respondent’s evidence specifically concluded that he had not demonstrated a causal relationship between his circumstances and his misconduct.”); Matter of Otis, 438 Mass. 1016, 1017 n.3 (2003) (court found that certain health and other family issues “are the type of ‘typical’ mitigating factors that are not given substantial weight . . . .”) See also ABA’s Standards for Imposing Lawyer Sanctions 9.32(i), as amended (1992) (mental disability or chemical dependency, including alcoholism or other drug abuse, may be considered in mitigation when (a) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; (b) the chemical dependency or mental disability caused the misconduct; (c) the respondent’s subsequent recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (d) the recovery arrested the misconduct and recurrence of that misconduct is unlikely).
    4. In aggravation, the respondent received a prior admonition in 1997 for failing to maintain complete records of client funds, failing to cooperate with bar counsel’s investigation, and conduct prejudicial to the administration of justice. (Krabbenhoft Tr. I:130; Ex. 26)

RECOMMENDATION FOR DISCIPLINE

Bar counsel is seeking a suspension of one year and one day, thus requiring a hearing before reinstatement. S.J.C. Rule 4:01, Section 18(2)(c). The respondent has not suggested an appropriate sanction in this matter.

The respondent has admitted to his neglect of two client matters, and his failure to keep his clients reasonably informed of the status of their cases. The standards for imposing sanctions for neglect or failure to diligently represent clients are set forth in Matter of Kane, 13 Mass. Att’y Disc. R. 321, 327-28 (1997):

Absent aggravating and mitigating factors:
  1. Admonition is generally appropriate when a lawyer has failed to act with reasonable diligence in representing a client or otherwise has neglected a legal matter, and the lawyer’s misconduct causes little or no actual or potential injury to a client or others.
  2. Public reprimand is generally appropriate where a lawyer has failed to act with reasonable diligence in representing a client or otherwise has neglected a legal matter and the lawyer’s misconduct causes serious injury or potentially serious injury to a client or others.
  3. Suspension is generally appropriate for misconduct involving repeated failures to act with reasonable diligence, or when a lawyer has engaged in a pattern of neglect, and the lawyer’s misconduct causes serious injury or potentially serious injury to a client or others.
See also ABA Standards for Imposing Lawyer Sanctions 4.4 (1992).14

In Kane, the Board identified some examples of aggravating factors, such as making misrepresentations to a client to conceal the neglect or lack of diligence, prior disciplinary offenses, and failure to cooperate with bar counsel.15 Id. at 328. The Board also identified some examples of mitigating factors, such as timely good faith effort to make restitution or to rectify the consequences of the misconduct, physical or mental disability contributing to the misconduct, and serious personal or emotional problems contributing to the misconduct.16 Id.

In this case, the respondent’s neglect of two unrelated client matters, with substantial harm to both clients17, would likely warrant at least a public reprimand under the principles enunciated in Kane, 13 Mass. Att’y Disc. at 327-28. However, we must also consider in aggravation18 the respondent’s misrepresentation to his client in an attempt to conceal his lack of diligence, his failure to cooperate with bar counsel resulting in an administrative suspension, his failure to fully comply with the terms of his administrative suspension given the return of Mr. Bilbo’s original file at the disciplinary hearing, and his prior disciplinary history.

We find this matter is analogous to Matter of Barrat, 20 Mass. Att’y Disc. R. 27 (2004), where the attorney neglected a litigation matter and made intentional misrepresentations to the defendant’s insurer, but caused minimal harm to the client as a result of the client’s settlement with the attorney’s malpractice carrier; and failed to maintain adequate records of a will’s location in a second matter. In aggravation, the attorney had a prior admonition for neglect and failure to communicate with a client, and a public reprimand for mishandling his trust accounts. In mitigation, the attorney submitted a letter from his primary care physician diagnosing his depression and treatment by anti-depressants. The special hearing officer did not credit the proffered opinion of the attorney’s physician as to the causal connection between the depression and the misconduct, expressed concern that there was a substantial likelihood that the attorney would experience further professional problems, and recommended a six-month suspension with the requirement that the attorney undergo a reinstatement hearing in order to demonstrate that he had taken adequate steps to deal with his depression and to organize his office. The appeal panel assumed a causal relationship between the attorney’s depression and his misconduct, took his depression into account in moderating the length of suspension, but nonetheless found harm to the client in one matter, and adopted the special hearing officer’s recommendation that the attorney be suspended for six months and be required to petition for reinstatement. A single justice of the S.J.C. upheld the six-month suspension and the requirement that the attorney petition for reinstatement. Id. at 27-30. See also Matter of O’Connor, 21 Mass. Att’y Disc. R. 525 (2005), where the attorney neglected two matters, made repeated negligent and intentional misrepresentations, had a prior admonition for neglect and failure to cooperate with bar counsel, and the parties stipulated to a six-month suspension that was ordered by a single justice of the S.J.C.

In the matter at hand, the respondent neglected two client matters resulting in substantial harm to both clients, made an intentional misrepresentation to one client, failed to cooperate with bar counsel resulting in his administrative suspension, then failed to fully comply with the terms of his administrative suspension, and had a prior admonition for similar misconduct. Although we do not find the letter from the respondent’s therapist sufficient to prove a causal relationship between the respondent’s anxiety and stress and his neglect of client matters, we nonetheless acknowledge and recognize that personal problems can be distracting and disruptive. However, we are concerned with the respondent’s propensity to ignore and fail to handle problems, such as client demands or requests from bar counsel, as well as his intentional misrepresentation to a client in order to hide his own neglect. The respondent also failed to fully comply with the terms of his administrative suspension, as evidenced by his return of Mr. Bilbo’s original file during the disciplinary hearing only at the behest of bar counsel. Further, after the disciplinary hearing, the respondent failed to submit a post-hearing brief on his own behalf.

The respondent’s conduct before and during the disciplinary hearing raises concerns that he has not yet adequately addressed his personal problems, and that his propensity to ignore problems may result in future misconduct. We therefore recommend a six-month suspension, together with the requirement that the respondent petition for reinstatement in order to show that adequate steps have been taken to address these concerns.


FOOTNOTES:

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

2 The transcript shall be referred to as “Tr. _:_” with the first number referring to the volume and the second number referring to the page(s); the answer shall be referred to as “Ans. ¶_”; and the exhibits shall be referred to as “Ex. _.”

3 We note that the docket has the pre-trial conference scheduled for June 7, 2004 (Ex. 2), but the agreement was docketed on June 9, and everyone testified that the agreement was reached at the pre-trial conference on June 9, 2004. (Hannington Tr. I:33, 35-36; DiMaggio Tr. I:61-62; Krabbenhoft Tr. I:104-105; Ex. 4) The actual date that the agreement was reached by the parties is immaterial.

4 Mr. Bilbo consistently used the term motion to refer to what he thought needed to be filed in order to obtain his ex-wife’s pension information (Bilbo Tr. II:4, 8, 9, 11), and in fact he subsequently filed pro se a “motion for a court order”. See ¶27 below. The respondent consistently testified that he intended to file a complaint for modification on behalf of Mr. Bilbo. (Krabbenhoft Tr. I:115-116, 120, II:21) Regardless of which term was used, we find that the parties understood that the respondent had been retained by Mr. Bilbo to pursue his ex-wife’s possible concealment of the value of her pension benefits. (Krabbenhoft Tr. I:114-115; Bilbo Tr. II:8-9)

5 Mass. R. Prof. C. 1.3 Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client. The lawyer should represent a client zealously within the bounds of the law.

6 Mass. R. Prof. C. 1.4 Communication

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

7 Mass. R. Prof. C. 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

8 See n.4 supra.

9 Mass. R. Prof. C. 8.4 Misconduct

It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

10 See n.5 supra.

11 S.J.C. Rule 4:01 Bar Discipline

Section 3. Grounds for Discipline.
  1. Each act or omission by a lawyer, individually or in concert with any other person or persons, which violates any of the Massachusetts Rules of Professional Conduct (see Rule 3:07) or any of the Disciplinary Rules Applicable to Practice as a Prosecutor or as a Defense Lawyer (see Rule 3:08), shall constitute misconduct and shall be grounds for appropriate discipline even if the act or omission did not occur in the course of a lawyer-client relationship or in connection with proceedings in a court. A violation of this Chapter 4 by a lawyer, including without limitation the failure without good cause to (a) comply with a subpoena validly issued under section 22 of this rule; (b) to respond to requests for information by bar counsel or the Board made in the course of the processing of a complaint; (c) to comply with procedures of the Board consistent herewith for the processing of a petition for discipline or for the imposition of public reprimand or admonition (See section 4 of this rule); or (d) to comply with a condition of probation shall constitute misconduct and shall be grounds for appropriate discipline.

12 Mass. R. Prof. C. 8.4 Misconduct

It is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice;

13 Mass. R. Prof. C. 8.4 Misconduct

It is professional misconduct for a lawyer to:
(g) fail without good cause to cooperate with the Bar Counsel or the Board of Bar Overseers as provided in Supreme Judicial Court Rule 4:01, § 3; or

14 4.4 Lack of Diligence

Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving a failure to act with reasonable diligence and promptness in representing a client:
4.41 Disbarment is generally appropriate when:
(a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.

4.42 Suspension is generally appropriate when:

(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.

4.43 Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.

4.44 Admonition is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes little or no actual or potential injury to a client.

15 See also ABA Standards for Imposing Lawyer Sanctions 9.22 (1992)

9.22 Factors which may be considered in aggravation. Aggravating factors include:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution. [sic]
(k) illegal conduct, including that involving the case of controlled substances.

16 See also ABA Standards for Imposing Lawyer Sanctions 9.32 (1992)

9.32 Factors which may be considered in mitigation. Mitigating factors include:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith efforts to make restitution or to rectify consequences of misconduct;
(e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug abuse when:
(1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
(j) delay in disciplinary proceedings;
(k) imposition of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses.

17 In Count One, Mr. DiMaggio was found guilty of contempt for failing to appear at the October 2004 hearing and was ordered by the probate court to pay attorney’s fees of $1,620 to Attorney Hannington. (See ¶¶15, 16 above) In Count Two, Mr. Bilbo was never refunded his payment of $450 in legal fees, successfully pursued the respondent in small claims court, but still has not received payment from the respondent. (See ¶28 above)

18 Bar counsel in her brief contends that the respondent’s substantial experience in the law and his alleged abandonment of his law practice after June 1, 2005 are also factors in aggravation. We do not agree with bar counsel’s contentions and make no findings in support thereof. In any event, in light of the other aggravating factors that we do consider, our recommended sanction would not change were we to also consider the aggravating factors raised by bar counsel.



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