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Commonwealth of Massachusetts

NO. BD-2007-036

IN RE: KENNETH J. GALICA

S.J.C. Order of Term Suspension entered by Justice Ireland on January 7, 2010.1

SUMMARY2

On January 7, 2010, the Supreme Judicial Court for Suffolk County ordered that the respondent, Kenneth J. Galica, be suspended from the practice of law for one year and one day for misconduct in three civil cases. The first case involved defense of a client in a slip-and-fall case in February 2004. The respondent failed to inform his client that he had received interrogatories from the plaintiff and took no action to respond to the interrogatories. The plaintiff applied in August 2004 for entry of a final judgment due to the defendantís failure to respond to the interrogatories. The respondent did not inform his client of the motion and took no action to oppose the request. The respondent failed to inform his client that he had not taken any action to respond to that application. In October 2004, the court entered final judgment against the client.

In November, the plaintiff filed a motion for assessment of damages. The respondent failed to take any action regarding this motion, did not inform his client of it, and did not appear at the hearing. The court entered an order granting judgment to the plaintiff in the amount of $33,792, plus costs and interest.

The client learned of the judgment against him in July 2005. The respondent then filed a motion for an emergency stay of execution, which the court allowed. In November, the court denied the respondentís motion to vacate the judgment and execution.

The client retained a new lawyer, who filed a legal malpractice action against the respondent in April 2006. The respondent entered into a stipulation for judgment requiring him to pay the client $24,000, and the stipulation was incorporated into an order of the court. The respondent intentionally failed without good cause to honor his payment obligations to the client.

The respondentís failure to defend the client in the lawsuit, including the failure to respond in a timely manner to discovery requests, violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. The respondentís failure to inform his client about the status of his case violated Mass. R. Prof. C. 1.4(a) and (b). His intentional failure without good cause to comply with the court order requiring payment of a judgment violated Mass. R. Prof. C. 3.4(c) and 8.4(d).

The second case concerned a client who had been injured in a work-related auto accident. The client retained respondent in 2005 to file a voluntary bankruptcy petition. The client informed the respondent about a pending workerís compensation claim and a possible third-party claim against the driver who had caused the accident.

In the bankruptcy schedules he prepared for the client, the respondent listed the workerís compensation claim as an asset, but he did not list the possible third-party claim or creditors with a lien on that potential claim. The trustee in bankruptcy declined to pursue the workerís compensation claim for possible distribution to the clientís creditors. In February 2006, the bankruptcy court entered an order discharging all of the clientís debts.

Approximately a year later, the client sought to bring a third-party claim against the other driver involved in his automobile accident. The clientís personal injury lawyer advised that it would be improper to pursue the third-party claim because it had not been listed as a separate asset in the bankruptcy schedules. Early in 2007, the client tried to contact the respondent to request that he amend the bankruptcy petition to include the third-party action as one of his assets. The respondent did not respond to the clientís communications or to calls from the personal injury lawyer.

On July 26, 2007, the former bankruptcy trustee advised the respondent that, if the client wanted to pursue a third-party claim, the respondent would have to reopen the bankruptcy case and amend the petition to add the third-party claim to the schedule of assets. The respondent took no action to amend the clientís bankruptcy petition.

On August 16, 2007, the respondent was administratively suspended from the practice of law for his failure to cooperate with bar counsel in the investigation of an unrelated matter. The respondent failed to notify the client of his administrative suspension. In April 2008, the client retained new bankruptcy counsel, who moved to amend the clientís bankruptcy petition to include the third-party claim as an asset. The court allowed the motion on May 29, 2008.

The respondentís failure to list the third-party action as an asset on the bankruptcy schedules violated Mass. R. Prof. C. 1.1 and 1.3. The respondentís failure to take action to amend the bankruptcy petition violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. The respondentís failure to inform the client of his administrative suspension from the practice of law violated Mass. R. Prof. C. 1.4, 3.4(c), and 8.4(d).

The third matter concerned litigation over a contract. The client hired the respondent in February 2006 to defend him in litigation. On February 21, 2006, the plaintiff sent interrogatories and document requests to the respondent. The respondent did not inform his client of these discovery requests or take any action of substance to provide responses to them. In April, the plaintiff served a motion to compel production of documents and an application for final judgment based on the defendantís failure to answer interrogatories. The respondent failed to inform his client of the plaintiffís motion and application for judgment, and he failed to respond to the motion or application.

In May, the plaintiff filed a motion to attach the clientís real estate, which was allowed by the court in June. The respondent received notice of the attachment, but he failed to inform his client of it. In September, the plaintiff applied for final judgment against the client for his failure to answer interrogatories. The respondent did not oppose the motion or inform the client that the motion had been filed.

Between April and September 2006, the client made numerous unsuccessful attempts to contact the respondent by telephone and mail to obtain information about the status of his case. On December 1, 2006, the client discharged the respondent and requested his file. The respondent did not promptly turn over the file.

On December 11, 2006, the client retained a new lawyer who sent a letter to the respondent demanding the clientís file. The respondent did not respond to the letter and he did not turn over the file. In May 2007, after the client complained to bar counsel, the respondent delivered the clientís file to the new lawyer.

The respondentís failure to respond to the plaintiffís discovery requests violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. The respondentís failure to inform his client about developments in his case, his failure to respond to the numerous telephone calls and letters from the client and new counsel, and his failure to inform the client that he had not taken any action in the case violated Mass. R. Prof. C. 1.4(a) and (b). The respondentís failure to return the client's file promptly after his discharge and upon the clientís request violated Mass. R. Prof. C. 1.16(d).

On August 16, 2007, the respondent was administratively suspended pursuant to S.J.C. Rule 4:01, ß 3(2), for his intentional failure without good cause to provide information requested by bar counsel in the course of investigating a complaint. The respondent did not file an affidavit of compliance with the order of administrative suspension until May 27, 2008, although the order required full compliance, including filing the affidavit, by no later than September 16, 2007.

The order of suspension also required the respondent to resign his fiduciary appointments and notify the beneficiaries of any trust he administered of his suspension. In his affidavit, the respondent negligently failed to list a trust for which he was acting as trustee, and he failed to notify the beneficiaries of the trust of his administrative suspension and the requirement that he resign all his fiduciary appointments. These omissions were brought to his attention, and the respondent finally complied and submitted a corrected affidavit on September 18, 2009.

The respondentís failure without good cause to respond to requests for information from bar counsel made in the course of the processing of a complaint violated S.J.C. Rule 4:01, ß 3(2), and Mass. R. Prof. C. 3.4(c), 8.1(b), and 8.4(g). His failure promptly to comply with S.J.C. Rule 4:01, ßß 3(3) and 17, violated Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h). He also violated Mass. R. Prof. C. 8.4(d) by negligently omitting his position as trustee from his first affidavit of compliance and failing to notify trust beneficiaries of his administrative suspension.

On November 20, 2009, bar counsel and the respondent presented a stipulation to the Board of Bar Overseers in which the respondent admitted to this misconduct and the cited rule violations. The stipulation recommended a suspension from the practice of law for one year and one day, retroactive to September 18, 2009, the date of the respondentís full compliance with the order of administrative suspension.

On December 14, 2009, the Board of Bar Overseers voted to accept the partiesí stipulation, and, on January 7, 2010, the Supreme Judicial Court for Suffolk County (Ireland, J.) ordered that the respondent be suspended from the practice of law for one year and one day, retroactive to September 18, 2009.


FOOTNOTES:

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 filed with the Supreme Judicial Court.



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