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Commonwealth of Massachusetts

NO. BD-2007-046


S.J.C. Order of Term Suspension entered by Justice Cordy on July 6, 2007, with an effective date of August 6, 2007.1


On February 3, 2003, the respondent’s client was demoted from his position as commissioner of a state agency to the position of director of administration and on February 14, 2003, he was discharged, effective February 22, 2003. As commissioner, the client did not have civil service protection, did not belong to a union, and had no written contract of employment. He understood that he was an employee at will whose appointment was coterminous with that of the governor.

On January 15, 2003, the client attended a meeting where he was told that he would not be reappointed commissioner by the governor. On several occasions during the meeting, the client was asked about his age.

In May 2003, the client hired the respondent to file a wrongful termination case. The client and the respondent signed a written fee agreement that provided that the client would pay a $10,000 retainer, which he did, which was to be applied against a 20% contingent fee.

On August 28, 2003, the respondent wrote a letter on the client’s behalf, which stated that it was a presentment letter under G.L. c. 258, the Massachusetts Tort Claims Act, to the governor and others, claiming unwarranted demotion and wrongful termination of his employment on February 22, 2003. The letter listed claims for wrongful termination, breach of contract, tortious conduct and age discrimination. However, the Tort Claims Act did not apply to the intentional torts. The respondent did not file a complaint with either the Massachusetts Commission Against Discrimination or the Equal Employment Opportunity Commission on the client’s behalf. The filing of such a complaint within 300 days of the last act of discrimination is a prerequisite to filing an age discrimination claim in state or federal court.

On August 12, 2004, about a year after sending the chapter 258 letter, the respondent filed a complaint on the client’s behalf in federal district court against the governor and others. The complaint alleged age discrimination, breach of contract, and other claims and sought actual and punitive damages, reinstatement and attorney’s fees.

On September 7, 2004, the attorney general filed a motion to dismiss with a supporting memorandum, alleging that the federal age discrimination (ADEA) claim must be dismissed based on the respondent’s failure to file a complaint with the EEOC within 300 days, that the claims for monetary damages against state officials were barred by the Eleventh Amendment, and that the client, as a non-civil service, non-union, at-will employee, had no expectation of continued employment and thus his termination did not implicate due process.

On February 1, 2005, the respondent filed a timely opposition to the motion to dismiss with a supporting memorandum, alleging that equitable estoppel should bar dismissal based on the failure to file with EEOC because presentment letters under G.L. c. 258 were sent; that there existed genuine issues of material facts as to all counts; and that discovery was necessary to oppose the motion.

On March 31, 2005, after hearing, the federal district court allowed the motion to dismiss the federal ADEA and due process claims, and dismissed, without prejudice to re-filing in state court, the state claims. The respondent called the client that day and told him of the court’s decision. The respondent advised the client to re-file his state claims in state court. A few days later, the client discharged the respondent and requested a refund of his $10,000. The respondent promised to refund the money within a week, but failed to do so. On April 19, 2005, the client, through counsel, sent a letter to the respondent demanding the return of the $10,000 retainer. The respondent then sent a letter to the client, stating, “I, of course will honor my commitment to you, without intervention of any counsel.” As of the date of the hearing, the respondent had failed to return any part of the retainer.

On June 14, 2005, the client filed a complaint with bar counsel against the respondent and on August 6, 2005, the respondent sent the client’s file to his attorney. Subsequently, at bar counsel’s request, the respondent prepared a statement of legal services. This statement listed a total of seventy-four hours, at an hourly rate of $200 (discounted in some instances), for a total of $10,500 in legal fees and $2,345.85 in expenses.

The $10,000 fee was clearly excessive given the nature of the case, the services performed, and the results obtained. Specifically, the respondent’s failure to timely file a claim with MCAD or EEOC precluded the client from pursuing the age discrimination claim and rendered his legal services virtually valueless. In addition, the respondent’s itemization charged a legal fee for non-legal work. The number of hours spent by the respondent on the case was substantially in excess of the hours a prudent experienced lawyer would have spent, and the respondent’s inexperience in this type of case did not justify his fee.

On October 13, 2005, the respondent filed in the federal action a motion for leave to withdraw his appearance for his client, which was rejected by the court because the case was closed. Then on October 31, 2005, the respondent filed a motion for a continuance to conduct discovery to justify an opposition to defendants’ motion for summary judgment, which was denied because there was no pending motion for summary judgment and the case was closed.

By charging $10,000 for his legal services, which had little value, the respondent collected and retained a clearly excessive fee in violation of Mass. R. Prof. C. 1.5(a).

By failing to satisfy the prerequisite of filing a timely claim with the MCAD and EEOC before filing a lawsuit alleging age discrimination, the respondent violated Mass. R. Prof. C. 1.1. By failing to refund unearned fees after he was discharged, the respondent violated Mass. R. Prof. C. 1.16(d).

In aggravation, the respondent had a history of discipline for related misconduct. The respondent received an admonition in 2003 for failing to timely file a medical malpractice claim on behalf of a minor because he was unaware of the changes in the statute. AD-03-58, 19 Mass. Att'y Disc. R. 630 (2003). Also in aggravation, the respondent made an intentional misrepresentation to his client by promising to refund the retainer, but did not do so. Finally, the respondent demonstrated a lack of insight into the wrongfulness of his misconduct.

On February 24, 2006, a hearing committee recommended that the respondent receive a suspension of four months with reinstatement conditioned on passing the MPRE. Neither party appealed the recommendation of the hearing committee. On May 14, 2007, the Board voted to adopt the hearing committee’s findings and conclusions and to adopt the recommended discipline. On July 6, 2007, the Court entered an order of term suspension for a period of four months.

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 Supreme Judicial Court.

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