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Commonwealth of Massachusetts

NO. BD-2008-083

IN RE: EDWIN T. SCALLON

S.J.C. Order of Term Suspension entered by Justice Spina on September 8, 2008, with an effective date of October 8, 2008.1

SUMMARY2

The respondent received a suspension from the practice of law for one year and one day for misconduct in two matters. In the first matter, the respondent appeared in court pro se while under the influence of alcohol and repeatedly failed to comply with court orders resulting in his arrest on a capias. In the second matter, the respondent failed to provide diligent representation and to communicate with his client, intentionally misrepresented the status of the case to the client after failing to oppose a motion to dismiss, failed to appear at the hearing, and failed to file a motion to vacate the resulting dismissal.

In the first matter, the respondent failed to pay his rental payments to his landlord and was sent a thirty-day notice to quit in April 2007. The respondent did not respond to the notice and the landlord filed suit for summary process. The respondent undertook to represent himself in this proceeding.

In June 2007, the court ordered the respondent to pay his landlord $2,000 on the first of each month, and a trial date was scheduled. On the day of trial, the respondent appeared late and intoxicated. The trial was continued.

In August 2007, the trial was held and the court ordered the respondent to pay $2,000 for the month of August. The respondent issued a check as ordered, but it was later returned for insufficient funds. On September 7, 2007, a complaint for contempt was filed against the respondent for failing to pay rent for the months of August and September, and a hearing was scheduled for September 25, 2007. The respondent failed to appear at the hearing and a capias was issued for his arrest.

On October 12, 2007, the court entered judgment against the respondent in the amount of $6,234.84 and stated that the respondent could remain in possession of the property provided he pay the court clerk the entire judgment within seven days. On October 18, 2007, the respondent was arrested on the capias for contempt of the court order. The respondent filed a motion to stay execution on the judgment and filed a notice of appeal, but the respondent failed to post bond on the appeal within seven days.

In November 2007, opposing counsel requested an execution on the judgment and filed a motion to dismiss the appeal. The respondent failed to appear. The motion to dismiss was allowed, and the court issued an execution on the judgment. In December 2007, the respondent was evicted from the property and failed to satisfy the judgment.

The respondentís failure to comply with the court orders violated Mass. R. Prof. C. 3.4(c), 8.4(d) and 8.4(h). The respondentís pro se appearance in court while under the influence of alcohol violated Mass. R. Prof. C. 8.4(d) and 8.4(h).

In the second matter, the client retained the respondent in or about April 2002, to represent him in his claim against the Massachusetts State Lottery Commission. The client claimed to have a winning instant game ticket in the amount of $1,000,000, but was advised by the Commission that he did not have a winning ticket. The client appealed the denial to the Commission.

In June 2005, the respondent filed a complaint against the Commission on behalf of his client in superior court. In November 2005, the superior court allowed an assented-to motion suspending further proceedings until the completion of the Commissionís administrative hearing and issuance of the Commissionís final decision.

In October 2006, after hearing, the Commission denied the clientís claim. By letter to the respondent dated October 5, 2006, the Commission enclosed a copy the final decision and informed the respondent that his clientís remedy was to appeal to the superior court within thirty days. The respondent did not provide this letter to his client or advise his client of his right to appeal to the superior court, and he did not file an appeal from the decision within thirty days.

In November 2006, the defendant Commission filed a motion to dismiss for lack of subject matter jurisdiction with the superior court and served a copy of the motion on the respondent. The respondent failed to file an opposition to the motion and intentionally misrepresented to his client that he had served an opposition upon the defendant. Further, the respondent failed to appear for the scheduled hearing. As a result, in January 2007, the court ordered the matter dismissed. The respondent did not inform his client of the dismissal.

In or about April 2007, the client learned from the court clerk that his case had been dismissed. The respondent then sent his client a letter indicating that the case had been dismissed and that he would file a motion to vacate the dismissal.

The respondent served the plaintiffís motion to vacate the dismissal on the defendant, and the defendant served an opposition on the respondent. The respondent never filed the motion with the court. The respondent intentionally misrepresented to his client that he had filed the motion with the court.

From mid-April 2007 until December 2007, the client attempted to contact the respondent numerous times about the status of his case. The respondent did not return his clientís telephone messages or otherwise respond to his requests for information about the status of his case.

By failing either to appeal or to advise his client of his right to appeal the Commissionís decision to the superior court, the respondent failed to act with reasonable diligence and failed to communicate with the client in violation of Mass. R. Prof. C. 1.3 and 1.4 (a) and (b).

By failing to file an opposition to the motion to dismiss and failing to appear at the hearing resulting in the dismissal of the case, and by failing to file the clientís motion to vacate the dismissal, the respondent failed to act with reasonable diligence in violation of Mass. R. Prof. C. 1.3.

By failing to respond to the clientís numerous requests for information, the respondent failed to keep the client reasonably informed about the status of his case in violation of Mass. R. Prof. C. 1.4(a). By intentionally misrepresenting the status of the case to the client, the respondent violated Mass. R. Prof. C. 8.4(c).

Bar Counsel commenced disciplinary proceedings before the Board of Bar Overseers by filing and serving a petition for discipline on May 21, 2008. In aggravation, the respondent failed to file an answer or otherwise respond and was defaulted on June 12, 2008. On August 11, 2008, the board recommended that the respondent be suspended for one year and one day. The Court so ordered on September 8, 2008.


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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