Mass.gov
   
Mass.Gov home Mass.gov  home get things done agencies Search Mass.Gov


Commonwealth of Massachusetts

NO. BD-2008-119

IN RE: JOHN F. TREFETHEN, JR.

S.J.C. Order of Term Suspension entered by Justice Ireland on December 29, 2008, with an effective date of January 28, 2009.1

SUMMARY2

On October 11, 2002, a client retained the respondent to represent him in a claim for damages when the car in which the client was a passenger was struck by another car. The respondent was also retained to represent the client’s wife for loss of consortium.

Between October 2002 and November 2004, the respondent failed to take any action of substance on the case. On November 29, 2004, the day before the statute of limitations was due to expire on the claim, the respondent filed a civil action on behalf of his clients against both the owner of the car in which the client was riding and the driver of the car that struck his client. In the complaint, the respondent identified the driver of other car only as “Jane Doe” because he did not know the driver’s name. After filing the civil complaint, the respondent did not take any action of substance to identify the driver of the other car involved in the accident or that driver’s insurer. The respondent took no action of substance to complete service of process on either defendant.

On May 17, 2005, the court entered a judgment of dismissal due to the respondent’s failure to complete service of process on the defendants. The respondent received a copy of the judgment of dismissal in due course, but did not notify his clients that the court had dismissed their complaint.

Between October 2002 and August 2006, the clients telephoned the respondent approximately four to six times per year to inquire about the status of the case. The respondent intentionally misrepresented to the clients that he was working on their case. After May 2005, the respondent intentionally misrepresented to the clients that the case was still pending. The clients did not learn that their case had been dismissed until August of 2006, when they obtained a copy of their file from the respondent.

On September 14, 2006, the respondent offered to attempt to revive the case. However, the respondent did not take any action to attempt to revive the case, and did not tell his clients that he would not be taking action to set aside the dismissal. On November 2, 2006, the client filed a request for investigation with bar counsel. The respondent intentionally failed without good cause to respond to two letters from bar counsel in connection with bar counsel’s investigation.

By failing to take any action of substance on his clients’ case between October 2002 and November 2004, and thereafter failing to complete service on the defendants, the respondent violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. By intentionally misrepresenting to his clients that he was working on the case and that the case was still pending after he knew the case had been dismissed, the respondent violated Mass. R. Prof. C. 8.4(c). By failing to keep his clients reasonably informed about the status of the matter and to promptly respond to his clients’ reasonable requests for information, and by failing to explain a matter to the extent reasonably necessary to permit the clients to make informed decisions regarding the representation, the respondent violated Mass. R. Prof. C. 1.4(a) and (b). By intentionally failing without good cause to respond to bar counsel’s correspondence, the respondent violated S.J.C. Rule 4:01, § 3(1)(b), and Mass. R. Prof. C. 3.4(c) and 8.1(b), and 8.4(g).

In a second matter, the respondent was retained in about November of 2002, to represent a client who was struck by an automobile. On November 17, 2005, one day before the expiration of the statute of limitations, the respondent filed suit on behalf of the client against the driver of the car. The respondent served the complaint on the defendant, who filed an answer.

On or about December 8, 2005, the respondent received a request for production of documents and answers to interrogatories from the defendant. The respondent failed without good cause to respond to the discovery requests in a timely manner. The respondent did not advise the client that he had received interrogatories. On or about January 26, 2006, the defendant served a final request for answers to interrogatories, in accordance with Mass. R. Civ. P. 33(a)(3). The respondent did not notify the client that he had received the final request for answers to interrogatories.

On or about February 15, 2006, the defendant served a motion to compel production of documents, in accordance with Rule 9A of the Superior Court. The respondent did not notify his client that he had received the motion to compel production or take any action to respond to the motion. On March 8, 2006, the defendant filed the uncontested motion to compel production of documents with the court. The respondent did not notify his client that the motion to compel production had been filed and a court hearing scheduled. Shortly before the scheduled hearing, the respondent produced the requested documents to the defendant.

On or about March 29, 2006, the defendant filed an application for final judgment pursuant to Rule 33(a)(4). The respondent did not notify his client that he had received an application for dismissal of his case for failure to file answers to interrogatories, and did not prepare answers to interrogatories for his client to sign and file. On April 12, 2006, judgment entered for the defendant. The respondent did not notify his client that judgment had entered against him.

In about July of 2006, the respondent prepared answers to the interrogatories, which his client signed. The respondent did not then inform the client that his case had been dismissed, and did not take any action to serve the answers on the defendant and seek relief from the judgment of dismissal. Between April 2006 and March 2007, the respondent intentionally misrepresented to the client that the case was still pending. In March 2007, the client learned from a source other than the respondent that his case had been dismissed. In March of 2007, the client discharged the respondent as his counsel in all matters.

By failing to file his client’s answers to interrogatories, resulting in the dismissal of his client’s case, and by failing to take prompt action to attempt to revive his client’s case, the respondent violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. By failing to keep his client reasonably informed about the status of the matter and by failing to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, the respondent violated Mass. R. Prof. C. 1.4(a) and (b). By intentionally misrepresenting to his client the status of the case, the respondent violated Mass. R. Prof. C. 8.4(c).

In a third matter, on June 30, 2004, the respondent agreed to represent a client who had been injured when she was bitten by a dog on December 26, 2003. Between July 2004 and November 2006, the respondent failed to respond to numerous requests from his client for information about the status of her case. The respondent did not otherwise keep the client reasonably informed about her case.

On December 18, 2006, the respondent filed a civil suit on behalf of the client. The respondent did not serve the defendant with a summons and a copy of the complaint. On May 14, 2007, the court entered a judgment of dismissal of the client’s claim for failure to make service within ninety days. The respondent did not notify his client that her case had been dismissed. Between May 2007 and January 2008, the respondent intentionally misrepresented to the client that the case was still active. The client’s grandmother also asked the respondent on the client’s behalf for information on the status of the case. The respondent intentionally misrepresented to the grandmother that the case was still pending.

The respondent intentionally failed without good cause to respond to letters from bar counsel in connection with her investigation of the client’s grievance. On April 17, 2008, the Supreme Judicial Court entered an order administratively suspending the respondent from the practice of law in Massachusetts in accordance with S.J.C. Rule 4:01, § 3(2), as a result of his failure to respond to bar counsel’s letters. On April 18, 2008, the respondent filed a written response to the grievance. On May 5, 2008, the Court entered an order reinstating the respondent as a member of the bar.

By failing to serve the summons and a copy of the complaint on the defendant, resulting in the dismissal of his client’s case, the respondent violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. By failing to keep his client reasonably informed about the status of the matter and to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, the respondent violated Mass. R. Prof. C. 1.4(a) and (b). By intentionally misrepresenting to his client and her grandmother the status of the case, the respondent violated Mass. R. Prof. C. 8.4(c). By intentionally failing without good cause to respond to bar counsel’s correspondence, the respondent violated S.J.C. Rule 4:01, § 3(1)(b), and Mass. R. Prof. C. 3.4(c), 8.1(b), and 8.4(g).

The respondent was admitted to practice on December 19, 1973. In aggravation, he had substantial experience in the practice of law at the time of the misconduct. In further aggravation, the respondent had received a prior public reprimand for similar charges involving neglect of a client matter and making misrepresentations to the client to conceal the neglect. See Matter of Trefethen, 12 Mass. Att’y Disc. R. 550 (1996). In mitigation, the client in the second matter settled his claim with the insurer to his satisfaction without the assistance of counsel in June 2007, and the respondent waived a fee. The respondent also reached an agreement to settle a malpractice claim with the client in the third matter.

The case came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by suspension of one year and one day. On December 8, 2008, the Board voted to recommend that the Court accept the parties' stipulation and joint recommendation for discipline. On December 29, 2008, the Court ordered that the respondent be suspended from the practice of law for one year and one day, effective thirty days after the date of the entry of the order.


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.



BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2005. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.