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Commonwealth of Massachusetts

NO. BD-2009-008

IN RE: SCOTT A. YOUNG

S.J.C. Order of Term Suspension entered by Justice Botsford on March 18, 2009, with an effective date of April 17, 2009.1

BOARD MEMORANDUM

Bar Counsel appeals from a hearing committee’s recommendation that the respondent, Scott A. Young, be suspended for six months and a day for neglect and abandonment of a case, failure to communicate with the client and to return the unearned fees on discharge, and disobedience of court orders. The respondent did not file an opposition to bar counsel’s appeal. Bar counsel waived oral argument and the board considered the matter at its meeting on December 8, 2008. For the reasons set forth below, we adopt the hearing committee’s findings of fact and conclusions of law, but we recommend that the respondent be suspended for a year and a day.

We summarize the hearing committee’s findings relevant to bar counsel’s appeal.

Around November 5, 2005, John Smith2 retained the respondent to take over representation in his divorce. Smith’s prior counsel had already exchanged some discovery with the wife’s counsel, had negotiated a voluntary support order, and had negotiated a settlement addressing substantially all issues except disposition of the marital home. When Smith’s counsel presented him with the draft settlement agreement, Smith concluded that it was unfair. Angered by the divorce and feeling that his wife’s conduct with her paramour made him the better candidate for custody of their children, Smith retained the respondent to convert a routine divorce into a heated contest.

The respondent explained to Smith that it was unlikely that the court would award him custody of the children. Still, they decided to contest the issue. They also hoped to use the issue in negotiations to leverage a transfer of the marital home to Smith. Smith paid the respondent a flat fee of almost $15,000, in advance.

The respondent filed his appearance on December 23, 2005. That day, he appeared at a pre-trial conference and obtained a continuance.

Throughout January 2006, the wife’s attorney was unable to reach the respondent to schedule the meeting among parties and counsel required in advance of the pretrial conference, which was now scheduled for February 6, 2006. When respondent appeared at the pretrial conference, he failed to file either a pretrial memorandum or Smith’s updated financial statement. The court instructed the respondent and Smith to return at 2:00 p.m. with a financial statement. They did not return until around 3:00 p.m. By then, the court had continued the pretrial conference to March 10, 2006 and ordered the respondent to show cause why he should not be sanctioned.

On March 10, 2006, the court ordered the respondent to pay a sanction of $500 within ninety days. The respondent never paid the sanction and did not offer a legitimate excuse for that failure.

The pretrial conference went forward that day. After hearing the parties and reviewing the submissions, including Smith’s pretrial memorandum, the court announced that it was not likely to award Smith custody of the children. The court appointed a guardian ad litem to investigate and report on custody issues.

The respondent filed no further pleadings or motions after the pretrial conference. His filings in this matter consisted of two financial statements, a motion for a continuance, and a pretrial memorandum; he had also prepared motions in advance of the December pretrial conference, but the court did not accept them. The respondent never communicated with the wife’s attorney again.

Smith tried without success to reach the respondent during April, May, and June 2006, but the respondent never contacted Smith after mid-April, 2006. The committee rejected the respondent’s explanation that he stopped responding to Smith because nothing was happening in the case, Smith’s inquiries had become repetitious, and Smith had begun to exhibit bizarre behavior. During this time, Smith was resisting participation in the guardian’s investigation and needed legal counsel.

In June 2006, the wife moved for an order that Smith contribute to repairs to the marital home. The respondent did not return calls from the wife’s counsel about the motion. He received notice of it, but did not file an opposition. He did not appear at the hearing, where Smith represented himself. The court granted the motion.

Smith discharged the respondent in August 2006. He retained successor counsel around October 2006, when the guardian ad litem issued a report that recommended an award of custody to the wife and noted Smith’s refusal to participate in the investigation. About a month later, the parties settled on substantially the same terms as had been proposed before the respondent’s appearance. Smith did not receive the marital home. The respondent did not refund any portion of the advance fee.

The committee found that the respondent violated Mass. R. Prof. C. 1.1 (competence), 1.2(a) (seeking client’s lawful objectives through reasonably available means), and 1.3 (diligence) by failing to file required papers at the pretrial conference on February 6, 2006, failing to complete the legal work Smith retained him to perform, failing to appear at court hearings, and failing to respond to communications from counsel. The committee found that the respondent’s failure to file an updated financial statement in the afternoon of February 6, 2006, and to pay the resulting sanctions violated Mass. R. Prof. C. 3.4(c) (knowing disobedience of court order without open refusal based on absence of obligation) and 8.4(d) (conduct prejudicial to the administration of justice). It also found that the respondent had failed to refund unearned fees on withdrawal, in violation of Mass. R. Prof. C. 1.16(d) (steps to protect client’s interests required on withdrawal, including refunding unearned fees). Finally, the committee found that the respondent’s abandonment of Smith’s case, his failure to communicate with Smith after April of 2006, and his failure to discuss with Smith the motion in June 2006 for home repairs violated Mass. R. Prof. C. 1.4(a) (keep client informed and respond to reasonable requests for information), 1.16(c) (no withdrawal without tribunal permission), and 1.16(d).

The respondent presented no evidence in mitigation.

In aggravation, the respondent failed to participate in the disciplinary process. After he was relieved of his default in failing to answer the petition, he then failed to appear at the hearing. He filed proposed findings and rulings, but he did not participate in the appeal process.

Discussion

Bar counsel only appeals from the recommended sanction.

A suspension longer than the one the committee recommended is appropriate. Suspension for a year and a day is warranted where a lawyer’s failure to participate in the disciplinary process aggravates neglect and incompetence, abandonment of the client, and failure to refund unearned fees. Cf. Matter of Chang, S.J.C. No. BD-2008-05 (February 8, 2008) (year-and-a-day suspension for neglect of four matters, failure to communicate with clients, incompetence, excessive fees, and failure to refund unearned retainers, all aggravated by default); Matter of Couture, S.J.C. No. BD-2007-093 (September 2, 2008) (year-and-a-day suspension for abandonment of four matters and failure to cooperate with bar counsel).

The committee’s effort to justify a shorter suspension by distinguishing Matter of Brown, 17 Mass. Att’y Disc. R. 93 (2001) (year-and-a-day suspension for failure to file appearance in divorce and failure to communicate with client and opposing counsel, aggravated by complete failure to cooperate with bar counsel and default in formal disciplinary proceedings) does not give adequate weight to the respondent’s intentional disobedience to court orders. Further, we agree with bar counsel that the respondent’s neglect, incompetent handling and ultimate abandonment of Smith’s case constituted misconduct at least as serious as Brown’s, and they do not warrant a less severe sanction.

We decline bar counsel’s suggestion that the respondent be required to participate in fee arbitration and pay all related costs as a condition of his reinstatement. We are not prepared to condition the respondent’s reinstatement on his former client’s response to an offer of arbitration. We do suggest the respondent take such steps. A reinstatement panel would likely take a dim view of a failure to repay the unearned portion of the fee he collected given the importance attached to a suspended lawyer’s satisfaction of his financial obligations to former clients before seeking reinstatement. Matter of Pool, 401 Mass. 460, 466, 5 Mass. Att’y Disc. R. 290, 296 (1988) (failure to make restitution is “a strong indication of lack of rehabilitation”).

Conclusion

For the foregoing reasons, we adopt the hearing committee’s findings of fact and conclusions of law, but modify the recommended sanction. An Information shall be filed with the Supreme Judicial Court recommending that the respondent, Scott A. Young, be suspended from the practice of law for a year and a day.


FOOTNOTES:

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

2 A pseudonym.



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