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


Commonwealth of Massachusetts

NO. BD-2009-009

IN RE: PHILIP F. MULVEY, JR.

S.J.C. Order of Term Suspension entered by Justice Cowin on January 30, 2009, with an effective date of March 3, 2009.1
(Order of Reinstatement entered by Justice Cowin on September 16, 2009)

SUMMARY2

Beginning in 2001, the respondent represented a client in a medical malpractice action and the clientís spouse and children in related loss of consortium claims. Suit was filed in September of 2001.

In September of 2003, the client and his spouse filed, through other counsel, a joint voluntary Chapter 7 bankruptcy petition. The civil matter was listed as a contingent unliquidated asset of the bankruptcy estate. As a result of the bankruptcy filing, the civil matter became subject to the authority and control of a trustee appointed by the bankruptcy court. In early 2004, the trustee filed an application for an order authorizing employment of the respondent as special counsel to represent the trustee in pursuing the civil matter on behalf of the bankruptcy estate. The bankruptcy court approved the trusteeís application on February 18, 2004.

In May or June of 2004, the client wrote to Resource Management Company (RMC), a litigation funding service, requesting an advance of $2,000 against settlement of the civil matter. The client gave RMC the respondentís name and telephone number as his attorney. RMC requested information from the respondent about the civil matter. In response, the respondent knowingly provided RMC with misleading, deceptive and false information 1) in naming the client as the only plaintiff and not the consortium plaintiffs and in not disclosing that he was representing the trustee on behalf of the clientís bankruptcy estate; and 2) in failing to disclose, in response to a request for liens and potential liens, that the client was in a pending bankruptcy, that the civil matter was an asset of the estate and that it was the trustee and not the client or the respondent who had authority and control over the civil matter and any settlement or recovery.

RMC then sent the respondent a check for $2,000 to be released to the client upon the signing of a purchase agreement and an acknowledgement of lien. The purchase agreement, signed by the client and witnessed by the respondent, set out that RMC was advancing the client $2,000, that the client was giving RMC a security interest in the civil matter and that the client was instructing the respondent to pay RMC upon settlement of the claim. The client and the respondent both signed the acknowledgement of lien, acknowledging that RMC was given a lien on the proceeds of the civil case and that the respondent would pay RMC all funds due them at the close of the case.

As a result of the bankruptcy, the client did not have the authority or power to give RMC a lien on the civil matter or to direct the respondent to make any payments to RMC from any settlement or recovery. Nor did the respondent have the authority or power to agree to honor any lien of RMC or to agree to make any payments to RMC from any settlement or recovery. In providing RMC with the executed purchase agreement and acknowledgment of lien, the respondent did not disclose that the client was in a pending bankruptcy, that the civil matter was an asset of the bankruptcy estate, that he had been retained as special counsel to handle the civil matter on behalf of the bankruptcy estate and that neither he nor the client had the authority or power to grant RMC the rights contained in the documents.

The civil matter settled for $550,000 in October of 2004. On motion of the trustee, the bankruptcy court approved the settlement. Pursuant to the settlement, $60,000 was paid to the clientís children to be held in a trust and the balance of $490,000 was paid to the trustee, who distributed the funds for approved costs, expenses and creditor claims. A surplus of approximately $130,000 was paid to the client. RMC received no payments from the settlement proceeds or the bankruptcy proceedings.

The respondentís knowingly false representations to and his failure to disclose the clientís bankruptcy to RMC were in violation of Mass. R. Prof. C. 4.1(a), 4.1(b), 8.4(c) and 8.4(h).

In mitigation, the respondent has made full restitution to RMC.

This matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary rule violations and a joint recommendation that the respondent be suspended from the practice of law for six months. On January 20, 2009, the Board voted unanimously to accept the stipulation and the partiesí recommendation. On January 30, 2009, a single justice of the Supreme Judicial Court for Suffolk County entered an order suspending the respondent for six months, effective thirty days from the entry date 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.