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


Commonwealth of Massachusetts

NO. BD-2009-034

IN RE: JOHN F. FOLEY, JR.

S.J.C. Order of Term Suspension/Suspended entered by Justice Spina on May 4, 2009.1

SUMMARY2

On October 31, 2000, the driver of a pickup truck was injured in a multiple vehicle collision, and his vehicle was declared a total loss. On March 26, 2001, the driver hired the respondent to represent him on his personal injury claim, and they signed a contingent fee agreement. The respondent also agreed to represent the client’s wife on a loss of consortium claim on a contingent-fee basis, but the respondent and the wife did not sign a separate contingent fee agreement for her claim.

In July of 2001, the client underwent surgery for a torn rotator cuff that he had injured in the accident. In November of 2001, the client reported to the respondent that he had completed treatment for the shoulder injury.

Between November of 2001 and October of 2003, the respondent performed little or no work of substance on the case. On October 31, 2003, the respondent filed a complaint on behalf of the client and his wife in Superior Court, alleging negligence, property damage, and loss of consortium. The complaint named three defendants: the drivers of the two other vehicles involved in the accident, and the owner of one of the vehicles.

The deadline for service of process was January 29, 2004. The respondent arranged to have service made on each of the defendants. Service was made on two of the defendants, but the sheriff was unable to make service on the third defendant. The respondent did not inspect the returns of service and was unaware that one of the defendants had not been served.

On or about January 16, 2004, the respondent mailed the three returns of service to the clerk of the court. The returns of service were not docketed or included in the court records. The respondent was unaware that returns had not been docketed by the court or filed with the court papers.

On June 24, 2004, the court dismissed the case against all three defendants on the grounds that service had not been accomplished. The respondent had not received notice that the case was about to be or had been dismissed and was otherwise unaware of the dismissal because he had not taken any action in the case after filing the returns of service. The respondent failed for the next two years to take any action of substance in the matter and remained unaware that the case was no longer pending.

Between January 2004 and May 2006, the client left numerous telephone messages for the respondent and sent several faxed letters to the respondent about the status of his case. The respondent failed to promptly respond to many of these inquiries. When the respondent did speak to the client, he reported, incorrectly, that the case was still pending.

In May of 2006, the client checked the court’s docket, and learned that the case had been dismissed in June of 2004. The client promptly contacted the respondent, and informed him of the dismissal. The respondent agreed to file a motion seeking relief from dismissal. However, after his conversation with the client, the respondent failed to take any action to remove the dismissal or otherwise reinstate the case.

On or about October 31, 2006, the client filed a request for investigation with the Office of Bar Counsel, and bar counsel forwarded the complaint to the respondent for response. Thereafter, on or about December 11, 2006, the respondent sent the defendants a copy of a motion for relief from order of dismissal in conformance with Superior Court Rule 9A. In the motion, the respondent acknowledged that the neglect precipitating the dismissal of his clients’ action was entirely the respondent’s fault and not due to any act or omission on the part of his clients. The respondent did not receive any opposition from the defendants. On or about February 13, 2007, the respondent filed the motion for relief from dismissal with the court, and on February 27, 2007, the court allowed the motion for relief from dismissal against all defendants.

By failing to handle his clients’ legal matter with reasonable preparation, diligence, and promptness, the respondent violated Mass. R. Prof. C. 1.1 and 1.3. By failing to promptly comply with his client’s reasonable requests for information, and to explain a matter to the extent reasonably necessary to permit his clients to make informed decisions regarding the representation, the respondent violated Mass. R. Prof. C. 1.4(a) and (b). By entering into a contingent fee agreement with one of his clients without executing a written fee agreement, the respondent violated Mass. R. Prof. C. 1.5(c).

The respondent was admitted to practice on December 18, 1980. In mitigation, the case was reinstated and the clients received a settlement in the case with which they were satisfied. On the other hand, in aggravation, the potential for harm was great as the clients’ case was meritorious and they had sustained damages. In further aggravation, the respondent received a public reprimand in 2003 for a similar case of neglect involving the respondent’s failure to oppose a summary judgment motion, failure to communicate to the client that the case had been dismissed, and failure to respond to the client’s repeated attempts to contact him. As in this case, the client discovered the true state of affairs only by going to court. Matter of Foley, 19 Mass. Att’y Disc. R. 137 (2003).

The case came before the board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by a suspension of three months, suspended for a period of one year, and subject to conditions that the respondent (1) provide proof to bar counsel that he is maintaining professional liability insurance coverage in an amount of at least $250,000/$500,000 in effect for a period of two years; (2) within ten days of the effective date of the order of suspension, contact the Director of the Law Office Management Assistance Program (LOMAP), and make arrangements for LOMAP to inspect and audit the respondent’s law office practices; and (3) during the period of probation, abide by all directives received from LOMAP regarding the management of his law office. On April 13, 2009, the board voted to recommend that the Court accept the parties' stipulation and joint recommendation for discipline. On May 4, 2009, the Court ordered that the respondent be suspended from the practice of law for three months, suspended for one year under the probationary conditions set forth in the stipulation of the parties.


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.