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Commonwealth of Massachusetts

NO. BD-2009-106

IN RE: ROBERT W. BERGE

S.J.C. Judgment Accepting Affidavit of Resignation As A Disciplinary Sanction entered by Justice Gants on May 20, 2010.1

SUMMARY2

The respondent worked as an attorney for a non-profit provider of legal services to indigent clients (“the employer”). In 2007, one of the respondent’s clients asked the employer about the status of a claim in which the respondent represented her as plaintiff. The employer ascertained that the respondent had not filed suit on the client’s behalf and had missed a statute of limitations, but that there was an alternative legal theory under which a complaint could still be filed. The respondent agreed to file a civil complaint under the alternative theory. The respondent then misrepresented to his supervisor that he had filed the complaint in federal court. By the time the supervisor discovered that no civil complaint had been filed, the statute of limitations for the alternative legal theory had passed. The respondent had also misrepresented to the client that he had timely filed the complaint.

In at least three other matters, the respondent failed to file complaints for clients. In at least one other matter, by failing to file a complaint, the respondent caused the client’s claim to be barred by a statute of limitations. The respondent intentionally misrepresented the status of a case to another client; incorrectly advised at least two clients about the viability of their claims and, in another matter, incorrectly determined the last date on which an appeal could be filed. The respondent also failed to maintain adequate and complete records regarding client matters.

On June 26, 2009, the respondent resigned from his employment with the legal services employer.

By failing to file complaints on his clients’ behalf, and allowing the statutes of limitations to pass, the respondent failed to represent clients competently, in violation of Mass. R. Prof. C. 1.1; failed to represent clients diligently, in violation of Mass. R. Prof. C. 1.3; failed to seek the lawful objectives of his clients through reasonably available means, in violation of Mass. R. Prof. C. 1.2(a); and engaged in conduct adversely reflecting on his fitness to practice law, in violation of Mass. R. Prof. C. 8.4(h).

By failing to inform his clients that he had not filed complaints on their behalf, the respondent failed to keep his clients reasonably informed about the status of their cases and failed to explain matters to his clients to the extent necessary to permit them to make informed decisions, in violation of Mass. R. Prof. C. 1.4(a) and (b).

By intentionally misrepresenting to at least three clients that he had filed complaints on their behalf; falsely informing two clients that status conferences were pending; and, intentionally misrepresenting to his supervising attorney that he had filed complaints on the client’s behalf, the respondent made false statements of fact in violation of Mass. R. Prof. C. 4.1(a); and engaged in conduct involving dishonesty, fraud, deceit and misrepresentation, and conduct adversely reflecting on his fitness to practice law, in violation of Mass. R. Prof. C. 8.4(c) and (h).

On April 21, 2010, the respondent executed an affidavit of resignation. On May 17, 2010, the Board of Bar Overseers voted unanimously to accept the resignation as a disciplinary sanction and filed the affidavit with the Supreme Judicial Court for Suffolk County. On May 20, 2010, the court (Gants, J.) entered a judgment accepting the affidavit of resignation as a disciplinary sanction, effective immediately.


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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