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Commonwealth of Massachusetts

NO. BD-2010-024

IN RE: HERMAN TAYLOR BAYLESS

S.J.C. Order of Term Suspension/Suspended entered by Justice Cordy on March 31, 2010.1

SUMMARY2

The respondent was suspended for six months, with the execution of the suspension stayed on the conditions that the respondent undergo an evaluation at the Law Office Management Assistance Program (LOMAP) within sixty days of the entry of the order, that the respondent follow the recommendations of LOMAP, and that the respondent carry malpractice insurance for two years to commence within ninety days of the entry of the order. The misconduct resulting in this sanction was as follows.

In 2002, the respondent filed suit in superior court on behalf of a client in a personal injury matter, but never made service on the defendant and took no action to pursue the claim. The case was remanded to district court a year later, and the respondent failed to inform his client of the remand and again took no further action to advance the claim. In 2004, the district court dismissed the case for ďfailure to request a trial within 12 months,Ē and the respondent did not advise his client that her case had been dismissed. In 2005, the respondent filed a second complaint in district court, but never made service on the defendant and again took no further action to advance the claim. Later in 2005, the district court dismissed the case for ďfailure to make service within 90 days.Ē

In late 2005, the respondent filed a motion to vacate the dismissal. The district court took no action on the motion, and the respondent took no action in furtherance of the motion. The respondent again did not advise his client that her case had been dismissed. A year later, the respondent advised his client that he would not take a fee if he could not settle her case quickly. The respondent still did not inform his client that her case had been dismissed, and he misrepresented the status of the case to her by implying that her case was still pending when it was not.

The respondentís failure to serve either complaint or otherwise pursue the case after filing suit was in violation of Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. The respondentís failure to adequately communicate with the client throughout the representation and his failure to notify the client of the courtís remand and the later judgments dismissing her suit were in violation of Mass. R. Prof. C. 1.4(a) and (b). The respondentís failure to advise the client that her suit had been dismissed and his implying that her case was still pending constituted a misrepresentation in violation of Mass. R. Prof. C. 8.4(c).

In aggravation, the respondent received an admonition on January 20, 2003, for prejudicing a clientís case during representation and for withdrawing from the case without protecting the clientís interests after discharge. Admonition No. 03-01, 19 Mass. Att'y Disc. R. 518 (2003).

In mitigation, the respondentís wife, father, and father-in-law died unexpectedly in the fall of 2001. These deaths left the respondent to raise his four young children alone. In 2003, his wifeís younger sister died of lung cancer weeks after diagnosis, leaving the respondent without any relative within 1,000 miles. Two of the respondentís children thereafter developed mental and emotional problems requiring weekly counseling and medication, and the respondent was diagnosed with depression. The respondent subsequently completed a course of treatment and has no current limitations.

Neither mitigating nor aggravating, the client sued the respondent for malpractice in 2008, and the matter was settled by the parties in 2009.

The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation that the respondent be suspended for six months, with the execution of the suspension stayed on conditions. On March 8, 2010, the board voted to recommend that the Supreme Judicial Court accept the partiesí stipulation and joint recommendation for discipline. The Court so ordered on March 31, 2010.


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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