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


Commonwealth of Massachusetts

NO. BD-2010-076

IN RE: ALDANA JOHNSON

S.J.C. Order of Term Suspension entered by Justice Botsford on September 27, 2010, Retroactive to August 17, 2010.1

SUMMARY2

The respondent was suspended for three months for lack of diligent and competent representation and failure to cooperate with bar counsel’s investigation in two unrelated client matters, and for an unwritten contingent fee agreement and failure to communicate with the client in one of the matters.

In the first matter, the respondent represented a client in an employment discrimination case and filed suit in superior court against the employer on the client’s behalf in October of 2007. The complaint alleged, inter alia, that the client had been discriminated against because of her ethnicity and national origin in that she was not paid overtime, received no breaks except lunch breaks, and had to work an extra hour per day to have a lunch break.

Because the respondent was unfamiliar with employment law, she did not know of, and therefore did not plead, the client’s statutory claims for wages and overtime that were independent of her discrimination claims, nor did the respondent seek treble damages and attorney’s fees under the applicable statute. The three-year statute of limitations for the client’s statutory claims for wages and overtime lapsed after the client retained the respondent but before the respondent filed suit on her behalf.

The employer’s motion to dismiss the complaint was allowed without opposition in December of 2007, because the client had filed her pro se discrimination complaint with the MCAD beyond the applicable statute of limitations.

The respondent’s failure to recognize and plead the client’s statutory claims and to do so within the statute of limitations were a lack of competent representation, a failure to seek the lawful objectives of the client and a lack of diligence in violation of Mass. R. Prof. C. 1.1, 1.2(a), and 1.3.

In the second matter, in May of 2007, the respondent was retained to assist a client in her efforts to force her union to arbitrate the client’s termination from her employment. The respondent orally agreed to charge the client $275 an hour, with $125 an hour being paid when services were rendered and payment of the remaining $150 per hour to be paid from the recovery, if any, obtained on behalf of the client.

The respondent filed suit in federal court on the client’s behalf, against her union and certain officers, in July of 2008. All defendants filed motions to dismiss, asserting variously that the client’s claims were pre-empted by federal labor law, barred by immunity or barred by the statute of limitations. Even though the respondent believed that the client had meritorious claims, the respondent did not oppose the motions to dismiss and did not seek additional time in which to respond. All of the motions were granted.

The respondent did not notify the client of the dismissal of her case, which the client learned on her own by checking the court docket.

The respondent’s conduct, in having a contingent fee agreement with the client that was not in writing and not signed in duplicate by the lawyer and the client, with a copy delivered or mailed to the client, was in violation of Mass. R. Prof. C. 1.5(c). The respondent’s conduct, in failing to keep the client informed about the status of her case, and in failing to oppose the motions to dismiss in a timely manner or to seek additional time to do so, was in violation of Mass. R. Prof. C. 1.2(a), 1.3, and 1.4.

The respondent failed without good cause to respond to requests by bar counsel for information and failed without good cause to comply with a subpoena duces tecum issued by the Board of Bar Overseers in both of the above client matters. As a result, the respondent was administratively suspended by the Supreme Judicial Court on May 7, 2010. The respondent was reinstated on June 8, 2010. The respondent’s failure to cooperate with Bar Counsel’s investigations, resulting in the issuance of a subpoena and her subsequent administrative suspension, was in violation of Mass. R. Prof. C. 8.4(d), (g), and (h).

In aggravation, the respondent previously received a public reprimand for neglect of a client matter with harm to the client, which is the same type of misconduct as charged in Counts I and II of the present petition for discipline. Matter of Johnson, 24 Mass. Att’y Disc. Rep. 376 (2008)

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 from the practice of law for three months. The respondent agreed to the entry of an order of temporary suspension, which was entered on August 17, 2010. The parties also stipulated that the respondent’s reinstatement be conditioned on the following: (a) that the respondent attend the MCLE program, “How to make Money and Stay Out of Trouble”; (b) that the respondent purchase and maintain for at least two years after reinstatement legal malpractice insurance; and (c) that the respondent undergo an evaluation at the Law Office Management Assistance Program (LOMAP) within sixty days of the entry of the order of reinstatement and participate in such programs and implement such changes as LOMAP recommends. On September 13, 2010, the board voted to recommend that the Supreme Judicial Court accept the parties’ stipulation and joint recommendation for discipline, including the conditions on reinstatement. The Court so ordered on September 27, 2010, with the term of the suspension retroactive to August 17, 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.



BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.