Order Entered by the Board on August 9, 1999 Dismissing Petition for Discipline.
Board Memorandum
On the basis of an agreed statement of facts, the majority of a hearing committee has recommended that the respondent be admonished for neglecting a legal matter. The dissenting member of the committee concluded that the conduct did not rise to the level of a disciplinary violation. The respondent has filed an appeal, asking that we embrace the views of the dissenting member. Bar Counsel urges us to adopt the recommendation of the majority and uphold the admonition. Oral argument having been waived by the parties, the matter was considered on the papers at the Board’s March 8 and July 12, 1999 meetings. For the reasons set out below, we allow the respondent’s appeal and dismiss the petition for discipline.
Findings of Fact 1
In May 1994, a client retained the respondent to represent him on a contingent-fee basis in a federal workers’ compensation claim arising out of medical problems dating back at least to the 1950’s, which had been filed or refiled in 1977 and remained pending. The client resided in Germany and communicated with the respondent by letter or by telephone.
The client was 70 years old in 1994. There was no dispute concerning the nature and extent of his back condition, but the question whether that condition was caused or exacerbated by his employment was in dispute and was complicated by the fact that the client and his doctors were in Germany. In 1987 the client’s claim was denied by the federal Office of Workers’ Compensation Program (Office), and the client appealed the decision to the Board of Compensation Appeals. That Board remanded the claim. It was denied again by the Office, appealed again to the Board, and then remanded once more to the Office in November 1988. There it reposed at the time the respondent was hired.
On August 18, 1994, and on September 26, 1994, the client wrote to the respondent asking for a progress report on his case, but received no reply. The client wrote the respondent again on November 1, 1994, and on November 18, 1994, the respondent answered by requesting permission to refer the file to a young lawyer, Janet Roe,2 who was then self-employed and doing contract work for other attorneys. On December 2, 1994, the client authorized transfer of the file to Roe. The client also wrote to Roe on the same date, and Roe sent a reply confirming her receipt of the file on December 6, 1994.
Roe reviewed the extensive file, organized it, and on April 5, 1995, wrote the client with her suggestions on how to proceed. The client replied by letter to Roe on April 12, 1995. In the early summer of 1995, however, Roe accepted employment in a Boston law firm. She thereupon returned the file to the respondent and wrote to the client on July 12, 1995, informing him that she had returned the file. In September 1995, the respondent’s secretary died suddenly, leaving the office understaffed for a time.
The respondent assigned the case to a new associate in his firm in early 1996. The associate reviewed the file and began to devise a strategy for handling the matter. Aside from discussing the case with Ms. Roe, the associate contacted no individuals outside the firm and no pleadings or correspondence were filed or sent.
On January 31, 1996, the client wrote to the respondent requesting a status update, but he received no reply. He wrote to the respondent again on March 6, 1996, and again received no reply. On or about April 12, 1996, the client filed a complaint with Bar Counsel. He then discharged the respondent.
The hearing committee found that the client lost no substantive rights as a result of the respondent’s inaction, and it found no evidence that the respondent had made any misrepresentations to the client or to Bar Counsel. There was also no evidence of multiple instances of neglect or a pattern of neglect.
Discussion
The hearing committee concluded that, “[a]fter accepting the return of the file from attorney Roe in July 1995, the respondent’s subsequent failure either to withdraw as the client’s counsel or to take any action to pursue his client’s case, and his failure to reply to the client’s letters in early 1996 requesting status reports, constitute neglect and failure to represent the client zealously, in violation of Canon Six, DR 6-101(A)(3) (neglect of a legal matter) and of Canon Seven, DR 7-101(A)(1) (failure to seek the lawful objectives of a client) and (2) (failure to carry out a contract of employment).” Hearing Committee Report 12.
We have quoted the committee’s conclusions of law in their entirety to draw attention to the narrow scope of the conduct the majority deemed to violate the Disciplinary Rules. Bar Counsel did not allege that the respondent engaged in misconduct at any time before Roe returned the file to the respondent in July 1995. See Petition for Discipline 9. The duration of the period during which the respondent is alleged to have neglected this matter is the eight months between Roe’s departure and the filing of the client’s grievance with the Office of Bar Counsel.
During those eight months, the committee found, the respondent did assign the case to an associate, who reviewed the file, consulted with Roe, and began to devise a strategy for handling it. Hearing Committee Report 8. This subsidiary finding plainly belies the legal conclusion that the respondent failed “to take any action to pursue his client’s case” after Roe’s departure. Id. 12 (emphasis added). What remains of the basis for the charge of misconduct, therefore, is the absence of evidence that the associate’s endeavors advanced the case substantively and the respondent’s failure to communicate with the client during those eight months, despite receiving two letters requesting a status report. While the question is close, we cannot agree that a failure to communicate over a eight-month period, while an associate is working the file and after the death of a secretary, rises to the level of a disciplinary violation, at least where the case involved injuries dating to the 1950’s and had lain dormant for six years before the respondent was engaged.
In her brief opposing the appeal, Bar Counsel argues that we must not confine our view of the respondent’s conduct to the eight months that form the basis for the charge. The respondent’s failure to communicate or take action for six months immediately after undertaking the representation is, she argues, “an important part of the context” in which the respondent’s conduct must be viewed. The “context,” however, can also be viewed in an exculpatory light, for it embraces the age and desuetude of the client’s claim before the respondent was engaged as well as the considerable confusion over how to handle it.
The injury dated from the 1950’s, the claim was filed no later than 1977, and it had not been worked at all since 1988. By 1994, when the respondent was hired, the evidence was stale and a de novo appeal presented major difficulties for the client. After six months the respondent assigned the matter to Roe. This was an arrangement the client agreed to and to which Bar Counsel takes no exception. Roe appreciated the difficulties posed by the case; she suggested that a successful resolution was more likely to come about through political than legal efforts. (See Ex. 9). Roe then departed. There followed a further delay during which, despite the confusion occasioned by the death of the respondent’s secretary, he did manage to find another associated lawyer to begin work on the case. When viewed in this wider context, the respondent’s conduct does not rise to the level of neglect.
The final two and a half months of the representation, separating the first of the client’s two letters and the date he filed a grievance with Bar Counsel, are more troublesome. The respondent himself acknowledges that his inattention to the client’s inquiries was “inexcusable.” On balance, however, we do not view this lapse as constituting a failure to remain in reasonable communication with the client.
The hearing committee majority relied on three admonitions to support its contrary legal conclusion, but all three involved more serious or repetitious misconduct. In AD-97-1, 13 Mass. Att’y Disc. R. 865 (1997), a lawyer was admonished for agreeing to pursue a small claims action but did nothing for nine months despite “repeated” inquiries from the client and the lawyer’s “repeated” promises to attend to the matter. Here there were only two letters, the respondent had assigned the matter to an associate, and the respondent did not lead the client on with hollow promises. The lawyer in AD-96-57, 12 Mass. Att’y Disc. R. 695 (1996), neglected for a year and a half a domestic matter that was otherwise in active litigation, and he was eventually discharged “after a series of unreturned phone messages.” Here, again, there were only two inquiries over a much shorter time span, and the matter itself had lain dormant for more than six years before the respondent was retained. Finally, AD-95-53, 11 Mass. Att’y Disc. R. 415 (1995), reports multiple instances involving several of a client’s files, beginning with the failure to record mortgages between 1988 and 1991 and followed by the failure to remedy the situation completely by mid-1993, when the client itself recorded the last of the mortgages without even notifying the lawyer.
Bar Counsel makes light of the distinctions between the facts of this case and those of the three admonitions just discussed (Bar Counsel’s Brief on Appeal at 6 n.3), but they are, after all, the only three cases she and the hearing committee majority rely upon to buttress their conclusion. When only three admonitions are cited out of the hundreds the Board has imposed for neglect, it does not seem unreasonable to expect authority that clearly governs the conduct—particularly when the conduct at issue is at the margin of impropriety.
It is the marginal nature of the lapse that makes the question of discipline such a close one. It appears this was a case the respondent never should have taken and no doubt regretted taking once he did. While he twice sought to match the file with an associated lawyer who could work it, he himself admits he should have been more attentive to the client’s inquiries. In retrospect, it is clear he should have withdrawn before the client’s patience was exhausted. But under all the circumstances of this case, we do not believe his actions rise to the level of the unethical such that it would be appropriate to stamp them with the brand of professional discipline. This is, rather, an example of the kind of matter that ought to be disposed of through Bar Counsel’s new Attorney and Consumer Assistance Program.
Conclusion
For all of the foregoing reasons, we allow the respondent’s appeal and dismiss the petition for discipline.
Respectfully submitted,
THE BOARD OF BAR OVERSEERS
By: ___________________________
Mitchell H. Kaplan
Secretary
Approved: August 9, 1999
Dissenting Report
We dissent. The respondent admits that his handling of the case after Roe’s departure was “markedly less than stellar,” but he insists that it does not rise to the level of misconduct. We disagree. His inaction constitutes neglect and a failure to maintain reasonable communication with a client. As such it warrants an admonition.
We do not doubt that the age of the client’s claim made for a difficult case, and one the respondent doubtless came to wish he had never accepted. But accept it he did, and once he became counsel it was his obligation to pursue it diligently or withdraw. Unfortunately, he did neither. He allowed it to sit for six months before even turning his attention to it, despite requests—two of them left unanswered—for status reports from the client. He referred the file to Roe for a while, but after she returned it to him in July 1995, he did absolutely nothing with it for another six months. He did pass it along to a new associate early the next year, but the associate appears to have done nothing of substance beyond discussing the case with Roe. Even then, when the respondent could have reported that he had staffed the case again, he ignored the client’s further requests for status reports. Finally, his patience exhausted, the client discharged him and filed a grievance with the Office of Bar Counsel.
The Board makes much of the age and dormancy of the case when the respondent was hired, as well as the peculiar difficulties it posed for him. These are not circumstances that excuse inactivity. On the contrary, they call out for prompt and effective attention. This is particularly so where the client was seventy in 1994, when he engaged the respondent. And given the client’s age, it does not much advance the respondent’s cause to plead that no “substantive rights” were lost or that no statute of limitations had run. The absence of “ultimate” harm may have some mitigating force once liability is determined, see Matter of Alter, 389 Mass. 153, 157, 3 Mass. Att’y Disc. R. 3, 7-8 (1983), but it has little relevance, under these circumstances, to the question whether a disciplinary rule was violated.
The conduct here cannot be distinguished in any principled way from that at issue in the three admonitions cited by the hearing commitee. See AD-97-1, 13 Mass. Att’y Disc. R. 865 (1997); AD-96-57, 12 Mass. Att’y Disc. R. 695 (1996); AD-95-53, 11 Mass. Att’y Disc. R. 415 (1995). All four cases involved failure to take action over similar time spans, failure to respond to clients’ inquiries, the absence of harm, and no prior discipline. To dismiss the petition here would raise issues of fairness as to the discipline imposed in the other three.
The conduct falls squarely within that described as warranting admonition by the American Bar Association:
Admonition is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes little or no actual or potential harm to a client.
ABA Standards for Imposing Lawyer Sanctions § 4.44 (1986, amended 1990). The Supreme Judicial Court has cited the ABA Standards with approval on several occasions. See, e.g., Matter of Ring, 427 Mass. 186, 192 (1998); Matter of Concemi, 422 Mass. 326, 329-30, 12 Mass. Att’y Disc. R. 63, 68-69 (1996); Matter of Neitlich, 413 Mass. 416, 423, 8 Mass. Att’y Disc. R. 167, 176 (1992); Matter of Kerlinsky, 406 Mass. 67, 76, 6 Mass. Att’y Disc. R. 172, 181 (1990), cert. denied, 498 U.S. 1027 (1991). To dismiss the petition for discipline here would be to find, implicitly, that the respondent was indeed “reasonably diligen[t]” in representing the client and remained in reasonable communication with him. We believe the record belies such a claim.
Finally, we find troubling the suggestion that matters like this are better left for disposition under the new Attorney and Consumer Assistance Program. That program is designed to provide prompt, personal adjustment of disputes that do not rise to the level of bar discipline. It is not intended as a catchment for disposing of cases otherwise warranting discipline, and it most certainly was never meant to disturb settled case law. That, however, is precisely what dismissal would do, for the precedents just cited embrace the conduct at issue here. The ACAP program should not become a vehicle for transmuting what has long been deemed unethical conduct into an interpersonal gaffe needing only timely mediation.
For these reasons we respectfully dissent. The Board should adopt the conclusions of law reached by the hearing committee’s majority and impose an admonition.
__________________________
Robert J. Guttentag
___________________________
Richard M. Zielinski
FOOTNOTES
1 The findings of fact are based on the facts stipulated to by the parties and the allegations in the petition admitted by the respondent in his answer.
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