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Commonwealth of Massachusetts

NO. BD-1997-024

IN RE: JAMES N. ELLIS, JR.

S.J.C. Order (Contempt Denied) entered by Justice Cordy on August 5, 2008.1

MEMORANDUM OF DECISION & ORDER

The respondent, James N. Ellis, Jr., (Ellis) was disbarred from the practice of law in the Commonwealth retroactive to July 21, 1997, by order of the Single Justice on November 16, 2000.2 Bar Counsel now petitions this Court seeking a contempt order against Ellis, asserting that he has illegally practiced law in direct contravention of that order of disbarment. Alternatively, Bar Counsel seeks a declaration that Ellis has violated S.J.C. Rule 4:01, § 17(8), as amended, 435 Mass. 1301 (2003), by impermissibly engaging in legal work prior to reinstatement to the bar, and consequently "may not be reinstated until ... at least ten years from [this date]." For the reasons outlined in detail below, I conclude that the Bar Counsel has failed to establish in its present petition that Ellis has represented anyone other than himself, and that he therefore has not engaged in the illegal practice of law. However, Ellis is not without blame for some of the confusion that has led to the bringing of this petition for contempt and, from this day forward, the burden will be on him to clearly establish that he is representing only himself (and not the partnership of Ellis & Ellis or any other person or entity) in any ongoing (and future) litigation.

Background.3 From about 1986 to July 1997, Ellis and his brother, Nicholas J. Ellis (Nicholas), were partners in the law firm of Ellis & Ellis. During that period, James N. Ellis, Sr., (Ellis Sr.) the respondent's father, was of counsel to the firm. On April 30, 1997, the Single Justice entered orders temporarily suspending Ellis and Nicholas from the practice of law; those orders were affirmed by the Full Court in In re: Ellis, 425 Mass. 332, 343 (1997). On November 16, 2000, by order of the Single Justice, the respondent and his brother were disbarred.

Prior to the temporary suspension, and subsequent disbarment, of Ellis and Nicholas, Ellis Sr. formed the professional corporation of James N. Ellis, Sr. & Associates, P.C. (the Ellis Sr. P.C.), which then became a partner in the firm of Ellis & Ellis. After the suspension of Ellis and Nicholas, the Ellis Sr. P.C. was the sole surviving partner of Ellis & Ellis. From July 1997 trough 2001, Ellis & Ellis sought the payment of unpaid legal fees from former clients of the firm, and filed a myriad of lawsuits in various district and small claims courts seeking money owed for services rendered by the law firm. Neither the respondent nor Nicholas was involved in that litigation at that time.4 In January 2001, the Ellis Sr. P.C. assigned to Ellis and Nicholas "jointly and severally" all remaining accounts receivable of Ellis & Ellis predating their suspension and disbarment.5

Bar Counsel's petition centers on Ellis's role in a cause of action seeking to recover legal fees from John Demers for work performed by Ellis & Ellis prior to 1997. On March 12, 1999, Ellis & Ellis filed a lawsuit against Demers in the Worcester District Court, docket number 199962CV0041. The complaint claimed damages in the amount of $2,340.62, and was signed by Ellis Sr.6 Demers filed an answer that averred that Ellis & Ellis had mishandled his workers compensation claim, that he was not required to reimburse Ellis & Ellis unless the claim was successful, and that the claim was not brought within the statute of limitations period. Additionally, Demers counterclaimed for damages arising from Ellis & Ellis's alleged negligence in handling the claim.

During the case's long procedural history, Ellis & Ellis was represented by a number of different attorneys. Ellis Sr. filed the original claim, and filed a request for trial on January 29, 2002. One day later, attorney Malcolm Burdine filed a notice of appearance on behalf of Ellis & Ellis. In May 2002, attorney Gillian B. Schiller filed an appearance, and, according to the docket, Schiller represented Ellis & Ellis until his withdrawal from the case on January 15, 2008. On that date, attorney Graham Wright entered an appearance on behalf of Ellis & Ellis; he did not withdraw from the case until April 25, 2008. Less then two months later, on June 17, 2008, attorney Rickie T. Weiner filed a notice of appearance on behalf of Ellis & Ellis, and he remains the attorney of record.

Bar Counsel contends that during 2008, Ellis impermissibly represented Ellis & Ellis in the Demers case on several occasions. First, on February 7, 2008, Ellis filed a motion for summary judgment on Demer's legal malpractice counterclaim. Although he signed the pleading "James N. Ellis, Jr. (pro se)," the pleading identified the plaintiff as "Ellis & Ellis." Next, on March 21, 2008, when a hearing was held in the Worcester District Court on Ellis's motion for summary judgment (and Demers's cross-motion), Ellis appeared and stated that he was able to "represent Ellis & Ellis. Ellis & Ellis is a partnership. Any partner can represent his interest in that partnership."

Thereafter, on March 28, 2008, Ellis filed two additional pleadings on behalf of "Ellis & Ellis" and again signed "James N. Ellis, Jr. (pro se)." On April 4, 2002, Ellis appeared at a scheduled hearing on behalf of Ellis & Ellis, but shortly before the hearing, Demers's counsel filed a motion to "strike any and all motions and pleadings filed by [Ellis], former attorney at law," and the hearing then focused, in large part, on Ellis's ability to represent Ellis & Ellis in the Demers case. Ellis again asserted the appropriateness of his representation of his interest in the partnership. Ellis also contended that Nicholas "assigned his rights to this claim back in 2003 to me so I'm the only remaining plaintiff."7 Ultimately, the District Court judge determined that the issue was immaterial -- Ellis & Ellis had an attorney of record in the case (Graham Wright) and all pleadings should have been filed by that attorney.8

The Demers case was scheduled for trial on May 14, 2008, and the record reflects that the claim by Ellis & Ellis was dismissed, and default judgment was entered on the counterclaim in favor of Demers. The docket also indicates that Ellis & Ellis moved to substitute the plaintiff with an individual (Ellis), and that motion was denied. Bar counsel contends that Ellis appeared for the purpose of representing Ellis & Ellis on that date, but Ellis contends otherwise, asserting that Graham Wright appeared for that purpose. Ellis further contends that his presence in the District Court on May 14, 2008, was for the purpose of substituting the named plaintiff of Ellis & Ellis with his own name. The record does not include a transcript of what occurred on May 14, 2008.9

Discussion. In order to establish her petition for contempt, Bar Counsel must show, by a preponderance of the evidence, the respondent's "clear and undoubted disobedience of a clear and unequivocal command." In re: Kafkas, 451 Mass. 1001, 1001 (2008); Nicholas v. Dowd, 342 Mass. 462, 464 (1961). Alternatively, if Bar Counsel can establish, by a preponderance of the evidence, that the respondent has "engaged in legal work prior to reinstatement," the respondent cannot be reinstated until after at least ten years from this date. S.J.C. Rule 4:01, § 17(8), as amended, 435 Mass. 1301 (2003). Because, as Bar Counsel concedes, a disbarred attorney has a constitutional right to represent himself, Bar Counsel must not only demonstrate that the respondent has "engaged in legal work, " but that he has engaged in legal work on behalf of another person or entity. On this record, Bar Counsel has fallen short of making that showing.

Essentially, Bar Counsel contends that Ellis has filed "motions seeking relief from a court for another [entity] ," In re: Kafkas, supra at 1002, namely the partnership of Ellis & Ellis. Ellis responds by contending, first, that because he and his brother were jointly and severally assigned the assets and liabilities of Ellis & Ellis, he may represent that partnership in court. And, alternatively, that because Nicholas assigned him all rights to the claim against Demers, he is merely representing himself as the sole assignee of the claim and his lone error is allowing the claim to proceed while incorrectly captioned. While I conclude that Ellis's first claim is incorrect, I am persuaded otherwise as to his alternative argument.

"An assignee of an assignable cause of suit may intervene for the purpose of assuming control of a bill in equity brought in the name of the assignor." Piper v. Childs, 290 Mass. 560, 564 (1935). In so doing, the assignee stands in the place of the assignor, empowered to bring the same claims, and subject to the same defenses. Commonwealth v. Market Warehouse, Co., 250 Mass. 449, 451 (1925). Here, Ellis was the sole assignee of the claims of Ellis & Ellis against Demers. That assignment appears to have taken place in 2003, more than four years before Ellis assumed any role in the proceedings.

Even so, Bar Counsel contends that Ellis cannot sue in his own name to collect a debt owed to the partnership, and cites Shapira v. Budish, 275 Mass. 120 (1931)(Shapira), for that proposition. The Shapira decision is not as broad as Bar Counsel suggests. It states that "all partners must be parties to a suit involving partnership rights," and, therefore, an "assignee of [one] partner's interest in a partnership" cannot bring suit on behalf of the entire partnership. Id. at 162. In Shapira, the partnership involved two partners, only one of whom assigned his interest to the plaintiff. Id. at 123. The Court concluded that the assignee could not sue on behalf of the partnership without including the other partner; in other words, having only the rights to one "partner's interest in [the] partnership," the plaintiff could not sue on behalf of himself and the other partner without involving that partner in the suit. Id. at 126. The facts here are materially different. In 2001, the only remaining partner of Ellis & Ellis was the Ellis Sr. P.C., which assigned, inter alia, the claim against Demers to Ellis and Nicholas. In 2003, Nicholas assigned his interest in that claim to Ellis. Thus, only one person -- Ellis -- had an interest in the claim, and Shapira does not require (implicitly or explicitly) that he name other partners as parties to the lawsuit. That said, the case against Demers was miscaptioned from the outset: a partnership cannot sue or be sued in its own name, but rather "all partners must be parties to a suit involving partnership rights." Shapira, supra at 126; Gordon v. Medford, 331 Mass. 119, 124 (1954). See, e.g., Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246, 246 n.l (1985). The suit should have been brought in the name of the Ellis Sr.'s P.C., and when Ellis was assigned the rights to the claim against Demers he should have moved to amend the caption to reflect that he was the plaintiff. His failure to do so was error, but in these circumstances I do not consider it to constitute the illegal practice of law.10

Somewhat more problematic is the fact that Ellis responded to Demers's counter-claim for legal malpractice on behalf of "Ellis & Ellis."11 As established by the 2001 assignment, Ellis and Nicholas, "assume[d] full responsibility for all debts and obligations of the . . . partnership." In filing a motion for summary judgment on Demers's cross-claim, Ellis may have been representing his interests and his brother's interests. The motion does not specify that it was filed only on behalf of Ellis, although it is signed by Ellis "pro se. "

Ellis contends that he was only representing himself, and, alternatively, that according to Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 247 (1985)(Gorovitz), he may represent Nicholas on a pro se basis. His latter contention overreads Gorovitz. There, the plaintiff was a general partner in a limited partnership who desired to represent the partnership, despite expecting to testify at trial. Id. at 249. According to Borman v. Borman, 378 Mass. 775 (1979), an attorney who intends to testify at trial may only serve as a lawyer in that case if he is a party litigant. The Court in Gorovitz held that the plaintiff, as a general partner, was a party litigant because he and "[t]he other named plaintiffs . . . [had] an identical interest in [prevailing in the issue at stake]." Id. at 250. The Court likewise noted that the other named partners were only "nominal parties," who "[o]n the record before us . . . have no interest which differs from that of Gorovitz or the partnership." Gorovitz, supra at 246 n.l. Thus, in a different context, the plaintiff in Gorovitz was able to represent the other partners on a pro se basis because they had "identical interest[s]" at stake. Gorovitz, supra at 250. Here, Ellis claims that he should be allowed to do the same thing. I disagree.

Gorovitz establishes only that a general partner in a suit brought by the partners of a limited partnership is a party litigant with substantial interests at stake, and that, as such, he may represent himself (and the other partners) even though he may be expected to testify at trial. Id. It does not address whether that general partner, if disbarred, can properly represent his interests and those of his partners. I nevertheless conclude that Ellis's reliance on an overreading of the Gorovitz case, combined with his lack of specificity regarding who, exactly, he was representing does not amount to the illegal practice of law.12 Compare In re: Kafkas, supra at 1001-1002 (attorney who prepared divorce complaint and several court motions for an acquaintance illegally practiced law). In the future, Ellis may represent only himself, and therefore may not undertake a defense of claims against Ellis & Ellis (no matter how improperly captioned) on a pro se basis. If he appears in court or participates in the "preparation of pleadings, process and other papers incident to [an] action or proceeding," Opinion of the Justices, 289 Mass. 607, 612 (1935), he must do so only on his own behalf, and he must make that clear in any future filings.

The Bar Counsel's petition seeking a declaration that Ellis is in contempt of an order of this Court, and a declaration that he illegally engaged in the practice of law, is therefore DENIED. However, any failure by Ellis to follow the directives set forth in this decision will be proper grounds for a future contempt petition.

So ordered.

Entered: August 5, 2008


FOOTNOTES:

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 That order accepted James N. Ellis, Jr.'s (Ellis) Affidavit of Resignation.

3 Ellis concedes many of the facts set forth by Bar Counsel in its petition. Where only one party makes a factual assertion, the source of that assertion is specified.

4 The record indicates that Ellis and Nicholas were incarcerated when the claims were pursued between 1997 and 2001.

5 Bar Counsel hinted that this assignment may have been back-dated, but the record reflects that the assignment was executed on January 5, 2001, and there is no evidence to suggest otherwise.

6 Bar Counsel suggested, in its petition and at argument, that the claim was not signed by James Ellis, Sr., but the record reflects no support for that suggestion.

7 This assertion is supported in the record currently before the Single Justice, which includes an assignment from Nicholas to Ellis of "all rights, title, and interest in and to claims against John Demers." The assignment bears the date of December 7, 2003.

8 As noted above, Wright filed a withdrawal of appearance two weeks later on April 25, 2004.

9 After oral argument, the Bar Counsel amended the record to include evidence that Ellis also filed a notice of appeal in the case, on June 26, 2008.

10 However, if Ellis, as the sole assignee of former partnership assets, is currently litigating other claims in the name of "Ellis & Ellis," he shall immediately move to substitute himself as the party in those claims so as to clarify that he, and not the partnership, is the sole plaintiff. Any claims brought by Ellis on his own behalf in the future shall likewise be captioned as such. Failure to do so will constitute a violation of this order. See In re: Kafkas, 451 Mass. 1001, 1002 (2008)

11 Demers's counterclaim was also against the wrong party; it should have been filed against the partners and not the partnership.

12 Bar counsel has provided no evidence that this reliance was in bad faith, and the record reflects that Ellis and Nicholas sought extensive legal advice on the matter.



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