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No. BD98-018

IN RE: JOHN K. McNABB

ORDER OF TERM SUSPENSION1


SUMMARY

In October 1988, the respondent was retained to represent an individual who had been assaulted by an intoxicated patron of a bar in Scituate. The respondent filed a civil action on his client’s behalf against the bar and the bartender for having served alcohol to the intoxicated patron. In 1992 and 1993, the respondent made numerous efforts to secure his client’s cooperation in answering interrogatories filed by the defendants. The client failed to contact the respondent or to answer the interrogatories despite his receipt of several letters from the respondent warning him that his case could be dismissed. In December 1993, the defendants moved to dismiss the complaint for the plaintiff’s failure to answer interrogatories and for the respondent’s failure to file an affidavit required by G.L. c. 231, § 60J, setting forth sufficient facts to raise a legitimate question of liability appropriate for judicial inquiry. The respondent did not oppose these motions. On May 6, 1994, the client’s case was dismissed by the court.

The respondent failed to notify the client that his case had been dismissed. Sometime before November 1996, the client discovered that his case had been dismissed. Thereafter, the client made numerous requests to the respondent for a copy of his file. The respondent failed to respond to these requests or to provide the client with the file. The client then requested that Bar Counsel investigate the respondent’s misconduct.

The respondent failed to respond to Bar Counsel’s requests for information about his handling of the client’s case. The respondent also failed to appear as commanded by a subpoena issued by the Board of Bar Overseers. As a result, on April 17, 1998, by Order of the Court (Lynch, J.), the respondent was administratively suspended from the practice of law pursuant to S.J.C. Rule 4:01, § 3(2). Because the respondent was not reinstated within thirty days after the entry of the order of administrative suspension, he was required by Rule 4:01, § 3(3), to comply with the provisions of Rule 4:01, § 17, and to file an affidavit certifying that he had complied with the Rule. The respondent did not file his affidavit of compliance until October 1, 1998. The respondent agreed with Bar Counsel not to petition for reinstatement from the administrative suspension until the conclusion of the disciplinary investigation and proceeding.

By his failure to notify the client that his case had been dismissed, the respondent violated Canon Six, Disciplinary Rule 6-101(A)(3) (lawyer shall not neglect a legal matter entrusted to him). By his failure to turn over the file to the client, the respondent violated Canon Two, Disciplinary Rule 2-110(A)(4) (lawyer shall make file available to former client within reasonable time following request), and Canon Nine, Disciplinary Rule 9-102(B)(4) (lawyer shall promptly deliver client’s property to client). By his failure to cooperate in Bar Counsel’s investigation and failure to respond to the subpoena, the respondent violated S.J.C. Rule 4:01, § 3(1), and Canon One, Disciplinary Rule 1-102(A)(5) and (6) (lawyer shall not engage in conduct prejudicial to the administration of justice or other conduct reflecting adversely on fitness to practice law).

The respondent had previously been disciplined for neglect in several other matters. See Matter of McNabb, 11 Mass. Att’y Disc. R 172 (1995) (public reprimand); Admonition No. 95-51, 11 Mass. Att’y Disc. R 411 (1995); PR-90-14, 6 Mass. Att’y Disc. R 410 (1990); PR-83-13, 3 Mass. Att’y Disc. R 249 (1983). Bar Counsel and the respondent stipulated to the misconduct in this case and jointly recommended that the respondent be suspended for six months retroactive to the date of his compliance with the administrative suspension. The Board of Bar Overseers endorsed the parties’ recommendation in an information filed with the Court on May 12, 1999.

On May 19, 1999, the Court (Lynch, J.) entered an order suspending the respondent from the practice of law for six months retroactive to October 1, 1998.

1S.J.C. Order of Term Suspension entered by Justice Lynch on May 19, 1999.



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