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


Commonwealth of Massachusetts

B.B.O. File No. C3-03-0170

Order Entered by the Board on June 11, 2007 Dismissing Petition for Discipline.

REPORT OF THE HEARING COMMITTEE

On February 1, 2006, Bar Counsel1 filed a one-count petition for discipline against the Respondent, John Doe (the “Respondent”). Bar Counsel charges that the Respondent engaged in deception and other misconduct by concealing from his local counsel the steps he was taking to finalize a settlement; by filing, in knowing violation of [State B’s] rules, a motion to approve the settlement that local counsel had not signed; and by signing, without authority, local counsel’s name on a stipulation of dismissal.

Represented by counsel, the Respondent filed his answer on March 13, 2006. On April 24, 2006, he filed amended and supplemented responses to certain paragraphs of the petition in response to Bar Counsel’s motion for more definite statement.

Hearings were held on July 10, 11, 12, 20 and 21, 2006. Ninety-seven exhibits were admitted into evidence, four witnesses testified in person at the hearings, and four others gave testimony by audio-visual deposition, pursuant to Board of Bar Overseers Rules 4.9, 4.10 and 4.11.

PRELIMINARY STATEMENT

On November 2, 1998, James Smith was born in [State B]. As a result of complications during his birth, James’ heart stopped resulting in significant brain damage. In addition, James suffered a brachial plexas injury that permanently crippled his left arm and hand.

The Respondent, licensed in this Commonwealth, litigated the medical malpractice case in [State B] arising from these injuries on behalf of the Smith family. To bring the suit, the Respondent secured pro hac vice admission through local counsel. Eventually, the Respondent settled the case and according to the Smith family, the case was settled on favorable terms. This petition for discipline arises out of that settlement, including the papers filed in court to obtain judicial approval of the settlement.

This is a troubling petition for discipline. The Committee believes that this petition should never have been initiated or prosecuted and the incurable infirmities with Bar Counsel’s case against the Respondent were apparent from the undisputed documentary evidence Bar Counsel presented in support of his petition. By way of introduction to the main part of the Hearing Report, we explain why that is so.

In his petition, Bar Counsel alleges, in essence, that the Respondent engaged in a scheme calculated to conceal the settlement of the Smiths’ medical malpractice case and thereby gain exclusive control of the division of the fees earned in the case. Specifically, Bar Counsel alleges, among other things that:

Each of these allegations is demonstrably false, on undisputed evidence. It is not true that the Respondent concealed from the [State B] lawyers that “the settlement was going forward.” It is not true that the [State B] lawyers did not know that a petition to approve the settlement had been filed. It is not true that the [State B] lawyers were ignorant of opposing counsel’s plan to wire funds to the Respondent. And it is not true that the [State B] lawyers “were unaware that a stipulation for dismissal had been prepared and was being filed with the court.”

There are many reasons the petition’s allegations, referenced above, are not true. Some of those reasons are reflected in the fact finding the Committee has undertaken below. But there are also plain and unmistakable reasons – independent and adequate grounds – that do not depend at all on sifting facts, or determining one witness more credible than another on a given point.

Bar Counsel and the Respondent submitted agreed exhibits at the beginning of the hearing. Three of those exhibits dispose of the petition.

On June 19, 2003, [opposing counsel] wrote to the Respondent confirming that the case settled and setting forth the steps necessary to consummate the settlement.

Please send me the breakdown of the settlement among the plaintiffs, i.e., the amount of the lump sum to be invested to purchase periodic payments for each, the schedule of payments and any other particulars that [are needed] to put together the structured settlement. “The settlement on behalf of [James] will require one or both parents to be appointed guardian of [James] by the probate court and the approval of a superior judge. [citation omitted]. If you have any questions, please call.

Ex. 22.

Subsequently, on July 7, 2003, [opposing counsel] wrote to the Respondent:

Here is the final Settlement Agreement and release. Please have it signed and notarized as indicated. Upon receipt of the executed original with the judge’s signature indicating approval of the settlement and a copy of the court’s order of approval, if any issues, and a certified copy of the appointment of at least one of the parents as [James’] guardian, I will have the Settlement Agreement signed by a representative of [the defendant], send you a copy and authorize the wiring of a lump sum settlement amount to your IOLTA account. Assuming the necessary documents are received in my office on Wednesday or Thursday this week, the money will be wired to your office on Friday July 11.

Also enclosed is the final Stipulation for Dismissal. Upon receipt of the lump sum and copy of the Settlement Agreement signed by [the defendant], please sign the Stipulation and return it to me.

Ex. 34.

Lastly, on July 14, 2003, [opposing counsel] wrote to the Superior Court … (the “Superior Court”):

Enclosed for filing with the court please find a Stipulation for Dismissal with Prejudice. Please have [the Judge] sign the order and return a date stamped copy of the order as filed to me.

Ex. 40.

Each of these letters was sent to the Respondent’s local counsel, and the Respondent knew they had been sent not only to him but also to the [State B] lawyers.

These letters, by themselves, conclusively establish that contrary to the petition the [State B] lawyers knew that the Smiths’ case was settled and the amount of settlement, that a condition of the settlement was that a probate judge had to appoint a guardian for James (Ex. 22); that a final settlement and release had been circulated for execution, that defense counsel awaited a certified copy of the probate court’s guardianship appointment and the Superior Court’s order approving the settlement, that opposing counsel would wire settlement funds to the Respondent’s account, that the Respondent was being asked to sign a stipulation for dismissal (Ex. 34); and, finally, that opposing counsel filed the stipulation signed by the Respondent with the Superior Court (Ex. 40).

In short, this documentary evidence proves that the [State B] lawyers were fully aware of the settlement, the additional steps needed to obtain the settlement funds, and when these settlement funds were likely to be paid to the Respondent. It also demonstrates that the Respondent knew that local counsel was aware of the imminent funding of the settlement. And having received two letters from opposing counsel describing the status of the settlement, the [State B] lawyers could easily have taken any steps they believed necessary to ensure that the Respondent was following the requirements of the [State B] rules.

To capture the tenor of the proceedings before the Committee, as to one of these dispositive letters Attorney C, one of the [State B] lawyers, claimed he either didn’t open it or didn’t read it. Instead, he testified that maybe he “never quite made it through the pile. Another call comes in and so on and so forth.” Tr. III: 135-136. On such sand, Bar Counsel presses his petition and recommends that the Respondent “be suspended from the practice of law for no less than a year and a day”.

We now go on to the petition, without further discussion about whether Bar Counsel had good ground to support it. We do not consider that he did.

FINDINGS OF FACT

  1. The Smiths’ Retention of the Respondent and the [State B] Lawyers.
    1. On November 2, 1998, James Smith was born [at a hospital in State B]. Ans., ¶4. As a result of complications during his birth, James’ heart stopped, resulting in significant brain damage. Ans., ¶4. In addition, James suffered brachial plexas injury (“BP”) that caused him to have minimal use of his left arm and hand. Ans., ¶4., Ex. 47B at 4.
    2. Mr. and Mrs. Smith are James’ parents. Ans., ¶4; Ex. 47B at 3.
    3. The Respondent was admitted to practice in the Commonwealth of Massachusetts on December 19, 1981. Ans., ¶ 2. He has handled medical malpractice cases for virtually his entire career, Tr. IV:18-21 (Doe), and now concentrates his practice on representing medical malpractice plaintiffs. Tr. IV:17-18, 20 (Doe).
    4. In or about the fall of 1999, Mrs. Smith learned of the Respondent through postings on an Internet site which provides information concerning BP injuries. Tr. IV:21-24 (Doe); Ex. 47B at 4-5 (Smith); Ans. ¶ 4.
    5. On November 19, 1999, Mrs. Smith retained the Respondent and executed a contingent fee agreement for the Respondent to represent her, James, and her husband in a medical malpractice claim against the health care providers attending James’ birth. Tr. IV:25, 26 (Doe); Ex. 47B at 5, 21 (Smith); Ans. ¶¶ 4, 5; Ex. 47C at Ex. 2.
    6. The Respondent intended to file suit in [State B], where the Smith family lived and where James’ injury occurred. Tr. IV:115 (Doe). The Respondent, however, was not and is not admitted to practice in [State B] and, accordingly, required the assistance of local counsel to represent the Smith family in [State B].
    7. On or about March 27, 2000, while discussing another unrelated birth injury case (the “Jones Matter”) with [A], a [State B] attorney, the Respondent discussed working with him on the Smith case. Tr. I:49-52 (A); Ex. 74.
    8. We credit the Respondent’s testimony that he wanted Attorney A’s firm to handle “basic stuff” and “administrative-type things” in the Smith case, such as advising the Respondent about local rules, obtaining medical records, filing a pro hac vice application, and “translating” the Smith pleadings into the appropriate form for filing in [State B]. Tr. IV:39-40 (Doe). We do not credit Attorney A’s testimony that when he and the Respondent agreed to work together on the Smith case they did not yet know “who would do what,” or his denials that the Respondent was lead counsel. Tr. I:90, 99, 142-43 (A). Compare, e.g., Tr. III:8 (C). In addition, we find this testimony to be inconsistent with Mr. A’s admission during the hearing that he handled just three or four medical malpractice cases during his career, all of which settled before trial and that prior to his retention by the Smiths, had never handled a complex birth injury case. Tr. I: 39-41, 84, 85 (A).
    9. On or about September 12, 2000, the Respondent introduced Mr. and Ms. Smith to Attorney A and they agreed to retain Attorney A’s firm as local counsel in James’ birth injury case. Tr. IV:129 (Doe). Tr. I:52-53 (A), Tr. IV:127-29 (Doe); Ex. 46B at 4-6 (G), Ex. 47B at 5-6 (Smith).
    10. At some point on the same day, Attorney A and the Respondent discussed how any contingent fee earned in connection with James’ birth injury case would be divided.3 Tr. IV:130-31 (Doe).
    11. Subsequently, on November 30, 2000, Attorney A wrote to the Respondent that the “two firms will split the legal fees based upon [their] involvement in the case.” Tr. I:54 (A); Ex.2. Similarly, that same day, the Respondent wrote to Attorney A and confirmed that Attorney A’s firm would “receive a share of the legal fee that reflects [its] involvement in the case.” Tr. I:158 (B); Ans. ¶ 9; Ex.1. Neither of these letters, however, states who would determine each firm’s “involvement in the case” or how the division of fees between the firms would be calculated. Ex.1, Ex.2.
  2. The Respondent’s and the [State B] Lawyers Prosecution of the Smiths’ Birth Injury Case.
    1. The Respondent’s November 30, 2000 letter to Attorney A also enclosed a draft complaint. Tr. I:128 (A); Ex. 1. Attorney A’s firm merely revised the draft complaint to conform to local style and form and to correct a name, Ex. 46B at 7-9 (G), then signed and filed it in the [State B], Superior Court (the “Superior Court”) on or about December 11, 2000. Tr. I:127 (A); Ex. 46B at 7-9 (G); Ans. ¶ 12, Ex. 55.
    2. On December 21, 2000, Attorney A filed a motion for the Respondent’s admission pro hac vice. Ans. ¶ 13; Ex. 81. The motion designated the Respondent as lead counsel, and was supported by the affidavit from the Respondent in which he averred: “[N]o disciplinary proceedings or criminal charges [had] ever been instituted against” him. Id. The Superior Court allowed the motion on January 16, 2001.

      Ans. ¶ 13.
    3. After these initial filings, and until the summer of 2001, Attorney A’s partner, [Mr. B], assumed the role of local counsel. Tr. I:66 (A); Tr. I:157-58 (B). Attorney B had not personally handled any plaintiffs’ medical malpractice cases, and had no experience in birth injury cases. Tr. I:155-56, 171-72 (B).
    4. In or about the summer of 2001, [Mr. C] replaced Attorney B. Tr. I:66 (A); Tr. I:160-61 (B); Tr. III:5-8 (C); Ex. 46B at 18 (G), Ex. 59, ¶ 8. Attorney C had been admitted to the [State B] bar in 1996 and when he replaced Attorney B his experience included personal injury insurance defense work. Starting around 1999, Attorney C began to concentrate in plaintiffs’ personal injury cases. Tr. III:5-7, 73-74 (C). Prior to representation of the Smith, however, he had settled a single medical malpractice case, and like Attorneys A and B, had no experience with birth injury cases. Tr. III:75 (C).
    5. We credit the Respondent’s testimony that he performed substantially all of the work to prepare the Smith’s case for settlement, including drafting the complaint which commenced the litigation, developing the theory of the case and selecting supporting experts, preparing the plaintiffs’ discovery, requests responses, and deposing the defendants’ experts and ultimately negotiating a settlement of the case. Tr. IV:39-42 (Doe). We also credit the Respondent’s testimony that Attorneys A, B and C’s involvement in the birth injury case was limited. Specifically, we find that their role in the case was confined to conforming filings in the case to local rules, advising the Respondent concerning [State B] practice and obtaining medical records and facilitating disclosures. Tr. III at 113-114 (C), Tr. IV at 39-40 and 133 (Doe). This finding is further buttressed by the description of the work performed by the [State B] lawyers set forth in their “Pre-bill Worksheet” Ex. 58.
  3. The [State B] Lawyers’ Misunderstanding Concerning the Respondent’s Declaration in Support of his Admission pro hac vice Into the Smith Case.
    1. On June 14, 2002, Attorney [I], defense counsel in the Jones Matter, filed a motion to revoke the Respondent’s pro hac vice admission in that case. Tr. III at 14-15 (C); Ex. 56; Ans., ¶8. Attorney I’s motion alleged that the Respondent’s claim in the Jones Matter that “[N]o disciplinary proceedings… have ever been instituted against” the Respondent was “false and perjurious and… a fraud on the Court.” In support of his motion, Attorney I attached a copy of a prior petition for discipline against the Respondent (the “Prior Petition”).
    2. In response to the motion to revoke his admission pro hac vice in the Jones Matter, the Respondent withdrew from the case. In addition, by letter dated June 17, 2002, the Respondent advised C that his withdrawal “was from the Jones case only and has no bearing on the [Smith] matter.” Ex. 57, Tr. I at 70 (A).
    3. In the wake of the Respondent’s withdrawal from the Jones Matter, C and the other [State B] lawyers mistakenly assumed that the Respondent’s pro hac vice declaration in the Smith case was false and that the Respondent’s continued participation in that case was vulnerable to a motion to revoke his pro hac vice admission to the [State B] bar4. Tr. III at 16, 25, 32 (C); Ex. 56.
    4. Relying on the incorrect date in Bar Counsel’s certificate of service and without consulting the Respondent to confirm whether his declaration was inaccurate, Attorney C advised Mrs. Smith that the Respondent had made material misrepresentations in his declaration and, accordingly, his admission pro hac vice in her case was subject to revocation. C further advised Mrs. Smith that she needed to “fire [the Respondent] immediately to protect our case.” Ex. 47b at 9, lines 22-25.
    5. On June 20, 2002, C at Mrs. Smith’s request, drafted a letter from Mrs. Smith to the Respondent informing him that she and her husband “decided to terminate our attorney – client relationship with [the Respondent] and [his] office” and that the family would be represented going forward by C’s firm. Ex. 4.
    6. On June 24, 2002, the Respondent met with the Smith and the [State B] lawyers at their law offices to discuss the letter of termination.
    7. Ultimately, the Respondent explained to everyone’s satisfaction that declaration he filed in the Smith case was accurate when it was filed and that the [State B] lawyers’ misunderstanding had been caused by error in dating by Bar Counsel, and the Smith and the [State B] lawyers decided to continue working with the Respondent as lead counsel in the birth injury case. Tr. I:165, 167 (B); Tr. III:39-40 (C), Ex. 47B, 11-13.
  4. Efforts to Settle the Smiths’ Birth Injury Case.
    1. On December 10, 2002, the Smiths and the defendants in the birth injury case attempted to mediate their dispute but were not able to reach a settlement. Tr. III:127-28, 158 (C), Tr. IV:44-45, 51 (Doe); Ex. 10; Ex. 15, Ex. 17. During the mediation, the defendants offered the Smith family $1.2 million to settle the case. Attorney C recommended settlement at this amount, but the Respondent disagreed. The settlement offer was rejected, and the mediation concluded. We credit the Respondent’s testimony that during the mediation he formed the belief that Attorney C’s eagerness to settle at the mediation and subsequently (at an artificially low number, to obtain a fee) hindered his ability to negotiate a more favorable settlement for the Smith family. Tr. IV:49-51, 164-167, V: 11-2. (Doe).
    2. After the mediation, Attorney C continued to discuss settlement with the defendants’ counsel, [Mr. D]. Ex. 58 (pre-bill worksheet entries at 36-38).
    3. In response, the Respondent advised Attorneys C and D that he alone was responsible for the settlement on behalf of the Smith family and that Attorney D should pursue settlement negotiations exclusively with the Respondent. Tr. IV:164-167, V:11-13 (Doe).
    4. Around January 2003, the Respondent and Attorney D resumed discovery, returning in February to the subject of settlement. Tr. IV:53-54, V:15-16 (Doe); Exhibits 62 through 72.
    5. By late May 2003, defendants had increased their offer to $1.5 million, while the Smiths had lowered their demand to $2.5 million. Tr. IV:55 (Doe); Ex. 69, Ex. 70, Ex. 71, Ex. 72.
    6. On May 23, 2003, the Respondent suggested that the parties take up the presiding judge on his offer to hold a settlement conference in his chambers. Ex. 72; Tr. IV:55-56 (Doe).
    7. On June 19, 2003, the Respondent, Attorney C, the Smiths, Attorney D, and [Mr. E], the defendants’ risk manager, met at court for the settlement conference. Tr. III:41, 124 (C); Ex. 6, Ex. 21, Ex. 22. They settled the Smiths’ birth injury case for $2 million. Tr. III:41-42, 124-25 (C), Tr. IV:56-57 (Doe), Ex. 45B at 8-9, 25 (D); Ans., ¶ 21; Ex. 23.
    8. The settlement was memorialized by a memorandum of settlement (Ex. 23) that identified the steps necessary to implement the settlement, including satisfying a Medicaid lien on the settlement proceeds, establishing a tax-qualified settlement structure, drafting documents to carry out the settlement, and allocating the gross settlement amount among Mr. Smith, Mrs. Smith and James Smith. Tr. III:44-45, 126 (C), Tr. IV:68 (Doe); Ex. 22, Ex. 23. Attorneys A and C knew the additional steps necessary to finalize the settlement. Tr. I:73-74 (A), Tr. III:41, 44, 125, and 130 (C), Tr. IV:57-61, 68-69, and 150-151 (Doe).
    9. In addition, at the settlement conference, attended by Attorney C, both Attorney D and the presiding judge advised the Respondent that the settlement had to be approved by the Court. Tr. V:23-24 (Doe). Attorney D further advised the Respondent, again in the presence of Attorney C, that under [State B] law a court-appointed guardian for James had to approve the settlement because it had been reached on behalf of a minor and exceeded $1,500. Tr. V:23-24 (Doe), Ex. 45B at 9-10 (D), Ex. 48B at 6 (F); Ex. 50 (14 V.S.A. § 2643(b)).
    10. Finally, we credit the Respondent’s testimony that on that same day, also in Attorney C’s presence and without objection from him, Attorney D and the Respondent agreed that payment of settlement proceeds would be conditioned on filing a stipulation of dismissal in the case. Tr. IV:60, 83 (Doe).
  5. The Respondent’s Implementation of the Settlement.
    1. Following the settlement conference, the Respondent testified that he considered Attorney C “out of the picture” because he, as lead attorney, was responsible for effecting the settlement and he did not need any assistance from C to conclude the settlement. Tr. IV:62-63 (Doe). The Respondent also testified that while he did not need Attorney C’s assistance to close the settlement, none of the activities the Respondent engaged in to bring the settlement to conclusion were hidden from C. Tr. IV:67-68, 88; Tr. V:17-20, 23 (Doe). We credit this testimony.
    2. Immediately following the settlement conference, on June 19, 2003, Attorney D sent the Respondent a letter confirming the settlement and the need for both Court approval of the settlement and appointment of a guardian for James. Tr. IV:63, 65 (Doe); Ex. 45B at 8-9 (D); Ex. 22. Attorney C received a copy of this letter but did not follow up with its contents with either the Respondent or Attorney D concerning the guardianship. Tr. III:41, 44, 125-26, 132-133 (C), Tr. IV:151-52 (Doe), Ex. 45B at 27 (D).
    3. In making this finding, we credit the Respondent’s testimony that no one from the [State B] lawyers’ firm contacted him to assist with obtaining a guardian for James or preparing a petition to approve for the settlement. Tr. IV:158-159 (Doe). On the other hand, Attorney C’s testimony following the settlement conference that he attempted to contact the Respondent’s office to offer his assistance in consummating the settlement, Tr. III:134-35 (C), is contradicted by other testimony by Attorney C that following the settlement conference, he waited to hear from the Respondent before taking any steps to effect the settlement.
    4. We also reject Bar Counsel’s contention that to keep the [State B] lawyers “in the dark”, the Respondent “directed Attorney D to deal only with the Respondent after the parties had agreed to the $2 million settlement.” Attorney D’s testimony that the Respondent instructed him (at some point in the settlement process) that all discussions concerning settlement were to be with the Respondent, and not with Attorney C or his firm, is not inconsistent with our finding that the Respondent did not conceal the funding of the settlement from the [State B] lawyers. Ex. 45B at 10-11 (D). We previously found that the Respondent gave this instruction to both Attorney D and Attorney C within weeks after the December 2002 mediation. There is no reason to doubt that the Respondent could have repeated the instruction during May or June 2003.
    5. The Respondent, however, testified he did not repeat his instruction after the case settlement was in place on June 19, 2003 and we credit that testimony. Tr. IV: 168 (Doe). From the Respondent’s perspective, on June 19, the case was resolved, requiring only final paperwork: “C could have called D any time he wanted to.” Id.; Tr. V:17 (Doe). The question put to Attorney D on this issue focused on “finalizing the settlement,” but Attorney D’s answer was, “the only direction we received was to deal solely with John Doe.” Ex. 45B at 10-11. Attorney D did not say that instruction was given him only after the settlement was concluded on June 19, 2003, and no examiner sought to clarify Attorney D’s testimony, or determine if he remembered the date of the Respondent’s instruction. Moreover, Attorney D plainly believed it was appropriate for him to communicate with the [State B] lawyers concerning finalizing the settlement and that the Respondent had never objected when he did so. See, e.g., Exs. 22, 34, 40.
    6. On or about June 26, 2003, the Respondent retained another [State B] attorney, [Mr. F], to petition the probate court (the “Probate Court”) for Mr. and Ms. Smith’s appointment as James’ guardians. Ex. 48B at 4-6 (F); Ans. ¶ 23; Ex. 5, Ex. 6, Ex. 9. Although the Respondent apparently did not notify Attorney C that Attorney F was handling the guardianship petition, Ans. ¶ 23., we credit the Respondent’s testimony that he retained Attorney F not, as Bar Counsel contends, to keep C and other [State B] lawyers “in the dark”, but because he had lost confidence in Attorney C following the controversy concerning the his pro hac vice declaration and Attorney C’s efforts to settle the Smiths’ birth injury case for less than the Respondent thought it was worth. In addition, even though it may have arguably been cheaper for the Smiths’ to employ Attorney C in the guardianship proceeding, under the proposed settlement, Mr. and Mrs. Smith themselves stood to receive $180,000 from the settlement funds and, accordingly, there was some risk that the Probate Court might not approve their appointment as guardians to approve the settlement on behalf of James in which they too stood to gain. We credit the Respondent’s testimony, therefore, that he retained Attorney F because he believed that Attorney F’s reputation would help to ensure Mr. and Ms. Smiths’ appointment as guardians to approve a settlement out of which they would personally receive $180,000. Tr. IV:69-71, 158, 161 (Doe).
    7. Sometime around July 3, 2003, to expedite the closing of the settlement, the Respondent and Attorney D agreed that Attorney D would transmit the settlement funds by a wire transfer rather than a check. Tr. IV:75-76, 175, Tr. V:10 (Doe).
    8. On July 3, 2003, the Respondent faxed a letter to Attorney D with instructions to wire the net settlement funds to the Respondent’s trust account. Tr. IV:175 (Doe); Ex. 45B at 14 (D); Ex. 27.
    9. That same day, Attorney F filed a petition in [the local] Probate Court seeking Mr. and Ms. Smith’s appointment as guardians for James to approve the settlement. Ans. ¶ 25; Ex. 8.
    10. Meanwhile, the Respondent drafted a petition for approval of the Smith settlement, with advice from the clerk of the Superior Court. Tr. IV:67, V:24-25 (Doe). Only the Respondent signed the petition; no one at the [State B] lawyers’ firm did so. Tr. IV:169-71 (Doe); Ans. ¶ 28. On July 3, 2003, the Respondent filed it with the Superior Court. Tr. IV:65-66 (Doe); Ans. ¶ 27; Ex. 25, Ex. 26.
    11. We credit the Respondent’s testimony that when he filed the petition for approval he was unaware of any [State B] rule requiring that local counsel sign all papers filed with the Court. Tr. IV:67-68, 119, V:25-26, 35-36 (Doe); Ex. 51 ([State B] R. Civ. P. XX). We do not credit Attorney C’s testimony that he explained the provisions of Rule XX to the Respondent by telephone or that his firm had established procedures to comply with that rule.5 Tr. III:11-12 (C); Tr. III:9-11, 115 (C); see also Tr. I:159-60, 186 (B, stating he learned of C’s supposed communications with the Respondent from C).
    12. In addition, contrary to Bar Counsel’s contention, the fact that local counsel had signed the vast majority of the other papers in the case is not inconsistent with this credibility determination. Unlike most of the other pleadings and papers filed in the case, the Respondent did not need local counsel’s assistance to prepare and file the petition approving the settlement because he prepared the petition in person at the courthouse with the assistance of the clerk at the Superior Court. Finally, Attorney C concedes that his firm never provided the Respondent with a copy of [State B] R. Civ. P. XX or advised him in writing of its requirements. Tr. III:10, 115 (C).
    13. On July 7, 2003, Attorney D sent the Respondent a settlement agreement and release, along with a stipulation of dismissal bearing signature lines for both the Respondent and Attorney C. Ex. 45B at 19-20 (D); Ex. 34. The accompanying transmittal letter requests copies of the Superior Court’s Order approving the settlement and the Probate Court’s Order approving the appointment of a guardian for James. It also states “assuming the necessary documents are received…the money will be wired to your office on Friday, July 11, 2003”, just four days later. Finally, the letter directed that the enclosed stipulation of dismissal be signed and returned to Mr. D after the Respondent received the settlement funds, Ex. 34, which was consistent with the usual [State B] practice. Tr. III:53-54, 123, 138-140 (C); Ex. 45B at 11-12 (D). Attorney D sent a copy of this letter and its enclosures to Attorney C and the Respondent was aware that Attorney C was copied. Ex. 45B at 19 (D); Ex. 34.
    14. With respect to the critical issue of whether or not he received and reviewed Attorney D’s July 7, 2003 letter, Attorney C testified: “[I] don’t know whether I was in the office, whether I was in trial, whether I was coming back to stacks of mail that I was unable to get through whatever obligation I had at the time. It is quite possible that I had seen many of these things in a stack of mail this thick which is routine for me and never quite made it through the pile. Another call comes in and so on and so forth. I honestly can’t tell you that this was something that was cc’d to me.” Tr. III: 135-136 (C). In short, Attorney C was unable to testify that he opens or reads his mail, including letters informing him of the very things the Respondent stands accused of concealing. Compare Tr. IV:88 (Doe).
    15. On July 8, 2003, the Superior Court allowed the petition to approve the settlement, notwithstanding it was not signed by local counsel. Tr. IV:67, V:25-26 (Doe); Ans. ¶ 32; Ex. 38; Tr. IV:67, V:25-26 (Doe).
    16. Shortly thereafter, on or about July 9, 2003, the Probate Court appointed Mr. and Ms. Smith as guardians for James. Ex. 47B at 14-15 (Smith); Ans. ¶ 25; Ex. 8, Ex. 35. The Respondent obtained the Smiths’ signatures on the settlement agreement that same day. Tr. IV:194-196 (Doe).
    17. Sometime on or before July 11, 2003, the Respondent signed his name on the stipulation of dismissal, and also signed Attorney C’s name followed by the initials “[JD].” Tr. V:20 (Doe); Ans. ¶ 33; see also Ex. 15; Tr. IV:47-48 (Doe).
    18. We credit the Respondent’s testimony that he believed he had Attorney C’s authority to sign for him, and we find that this belief was reasonable in all of the circumstances. Tr. IV:82-83 (Doe). The Respondent put his initials after Attorney C’s name, after he signed for him, inconsistent with any intent to deceive anyone. Tr. V:27-28 (Doe).
    19. On or about July 11, 2003, the Respondent mailed the stipulation of dismissal and the settlement agreement and release to Attorney D, along with a demand for immediate payment of the settlement funds. Ans. ¶ 33; Ex. 35; Ex. 41. We credit the Respondent’s testimony that his demand for the settlement funds only a few weeks after reaching settlement was consistent with his general approach to settling cases, and find that he advanced his clients’ interest in obtaining the proceeds of a favorable settlement as soon as possible. Tr. IV: 74, 187; Tr. V:11. (Doe).
    20. On July 14, 2003, Attorney D filed the stipulation of dismissal and copied Attorney C with his transmittal letter to the Court. Tr. V:29-30 (Doe); Ex. 45B at 23-24, 33 (D); Ans. ¶ 35; Ex. 40. Upon discovering his name had been signed to the stipulation, Attorney C didn’t advise Attorney D, the Smiths or the Superior Court that the Respondent lacked authority to execute the stipulation on his behalf. Tr. 111: 174-175 (C). In addition, when questioned by the Committee, Attorney C testified that on July 7, 2003 he did not have a good faith basis to refuse to sign the stipulation of dismissal and thereby prevent the settlement – already the subject of a signed settlement agreement by the Smiths – from proceeding to conclusion. Tr. III: 171, 174, 175 (C).
    21. On the same day, Attorney D wire-transferred the net settlement funds to the Respondent’s IOLTA account. Ex. 39; Ans. ¶ 36.
    22. Almost immediately, on July 15, 2003, the Respondent sent the Smiths two checks each in the amount of $90,000, representing their portion of the settlement, and on the same day the Respondent sent Attorney C a check for $45,000 for his firm’s services and expenses during the case. Tr. I:74-75, 100-101 (A); Tr. I:186-87 (B); Tr. III:59, 121 (C); Tr. IV:76, 187-188 (Doe); Ans. ¶ 37; Ex. 52.
    23. The Respondent’s letter of transmittal to Attorney C explained that the Respondent had reviewed the work performed by the [State B] lawyers, and concluded that it was basic “local counsel” work, including the collection of medical records, but at times concerned issues the Respondent told the [State B] lawyers not to pursue, and that was unnecessary. Ex. 52. The letter described the Respondent’s payment as “fair” in light of the A firm’s limited contribution to the result. Ex. 52. The Respondent (referring to events surrounding his pro hac vice declaration) also remarked, “I have not forgotten your effort to take the case away from me, despite the fact that you and your firm were not qualified to litigate a complex birth injury case.” Id.
    24. We credit the Respondent’s testimony that he believed he had performed all of the substantive work in the Smith case. Tr. IV:39-42 (Doe). We also credit his testimony that the payment of $45,000 reflected his view of the contribution C and the other [State B] lawyers made to the case. Tr. IV:76-77, 81 (Doe).
    25. The Smiths were very satisfied with the Respondent’s representation of them and the results obtained in the case. Specifically, Mrs. Smith testified they would not have obtained a settlement that “even came close” with the [State B] lawyers. Ex. 47B at 18 (Smith).
    26. On or about July 21, 2003, Attorney C received the Respondent’s payment check and his firm endorsed and cashed it, although the endorsement indicated that it was under protest. Tr. III:121-22 (C); Tr. IV:78 (Doe); Ex. 58, last page.
    27. Subsequently, the Respondent spoke with Attorney C about how he calculated the amount paid to the [State B] lawyers in the case. Tr. IV:79, 188-189 (Doe). We credit the Respondent’s testimony that when Attorney C expressed dissatisfaction with the amount of the check, the Respondent invited him to send time records to justify a larger payment. Tr. IV:79 (Doe). Attorney C did not send a copy of those records to the Respondent. Tr. III:155 (C); Tr. IV:78 (Doe).
    28. On or about August 14, 2003, Attorney C wrote to the Respondent requesting an accounting of the Respondent’s time and billing in the Smith matter. Tr. III:60-61 (C); Tr. IV:188 (Doe); Ex. 53. The Respondent did not respond to Attorney C’s request. Tr. IV:188-189 (Doe).

CONCLUSIONS OF LAW

  1. In paragraph 38 of the Petition, Bar Counsel charges that the Respondent’s “conduct in filing pleadings in a [State B] state court that were not signed by a member of the bar in knowing violation of the [State B] rules” violated Mass. R. Prof. C. 3.4(c)6 and 8.4.(d)7 Establishing that the Respondent violated Mass. R. Prof.C.3.4(c) requires proof that the Respondent “knowingly” disobeyed an obligation under the rules of the [State B] court. This, in turn, requires “actual knowledge of” that obligation. Mass. R. Prof. C. 9.1(f)8. We credit the Respondent’s testimony that when he signed and filed the petition, he was not aware of the requirements of Rule XX9 of the [State B] Rules of Civil Procedure and find, therefore, the Respondent did not knowingly disobey Rule XX when he filed the petition. We further find that the Respondent’s filing and execution of the petition was in furtherance of his clients interest and not an effort to conceal the petition from local counsel. We conclude, therefore, that the Respondent did not violate Rule 3.4(c) as charged.
  2. Rule 8.4(d) prohibits conduct prejudicial to the administration of justice. We find that the Respondent did nothing prejudicial to the administration of justice in [State B]. Even assuming a violation (which we do not find), to uphold the charge under Rule 8.4(d), we must conclude that the Respondent engaged in conduct so egregious and flagrantly violative of accepted professional norms as to undermine the legitimacy of the judicial process. In the Matter of the Discipline of an Attorney, 442 Mass. 660, 668, 20 Mass. Att’y Disc. R. 585, 594 (2004).
  3. The [State B] Superior Court accepted and acted on the petition without requiring local counsel’s signature, and we have credited the Respondent’s testimony that he drafted that petition with guidance from the Superior Court and the clerk. There is no evidence that the settlement was improper. To the contrary, the settlement was the product of complex and lengthy litigation and an equally challenging negotiation process, and entered into and approved by the Smiths, the defendants, and all counsel, including the [State B] lawyers. Nor is there evidence that the petition itself was misleading or improper. Local counsel admitted that he had neither the authority nor any basis to derail the settlement. After consideration of the testimony of the witnesses, all of the exhibits admitted into evidence, the arguments of counsel and their post-hearing submissions, we conclude that the Respondent acted reasonably and fairly towards the court, all counsel, and all parties to the proceeding. We further find that the Respondent was a zealous advocate for his client, and pressed opposing counsel hard to complete and fund the settlement in furtherance of his clients’ interests. We conclude, accordingly, that the Respondent did not violate Rule 8.4(d) as charged.
  4. In paragraph 39 of the Petition, Bar Counsel charges that the Respondent’s “conduct in signing Attorney C’s name to the stipulation of dismissal and sending the stipulation to Attorney D for filing with the Court without Attorney C’s knowledge, authority and consent” violated Mass. R. Prof. C. 3.3(a)(1)10; 3.4(c); 4.1(a)11; 8.4(c), 8.4(d); and 8.4(h).12 Based on all of the surrounding circumstances, including Attorney C’s own obligation to sign the stipulation of dismissal to consummate the settlement, we find that the Respondent reasonably believed that he had the authority to sign Attorney C’s name to the stipulation of dismissal, and neither intended to act deceptively or improperly nor did so when he signed and filed the petition. We also credit the Respondent’s testimony that he subjectively believed he had such authority. Rules 3.3(a)(1) and 4.1(a) both, on their face, require proof that the Respondent acted knowingly. Rule 8.4(c) requires further proof of either an intent to deceive or at least knowledge of falsity. Compare Matter of Zimmerman, 17 Mass. Att’y Disc. R. 645-46 (2001) (decided under precursor to Rule 8.4(c)). Because Bar Counsel has not met the burden of proving the requisite state of mind, or that the Respondent engaged in a scheme to conceal the conclusion of the settlement from local counsel, we conclude that the Respondent did not violate these rules as charged.
  5. Bar Counsel also claims that by the Respondent signing and filing the stipulation of dismissal knowingly violated the [State B] Rules of Civil Procedure in contravention of Mass. R. Prof. C. 3.4(c). Because we find that the Respondent was not aware of the requirements imposed under [State B] Rule Civ. P. XX, and also reasonably believed that he had the authority to sign Attorney C’s name to the stipulation of dismissal, we conclude that the Respondent did not violate Rule 3.4(c) as charged.
  6. Bar Counsel further contends that signing and filing the Stipulation constituted conduct prejudicial to the administration of justice (Mass R. Prof. C. 8.4(d), and conduct that reflects adversely on the Respondent’s fitness to practice (Mass. R. Prof. C. 8.4(h13)) in signing and filing the petition. Because we find that the Respondent acted reasonably in signing Attorney C’s name to the stipulation of dismissal and in furtherance of his clients’ interests and because there is no evidence that the settlement and the dismissal were in any way improper or unfair to the court, the parties or counsel, we conclude that the Respondent did not violate Rules 8.4(d) and 8.4(h) as charged.
  7. Finally, in paragraph 40 of the Petition, Bar Counsel charges that the Respondent’s “conduct in concealing from the [State B] lawyers that he had finalized the settlement of the Smiths’ case, obtained a guardianship for James, and received the settlement proceeds” violated Mass. R. Prof. C. 8.4(c) and 8.4(h). It is undisputed that immediately upon receiving the settlement proceeds from Attorney D, the Respondent informed the [State B] lawyers in writing and mailed them a check. In addition, we find that the Respondent was aware that the [State B] lawyers were copied on at least two letters from Attorney D describing the status of the settlement. We also find that the Respondent acted reasonably and did not intend to act dishonestly, deceptively or improperly towards the [State B] lawyers. We further find that Bar Counsel has not proved the knowledge or intent required for a violation under Rule 8.4(c), and has not shown that anything the Respondent did, in connection with the settlement, reflected adversely on his fitness to practice law. We conclude, accordingly, that the Respondent did not violate these rules as charged.

RECOMMENDED DISPOSITION

For the foregoing reasons, the Hearing Committee unanimously recommends that the petition for discipline against the Respondent be dismissed and no discipline be imposed.

Dated: March 19, 2007


FOOTNOTES

1 “Bar counsel,” as used below, and unless otherwise plain from the context, refers both to Assistant Bar Counsel, Richard Roe, and to his office.

2 The petition for discipline shall be referred to as “Petition, ¶”. The hearing transcript shall be referred to as “Tr. _:_” with the first number referring to the volume and the second number referring to the page(s); the answer, as supplemented and amended, shall be referred to as “Ans., ¶_”; and the exhibits shall be referred to as “Ex._.” Deposition transcripts shall be referred to as “Ex. __ at ___ (name of deponent).”

3 As Bar Counsel emphasized, “this case is not about a fee dispute.” Tr. I:23, see also Tr. III:63. Nonetheless, much of the testimony and several of the exhibits concerned just that – a fee dispute asserted by the [State B] lawyers against Respondent. The fee dispute animated some of the testimony, and was one focus of the [State B] lawyers’ original complaint to Bar Counsel. See, e.g., Tr. I:95 (A); Petition, ¶ 37; Exhibit 54, Complaint letter from [State B] lawyers to Bar Counsel at 3 (seeking determination “whether Attorney [Doe’s] conduct in relation to the distribution of the fee in the Smith case violates Rule 1.5(e)”); Tr. I:93-94 (“best remedy would be through this thing”) (A). (There is – and was – no fee dispute between Respondent and his clients in the [State B] medical malpractice case.) When necessary to our report, we find facts concerning the fee dispute.

4 The [State B] lawyers mistaken belief was caused by Bar Counsel’s error in the certificate of service for the Prior Petition. See Petition, ¶15; Ex. 56 (attaching prior petition for discipline, with Certificate of Service). Bar Counsel’s certificate of service for the Prior Petition certified that the Prior Petition had been served on the Respondent on August 30, 2000. Thus, when the [State B] attorneys in the Smith case had cause to look back and examine the Respondent’s pro hac vice declaration dated December 2000, Respondent’s sworn statement in the Smiths’ case that no bar discipline proceedings had ever been instituted against him seemed false. In fact, it was Bar Counsel’s certificate of service that was wrong, as his petition for discipline was served on August 30, 2001, not a year before. Petition, ¶15; Tr. 111; 29 (Roe). The Respondent’s pro hac vice declaration in the Smiths’ case, accordingly, was correct at the time it was filed.

5 Were we to credit that testimony, we could only find that, when he received Attorney D’s July 7, 2003 letter (Ex. 34), Attorney C broke the procedure he had put in place.

6 Rule 3.4: Fairness to Opposing Party and Counsel

A lawyer shall not:

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists….

7 Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:

(d) engage in conduct that is prejudicial to the administration of justice…

8 Rule 9.1: Definitions

(e) “knowingly”, “known”, or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred.

9 Rule 79.1 APPEARANCE AND WITHDRAWAL OF ATTORNEYS

(e) Attorneys Not Admitted to Practice in Vermont. Any member in good standing of the bar of any other state or of the District of Columbia may, in the discretion of the court on motion by a member of the bar of this state who is actively associated with that attorney in a particular action, be permitted to practice in that action. The motion shall designate which attorney will serve as lead counsel. The court may at any time for good cause revoke such permission. An attorney so permitted to practice in a particular action shall at all times be associated in such action with a member of the bar of this state, upon whom all process, notices and other papers shall be served and who shall sign all papers filed with the court and whose attendance may be required by the court.

10 Rule 3.3: Candor Towards the Tribunal

(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal...

11 Rule 4.1: Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person…

12 Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation…

13 Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:

(h) engage in any other conduct that adversely reflects on his or her fitness to practice law.

BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2007. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.