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

Commonwealth of Massachusetts



Order (public reprimand) entered by the Board June 12, 2000.


In 1991, a client retained the respondent to represent him in a claim against the owner of a building arising from an injury sustained by the client when he fell from a third story porch after the railing broke. The client knew the respondent because the respondent had represented him in several prior criminal cases.

The respondent filed suit on the personal injury claim. The defendant on March 24, 1992 filed, and the Court allowed, a motion to compel the plaintiff to produce certain documents and for costs. The plaintiff failed to comply with the order compelling production of documents and, on May 29, 1992, the defendant filed a motion to dismiss. The respondent did not file an opposition and the Court dismissed the civil complaint on August 3, 1992.

The client had been in Florida for several months in early 1992, returning to Massachusetts in the spring. The respondent lost contact with the client while he was in Florida and was unable to comply with the production requests without the client's assistance. Regardless, the respondent knew that the client had returned to Massachusetts no later than July 1992, when the client was arrested on new criminal charges on which the respondent represented him.

Over the next several months, the respondent's focus in his representation of the client was the criminal charges. He did not at any point advise the client that documents were required to be produced in the civil case and did not inform him that the case was dismissed in August 1992, even after the client was found not guilty of the criminal charges in September 1992. However, the client was again arrested in November 1992 on unrelated offenses and charged with a series of housebreakings that eventually led to a sentence on January 11, 1993 of 7-10 years in prison. Even then, with the criminal cases concluded, the respondent did not immediately turn his attention to the civil claim.

In July 1993, and unknown to the client, the respondent caused his associate to file a motion for relief from judgment in the civil case. The motion was denied by the Court on September 23, 1993. The respondent still did not apprise the client either that the case had been dismissed in August 1992, or that a motion for relief from judgment had been filed in July 1993, or that the motion had been denied.

By late 1993 or early 1994, the client, who was still in prison, became dissatisfied with the progress being made on the civil case. Believing that the case was still pending, he demanded that the respondent return his file and filed a complaint with Bar Counsel when the file was not promptly forthcoming.

After the complaint with Bar Counsel was filed, the respondent in April 1994 returned the file on his civil case to the client. Upon review of the file, the client learned for the first time that the case had been dismissed almost two years earlier. The client pro se then filed a motion to vacate the judgment on May 13, 1994. This motion was denied by the Superior Court on August 4, 1994.

On August 3, 1995, through new counsel, the client filed a malpractice action against the respondent. This case was settled for $25,000 in the summer of 1998.

The respondent's conduct in failing to apprise his client in 1992 that documents were required to be produced in his personal injury case; in allowing the lawsuit to be dismissed without opposition because of the failure to produce documents in August 1992; in then failing either to apprise the client that the lawsuit had been dismissed or to take prompt action to vacate the judgment; in causing his associate to file a motion to vacate the judgment almost a year after the dismissal without advising the client either that the motion had been filed or that it was subsequently denied; and his conduct in failing to promptly turn over the file to the client until after a complaint to Bar Counsel had been filed, constitute violations of Canon Two, DR 2-110(A)(4), Canon Six, DR 6-101(A)(3), and Canon Seven, DR 7-101(A)(1),(2),(3).

In an unrelated matter, a check in the amount of $110 drawn on the respondent's IOLTA account was returned unpaid on account of insufficient funds. There were insufficient funds in the account to pay the check for $110 because a previous check in the amount of $500 had been paid by the bank against insufficient funds, creating an overdraft.

The $500 check was the last disbursement from an escrow of $1450 credited to the buyer after a real estate closing in order to pay for certain unfinished items. With the payment of $500, the escrow had been disbursed in full. However, when the respondent wrote this check for $500, and as a result of earlier arithmetic errors or overpayments, his IOLTA account held only a balance of $266.71 and, in fact, had had that same balance of $266.71 for the four previous months.

After payment of the $500 check, the respondent made an unrelated deposit of $50,000 to the IOLTA account from which the check for $110 was to have been paid. The check for $110 was returned unpaid, however, because of the deficiency created by the payment of the check for $500. The respondent subsequently deposited personal funds to reimburse the account for the shortfall and enable the check to clear on redeposit.

The respondent maintained a check register for his IOLTA account, but did not do the addition and subtraction of deposits and disbursements and thus kept no running balance for the account. He also did not maintain individual ledgers for the account, did not reconcile the account monthly, and did not review the monthly statements sent by the bank. He thus was unaware when he wrote the check for $500 that the balance in his IOLTA account was $266.71. The respondent's conduct in this respect constituted inadequate record keeping, in violation of Canon Nine, DR 9-102(B)(3).

In mitigation, the respondent has no prior discipline. He has also improved his trust account record keeping practices.

This matter came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand. The Board accepted the parties' recommendation and imposed a public reprimand.

1 Compiled by the Board of Bar Overseers based on the record of proceedings before the Board.

BBO/OBC Privacy Policy. Please direct all questions to
© 2001. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.