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Commonwealth of Massachusetts

PUBLIC REPRIMAND NO. 2000-7



IN RE: THOMAS F. MCEVILLY

Order (public reprimand) entered by the Board June 20, 2000.

SUMMARY1


The respondent received a public reprimand for his conduct in the three matters, conditioned upon his attendance at a CLE course designated by Bar Counsel.

In the first case, the respondent was retained in October 1987, by the driver of a car which collided with a second automobile. The respondent's client suffered substantial injuries. His claim against the second driver was settled in or around December 1989 for the $10,000 insurance policy limit. The client had underinsurance coverage through two policies which were available for "stacking". Rather than file for mandatory arbitration, the respondent filed suit against the insurer in district court. He then took no further action to pursue the matter and eventually misplaced his file. When the client periodically questioned him about the status of the underinsurance claims, the respondent advised that the matter had been placed in litigation. The respondent attempted to locate his file, but was unable to find it. Accordingly, he filed suit again on August 9, 1993. This second suit was dismissed with prejudice on June 15, 1994 pursuant to a motion filed by the respondent, to refer the case to arbitration. However, the respondent never filed for arbitration.

In or around the summer of 1995, the client contacted another attorney. The attorney requested that respondent send him the client's file. The respondent was again unable to locate the file, and he failed to answer the attorney's inquiries. The respondent eventually found the file in December 1995, and sent it to the client's new attorney, who promptly filed for arbitration. Although the insurance company initially rejected the claim arguing that it was time-barred, the matter was eventually settled in or around December 1996, for $20,000.

The second matter raised similar concerns. The respondent was retained in August 1985 by the parents of a sixteen-year-old boy who had been seriously injured in a motorcycle accident. The client had been a passenger on a motorcycle that collided with an automobile. His medical bills totaled over $120,000. Limited insurance coverage was available to compensate the client for his injuries, as the driver of the motor vehicle had standard insurance coverage and the minor driver of the motorcycle had no insurance coverage for guests. The client had $25,000 available in underinsurance coverage through his parents.

Although the respondent received consent from the underinsurer to settle with the motor vehicle driver's insurer in November 1985, he did not file for arbitration of the underinsurance claim. He decided to delay pursuit of the claim pending the outcome of the client's other actions. The respondent filed civil complaints against the two drivers, and a third party action was filed against the insurer of the mother of the minor motorcycle driver. The third party claim was unsuccessful and was summarily dismissed on December 22, 1987. The respondent settled the suit against the driver of the motor vehicle for the $10,000 policy limits in May 1989. The respondent took no further action no behalf of the client until July 11, 1991, when he filed suit against the underinsurer in district court. After filing the complaint, the respondent never served the defendant, and did nothing further to pursue the matter. When the client periodically contacted the respondent for a status report on the case, the respondent would state that suit had been filed.

On or about May 11, 1992, the respondent settled the claim against the driver of the motorcycle for $4,500. He then misplaced his file. The respondent filed a second duplicate complaint against the underinsurer on July 23, 1993, but again failed to pursue the matter. The original complaint against the underinsurer was dismissed pursuant to the court's time standards on December 14, 1994. The duplicate suit was dismissed on October 19, 1995. The respondent did not advise the client of the dismissals.

In or around August 1996, the client contacted the Office of Bar Counsel and retained new counsel. The respondent received notice of the client's grievance and this prompted him to file a motion to restore the case to the active docket together with a motion to refer it to arbitration. The motions were heard and allowed on February 12, 1997. The respondent then met with the client's new attorney, admitted his neglect and agreed to pay the client $25,000 in exchange for an assignment of the client's rights to the underinsurance claim. The respondent failed to timely pay the agreed sum and on May 29, 1997, the client filed a malpractice action against him. The matter was settled on or about January 25, 1998, upon the respondent's payment of $35,000.

In the third matter, the respondent was retained in or around March 1997, to represent a client in a divorce. He was paid a $1,500 retainer. The client became dissatisfied with the respondent in or around November 1997, and decided to retain new counsel. The respondent filed a motion to withdraw which was allowed on December 19, 1997. The client wrote to the respondent and stated that she had received no bill or itemization of services and she asked for a refund of her retainer. The respondent did not reply until the client filed a grievance at the Board of Bar Overseers. Three months later, the respondent refunded the retainer to the client, but never provided the itemization of services.

The respondent's failure to pursue the under insurance claims of two clients and his failure to adequately communicate with those clients was in violation of Canon Six, DR 6-101(A)(3) and Canon Seven, DR 7-101. His failure to respond to a request for an accounting of his services and failure to promptly refund the unearned portion of his fee was in of Canon Nine, DR 9-102(B)(4) and Canon Two, DR 2-110(A)(3). In mitigation, the respondent's office management and organization greatly suffered in the summer of 1992 when his secretary of twenty years became ill and then died. The respondent's secretarial work was parceled out to two other secretaries in the office. The situation did not improve until the hired his present secretary in 1994. The respondent also began suffering health problems in or around January 1996.

In aggravation, the respondent had been previously disciplined for similar misconduct. In 1989, he received an informal admonition for repeated neglect of four related personal injury cases, and failure to have a written contingency fee agreement. In 1990, he received a private reprimand, PR 90-31, 6 Mass. Att'y Disc. R 436, for prolonged neglect of the administration of a testamentary trust of which he was trustee.

This matter came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand. On May 8, 2000 the Board of Bar Overseers voted to impose a public reprimand.

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



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