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Commonwealth of Massachusetts

PUBLIC REPRIMAND NO. 2001-5



IN RE: RICHARD J. RUBIN

Order (public reprimand) entered by the Board April 26, 2001

SUMMARY1


The respondent received a public reprimand with probationary conditions for neglect and other misconduct in three separate matters. In one case, a landlord paid the respondent a retainer of $2,700 in 1993 to defend him against a complaint filed by a tenant in Housing Court. The respondent failed to file an answer to the complaint despite the fact that the landlord had a meritorious defense. As a consequence of the respondent's failure, a default judgment was entered against the respondent's client. Although he received actual notice of the default, the respondent did not notify the client of the default or file a motion to remove the default. When the client received notice of an assessment of damages hearing and asked the respondent about it, the respondent falsely informed the client that he did not need to attend the hearing and that he would take care of the matter. The respondent failed to appear at the damages hearing and the court entered judgment for the tenant against the respondent's client in the amount of $30,000.

The client attempted to obtain information about the status of his case from the respondent, but the respondent did not return the client's phone calls or messages. After he was served with an execution, the client retained another lawyer to represent him. Over the next several months, the client's new lawyer demanded the respondent turn over the client's file and the unused portion of the retainer, sent the respondent a Ch. 93A demand letter, and finally filed suit against the respondent for legal malpractice and violation of Ch. 93A. The respondent did not answer the complaint and was defaulted. After judgment was entered against him, the respondent paid $22,500 to the client's new lawyer in settlement of the client's claims. The new lawyer paid over a portion of the settlement funds to the tenant in satisfaction of the tenant's judgment against the landlord.

By failing to file an answer or otherwise defend the client, by allowing a default to be entered against the client, by failing to appear at the assessment of damages hearing, and by allowing an execution to enter against the client, the respondent violated Canon Six, DR 6-101(A)(1), (2), and (3) (lawyer shall not handle a matter which he knows or should know he is not competent to handle without associating with a lawyer who is competent to handle the matter, handle a legal matter without adequate preparation, or neglect a legal matter entrusted to him), and Canon Seven, DR 7-101(A)(1), (2), and (3) (lawyer shall not intentionally fail to seek lawful objectives of his client, fail to carry out a contract of employment, or prejudice client during the course of representation). By falsely representing to the client that the client did not need to appear at the damages hearing, the respondent violated Canon One, DR 1-102(A)(4) and (6) (lawyer shall not engage in misrepresentation or other conduct adversely reflecting on fitness to practice), and Canon Seven, Disciplinary Rule 7-101(A)(1), (2), and (3). By failing to return the unused portion of the retainer and the other materials the client had provided to him upon demand from the client's new lawyer, the respondent violated Canon Two, Disciplinary Rule 2-110(A)(3) and (4) (lawyer who withdraws from employment shall refund to former client any part of fee paid in advance that has not been earned, and make available to client all documents and other materials the client supplied to the attorney).

In a second matter, a client retained the respondent on the basis of a written contingent fee agreement in 1992 concerning a 1989 automobile accident. The respondent filed a civil complaint for the client against the defendant, but failed and neglected to investigate thoroughly the circumstances of the accident. The respondent failed to obtain medical records for the client and failed to research the defendant's address and identify the defendant's insurance company. The respondent was unable to have the complaint served on the defendant because he did not know the defendant's correct address or insurance carrier. The respondent failed and neglected to communicate with the client about his case. By failing to take reasonable steps to ascertain the correct address and insurer for the defendant, by failing to serve the complaint on the defendant, and by failing to communicate adequately with his client, the respondent violated Canon Six, DR 6-101(A)( 3), and Canon Seven, DR 7-101(A)(1), (2), and (3).

In a third matter, the respondent was retained in 1994 to review transcripts of a convicted criminal defendant's trial and, if warranted, to pursue an appeal on the client's behalf. The respondent reviewed the transcripts and determined that the client had no valid issue on appeal. The respondent failed to communicate his opinion to the client and the court dismissed the client's appeal for failure to prosecute it. When the client discovered that his appeal had been dismissed, he wrote to the respondent and demanded an explanation concerning the status of his case. The respondent failed to respond to the client's letter. By failing to communicate with the client about the viability of his appeal, the respondent violated Canon Six, DR 6-101(A)(3), and Canon Seven, DR 7-101(A)(2), and (3).

In mitigation of this misconduct, the respondent paid settlement funds to the landlord in the first case out of his own pocket and the client suffered no financial harm from the respondent's misconduct. In the second matter, the client's motor vehicle case was of questionable value. It is unlikely that the client had more than $2,000 in medical expenses. In the third case, the respondent made complete restitution of the retainer to the client's mother. Also, the Appeals Court reinstated the client's appeal and new counsel filed a brief on the client's behalf in 1999. On January 7, 2000, the Appeals Court summarily disposed of the client's appeal pursuant to Appeals Court Rule 1:28, finding that no substantial question of law had been presented.

In addition, during the period in which the misconduct occurred, the respondent suffered from a major depression which contributed to his neglects. The respondent's mother died suddenly in 1991, and his best friend died after suffering a stroke in 1996. Since that time, the respondent has received therapy to treat his depression.

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



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