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Commonwealth of Massachusetts

PUBLIC REPRIMAND NO. 2001-15



IN RE: MARY F. HEALEY

Order (public reprimand) entered by the Board October 12, 2001.

SUMMARY1


The respondent was an associate at a law firm that represented the wife in a divorce matter. The husband was physically and mentally incapacitated, and his interests were represented in the divorce proceeding by a guardian. On or about March 2, 1990, after considerable negotiations and several prior failed agreements, the parties appeared in court and read a settlement agreement into the court record. The settlement agreement provided in part that an annuity would be purchased to generate annual payments for the husbandís life to pay for his institutionalized care. The settlement agreement also provided that the client would receive a percentage of the husbandís pension, and the proceeds from the sale of certain real property. After the agreement was read into the record, the judge announced from the bench that he regarded the settlement as final and ordered the parties to file a written agreement consistent therewith.

The firm assigned to the respondent the task of preparing a written settlement agreement. Almost immediately after the March hearing, the guardian, through her counsel, began raising questions about the terms of the settlement, including the small percentage of the pension allocated to the husbandís personal needs. The parties also disagreed over which broker to use to purchase the annuity, how to split the brokerís fees, and other issues. In addition, the respondent had concerns about the tax consequences of the annuity purchase and the pension division, and how to address these tax issues in the written settlement agreement. The respondent did not have the expertise to answer these questions, and failed to consult with an attorney competent to address the complicated tax issues raised by the case.

As a result of these problems, and other emotional and psychological issues experienced by the respondent during this time period, the respondent never reduced the terms of the settlement agreement to writing. In 1992, the divorce action was dismissed for lack of activity.

Between the spring of 1990 and September of 1995, the respondent failed to inform the client that a final judgment of divorce had not entered. During this period, and in order to hide her neglect, the respondent made misrepresentations to the client which led the client to believe that the divorce was final. The respondent also sent the client a total of $53,000 from her own funds in a series of payments in 1993 and 1994. The respondent told the client these were pension payments in order to further hide her neglect on this matter. In fact during this period the guardian received 100% of the pension payments on behalf of the husband.

In September of 1995, a telephone call from the client to a partner at the firm led to the discovery that the divorce had never been finalized. The respondent promptly acknowledged her neglect of the matter, and admitted making misrepresentations to the client. The respondent left the firm, and the client retained new counsel to represent her in concluding the divorce matter. The successor counselís fees were paid by the firm and its malpractice insurer.

Successor counselís motion to enforce the 1990 settlement agreement was denied by the Court on the basis that the husbandís guardian had not been authorized to agree to the 1990 settlement. Ultimately, successor counsel negotiated new terms, the parties entered into a settlement in July of 1997, and the divorce judgment entered.

In 1999, the client settled a malpractice action against the respondent and the firm. This settlement provided the client with monetary compensation for the delay in finalizing the divorce.

By failing to finalize the divorce, resulting in damages to her client, the respondent neglected a legal matter entrusted to her in violation of Canon Six, DR 6-101(A)(3), and failed to represent her client zealously in violation of Canon Seven, DR 7-101(A)(1), (2), and (3). By attempting to handle a legal matter which she knew or should have known that she was not competent to handle, without associating with a lawyer who was competent to handle it, the respondent violated Canon Six, DR 6-101(A)(1).

By failing to inform the client that a final judgment of divorce had not entered, and by making misrepresentations to the client which led her to believe that the divorce was final, the respondent knowingly made a false statement of law or fact in her representation of a client, in violation of Canon Seven, DR 7-102(A)(5), and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, which conduct adversely reflected on her fitness to practice law, in violation of Canon One, DR 1-102(A)(4) and (6).

The respondent, who had no history of prior or subsequent discipline, fully cooperated with Bar Counselís investigation. In mitigation, the respondent was not motivated by personal gain, and she did not profit from her misconduct. To the contrary, during the period while the respondent was neglecting the clientís case, she paid the client $53,000.00 from her own funds. At the time of the misconduct, the respondent was experiencing stress related to the serious illness and eventual death of a close friend, for whom she was serving in a caretaker role. The respondent has been in counseling since 1994. In addition, although the client faced serious potential harm, she suffered no ultimate harm given successor counselís settlement of the divorce matter, and the malpractice settlement, which compensated the client for the harm caused by the delay.

The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand. The respondent also agreed to maintain malpractice insurance in an amount acceptable to Bar Counsel for a period of at least two years, and to attend a CLE program designated by Bar Counsel on ethics and law office management. The Board accepted the partiesí recommendation and imposed a public reprimand on September 10, 2001.

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



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