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Order (public reprimand) entered by the Board October 30, 2001.


In October 1995, and after his motion to suppress had been denied, a defendant pled guilty to drug offenses in the United States District Court. He reserved his right to appeal the denial of the motion. The respondent was retained by the defendantís mother in September 1996 to handle the defendantís appeal to the First Circuit Court of Appeals.

The defendant had specifically requested to see a copy of the appellate brief before it was filed with the court. However, the respondent did not send the defendant a copy of the brief until after he filed it in court on September 22, 1997, the filing deadline.

In lieu of a reply brief, the government filed a motion for summary dismissal of the appeal. The respondent decided not to file an opposition because he believed that he had adequately addressed the defendantís issues in his appellate brief and that filing a response would lend credibility to the governmentís position. He did not discuss this strategy with the defendant and did not send him a copy of the governmentís motion. When the respondent had not received notice of a hearing date by December 1997, he contacted the court and learned that the appeal had been denied without argument. The respondent did not notify the defendant of the outcome.

In January, February and March 1998, the defendant wrote to the respondent and telephoned his office several times regarding the status of his appeal. He repeatedly requested that the respondent send him a copy of the governmentís brief. The defendant received no reply to his calls and letters. It was only when the defendant wrote to the court clerk in the spring of 1998 that he learned that the government had filed a motion for summary disposition of his appeal, that the respondent had filed no opposition, and that the appeal had been denied without hearing in December 1997.

The defendant attempted to pursue further review of his appeal. He filed a pro se motion to extend time to file a motion for rehearing of the appeal. The appeal was of doubtful viability, however, and the defendantís motion was denied without a hearing.

In the fall of 1998, the defendant requested a copy of his file from the respondent. He received it in January 1999, and found four unopened letters that he had written to the respondent between January and April 1998.

By failing to provide the defendant with a copy of his appellate brief before it was filed or to provide him with a copy of the governmentís motion for summary disposition; by failing to open, read and respond to the defendantís letters or to explain his defense strategy to the defendant; and by failing to notify the defendant that the appeal had been denied, the respondent violated Canon Six, DR 6-101(A)(3), and Mass. R. Prof. C. 1.2 (a), 1.3, and 1.4(a) and (b).

The respondent is a sole practitioner admitted to practice in 1982. In mitigation, the respondent was frequently away from his practice during this time period because of the serious illnesses of his elderly parents. In aggravation, he received an admonition in 1995 for failing to respond to communications from a client after withdrawing from a case and for failing to cooperate with Bar Counsel.

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 partiesí recommendation and imposed a public reprimand.

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

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