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Commonwealth of Massachusetts

Public Reprimand No. 2002-2


Order (public reprimand) entered by the Board January 29, 2002.


The respondent was admitted to the Bar of the Commonwealth in 1979. He received a public reprimand with conditions of probation for misconduct set forth in a two-count petition for discipline, as follows.

The first count arose from Bar Counselís receipt in 1997 of two notices of dishonored checks from the bank in which the respondent maintained his IOLTA account. The respondentís record keeping in his IOLTA account throughout 1996 and 1997 was generally inadequate. Individual client ledgers were not maintained; retainers were sometimes withdrawn, often by ATM, without reference to bills to clients or even to particular client matters; and the account was not reconciled. As a result of these problems, the respondent made assumptions, sometimes incorrectly, as to whose funds comprised the balance in the account and how much was due the respondent. The consequence of these record keeping problems was that the respondent on two occasions negligently paid himself funds that should have remained in the account, leading to the deficiencies that caused the two checks to be returned unpaid. The respondent immediately deposited funds to enable the checks to clear upon redeposit.

In addition, the respondent mishandled the trust account in several other instances. In one matter, the respondent received a retainer of $7500 from a client, $5000 of which was then unearned. He inadvertently deposited the entire sum to an operating or personal account. After the client decided to retain other counsel, the respondent mistakenly repaid the client $5000 from the IOLTA account. In a second matter, the respondent settled his own personal injury claim for $20,000. The $20,000 settlement check arrived and was deposited, improperly, to the IOLTA account on October 15, 1996. On October 8, 1996, and prior to the receipt of the settlement check, the respondent negligently paid himself $8000 of the expected settlement by check from his IOLTA account to his operating account. The respondent paid the $12,000 remaining balance to himself and his creditors in late October and early November 1996. The respondent nonetheless believed incorrectly that he had not withdrawn the full balance of his settlement proceeds, and several months later, withdrew a further $2200 that he attributed in his records to his personal injury settlement. In both matters, the overpayments were covered with other funds in the IOLTA account that were due or would subsequently become due to the respondent.

The respondentís conduct in Count One constituted commingling and inadequate and improper record keeping in violation of Canon Nine, DR 9-102(A),(B)(3),(4).

The second count arose from errors of omission and commission made by the respondent in a medical malpractice case. The clients, mother and son, retained the respondent to investigate and pursue a medical malpractice claim arising out of the cancer death of their husband and father in March 1993.

The wife and her deceased husband were residents of Connecticut, as was the defendant doctor. The son, however, was a resident of Massachusetts. The respondent was aware that suit would have to be filed in Connecticut, but mistakenly believed that the addition of the son as a plaintiff would provide diversity jurisdiction in federal court. The respondent was also unaware that loss of consortium claims in Connecticut can only be filed on behalf of the spouse and thus that the son had no cause of action. The respondent therefore filed suit on behalf of both clients and filed the suit in the U.S. District Court for the District of Connecticut. His conduct in this respect constituted inadequate preparation, in violation of Canon Six, DR 6-102(A)(2).

The respondent in addition entered an appearance and filed suit on behalf of the clients without familiarizing himself with the local rules of the U.S. District Court and thus without being admitted as a visiting attorney or associating with an attorney who was both a member of the bar of that court and had an office in Connecticut. His conduct in this respect was in violation of Rules 2(d)(1) and 2(c)(1) of the local rules and constituted inadequate preparation and conduct prejudicial to the administration of justice, in violation of Canon Six, DR 6-102(A)(2) and Canon One, DR 1-102(A)(5). This problem was corrected after a motion to dismiss was filed when the respondent, who had already retained co-counsel, became a member of the of the Bar of the U.S. District Court for the District of Connecticut.

Prior to his own admission to the bar of the U.S. District Court, the respondent signed co-counselís name to an amended complaint under the mistaken belief that he had general authority to do so and without reviewing the pleading with co-counsel. This conduct was in violation of Rule 11(a) of the Federal Rules of Civil Procedure and constituted inadequate preparation and conduct prejudicial to the administration of justice, in violation of Canon Six, DR 6-102(A)(2) and Canon One, DR 1-102(A)(5).

In the spring and summer of 1997, the clients realized that litigation expenses would be substantial and decided that they did not wish to go forward with the lawsuit and that they did not wish the respondent to attempt to find a larger firm to take over as counsel. The respondent advised the clients that he would dismiss the case and that he would require them to pay the $1501 in expenses incurred for which they had not paid him. Before the stipulation of dismissal was filed and while the respondent was still counsel of record for the clients in the U.S. District Court, the respondent filed a small claims court action to collect his costs. This conduct was a conflict of interest in violation of Canon Five, DR 5-101(A).

In aggravation, the respondent has a prior public censure from 1993 for unrelated misconduct arising out of a 1991 incident when he was an assistant district attorney.

This matter came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand, conditioned upon satisfactory completion of a one-year financial probation agreement and attendance at a CLE course designated by Bar Counsel. 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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