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Commonwealth of Massachusetts

Public Reprimand No. 2002-4



IN RE: DONALD J. BONGIOVI

Order (public reprimand) entered by the Board March 7, 2002.

SUMMARY1


In September 1992, the respondent was retained to represent a client in a worker’s compensation matter against an uninsured employer and the Workers' Compensation Trust Fund. In early 1993, the respondent negotiated a private settlement with the employer in the amount of $31,000.00. The client was to receive an initial payment of $5,000.00 plus additional weekly payments of $500.00 for a period of one year. The claim against the trust fund was then settled for a lump sum payment of $1.00 plus payment of outstanding medical bills. Attorney’s fees were to be taken from the initial $5,000.00 payment. The respondent received 15% of the total settlement minus $500.00 which he paid to the client’s former attorney. The client received the remaining balance of $350.00.

The employer’s weekly payments became sporadic, and client contacted the respondent for assistance. In July 1994, the respondent filed a request for enforcement of the judgment with the Department of Industrial Accidents, but was advised that the Department had no enforcement powers over the contract between the client and his employer. The respondent then filed an action in district court seeking judgment against the employer for the outstanding $6,500.00 due to the client. In August of 1996, he received a judgment in the amount of $7,155.40, which included costs and attorneys fees. The respondent obtained a writ of execution in October 1996, and informed the client that he planned to retain a constable to seize the employer’s accounts to insure payment. However, the respondent failed to take any action to find and attach assets.

The client made repeated telephone calls to the respondent between January and August of 1998, to determine the status of the matter. The respondent failed to return the calls. The client therefore contacted the Office of Bar Counsel. The respondent did not provide any explanation to Bar Counsel for the lengthy delay in the matter, but, resumed action by attempting to locate the employer’s assets and to retain a constable to seize them. He located a checking account belonging to the employer which held approximately $6,300, and in August 1998, he sent the writ of execution to the Suffolk County Sheriff. The Sheriff returned the writ of execution to the respondent because the request for action was not in the correct form. After receiving the documents back from the Sheriff, the respondent took no further action until September 2001, when he reached a settlement with the client. In exchange for an assignment of claim from the client, the respondent paid him $2000.00 to be followed by 12 monthly installments of $512.70.

The respondent’s failure to take action to locate and attach the defendant’s assets after obtaining a judgment and execution and his subsequent failure to file suit on the judgment and obtain trustee process after locating an asset caused harm to the client and constituted violations of Canon Six, DR 6-101(a)(3), Canon Seven, DR 7-101(a)(1), (2) and (3), and Mass. R. Prof. C. 1.2(a) and 1.3. The respondent’s failure to advise his client about the status of the matter and his failure respond to his client’s letters and telephone inquiries was in violation of Canon Six, DR 6-101(a)(3) and Mass. R. Prof. C. 1.4. Further, the respondent failed to discount his contingent fee based on the present value of the structured settlement and took the entire fee from the initial payment. Alternatively, he failed to adjust his fee to take into account the uncollected settlement funds. Thus the respondent charged the client an excessive fee in violation of Canon Two, DR 2-106.

The respondent has been a member of the bar since 1982. He has no history of discipline. In mitigation, the respondent was going through a difficult separation and divorce from his wife and law partner from the spring of 1997, through the summer of 1999, requiring him to change residence three times during that period. His difficult family situation and the dissolution of his law partnership affected his practice and caused him to have difficulty keeping up with his long term cases.

The respondent received a public reprimand for his conduct in this matter conditioned upon his attendance at a CLE course designated by Bar Counsel.

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



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