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Commonwealth of Massachusetts

Public Reprimand No. 2002-08


Order (public reprimand) entered by the Board April 22, 2002.


On December 1, 1991 a defendant pled guilty to various criminal charges pending in the United States District Court, District of Massachusetts and was sentenced to 210 months. The respondent did not represent the defendant in that proceeding. On December 12, 1991 the defendant’s father contacted the respondent and paid the respondent $500.00 to investigate the defendant’s options. The defendant indicated that, prior to plea colloquy, his trial counsel incorrectly informed him that he would receive a sentence of 68 to 73 months. However, unknown to trial counsel, the sentencing guidelines allowed for substantial enhancement if the defendant were deemed a “career offender”. Trial counsel did not apprise the defendant of what it meant to be a career offender or the potential impact of that designation on the sentencing guidelines and the defendant claimed that he would not have agreed to the plea if he had known his sentence could be enhanced.

In January 1992 the defendant’s father paid the respondent an additional retainer. On February 20, 1992, the respondent notified the defendant by letter that he would contact trial counsel regarding the sentence issue. The respondent contacted trial counsel and, as a result, in March 1992 a course of action was agreed upon. Specifically, it was agreed that the respondent would file a petition under 28 U.S.C. § 2255 to vacate, set aside or correct a sentence of a person in federal custody.

In March 1993 the respondent sent to the defendant the last page of a form used for a §2255 petition. The form is pre-printed and requires the insertion of basic information, procedural background, grounds raised and supporting facts. On March 24, 1993, the defendant signed the last page under the pains and penalties of perjury and mailed it back to the respondent. At the time the defendant signed the form, he had general knowledge of what the contents of the petition would be, but had never seen the completed petition itself.

In April 1993, the respondent obtained an affidavit from trial counsel. Trial counsel admitted to his own lack of knowledge of the implications of the career offender status. The respondent nonetheless did not file the §2255 petition until March 1997. During the four year period prior for filing, the respondent engaged in legal research and attempted to negotiate with an Assistant United States Attorney in an effort to reduce the length of the defendant’s sentence. However, the petition that the respondent filed in March 1997 did not contain any facts or theories that would not have been available to the respondent in 1993. Primarily, the petition relied upon the affidavit of trial counsel and also argued that certain of the defendant’s prior convictions should not have been deemed “prior felony convictions” within the meaning of the sentencing guidelines.

On at least one occasion shortly before the §2255 petition was filed in March 1997, the respondent falsely informed the defendant or a family member that the petition had been filed when in fact he had not done so.

In June 1997 the respondent filed three motions for new trial in the Springfield District Court, regarding criminal convictions of the defendant that occurred in 1983 and 1984. These motions were filed after the respondent had filed the § 2255 petition and argued that the defendant did not knowingly waive his right to a jury trial in each case. The purpose of these motions was to eliminate the factual underpinnings of the career criminal status. On May 13, 1998 the Court denied the motions on the basis that the passage of time made it all but impossible to reconstruct the record and that the attorneys involved and the defendant could not credibly recall the details thirteen years later.

On October 15, 1997 the U.S. District Court denied the respondent’s §2255 petition. On February 13, 1998 the respondent filed a memorandum in support of a request for appealability (required under a 1996 federal law). The request was denied. The respondent next filed a notice of appeal to the U.S. Court of Appeals, First Circuit and requested and was granted an extension of time to file a brief to May 21, 1999. On June 1, 1999, that appeal was dismissed because the respondent did not file an appellate brief by the extended deadline of May 21, 1999. The respondent did not inform the defendant that the appeal had been dismissed.

By misrepresenting the status of the case to his client or to a family member, the respondent engaged in conduct involving dishonesty, in violation of Canon One, DR 1-102(A)(4). By filing a legal document with a tribunal which purported to be signed by his client under the pains and penalties of perjury when the respondent knew that his client had not seen the document, the respondent engaged in misrepresentation, conduct prejudicial to the administration of justice and conduct that reflected adversely on the respondent’s fitness to practice law, in violation of Canon One, DR 1-102(4), (5) and (6). By failing to file the petition to vacate the sentence for four years after he was retained to do so, by filing the motions for new trial on the 1983 and 1984 convictions only after filing the petition to vacate the sentence, and by failing to adequately communicate with his client as to the status of the client’s case, the respondent neglected a legal matter entrusted to him, in violation of Canon Six, DR 6-101(A)(3). By failing to prosecute the appeal and failing to advise his client that the appeal had been dismissed, the respondent violated Mass. R. Prof. C. 1.3 and 1.4.

In aggravation, the respondent had a prior admonition for neglect of a criminal appeal. In mitigation, during the period of the allegations of the petition, the respondent had substantial personal and financial difficulties. The respondent’s delay in filing the §2255 petition, his failure to timely file the motions for new trial in the local district court and his failure to prosecute an appeal likely caused no harm. The federal court decided the client’s case on the merits

The parties stipulated that the appropriate sanction was a public reprimand with a two-year probation agreement. On April 8, 2002 the Board of Bar Overseers voted to adopt the parties’ stipulation and proposed sanction. On April 11, 2002 the respondent received a public reprimand subject to the terms and conditions of a two-year probation agreement.

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

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