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Commonwealth of Massachusetts

Public Reprimand No. 2002-013


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


On or about August 13, 1996, the respondent was appointed to represent an incarcerated defendant in the appeal of his criminal convictions. The respondent initially communicated with the defendant regarding the status of the appeal, but he failed to reply to four letters that the defendant wrote to him between January and mid-March 1998. The respondent finally replied to the defendantís fifth letter sent to him on March 30, 1998, and falsely denied receipt of any of the defendantís previous letters.

The appeal was entered into the Appeals court on July 22, 1998, and the defendantís brief was due by August 31, 1998. Although the respondent mailed a copy of the transcripts to the defendant on or about July 21, but otherwise failed to visit or communicate with him prior to the filing deadline. The defendant wrote to the respondent on September 2, 1998, after the brief was due, and asked the respondent if his brief had been filed or if the respondent had requested an extension of time to file. Upon receipt of the letter, on or about September 8, 1998, the respondent visited the defendant and advised the defendant that after, a review of the transcripts, he saw no valid appellate issues. At the defendantís request, the respondent agreed to review the case again. That same date, the respondent filed a motion for an extension of time to file an appellate brief. The motion was allowed by the court on September 10.

On or about September 11, 1998, the respondent wrote to the defendant stating that after further review, he still saw no issues for appeal and therefore could not ethically file a brief. Rather than advising the client of his right to file a brief pursuant to the guidelines established in Commonwealth v. Moffett, 383 Mass. 201, 203-209 (1981), the respondent advised the defendant to contact the Committee for Public Counsel Services if he wished the matter to be reviewed by another attorney. The respondent also stated that if he heard nothing further from the defendant within ten days, he would consider the matter closed. The defendant did not receive the respondentís letter.

The respondent never filed a brief on behalf of the defendant and never filed a motion to withdraw as the defendantís attorney. The defendantís appeal was dismissed on November 19, 1998, pursuant to Massachusetts Appeals Court Standing Order 17A. The respondent did not advise the defendant of the dismissal and did not reply to the several attempts that the defendant made to contact him between October 1998 and April 1999.

In or around July 1999, the defendant obtained a copy of the docket entries for his case and learned that his appeal had been dismissed. He contacted the Office of Bar Counsel and the Committee for Public Counsel Services about the matter. The Committee for Public Counsel Services appointed new counsel to represent him on October 26, 1999, and the appeal was reinstated on November 8. Thus, the defendant suffered no ultimate harm. His appeal was denied on the merits on December 22, 1999.

The respondentís conduct in failing to make a timely visit to the client to discuss the appeal, failing to advise the client of his rights pursuant to Commonwealth v. Moffett, failing to file a motion to withdraw and allowing the clientís appeal to be dismissed without the clientís express consent, failing to advise the client that the appeal had been dismissed, failing to reply to the clientís letters and telephone messages and falsely denying receipt of the clientís letters, violated Mass. R. Prof. C. 1.3, 1.4(a)(b), 1.16(c) and 8.4(c), (h).

The respondent has been a member of the bar since 1989. In aggravation, he received an admonition in 1996, for violations of the Attorney Generalís Debt Collection Regulations and Canon One, DR 1-102(A)(5). In mitigation, the respondentís practice was disrupted and he fell behind in his work during the spring of 1997, when he moved from his practice to a law firm and was assigned a large caseload.

The respondent received a public reprimand 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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