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Commonwealth of Massachusetts

Public Reprimand No. 2002-25


Order (public reprimand) entered by the Board September 18, 2002.


In October 1997, a client retained the respondent to represent her in a claim against her employer, U.S. Airways, arising from an injury sustained when she opened an aircraft door. Prior to retaining the respondent, the client had submitted a claim to her employer’s insurer. The insurer found that the client’s claim did not “arise out of and in the course of employment.” On January 8, 1998, the respondent filed a claim with the Department of Industrial Accident (“DIA”).

On June 4, 1998, the administrative judge of the DIA ordered the client’s employer to pay her temporary total incapacity compensation for the period commencing July 24, 1997, through October 7, 1997. The judge also ordered the employer to pay the client partial incapacity compensation for the period commencing October 8, 1997 through December 4, 1997.

On June 18, 1998, the respondent filed an appeal of the decision. After filing the appeal, the respondent received a notice from the DIA requesting payment to defray the cost for the independent medical examination (“IME”). The respondent did not submit the payment to the DIA because he believed that his client’s appeal was exempt under G.L. 152, section 11A, since he was only appealing the closed period of benefits awarded and there was no medical dispute.

The respondent made no written submission to the DIA informing them that he believed their order to be in error. On July 6, 1998, the DIA sent the respondent another notice indicating that the appeal would not be processed for scheduling with an impartial medical examiner because he had failed to submit, within 10 days of filing the appeal, the fee required to defray the cost of the medical examination. The respondent states that he telephoned the DIA and informed them of their error. The respondent again made no written submission to the DIA confirming that the IME fee was not required to perfect the appeal, but a hearing on the appeal was scheduled in due course.

Subsequently, and without the authorization of the client, the respondent on January 13, 1999, filed with the DIA a “Notification of Withdrawal of Claim or Complaint.”

The respondent’s conduct in failing to follow-up with written correspondence to correct the alleged error by the DIA and his later unauthorized withdrawal of the appeal were in violation of Mass. R. Prof. C. 1.2, 1.3 and 1.4.

On May 18, 1999, the client called the respondent to inquire about the status of her appeal. At that time, the respondent informed her that there were no grounds for an appeal, but that he had filed a new claim in a separate case for full compensation and that they would have a conciliation date with a mediator. The respondent advised the client that he would send her a copy of the new claim.

On May 26, 1999, the client telephoned the respondent because she had not received a copy of the new claim. The respondent thereafter wrote to the client, and provided her with a copy of the purported new claim. In this letter, the respondent stated, “Here is a copy of the claim filed with the Department of Industrial Accidents. I requested full benefits from the time of the decision by the Board continuing until they allow you to return to work.” Notwithstanding this letter, the respondent had not submitted the new claim to the DIA and did not submit it thereafter. On June 6, 1999, the client learned from the DIA that a new claim had not been filed.

The respondent’s intentional misrepresentation to the client concerning the filing and the status of the new claim was in violation of Mass. R. Prof. C. 8.4(c) and (h).

The respondent’s misconduct ultimately did not harm his client as she obtained the relief she sought; specifically, she returned to the position that she had held prior to her accident

In aggravation, the respondent has a prior admonition for a similar violation alleging client neglect and misrepresentation. AD No. 98-59, 14 Mass. Att’y Disc. R. 917 (1998).

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 parties’ 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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