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Commonwealth of Massachusetts

Public Reprimand No. 2003-7



JOHN F. FOLEY, JR.

Order (public reprimand) entered by the Board June 19, 2003.

SUMMARY1


On August 30, 1995, Baybank instituted a civil action against the respondent's client to collect a deficiency judgment from the foreclosure sale of two properties in Somerville, Massachusetts. Between September 1995 and August 1998, the client represented himself pro se in the matter.

On September 28, 1995, the client filed an answer. On October 10, 1995, the client filed a counterclaim against the bank. On June 26, 1996, the client filed an amended answer and counterclaims against the bank. In his counterclaims, the client alleged in substance that the foreclosures were done improperly, that the values of the properties were higher than the bank had appraised at the time of the foreclosures, and that the bank had acted improperly in failing to renew his loans secured by mortgages on the properties.

The client engaged the respondent on August 6, 1998, to represent him in the matter and, by September 21, 1998, paid the respondent a retainer of $2,500.00. On September 21, 1998, the respondent filed an appearance on behalf of the client in the civil action and a motion to extend discovery.

On May 18, 1999, the bank filed the summary judgment motion and supportive pleadings with the court in conformance with Superior Court Rule 9A and served a copy on the respondent. The respondent did not notify the client that the summary judgment motion had been filed. The respondent concluded from the bank’s pleadings that the client did not have a defense to the civil action and that his counterclaims were frivolous, but he did not advise the client of these conclusions or ask the client how he wished to proceed.

On June 15, 1999, the bank filed another affidavit of compliance with Rule 9A in the court certifying that no opposition had been received to the bank's motion for summary judgment. The respondent took no action in response to this affidavit. On August 31, 1999, the court allowed the bank’s motion for summary judgment and notified the parties accordingly. The respondent did not notify the client that the summary judgment motion had been allowed.

On or about September 3, 1999, the court notified counsel of record that a hearing on assessment of damages would be held on September 16, 1999. The respondent did not notify the client of the scheduled hearing. On September 16, 1999, neither the respondent nor the client appeared in court for the hearing on assessment of damages. On September 16, 1999, the bank filed in court motions for assessment of damages with supporting documentation seeking $64,261.17 in damages on Count One and $110,887.45 in damages on Count Two of the bank's complaint. The court took the matter under advisement. The respondent received the motions and the bank’s claim for damages, but he did not advise the client of the motions and took no action to oppose the motions.

On October 22, 1999, the court notified all counsel that a hearing on assessment of damages would be held on November 17, 1999. The respondent did not notify the client of the scheduled hearing, and neither the respondent nor the client appeared at the hearing. On November 29, 1999, the court allowed the bank's motions for assessment of damages and so notified counsel of record. The respondent did not notify the client of the court's orders. On December 29, 1999, the court entered judgment for the bank in the amount of $64,261.17 on Count One and $110,887.45 on Count Two of the bank's complaint. The respondent did not notify the client that judgment had entered against him.

Between February 1999 and February 2000, the client repeatedly contacted the respondent to inquire about the status of the case, but the respondent failed to reply to the client’s inquiries. On February 15, 2000, the client went to the court and learned that his case had been dismissed. On March 15, 2000, the client filed a pro se motion for relief from judgment and stay of execution of judgment, which was denied on May 19, 2000.

By failing to provide competent representation to his client, to seek the lawful objectives of his client, to act with reasonable diligence and promptness in representing his client, and to adequately communicate with his client, the respondent violated Mass. R. Prof. C. 1.1, 1.2(a), 1.3, and 1.4(a) and (b). By withdrawing from representation without obtaining permission from the tribunal and without taking reasonable steps to protect his client's interests, the respondent violated Mass. R. Prof. C. 1.16(c) and (d).

The respondent was admitted to practice in 1980. The respondent maintained professional liability insurance.

In aggravation, the client suffered serious harm as a result of the respondent's misconduct. While the damages involved were for the amount of the deficiency, the client lost his ability to negotiate with the lender and mitigate his losses.

The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for discipline. The Board accepted the parties’ recommendation and imposed a public reprimand, subject to conditions that the respondent continue to maintain professional liability insurance with limits of liability of at least $250,000 for each claim and $500,000 in the aggregate for all claims for a period of two years, and that he attend a continuing legal education program designated by Bar Counsel on the subject of legal ethics.

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



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