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Commonwealth of Massachusetts

Public Reprimand No. 2003-8



IN RE: MARC B. LUCIER

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

SUMMARY1


The respondent was retained in April 2001 to represent a client on a contingent fee basis in a claim arising out of a fall on the ice at an automobile dealership. The client’s injuries were serious, but liability was problematic.

On or before October 12, 2001, the insurer for the dealership made an offer to settle the client’s claim for $30,000, plus payment of the lien of medical insurer in the amount of $8,541. The respondent recommended that the client accept the offer.

The client was concerned with the amount of the offer and, on October 12, 2001, consulted another attorney for a second opinion. The second attorney believed that she had been retained as successor counsel and, on or about October 18, 2001, spoke with the respondent concerning the case. The client then advised the second attorney that she did not wish to retain her. The second attorney left a message to this effect for the respondent on October 19, but he did not receive it.

The respondent wrote to the client on October 29, 2001, stating that he was withdrawing from the case because she had retained new counsel and because she would not follow his advice. The letter further noted that invoices for medical records remained unpaid and enclosed a purported “Notice of Attorney’s Lien” pursuant to G.L. c. 221, § 50. The respondent did not know that this statute in fact was not applicable because no suit had been filed.

The client replied to the respondent by letter dated November 1, 2001, stating “In your letter of October 29 when you resigned, you referred to payments owed to you. I am requesting an itemized bill...” This letter further requested that the respondent clarify the previous offers from the insurer.

On November 2, 2001, the respondent learned that the second attorney was not representing the client. On November 13, 2001, the respondent replied to the client’s letter of November 1, 2001, explaining the settlement offer and asking if she wished him to try to increase the settlement offer since the second attorney was not representing her.

On November 15, 2001, the respondent returned a call to the adjuster for the insurer. The respondent had not previously notified the insurer that he had withdrawn or that his services had been terminated, and he did not advise the adjuster of that fact when they spoke and instead continued to negotiate on the client’s behalf.

On November 24, 2001, the client replied to the respondent’s letter of November 13, 2001, reiterating that the respondent had withdrawn and should send her a bill.

In mid December 2001, the adjuster for the insurer again contacted the respondent. The respondent still had not notified the insurer that he had withdrawn or that his services had been terminated and he did not advise the adjuster of that fact when they spoke on December 18, 2001. After a lengthy telephone conversation with the respondent, the adjuster increased the offer of settlement to $54,000, including all liens.

On December 28, 2001, the respondent wrote to the client, indicating that the insurer had increased the settlement offer to $54,000. The letter continued “I fear that if I were to advise them at this stage that you have discharged me, the offer would be reduced or revoked…I do not want to prejudice your position, therefore, unless I hear from you to the contrary, I will not advise the company at this time that I do not represent you...”

On January 2, 2002, the client called the insurer to advise the adjuster that the respondent had resigned as her attorney. On January 3, 2002, the client wrote to the respondent confirming that he had resigned and that she was once again requesting a bill as to any payments owed.

On January 10, 2002, after being advised by the insurance adjuster that the client had informed the insurer that the respondent did not represent her, the respondent sent the insurer an “updated Attorney’s Lien pursuant to M.G.L. c.221, §50” in the amount of $18,000 (one-third of $54,000).

On January 15, 2002, the respondent filed suit (“the first suit”) and obtained an ex parte real estate attachment against the client. In the civil complaint, the respondent claimed to be owed a fee of one-third of $54,000 in accordance with the contingent fee agreement. The client retained successor counsel to represent her. Successor counsel filed a motion to dismiss in the first suit, which was denied.

On January 29, 2002, the client filed a complaint against the respondent with Bar Counsel and the Board of Bar Overseers. Bar Counsel sent a letter to the respondent, notifying him of the complaint, on February 7, 2002.

On February 21, 2002, the respondent filed another lawsuit (“the second suit”) against the client’s successor counsel, claiming unfair and deceptive trade practices, economic extortion, interference with a contractual relation and interference with prospective advantage.

Successor counsel retained counsel in the second suit. The respondent also retained an attorney to represent him in the first suit. In late February 2002, the parties tentatively agreed to a settlement, by the terms of which the respondent would be paid $14,500. The settlement negotiations broke down in early March, and the settlement was not concluded, at least in part because the respondent on March 1, 2002, required that the client sign a release “relative to the BBO matter.” After further discussions among counsel, the matter was finally settled with a payment to the respondent of $14,500 in or about March 27, 2002. The client on March 30, 2002, signed a release that specifically excepted the BBO matter.

The respondent’s conduct in failing to withdraw as the client’s counsel after termination of his services, in failing to notify the insurance company and advise the adjuster that his services had been terminated, and in negotiating an offer of settlement of the client’s claim after his services had been terminated, was in violation of Mass. R. Prof. C. 1.16(a)(3) and 1.7(b).

The respondent’s negligent claim to be entitled to a lien for fees pursuant to G.L. c. 221, § 50, when he had not filed a lawsuit on behalf of the client, was in violation of Mass. R. Prof. C. 8.4(h).

The respondent’s inclusion in the March 2002 settlement negotiations of a requirement that the client withdraw her complaint to the Bar Counsel and Board of Bar Overseers as a condition of settlement was in violation of S.J.C. Rule 4:01, § 10, and Mass. R. Prof. C. 8.4(d),(h).

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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