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Commonwealth of Massachusetts

Public Reprimand No. 2003-12


Order (public reprimand) entered by the Board July 18, 2003.


In June 1998, a client retained an attorney to represent him in a claim arising out of automobile accident on November 11, 1997. The accident occurred in an intersection and each driver blamed the other for going through a red light. The client did not seek treatment for his claimed soft tissue injuries until one month after the accident. Although his attorney obtained personal injury protection benefits from the clientís insurer for chiropractor treatments, the insurance company for the other driver denied that any injury was causally connected to the accident and declined to settle the matter.

In early November 2000, the clientís attorney referred the client to the respondent for purposes of filing a lawsuit. On November 9, 2000, on the eve of the expiration of the statute of limitations, the respondent filed suit in the Somerville District Court. The complaint contained three counts, one count against the other driver for negligence, a second count for intentional infliction of emotional distress and a third count against the insurance company for unfair settlement practices in violation of G.L. c. 93A. However, prior counsel had not previously sent a demand letter as required by statute as a prerequisite to filing suit for the claims against the insurer.

Before filing the lawsuit, the respondent was aware that the address on the accident report for the other driver was no longer valid. The respondent attempted to locate the other driver, but did not obtain a current address until February 9, 2001. In the interim, the respondent did not serve either defendant with a copy of the complaint and summons or arrange for substituted service on the Registry of Motor Vehicles as provided in G.L. c. 90, sec. 3D.

On February 9, 2001, the respondent obtained a current address for the defendant driver from the insurance carrier and, on February 10, 2001, he caused a copy of the complaint and summons to be served on the other driver. The summons was returned to the court on February 12, 2001. The respondent never served the defendant insurance carrier because he determined that the claim was not viable absent a demand letter.

Service of process on the other driver was made three days after the expiration of the ninety-day period allowed for service. During the ninety-day time period, the respondent failed to file a request for extension of time for service.

On April 12, 2001, the attorney for the other driver filed a motion to dismiss pursuant to Mass. R.Civ. Proc. 4(j) and placed the matter on the motion list for April 25, 2001, with notice to the respondent. The respondent did not appear on April 25, 2001 or file any opposition. On April 25, 2001, the motion was allowed and notice sent to the respondent. On June 30, 2001, the respondent filed a motion to vacate the dismissal and for an extension of time to serve the complaint and summons nunc pro tunc. On July 11, 2001, the respondentís motion was argued and denied. On July 16, 2001, the Court sent notice of the dismissal to the respondent. The respondent did not timely send the client notice of the dismissal or notice that his motion to vacate dismissal had been denied.

The respondentís failure to serve the complaint or to request an extension of time for service of process within the ninety-day period and his failure to appear and argue against the defendantís motion to dismiss was in violation of Mass. R. Prof. C. 1.3. The respondentís failure to notify his client that his case had been dismissed and that his motion to vacate dismissal had been denied was in violation of Mass. R. Prof. C. 1.4.

In aggravation, in August 1999, the respondent received an admonition in two unrelated files for mismanagement of his IOLTA account and handling a medical malpractice case that he was not competent to handle.

After the complaint was filed with Bar Counsel, the respondent obtained malpractice insurance. He is also focusing his practice in an area of law in which he is more experienced.

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 partiesí 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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