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Commonwealth of Massachusetts

Public Reprimand No. 2003-14


Order (public reprimand) entered by the Board August 20, 2003.


The respondent received a public reprimand for his conduct in three matters.

In the first matter, the respondent was retained to represent a defendant on a motion to revise and revoke that the defendant had filed pro se. The respondent was paid $1,000 toward the respondentís $5,000 flat fee by a friend of the defendant.

After a disagreement with the respondent, the defendant asked her friend to discharge him. The friend did so, and requested that the respondent refund his retainer. The respondent advised that he had worked eleven hours on the case and that he planned to charge for that work.

In December 2001, the respondent and the friend met at the respondentís office to discuss a resolution of the fee dispute. It was agreed that the respondent would refund $600. After the meeting, the respondent gave the defendantís friend a $300 check drawn from his business account and promised to issue another $300 the following week. Due to inadequate record keeping, the respondent was not aware that he did not have sufficient funds in his business account to cover the check. The friend deposited the respondentís check into his checking account on December 13, 2001, and it was returned unpaid due to insufficient funds. .

On February 11, 2002, the friend filed a small claims action against the respondent in Boston Municipal Court. The case was scheduled for trial on April 25, 2002. The respondent failed to appear, and a default judgment in the amount of $1,019 entered against him. The respondent filed a motion to vacate judgment and the motion was allowed on June 5, 2002. On July 8, 2002, the court found in favor of the plaintiff and entered judgment in the amount of $600. The respondent was ordered to pay the plaintiff by September 8, 2002.

By failing to timely refund an unearned legal fee as agreed, the respondent violated Mass. R. Prof. C. 1.16(d) and 8.4(h).

In the second matter, the respondent was retained to represent a defendant on criminal charges pending in district court. The defendant had qualified for appointed counsel but chose to retain private counsel. The case went to trial in June 2000. The defendant was found guilty and sentenced to 2 Ĺ years in the house of correction from and after the sentence that he was serving on an unrelated matter, plus 2 years in the house of correction suspended for 6 years. The respondent advised the defendant that he would not handle an appeal, but the defendant misunderstood what he was told.

From the date of his conviction through November 2000, the defendant repeatedly telephoned and wrote the respondent requesting that notice of appeal be filed. The respondent did not reply to any of the calls or letters and did not file a notice of appeal with the trial court within 30 days of the date of conviction as required by Rule 30(B) of the Rules of Appellate procedure. He also failed to file a motion to withdraw as the defendantís attorney.

On or about December 26, 2000, the defendant filed a pro se notice of appeal. On January 5, 2001, the respondent filed a motion for enlargement of time to file a notice of appeal, a motion to withdraw and a request for appointment of appellate counsel. The court allowed these motions on January 24, 2001 and assigned the Committee for Public Counsel Services to represent the defendant.

The respondentís failure to respond to the defendantís telephone calls and letters seeking post-conviction assistance, coupled with his failure to file the notice of appeal together with a motion to withdraw and request for the appointment of appellate counsel, was in violation of Mass. R. Prof. C. 1.1, 1.2(a), 1.3 and 1.4(a) and 1.16(c).

In the third matter, the respondent applied to the Committee for Public Counsel Services on August 18, 2002, for approval to accept appointments to represent indigent criminal defendants. As part of the application, the respondent was asked

ďAre there any charges or complaints now pending before any court or agency concerning your conduct as an attorney or member of any other profession, or as a holder of public office?Ē

Prior to signing the application, the respondent had been in discussions with Bar Counsel regarding Bar Counselís proposed recommendation for discipline in the first two matters described in this summary. However, the respondent made no effort to ascertain whether these pending matters constituted ďcharges or complaintsĒ within the meaning of the question on the application. The respondent negligently determined that, because no petition for discipline had been filed at the time he signed the application, the pending matters at the Office of Bar Counsel were not charges or complaints within the meaning of the question. He improperly answered ďNoĒ to the question and then signed the application with a certification that the information that he provided was true and correct. The Committee for Public Counsel Services was in fact not misled by the incorrect response to the question because it was already aware that complaints were pending against the respondent

By negligently misrepresenting to the Committee for Public Counsel Services that there were no complaints pending against him at the Office of Bar Counsel, the respondent violated Mass. R. Prof. C. 8.4 (h).

The respondent has been a member of the bar since 1995. He has no prior history of discipline.

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

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