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Commonwealth of Massachusetts

Public Reprimand No. 2004-002



MICHAEL A. FITZ

Order (public reprimand) entered by the Board February 13, 2004.

SUMMARY1


In September 1997, the respondent was retained to represent a client in a personal injury claim resulting from her fall in a supermarket in Holyoke Massachusetts. A contingent fee agreement was signed on September 27, 1997. The respondent advised the client that he would attempt to settle her claim with the supermarketís insurer and that if the insurer were not amenable to a settlement, they would discuss what if any further action should be taken.

The insurer denied liability by a letter to the respondent dated November 7, 1997. When the respondent informed the client of the insurerís position, the client advised the respondent that she wanted to file suit. The respondent told her that he would contact the insurance adjuster again and attempt to convince her to reconsider her decision.

After obtaining a final medical report from the clientís medical provider, the respondent attempted to contact the insurance adjuster by telephone in January or February 1998. He was unable to reach the adjuster. The respondent took no further action to pursue the matter and never filed suit on behalf of the client.

The client contacted the respondent in August 12, 2002 to inquire about the status of her claim. The respondent arranged to meet with her on September 9, 2002. At the meeting, the respondent informed the client that he had not filed suit on her behalf and that the statute of limitations had expired. The respondent offered to pay her outstanding medical bills and to reasonably compensate her for her injuries. He also informed her that she could bring a malpractice action against him. Both parties then retained counsel and a settlement was negotiated whereby the respondent agreed to pay the client $3,000.00 plus the outstanding medical bills.

The respondentís failure to file suit on behalf of the client prior to the expiration of the statute of limitations and his termination of representation of the client without informing her that he did not intend to pursue her claim, violated Mass. R. Prof. C. 1.2(a), 1.3, 1.4 and 1.16 (d).

The respondent has been a member of the bar since 1983. In aggravation, he received an informal admonition in 1988, for neglect of a personal injury case, failure to return a file, failure to have a written contingency fee agreement and for misrepresentations to the client and to Bar Counsel. He received a second informal admonition in 1990 for lack of diligence in obtaining a closing letter from the Department of Revenue following a real estate sale involving an estate. He then received an admonition in 1995 for operating a corporate real estate business without obtaining the proper license and for violating other statutes regulating the conduct of real estate brokers.

The respondent received a public reprimand for his conduct in this matter.

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



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