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Commonwealth of Massachusetts

Public Reprimand No. 2004Ė3


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


The respondent was retained to represent a client in recovering damages for injuries allegedly sustained when the client slipped and fell on a patch of ice in the parking lot at her daughterís condominium. On April 25, 1997, the respondent sent a letter of representation to the condominium association.

On July 25, 1997, the claims manager for the associationís insurer wrote to the respondent denying liability on the part of the association. The claims manager identified the contractor who had plowed the condominiumís parking lot and wrote that the clientís claim should be sent to the contractor. The respondent never contacted the contractor.

On March 31, 2000, two days before the expiration of the statute of limitations, the respondent filed suit on behalf of his client. The respondent did not name the plowing contractor as a defendant in the law suit.

The respondent received the summonses from the court and placed them in the clientís file. The respondent never served any of the defendants with a copy of the complaint. On July 3, 2000, the clientís complaint was dismissed without prejudice for the failure to serve the defendants. The clientís claims were therefore barred by the statute of limitations. The respondent received the notice of the dismissal in due course, but he took no further action and did not notify the client that the case had been dismissed.

In early 2001, not having heard from the respondent, the client went to the respondentís office to find out the status of her case. The respondent told the client that the case had been dismissed because the respondent had failed to serve the defendants with the complaint. The respondent did not have malpractice insurance, and he and the client discussed how the respondent could resolve the situation.

On or about May 25, 2001, the respondent and the client agreed that the respondent would pay the client $6,000.00. The respondent also agreed to pay the clientís outstanding bill with a car rental company. The respondent did not advise the client in writing, or orally, that she ought to consult independent counsel.

On May 25, 2001, the respondent gave his client a check for $6,000.00 drawn on the respondentís operating account. The respondent made two payments on the car rental company bill, which left a balance of approximately $800.00. The respondent did not make any additional payments.

In early 2002, the clientís new counsel contacted the respondent. The respondent acknowledged that he owed approximately $800.00 to the car rental company and assured counsel that he would pay that bill. On or about May 1, 2002, the clientís counsel informed the respondent that the client no longer wished to settle any matters with him and intended to pursue all potential legal remedies.

The respondentís failure to serve the clientís complaint on the defendants, resulting in the dismissal of the suit and the clientís claim being barred by the statute of limitations, and his failure to contact the plowing contractor or to include the contractor as a party in the clientís suit violated Mass. R. Prof. C. 1.1 (a lawyer shall provide competent representation to a client), Mass. R. Prof. C. 1.2 (a) (a lawyer shall seek the lawful objectives of his client through reasonably available means), and Mass. R. Prof. C. 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client)

The respondentís failure to notify the client that her case had been dismissed violated Mass. R. Prof. C. 1.4(a) and (b) (a lawyer shall keep a client reasonably informed about the status of the matter and shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation).

The respondentís settlement with the client without advising her in writing that she should have independent counsel review the terms of that agreement violated Mass. R. Prof. C. 1.8(h) (a lawyer shall not settle a claim for professional liability with a former client without first advising that person in writing that independent representation is appropriate).

In mitigation, during the course of the representation, the break-up of the respondentís marriage affected his ability to concentrate and attend to his clients. The respondent has addressed these issues and is currently better able to focus on his practice. The respondent accordingly received a public reprimand for the above violations.

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

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