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Commonwealth of Massachusetts

Public Reprimand No. 2004-007


Order (public reprimand) entered by the Board April 26, 2004.


On November 13, 1995, a client retained a law firm to handle her claims for personal injury arising out of an automobile accident that occurred on November 13, 1994. The respondent is a partner in the firm and beginning in January 1996, he undertook responsibility for the case and made all substantive decisions, including decisions with respect to choice of forum and the timing of the filing of a civil complaint.

On November 12, 1997, just prior to the expiration of the Massachusetts three-year statute of limitations, the respondent filed suit in Massachusetts in the Superior Court. The complaint alleged that, on November 12, 1994, a K-Mart automobile service department in Erie, Pennsylvania failed to tighten the lug nuts on the rear left wheel of the client’s automobile, causing her to lose control while driving through New York State and that, as a result, she sustained bodily injuries.

K-Mart is organized under Michigan law. The Erie store is incorporated in Pennsylvania. K-Mart had a resident agent in Massachusetts, the agent was duly served and K-Mart answered the civil complaint filed by the respondent.

At the time of the accident, the client was in the process of moving to Massachusetts from Pennsylvania and was driving to Massachusetts from Pennsylvania for that purpose. On and after November 14, 1994, the client was domiciled in Massachusetts and received all treatment for her personal injuries while domiciled in Massachusetts.

Pennsylvania has a two-year statute of limitations for negligence and other tort claims. Under Pennsylvania law, there existed no cause of action for breach of warranty, and no claims for unfair or deceptive acts or practices, in the circumstances of the case.

On February 2, 1999, after conducting discovery, K-Mart filed motions for summary judgment on four of six of the counts, arguing in pertinent part that Pennsylvania law governed. On May 26, 1999, the Superior Court dismissed the four claims based in tort, but not two counts alleging breach of contract. The tort claims were dismissed in part on the basis that, under choice of law analysis, Pennsylvania, not Massachusetts, had a more significant relationship to both the occurrence and the parties and that the claims were not timely or did not exist under Pennsylvania law.

On September 5, 2000, just prior to a scheduled trial, K-Mart filed a number of motions in limine. On September 6, 2000, the Superior Court ruled that contract damages (in the amount of $63.48) had been paid by the defendant, that the plaintiff was precluded from presenting evidence of personal injuries, and that there was nothing left to try before a jury. The Court found that the respondent could not avoid Pennsylvania’s statutory two-year limitation period with respect to the tort claims for personal injuries simply by pleading breach of contract. The Court dismissed all remaining contract claims.

On September 15, 2000, the respondent filed a notice of appeal. The appeal was perfected and briefs filed. On January 22, 2002, prior to oral argument, the appeal was stayed as a result of K-Mart’s filing a suggestion of bankruptcy.

Before filing the client’s civil claim in Massachusetts, the respondent researched the substantive law of Pennsylvania, but failed to research the Pennsylvania tort statute of limitations or the question of which statute of limitations would apply to this case. The respondent should have commenced the civil claim within two years of the date of the accident in order to avoid any potential for dismissal based on the Pennsylvania limitations period. The respondent also failed to inform his client of the advantages and disadvantages of filing suit in Pennsylvania or of filing suit in Massachusetts within the two-year Pennsylvania limitations period.

The issue of the applicable limitation period is currently on appeal with the Massachusetts Appeals Court. The respondent retained bankruptcy counsel who has diligently pursued relief from the automatic stay.

The respondent’s failure to file suit within the two-year Pennsylvania statute of limitations period constituted inadequate preparation and neglect of a legal matter, in violation of Canon Six, DR 6-101(A)(2) and (3). The respondent’s failure to consult with the client concerning his decision to file suit in Massachusetts, and his decision not to file suit within two years from the date of alleged negligent act, constituted inadequate client communication, in violation of Canon Six, DR 6-101(A)(3).

In aggravation, the respondent received an admonition on July 2, 2001, for failing to adequately communicate with his client that G.L. c. 152, §35 (“temporary partial” disability) benefits in a worker’s compensation claim would only be paid for four years. AD 01-37, 17 Mass. Att'y Disc. R. (2001). He also received an admonition in 1998 for inadequate record keeping and failure to promptly remit an unearned retainer upon discharge. AD 98-65, 14 Mass. Att'y Disc. R. 930 (1998).

This matter came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand. On April 12, 2004, the Board of Bar Overseers voted to adopt the parties’ stipulation and proposed sanction 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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