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Commonwealth of Massachusetts

Public Reprimand No. 2004-9



STEVEN L. WINNIMAN

Order (public reprimand) entered by the Board May 20, 2004.

SUMMARY1


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

In the first matter, the respondent represented a defendant in pending civil litigation. On September 1, 1998, the respondent filed a third-party complaint against the clientís insurer as a result of the insurerís failure to defend or indemnify his client. On June 23, 1999, the insurance company filed a motion for summary judgment. The respondent did not advise his client that the motion was filed and failed to file any opposition to the motion. On July 6, 1999, the motion for summary judgment was allowed. The respondent did not advise his client of this outcome.

The respondent also failed to file answers to the plaintiffís requests for production of documents and interrogatories in the original suit against the client. As a result of this nonfeasance, judgment entered against the respondentís client on October 21, 1999. The respondent did not advise his client that judgment had entered against him.

On December 17, 1999, the opposing party filed a motion for approval of a real estate attachment against the clientís property. The respondent did not advise his client that the motion was filed and failed to file any opposition to the motion. An attachment of $500,000.00 was granted. On January 28, 2000, the client was served with the writ of attachment.

After being served with the writ of attachment, the client retained successor counsel. On February 15, 2000, successor counsel filed a motion for relief from the October 21, 1999 judgment, which was allowed on February 17, 2000. On April 11, 2000, successor counsel filed a motion for relief from the summary judgment entered on July 6, 1999. The motion was allowed on November 22, 2000, and the claim against the insurance company was reinstated. Successor counsel then successfully defended the original case at trial. All claims against the client were dismissed.

The respondentís lack of diligence, his failure to protect his clientís interests, and his failure to keep his client informed about the status of the matter were in violation of Mass. R. Prof. C. 1.3 and 1.4.

In a second matter, the respondent represented a client in a criminal matter pending in court. On January 16, 2002, following a jury trial on the matter, the client was convicted of aiding an escaped felon and sentenced to a term of five to seven years to be served at MCI-Cedar Junction. Following the conviction, the respondent did not discuss with the client the deadlines for filing a notice of appeal or who would be responsible for filing the notice of appeal. The notice of appeal was not filed by the respondent or the client prior to the February 16, 2002 deadline.

On October 3, 2002, after the respondent discovered that the client had not filed a pro se notice of appeal, the respondent filed a motion for leave to file notice of appeal late and for assignment of counsel for the appeal. The motions were denied on October 7, 2002. On November 29, 2002, the client filed a pro se motion to file a belated notice of appeal. The motion was allowed and the client filed his notice of appeal on or about December 16, 2002. Counsel from the Committee for Public Counsel Services was appointed to represent the client in the appeal.

The respondentís lack of diligence, his failure to protect his clientís interests by filing a notice of appeal, and his failure to keep his client reasonably informed as to whether the respondent would file the notice of appeal were in violation of Mass. R. Prof. C. 1.2(c), 1.3 and 1.4.

In a third matter, the respondent represented a creditor in a collection matter. On July 23, 1998, the debtor died and in July or August of 1998, the respondent made the attorney for the estate aware of his clientís claim. However, the respondent failed to file a claim against the estate before the one-year short statute of limitations expired. In late 1999, the creditor hired successor counsel to handle the matter for him. On April 20, 2000, successor counsel filed a malpractice suit against the respondent. The matter was settled in April of 2003.

The respondentís lack of diligence and failure to protect his clientís interests were in violation of Mass. R. Prof. C. 1.3.

In mitigation, between March 2000 and June 2000, the respondent was critically ill with a serious and acute neurological illness requiring multiple hospitalizations and rehabilitation. He suffered short recurrences of the illness in February 2002 and November 2002. The illness affected the respondentís ability to focus on his professional obligations, contributing to the lack of diligence. The respondent has had no complications from his illness since November 2002.

In aggravation, the respondent received an admonition on November 22, 1999, for failing to cooperate with Bar Counselís investigation of two matters. Admonition No. 99-69, 15 Mass. Attíy Disc. R. 779 (1999).

The parties stipulated that the appropriate sanction was a public reprimand. On May 10, 2004, the Board of Bar Overseers voted to adopt the partiesí stipulation and proposed sanction.

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



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