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Commonwealth of Massachusetts

Public Reprimand No. 2004-16


Order (public reprimand) entered by the Board September 21, 2004.


In April 1989 an individual (“the decedent”) suffered head injuries in a bar fight and died two days later. One month later the administratrix (“the plaintiff”) of the decedent’s estate commenced a wrongful death action in Superior Court against an individual (“the defendant”). The civil action was initially delayed due to the commencement of criminal proceedings. The respondent represented the defendant in those proceedings, and in 1992 the criminal trial ended in a mistrial after which the defendant entered an Alford plea to manslaughter in exchange for a term of probation. On January 31, 1996, the defendant’s original attorney in the civil action was granted leave to withdraw as counsel, contingent upon the respondent filing his appearance, which occurred on March 4, 1996.

The civil action was first scheduled for trial on September 14, 1998. The respondent sought and obtained a continuance of the trial date in this action from September 14, 1998 to September 21, 1998. Shortly after obtaining this continuance, the respondent filed a motion seeking a further postponement until November 2, 1998. In his affidavit in support of the motion, the respondent cited his mother-in-law’s death around Labor Day and the resultant necessity for him and his wife, the administratrix of her mother’s estate, to travel to North Carolina in the near future to conduct an inventory of the estate. The respondent also stated in the affidavit that he had previously spoken to the clerk about the possibility of starting trial in the civil action on September 21, 1998, but that he could not do so because he was scheduled to start trial in a criminal matter in the Boston Municipal Court Jury Session on that date.

The clerk informed the respondent that the judge would hear the motion by telephone at 2:00 p.m. on Friday, September 18, 1998. The respondent did not call the court at the appointed time. Both the judge and plaintiff’s counsel were waiting for a call from the respondent, but the respondent mistakenly thought that the court was going to initiate the call. At 3:15 p.m. the clerk called the respondent’s office and was told that the respondent was not there. The clerk told the respondent’s associate that if the judge did not hear from the respondent by 4:00 p.m., the case would go forward on Tuesday, September 22, 1998. The respondent did not call the court.

On Monday, September 21, 1998, the clerk called the respondent at 3:30 p.m. and told him that the case would go forward the next day. The respondent told the clerk that he had plans for the day and would not be present. That evening the respondent spoke to the defendant and told him that he would not be able to appear in court the next day, but that the defendant should appear. On Tuesday, September 22, 1998, the defendant appeared in court. The respondent did not appear, because he had traveled to North Carolina for the day. The judge informed the defendant that the case was going forward and that the defendant would have to represent himself. The defendant informed the court that he was not prepared to go forward and that he wanted his lawyer present.

The trial commenced. The defendant was substantially prejudiced by the absence of his attorney. During jury selection, the defendant made no peremptory challenges, even though one of the prospective jurors, who became the foreperson, admitted knowing the former administrator of the decedent’s estate. The defendant did not object to plaintiff’s counsel’s opening statement, which was argumentative and improper, and plaintiff’s counsel introduced no evidence at trial to support some of the claims he made in the opening. Plaintiff’s counsel called the defendant as his first witness and questioned him in a manner that was clearly objectionable. On Wednesday, September 23, 1998, the respondent appeared for the second day of trial. He made a motion for a mistrial, which was denied, and then participated in the rest of the trial. The trial concluded that day. The jury awarded the plaintiff compensatory and punitive damages totaling in excess of $600,000.

By failing to call the court on September 18, 1998 and by failing to appear in court on September 22, 1998, the respondent did not diligently represent his client, in violation of Mass. R. Prof. C. 1.3.

By failing to follow the court’s directives to participate in a telephone conference on September 18, 1998 and to appear in court on September 22, 1998, the respondent knowingly disobeyed an obligation under the rules of the tribunal and engaged in conduct that was prejudicial to the administration of justice and adversely reflected on his fitness to practice law, in violation of Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h).

In aggravation, the respondent received an admonition in 1998 for his failure to execute a written contingent fee agreement. Admonition No. 98-88, 14 Mass. Att’y Disc. R. 977 (1998).

In mitigation, the respondent had a legitimate reason to have sought postponement of the trial. The respondent’s mother-in-law, who was visiting from North Carolina in July 1998, fell ill and was taken to the hospital. She was diagnosed with inoperable colon cancer and given one to three months to live. Following ten days in the hospital, she was discharged because there was nothing further that the hospital could do for her. Because she was too weak to return to North Carolina, she went to the respondent’s home for her remaining days. There she received around the clock care from the respondent and his family, necessitating the rearrangement of the respondent’s schedule. Following the death of the respondent’s mother-in-law around Labor Day, the respondent and his wife spent a week in North Carolina. On or about September 16, 1998, the respondent filed a motion to continue the trial date in the civil action from September 21, 1998 to November 2, 1998 and explained his personal circumstances in the supporting affidavit. In the accompanying cover letter to the judge, the respondent further explained that because of his personal circumstances he had been unable to prepare for trial; furnish court-ordered documents, including a trial memorandum, an exhibit list, and a witness list; and file at least one motion in limine that would need to be heard prior to trial.

In further mitigation, following the verdict, the respondent filed a motion for a new trial, which was denied. The respondent appealed the denial of the motion for a new trial, and the Court of Appeals in Ramsdell v. Doliber, 59 Mass. App. Ct. 446 (2003), vacated the denial of the motion and ordered a hearing on the issue of whether a new trial should be granted and whether other sanctions would more appropriately address the respondent’s failure to represent his client on the first day of trial. On March 23, 2004, a hearing was held in Superior Court. The judge ruled from the bench granting the request for a new trial, finding that the defendant had been prejudiced by being forced to go to trial without his lawyer present. The judge further found that there was no complicity on the part of the defendant and that any sanction ought to be directed at the respondent and not the defendant. Accordingly, the judge ordered the respondent to pay $3,000, which represented a portion of plaintiff’s counsel’s fees. The respondent handled the appeal of the denial of the motion for a new trial pro bono and paid for the trial transcripts himself.

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

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