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Commonwealth of Massachusetts

Public Reprimand No. 2005-1



FRANK A. MARCIELLO, JR., ESQ.

Order (public reprimand) entered by the Board January 26, 2005.

SUMMARY1


The respondent shared office space during 1996 with a lawyer who had recently been admitted to the bar. The respondent agreed to act as co-counsel with the lawyer on a case for a client against a contractor who had made substandard repairs to the client’s condominium following a fire.

In November 1998, the lawyer filed a complaint in court against both the contractor and the condominium management company that had hired the contractor to do repair work on the client’s condominium. Two months later, the lawyer suddenly left the practice of law, leaving the respondent with a large number of his cases. With unexpected responsibilities for the lawyer’s cases, the respondent overlooked the client’s case against the contractor and the management company. He failed to file an appearance in the case or notify the client and opposing counsel that he had assumed sole responsibility for the case.

The defendants in the case filed answers to the complaint and requests for discovery from the plaintiff in early 1999. The respondent received these documents in due course, but he did not inform the client about the discovery requests and he took no other steps to respond to the discovery.

Because they did not receive any response to their discovery, both the defendants sent applications for dismissal of the client’s complaint and motions to compel production of documents to the respondent’s office pursuant to Superior Court Rule 9A. The respondent failed to pay proper attention to the applications and motions. He did not take any steps to comply with the outstanding discovery requests.

In late May or early June 1999, the management company filed in court an application for dismissal of the complaint and a motion to compel production of documents. The court allowed the application and motion on June 7, 1999. In August, the management company filed a motion for the entry of a final judgment and sent a copy to the respondent’s office. On September 22, 1999, when the respondent did not respond to this pleading, the court allowed the management company’s motion and entered final judgment of dismissal against the client. The respondent failed to inform the client that her case against the management company had been dismissed.

On October 15, 1999, the contractor filed in court a motion to compel answers to interrogatories and production of documents. The court allowed the motion on October 21. The respondent did not inform the client, and he took no action of substance to respond to the contractor’s discovery requests.

The respondent appeared in court for a status review on the client’s case on January 19, 2000, and filed his appearance on behalf of the client. On February 3, 2000, after the hearing, the respondent sent a letter to the client asking her to meet with him to discuss her case. The respondent did not advise the client in the letter about the status of her case. In response to this letter, the client attempted to reach the respondent by telephone, but the respondent did not return the client’s calls and he did not communicate further with the client about her case.

On February 22, 2000, the respondent filed a motion to set aside the dismissal of the management company that had been entered by the court in September 1999. Because the motion did not comply with the requirements of Superior Court Rule 9A, the court returned the motion to the respondent. The respondent made no further attempt to reinstate the client’s case against the management company.

In November 2000, the court dismissed the case against the contractor for the client’s failure to respond to discovery requests and entered final judgment in favor of the defendant. The respondent did not inform the client that her complaint had been dismissed.

The client discharged the respondent and requested the return of her file on November 30, 2000. The respondent did not turn over the client’s file until April 2001.

The respondent violated Mass. R. Prof. C. 1.4(a) (lawyer shall keep client reasonably informed about status of a matter) and (b) (lawyer shall explain matter to the extent reasonably possible to permit client to make informed decisions regarding the representation) by his failure to advise his client that he had assumed full responsibility for her case, that the defendants had propounded discovery requests, and that the court had dismissed her case for failure to furnish discovery. He also violated Mass. R. Prof. C. 1.1 (lawyer shall provide competent representation), 1.2(a) (lawyer shall seek lawful objectives of client), 1.3, (lawyer shall act with reasonable diligence and promptness), and 3.4(d) lawyer shall not fail to make reasonably diligent effort to comply with proper discovery request by opposing party) by failing to file an appearance, failing to respond to discovery requests, by failing to act promptly to reinstate his client’s case after it was dismissed, and by filing a motion that did not comply with court rules.

In aggravation, the respondent received an admonition in 1994 for failing to file a claim for a client before the expiration of the applicable statute of limitations. See Admonition No. 94-76, 10 Mass. Att’y Disc. R. 465 (1994). In mitigation, the respondent was overburdened when the other lawyer left the practice of law and turned over his cases to the respondent. In addition, the respondent offered to pay reasonable compensation to the client for the losses she suffered as a result of his neglect of her case.

The respondent received a public reprimand for this misconduct.

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



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