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Commonwealth of Massachusetts

Public Reprimand No. 2005–7



ANN S. SHEELEY

Order (public reprimand) entered by the Board June 2, 2005.

SUMMARY1


In August 2002, a New Hampshire resident retained the respondent to represent her in a potential medical malpractice action against a New Hampshire doctor. The respondent and the client agreed on a hybrid contingent fee agreement, providing for a flat fee of $4,000 as well as a one-third contingent fee on any recovery. The respondent obtained the client’s medical records and told the client she would send the records to a doctor with expertise in medical malpractice matters for review. If the doctor believed that malpractice had occurred after reviewing the records, the respondent told the client that she would engage New Hampshire counsel to assist her in filing a complaint and trying the case on the client’s behalf. The respondent is not admitted to practice law in New Hampshire.

In September 2002, the respondent misrepresented to the client that she had sent the client’s records to a doctor on September 15, 2002. In fact, the respondent did not send the client’s records to the doctor until June 8, 2003. Along with the records, the respondent sent the doctor a check for $1,000 for his fee for reviewing the records. On July 1, 2003, after reviewing the medical records, the doctor advised the respondent that he did not find any evidence of medical malpractice in the client’s treatment.

On June 16, 2003, the client filed a request for investigation with bar counsel alleging that the respondent had neglected her case. On July 16, 2003, the respondent sent the Office of Bar Counsel a response to the client’s grievance in which she misrepresented that she had sent the client’s medical records to the doctor for review on September 15, 2002. The respondent claimed that the doctor did not receive the records because he had moved his office. The respondent stated that she sent the records to the doctor’s correct address on June 8, 2003. With her response, the respondent included a copy of a letter that she falsely claimed to have sent to the doctor on September 15, 2002. On October 16, 2003, the respondent sent another letter to bar counsel in which she repeated the misrepresentation that she had sent the client’s medical records to the doctor on two occasions.

On April 2, 2004, the respondent acknowledged to bar counsel that she had made material misrepresentations in her letters and asked to “withdraw [her] previous filings with the BBO”. In addition, the respondent voluntarily returned $3,000 to the complainant, the total amount the complainant had paid, less $1,000 that the respondent had paid to the doctor in June 2003 to review medical records.

The respondent violated Mass. R. Prof. C. 1.2(a) (lawyer shall seek lawful objectives of client), and 1.3 (lawyer shall act with reasonable diligence and promptness in representing client) by failing to send her client’s medical records to be reviewed promptly after she obtained them. The respondent violated Mass. R. Prof. C. 8.4 (c) (lawyer shall not engage in conduct involving dishonesty, deceit, or misrepresentation) and (h) (lawyer shall not engage in conduct adversely reflecting on fitness to practice law) by misrepresenting to her client that she had sent medical records to the doctor in September 2002. The respondent also violated Mass. R. Prof. C. 8.1(a) (lawyer shall not knowingly make false statement of material fact in connection with a disciplinary matter), and 8.4(c), (d) (lawyer shall not engage in conduct prejudicial to the administration of justice), and (h) by making misrepresentations to bar counsel in connection the investigation of the client’s grievance.

In mitigation, the respondent corrected her misrepresentations to bar counsel and withdrew the letters in which the misrepresentations were contained before bar counsel discovered the misrepresentations in the letters were false. She has also returned all of the fees her client had paid to her. At the time she made the misrepresentations to the client and to bar counsel, the respondent was experiencing substantial stress as the sole caretaker and source of support for her ailing, invalid mother. She is currently receiving counseling to help her cope with this stress. The respondent is now employed in a small law firm, closer to her home, where she receives regular supervision as well as professional and emotional support from her colleagues.

This matter came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand. The Board accepted the parties’ recommendation 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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