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Commonwealth of Massachusetts

Public Reprimand No. 2005-17



GRETCHEN M. VAN NESS

Order (public reprimand) entered by the Board July 28, 2005.

SUMMARY1


This matter arose from the respondent's representation of two clients in separate wrongful termination cases.

Case 1. In the spring of 2001, the respondent commenced an action for the client against the client's former employer in the superior court. The respondent failed to answer the defendant's discovery requests, as a result of which the defendant, in October 2001, brought a motion to compel the client's production of documents and applied for dismissal under Mass. R. Civ. P. 33(a) for failure to answer interrogatories. The respondent did not tell the client about the motion or the application, oppose the motion, or serve any answers or responses. The court allowed the motion to compel and ordered the client's production of documents within ten days. The employer subsequently reapplied for dismissal under Rule 33(a). The respondent still took no action, and the client's claims were dismissed without prejudice for failure to answer interrogatories in December 2001. The respondent received notice of the judgment in due course but failed to seek relief from judgment or inform her client of the dismissal.

Between about January and May 2002, the client periodically asked the respondent about the progress of the lawsuit and the parties' pretrial discovery. The respondent failed to reply to some of those inquiries. When she did reply, without disclosing the dismissal, the respondent in substance represented to the client that discovery had not been completed and that there was no activity in the lawsuit. The respondent thereby misled the client about the status of the case.

In June 2002, the client learned of the dismissal from other sources and so informed the respondent. The respondent assured the client that she would move promptly to have the dismissal vacated but failed to do so thereafter. In July 2002, the client discharged the respondent and asked for her files and a fee refund. The respondent failed to reply until December 2002, after the client asked bar counsel for assistance. The client subsequently commenced a new action against her employer.

Case 2. The respondent filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) on behalf of a client against the client's employer in early 2001. In November 2001, the respondent received interrogatories and document requests propounded by the employer in the MCAD proceeding. At about the same time, the employer placed the client on paid administrative leave with termination anticipated in December 2001. The parties then agreed to pursue settlement negotiations. On that basis, the respondent obtained the employer's agreement to extend the client's paid leave and postpone the deadline for completing discovery until March 2002.

Thereafter the respondent failed to negotiate or communicate with the employer's counsel, reply to the discovery requests, or take other action of substance on the client's behalf. In late March 2002, the client's employment was terminated, and the employer moved to compel the client's discovery responses. The respondent failed to oppose or inform the client about the motion. In April 2002, MCAD ordered the respondent to provide discovery responses within fourteen days. The respondent failed to comply. As a result, the employer filed and served on the respondent a motion for the administrative closure of the MCAD complaint or other sanctions. The respondent failed to oppose or reply to that motion and failed to appear for hearing on the motion in May 2002.

Between about February and May 2002, the client periodically asked the respondent about the progress of the settlement negotiations and the status of the MCAD complaint. The respondent failed to reply to some of those inquiries. When she did reply, without disclosing her own inaction, the respondent in substance represented to the client that she was waiting for a response from the employer's counsel. The respondent thereby misled the client about the status of her claim and the negotiations with the employer.

In about June 2002, the client learned of the sanctions motion from other sources and consulted other counsel. MCAD subsequently denied the employer's request for administrative closure but ordered the respondent personally to pay attorneys' fees of about $2,600 to the employer as a sanction for her noncompliance. The respondent paid the sanction and withdrew from representing the client, who subsequently pursued the MCAD complaint pro se.

Neither client was precluded by the respondent's misconduct from pursuing her underlying claims. The respondent had professional liability insurance at all relevant times.

In each case, the respondent's conduct in failing to represent the client diligently, failing to inform the client of the true status of the case or respond adequately to client's inquiries, and misleading the client about the status of the case violated Mass. R. Prof. C. 1.3, 1.4, and 8.4(c) and (h). The respondent's failure promptly to return the first client's file and the unearned portion of her fee payment violated Mass. R. Prof. C. 1.16(d).

In mitigation, the respondent suffered from major depression during the period of her representation of both clients, and her condition contributed to her misconduct in both cases. The condition has since been ameliorated through treatment.

The respondent was admitted to the Massachusetts bar in 1988 and had no prior discipline. She has left private practice but stipulated that if she were to resume practice, she would continue to maintain malpractice coverage with limits of at least $1,000,000 per occurrence and $1,000,000 in the aggregate.

The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and an agreed recommendation for discipline by public reprimand. On July 18, 2005, the Board voted to accept the parties’ recommendation and impose a public reprimand conditioned on the respondent's agreement regarding professional liability insurance.

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



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