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Commonwealth of Massachusetts

Public Reprimand No. 2005-18



PAMELA A. MORRIS

Order (public reprimand) entered by the Board August 25, 2005.

SUMMARY1


On November 17, 2003, the Massachusetts Appeals Court reversed the convictions of the respondent’s client Keesha Vickers in part because the Court found the respondent’s representation of Vickers on the first day of trial to be ineffective assistance.

The respondent was appointed to represent Vickers in the Boston Municipal Court on June 19, 2001, regarding three criminal charges. The client was held in lieu of bail. On July 18, 2001, the client tendered a plea of guilty to the charges, but withdrew her plea when the judge found the recommendations of both the respondent and the prosecutor to be too lenient. The matter was continued to August 16, 2001 for trial.

The client posted bail and was released from custody on or about August 7, 2001. She appeared in court on August 16, 2001, and advised the respondent and the court that she wanted new counsel to represent her. The judge conditioned the appointment of new counsel on a bail increase, and the client decided to proceed to trial. After the jury was empanelled, the court took a brief recess. The client left the court during the recess and failed to return for her trial.

The court ordered trial to proceed without the client. The respondent orally moved for a mistrial and for permission to withdraw as defense counsel. The motions were denied. Trial proceeded and the respondent remained in the courtroom but refused to participate. She voiced no objections during the direct examination of the Commonwealth’s primary witness and also declined to cross-examine the witness. The respondent answered “no comment ” when the judge asked her whether she planned to cross-examine the witness and whether she had objections to the admission of physical evidence and the “publishing” or showing of the physical evidence to the jury.

The court recessed after the testimony of the first witness. When court resumed, the respondent informed the judge that if the trial were to proceed, she would like the opportunity to cross-examine the first witness. The judge stated that she would entertain a request to have the witness return to testify during the defendant’s case. The trial was continued to the following day, but the respondent made no request for return of the witness.

The client did not appear in court for the second day of trial. The respondent filed a motion to withdraw, which was again denied. The court then conducted a hearing regarding whether the client’s absence from court was knowing and voluntary. The respondent continued to respond “no comment" when addressed by the court as to this issue. The client was defaulted and a warrant issued for her arrest. The judge then admonished the respondent that the client was entitled to effective representation even though she was not present in court. The respondent, having consulted with experienced counsel the day before and realizing her error, objected to the resumption of the trial and requested a mistrial. The request was denied.

The respondent then stated that she would “zealously defend my client to the best of my ability” and began to defend the client. The respondent raised objections during the direct testimony of three witnesses called by the Commonwealth and cross-examined the witnesses. After the Commonwealth rested, the respondent made an opening statement. She called no defense witnesses, rested and then made a closing argument. The respondent made a successful motion for a required finding of not guilty regarding one of the charges and participated in a colloquy when the jurors had a question. The client was convicted on the remaining charges.

In the interim between August 16 and October 16, 2001, the client was arrested and convicted on an unrelated matter and sentenced to six months in the house of correction. She was transported back to the Boston Municipal Court on October 16, 2001, to answer the default warrant that issued against her when she failed to appear for trial on August 17, 2001. The client received two consecutive two-year sentences from and after the sentence that she was serving on the unrelated matter. The respondent filed a timely notice of appeal, a request for a free transcript and a motion to withdraw and a request for the appointment of new counsel.

Bar counsel sent letters to the respondent on December 10, 2003 and March 3, 2004, requesting an explanation of her conduct during the Vickers trial. The respondent failed to reply, necessitating the issuance of a subpoena for her appearance at the Office of Bar Counsel. The respondent appeared at the Office of Bar Counsel on May 4, 2004, pursuant to the subpoena.

By deliberately failing to participate actively in the trial on behalf of her client, the respondent did not represent her client diligently in violation of Mass. R. Prof. C. 1.2(a) and 1.3, knowingly disobeyed an obligation under the rules of the tribunal in violation of Mass. R. Prof. C. 3.4(c), and engaged in conduct that was prejudicial to the administration of justice and adversely reflected on her fitness to practice law in violation of Mass. R. Prof. C. 8.4 (d) and (h). By failing to cooperate with bar counsel’s investigation, the respondent violated Mass. R. Prof. C. 8.4 (g) and SJC rule 4:01 § 3.

The respondent has been a member of the bar since 1982. In mitigation, the respondent’s refusal to participate during the first day of the Vickers trial was caused by poor judgment and a misguided belief that it was the appropriate way to preserve her client’s rights. The respondent’s failure to timely reply to bar counsel’s letters was partially due to her obligations as primary caregiver during her mother’s serious health problems beginning in December 2003. The respondent did not keep up with correspondence sent to her office during this period.

This matter came before the Board on August 8, 2005 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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