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Commonwealth of Massachusetts

Public Reprimand No. 2005-25



EDWARD G. KELLY

Order (public reprimand) entered by the Board November 21, 2005.

SUMMARY1


In the spring of 1997, a client consulted the respondent and paid him $700 to investigate and present a claim of employment discrimination. At the time of the engagement, the respondent knew or should have known that he had insufficient experience and expertise to handle the client’s claim. The respondent failed to affiliate himself with a lawyer who was competent to handle the claim. Thereafter the respondent failed to investigate the claim adequately and failed to ascertain the time limits for filing a discrimination claim at the Massachusetts Commission on Discrimination (MCAD) or the Equal Employment Opportunity Commission (EEOC).

In September 1997, the respondent sent a claim letter to the client’s employer, but the letter failed to set forth adequately the nature of the alleged discrimination and the grounds for the claim. In response to the letter, the employer’s counsel informed the respondent that the employer could not act on the claim without additional information. The respondent did not provide more information or take any other action on the client’s behalf.

In November 1997, the respondent informed the client that he required an additional fee payment to pursue the claim, but he did not communicate adequately to the client that he would take no further action in the matter absent the payment. Because the respondent was unaware of the filing deadlines at the MCAD or the EEOC, he did not advise the client concerning those deadlines. The respondent did not inform the client that a lawsuit against the employer would be barred unless the client filed an administrative claim within the applicable time limits or that, if the client wanted to pursue the matter, the client should remit the additional payment or consult another attorney promptly to insure timely filing. As a result, no claim was filed for the client before the expiration of the administrative deadlines, and the claim was extinguished.

The respondent’s failure to investigate the claim adequately, failure to affiliate himself with other counsel to handle the claim, failure to ascertain and advise the client concerning the applicable filing deadlines, and failure otherwise to communicate adequately with the client violated Canon Six, DR 6 101(A)(1)-(3), as in effect through December 31, 1997.

In aggravation, the respondent received a public reprimand in 2001 for altering a court docket with the intent to assist a client, Matter of Kelly, Public Reprimand No. 2001-14, 17 Mass. Att’y Disc. R. 328 (2001), and an admonition for improper solicitation of a prospective client in 1995, Admonition No. 95 2, 11 Mass. Att’y Disc. R. 315 (1995). In mitigation, the respondent paid compensation to the client for the loss of the claim.

On October 12, 2005, the parties filed a stipulation in which they agreed that virtually all of the respondent’s misconduct in this matter took place before the decision of the Board of Bar Overseers in Matter of Kane, 13 Mass. Att'y Disc. R. 321 (1997), in which the Board adopted prospective guidelines for sanctions in cases involving neglect and related violations. In the absence of a disciplinary history, the misconduct in this matter would have warranted an admonition under the standards in effect before Matter of Kane was decided.

The matter came before the Board of Bar Overseers on the parties’ stipulation of facts and disciplinary violations and an agreed recommendation for discipline by public reprimand. On November 14, 2005, the Board voted to accept the parties’ stipulation and impose the recommended discipline.

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



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