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Commonwealth of Massachusetts

Public Reprimand No. 2006-6



TORRAN M. BAGAMARY

Order (public reprimand) entered by the Board April 10, 2006.

SUMMARY1


In late 2002, the respondent took over representing two sisters in their pending claims for substantial injuries arising from an intersection accident in October, 2000. The clients were passengers in a car that collided with an oncoming car while making a left turn across the path of the other car.

When he began the representation, the respondent had been in practice for only a few months and had never handled a personal injury claim. The respondent then lacked the legal knowledge and skill reasonably necessary for the representation. Thereafter the respondent failed to engage in adequate study or preparation, and he did not associate or consult with a lawyer of established competence in the matter.

During 2003, the respondent pursued the clients’ claims with the insurer of the owner (defendant owner) and driver (defendant driver) of the car in which they had been riding. That insurer took the position that the defendant driver was not solely at fault and declined to settle the claims. The respondent failed to pursue any claims against the owner-operator of the other car (other driver) or the other driver’s insurer.

In October 2003, the respondent commenced district court actions for his clients against the defendant owner and driver. The respondent failed to name the other driver as a defendant or to bring a separate action against him. The defendant owner and driver, through counsel, brought third-party actions against the other driver. The respondent failed to seek leave to amend the clients’ complaints to add the other driver as a direct defendant. In addition, the respondent failed to serve timely responses to discovery requests propounded to his clients.

In the spring of 2004, the defendant owner filed for Chapter 7 bankruptcy protection and listed the clients as creditors. Although the defendant owner did not file suggestions of bankruptcy or give other notice of the bankruptcy in the district court, her bankruptcy petition automatically stayed the district court actions against her. The bankruptcy did not affect the proceedings against the remaining parties or the insurer’s coverage obligations on the claims against either the defendant owner or the defendant driver. The respondent received notice of the bankruptcy but was then unaware that he could have sought relief from the stay in the bankruptcy court to pursue the district court actions against the defendant owner to the extent of her available insurance coverage. In addition, the respondent erroneously believed that, because the defendant driver was a named insured on the owner’s insurance policy, the bankruptcy filing prevented him from pursuing the clients’ claims against either the driver or the owner.

In May 2004, the defendant driver’s attorney moved in the district court to compel the clients’ discovery responses. Due to his misunderstanding of the impact of defendant owner’s bankruptcy, the respondent erroneously believed that no responses to the discovery motions were required and did not oppose them. The court entered orders in June 2004 compelling the clients to furnish their discovery within thirty days.

By the summer of 2004, the respondent had determined that he should take some action to preserve the clients’ claims in light of the defendant owner’s bankruptcy, but he failed to inform himself adequately about the nature, grounds or effects of any relief in the bankruptcy court. In July 2004, the respondent filed an objection in the bankruptcy court to discharge of the defendant owner’s debt to the clients based on the availability of liability insurance. Shortly thereafter, the owner’s bankruptcy attorney correctly informed the respondent that the insurance coverage did not render the debt nondischargeable and that the clients had no other legally sustainable grounds for objecting to the discharge. The respondent withdrew the objection and took no further action in the bankruptcy court.

In August 2004, the respondent received notice that the defendant owner had been discharged in bankruptcy. The respondent erroneously believed that the discharge had permanently foreclosed the clients’ claims against either defendant and prevented him from any further pursuit of those claims. Shortly thereafter, the defendant driver’s counsel moved in the district court to dismiss the clients’ complaints for failure to comply with the discovery orders. Based on his misunderstanding of the impact of the bankruptcy, the respondent did not furnish the discovery or contest the dismissal motions. Instead, he filed motions seeking to discontinue the clients’ actions on the ground that the bankruptcy discharge prevented them from pursuing their claims. At a hearing on the motions, the respondent stated to the judge that, regardless of what action was taken by the defendant operator, he had no choice but to stipulate to dismissal of the actions because pursuing the clients’ claims after the bankruptcy discharge could subject him to serious liability. The court accepted the respondent’s stipulation and dismissed the actions that same day.

After the cases were dismissed, the respondent erroneously advised the clients that the defendant operator’s discharge in bankruptcy had precluded them from pursuing their claims and that the dismissals had been entered on that basis. The respondent did not inform the clients that the operator had sought dismissal for failure to provide discovery or that he had stipulated to the dismissals.

In early 2005, the clients consulted with new counsel about their claims and were informed of all the circumstances of the bankruptcy and the dismissals. Their new attorney promptly filed motions in the district court for relief from the judgments of dismissal. The motions were granted in October 2005 by the same judge who had heard and allowed the motions to dismiss.

The respondent’s incompetent representation, failure to preserve the clients’ claims with the ensuing dismissal of their actions, and failure to inform them fully and accurately concerning the reason for the dismissals violated Mass. R. Prof. C. 1.1 (lack of competence), 1.2(a) (failure to seek lawful objectives of client through reasonably available means), 1.3 (failure to act with reasonable diligence and promptness), and 1.4(a) and (b) (failure to keep client reasonably informed or provide explanation reasonably necessary to permit informed decisions by client).

In mitigation, the respondent’s misconduct was the product of ignorance and inexperience rather than malfeasance, and he disclosed to the court and opposing counsel that his assent to the dismissals was based on his (erroneous) understanding of the impact of the bankruptcy discharge. In addition, the respondent’s inadequate explanation to his clients regarding the reason for the dismissals was largely the product of his incorrect understanding of the law. The potentially serious injury resulting from his misconduct was avoided by the new counsel’s success in restoring the district court actions. After this matter was reported to bar counsel, the respondent attended continuing legal education programs on handling motor vehicle accident cases.

The matter came before the Board of Bar Overseers on the parties’ stipulation of facts and rule violations and an agreed recommendation for discipline by public reprimand. On April 10, 2006, the Board voted to accept the 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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