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Commonwealth of Massachusetts

Public Reprimand No. 2006-12



CAROL C. MONACO

Order (public reprimand) entered by the Board July 18, 2006.

SUMMARY1


In 2000, the respondent commenced a collection action on behalf of a client against a corporation and its clerk, who had signed checks to the client that were dishonored for insufficient funds. The respondent obtained default judgments and executions against both defendants and, after the judgments were not paid, started a supplementary process proceeding. No one appeared for either defendant on supplementary process.

During 2001, the respondent had a capias issued to the defendants at an address for the corporation that she had obtained from the Secretary of the Commonwealth before starting suit. The respondent could not locate either the clerk or corporationís office, and the capias expired. By 2001, the corporationís address and officers had been changed, and the changes were on file with the Secretary. The respondent was unaware of the changes because she had failed to update her information about the corporation.

In late 2002, the respondent had the capias reissued to the defendants at the old address for the corporation. Without notice to or authority from the court, the respondent subsequently altered the reissued capias by deleting that address and adding, below the name of the corporation, the name and address of an individual she identified as president of the corporation. Although that individual served as the corporationís president in 2000, when the respondent obtained her information from the Secretary, he had been replaced by 2001. The respondent delivered the altered capias to a deputy sheriff with instructions for service on the corporation through the individual as the supposed president. The respondent took these actions in the mistaken belief that she was entitled to bring any officer of the corporation into court under the terms of the capias and could alter the capias to reflect that.

In the spring of 2003, the deputy located the individual, informed the individual that he was holding a warrant to secure the individualís appearance in the supplementary process proceeding, and arranged for the individual to appear in court on a designated date. The deputy made an endorsement of service on the altered capias and returned it to the court.

On the designated date, the individual came to court and was advised by the respondent that the debt had to be paid. The respondent also told the individual that the minimum payment due was $150, had the individual sign a payment agreement on behalf of the corporation, and received a $150 payment from him. The respondent undertook these actions in the mistaken belief that the individual had authority to bind the corporation, could be required to make payments on behalf of the corporation, and had been properly brought before the court on the capias. In fact, the individual had no authority or obligation to act for or on behalf of the corporation and was not then a corporate officer or director. The respondent did not tell the individual to seek the advice of independent counsel.

After the individual made the payment, he and the respondent appeared before a judge. In response to the judgeís questions, the respondent stated that she had changed the name on the capias based on her understanding that the individual, as an officer of the corporation, was subject to the capias. Upon ascertaining that the individual was not a party and had been brought into court on the altered capias, the judge voided it and released the individual. In addition, the judge voided the payment agreement and ordered the respondent to return the individualís payment. The respondent returned the funds immediately and took no further action against the individual.

The respondentís failure to ascertain the proper party or person to be brought into court on the capias and failure to obtain updated, accurate information about the corporationís officers and address violated Mass. R. Prof. C. 1.1 (lack of competence) and 1.3 (failure to act with reasonable diligence and promptness)(. The respondentís conduct in altering the capias, advising the individual about the debt obligation and payment, and having him sign the payment agreement and pay $150, in the mistaken belief that she was entitled to do so and that that the individual was authorized to act for the corporation, violated Mass. R. Prof. C. 1.1, 4.3(b) (rendering advice, other than advice to secure counsel, to unrepresented person whose interests are or have reasonable possibility of being in conflict with clientís interest), and 8.4(d) (engaging in conduct prejudicial to administration of justice).

The respondent had no history of discipline. In mitigation, the individual was never arrested and suffered no ultimate harm as a result of the issuance and service of the altered capias. The respondent acted through ignorance and not intent to deceive the court or the individual.

The matter came before the Board of Bar Overseers on the partiesí stipulation of facts and rule violations and an agreed recommendation for discipline by public reprimand. On July 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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