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Commonwealth of Massachusetts

Public Reprimand No. 2006-14



RICHARD S. WEISS

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

SUMMARY1


In late 2002, the respondent filed a small claims action for a client. The complaint sought $750 in damages plus multiple damages and attorneysí fees under Chapter 93A. The action was scheduled for a hearing at 2:00 p.m. on February 24, 2003.

On the morning of February 24, 2003, the respondent discussed the case with a lawyer for the defendant. The respondent and the defendantís lawyer agreed to settle the case for $500 and to allow the case to go off the list. The respondent had not discussed with the client the possibility of settlement and had no authority to settle the claim.

Shortly after agreeing to the settlement, the respondent called the client and told him that he had settled the case for $500 and that the client need not go to court. The client told the respondent that he would not consent to the settlement and that he would go to court for the hearing. The respondent told the client that he would not represent him any further and advised the client not to appear in court that day. The respondent did not inform the defendantís lawyer that the client would not consent to the settlement or that the client intended to go to court for the hearing.

On the afternoon of February 24, 2003, the client appeared pro se for the hearing and the defendantís lawyer did not appear. A default judgment was entered for $750 plus costs. The defendantís lawyer then filed a motion to vacate the judgment, which was granted. After a hearing at which both parties appeared, a judgment for the client was entered for $750 plus costs.

The respondent's conduct in agreeing to settle the clientís claim without authority and without discussing the settlement with the client was in violation of Mass. R. Prof. C. 1.1, 1.2(a), 1.4(b) and 8.4(h). His conduct in withdrawing from the representation on the day of the hearing was in violation of Mass. R. Prof. C. 1.16(d), 8.4(d) and 8.4(h). His failure to communicate to the defendantís lawyer the clientís refusal to consent to the settlement and his intent to appear for the hearing was in violation of Mass. R. Prof. C. 1.2(a), 8.4(d) and 8.4(h).

In aggravation, the respondent received a public reprimand in 1995 for commingling escrowed funds and personal funds in an interest-earning account and for using the interest earned on the escrowed funds to pay his fees without authority. Public Reprimand No. 95-4, 11 Mass. Att'y Disc. R. 303 (1995). In 1991, the respondent received a private reprimand for commingling clientsí and personal funds and for advancing financial assistance to a client. Private Reprimand No. 91-38, 7 Mass. Att'y Disc. R. 389 (1991). In 1989, the respondent received an informal admonition for paying himself a fee from a clientís funds after the client disputed the fee. This disciplinary history is of lesser weight due to the length of time since the prior discipline.

This matter came before the Board of Bar Overseers on a stipulation of facts and rules violations and a joint recommendation that a sanction of public reprimand be imposed. On July 10, 2006, the Board made a preliminary determination to reject the joint recommendation as too lenient. A majority of the Board indicated that a public reprimand would be accepted on condition that, if the respondent did not take and pass the MPRE within one year of the entry of the order of public reprimand, a one-month suspension would be imposed. Neither party filed an objection to the preliminary vote. On August 14, 2006, the Board voted to accept the stipulation of the parties, as amended by the preliminary determination, and to administer a public reprimand to the respondent on condition that, if the respondent does not take and pass the MPRE within one year of the entry of the order of public reprimand, a one-month suspension will be imposed.

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



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