Mass.gov
   
Mass.Gov home Mass.gov  home get things done agencies Search Mass.Gov


Commonwealth of Massachusetts

Public Reprimand No. 2006-18



GERALD J. ZYFERS

Order (public reprimand) entered by the Board On November 13, 2006.

SUMMARY1


The respondent received a public reprimand for his conduct in two separate matters.

In the first matter, the respondent ordered a copy of a transcript of a deposition in connection with a case in which the respondent was counsel to the plaintiff. On March 23, 2003, the stenographer mailed the transcript to the respondent along with a bill for services in the amount of $294.65. The respondent received the transcript and the bill, but did not pay the stenographer.

On June 4, 2004, the stenographer filed a small claims action against the respondent to collect the bill. The respondent received notice of the claim, but did not appear for the court hearing. On August 12, 2004, the court entered a judgment for the stenographer in the amount of $458.42. The court also issued a payment order requiring the respondent to pay the total amount of the judgment by September 13, 2004, and to appear for a payment review hearing on September 15, 2004 unless excused.

The respondent received notice of the judgment in favor of the stenographer, and of the court’s payment order and order to appear for the payment review hearing. The respondent intentionally and without good cause failed to pay the judgment by September 13, 2004, and intentionally and without good cause failed to appear for the payment review hearing on September 15, 2004. On September 16, 2004, the court issued a capias for the respondent’s arrest.

On October 13, 2004, the stenographer filed a request for investigation with the Office of Bar Counsel. By letter from bar counsel dated October 19, 2004, the respondent received notice of the stenographer’s grievance. On or about January 3, 2005, before the capias had been served, the respondent paid the stenographer the full amount of the judgment. The stenographer notified the court that the judgment had been satisfied, and the capias was dismissed.

By failing to comply with the payment order, and by failing to appear at the September 15, 2004 payment hearing when ordered to do so, the respondent violated Mass. R. Prof. C. 3.4(c) and Mass. R. Prof. C. 8.4(d).

In the second matter, in about May of 2003, a client paid the respondent $700.00 to represent him in filing for an uncontested divorce from his wife. The client and his wife were married on October 23, 2000, and had been living apart from one another since October 1, 2001.

The respondent met once with the client, and then prepared an affidavit of irretrievable breakdown, a separation agreement, and a financial statement for the client. In September of 2003, the respondent met with the client and the wife, who was pro se. At this meeting, the client and the wife signed the affidavit of irretrievable breakdown and the separation agreement. The wife was to prepare her own financial statement.

Shortly after this meeting, the wife disappeared. The client asked the respondent to proceed with the uncontested divorce. The respondent told the client that he could not proceed with an uncontested divorce because he did not know where to serve the summons on the wife. The respondent did not explain to the client that he could proceed with the divorce on a contested basis and seek the court’s permission to serve the wife by publication.

Between the fall of 2003 and August of 2004, the respondent did not take any action of substance to pursue his client’s divorce matter. In approximately August of 2004, the client asked the respondent to prepare a new divorce complaint for a contested divorce, based on cruel and abusive treatment. The respondent prepared the new divorce complaint on behalf of the husband, but he did not file the divorce complaint, and he did not inform the client that he had not done so.

By letters dated September 11, 2004, and September 22, 2004, the client requested that the respondent take some action on his divorce case or return the $700 fee the client had previously paid to the respondent so that the client could hire another attorney to represent him. The respondent did not respond to the client’s letters. On October 20, 2004, the client filed a grievance against the respondent. Between August and December of 2004, the respondent did not take any action of substance to pursue his client’s divorce matter. In December of 2004, the client and his wife reconciled and began living together again.

By failing to seek the lawful objectives of his client through reasonably available means, and by failing to act with reasonable diligence and promptness in representing his client, the respondent violated Mass. R. Prof. C. 1.2(a) and 1.3. By failing to explain the options regarding proceeding with the divorce while the wife was of parts unknown to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, the respondent violated Mass. R. Prof. C. 1.4(b). By failing to promptly comply with the client’s reasonable requests for information between August and December 2004, the respondent violated Mass. R. Prof. C. 1.4(a).

The respondent, without good cause, intentionally failed to reply to letters from bar counsel dated October 19, 2004, November 3, 2004, November 18, 2004, and November 30, 2004, requesting his written answers to the grievances described above. On December 23, 2004, bar counsel filed in the Supreme Judicial Court and served on the respondent a petition for his administrative suspension pursuant to S.J.C. Rule 4:01, § 3(2), based on the respondent’s failure to cooperate in bar counsel’s investigation.

On December 28, 2004, after receiving notice of bar counsel’s petition for his administrative suspension, the respondent filed partial answers to the grievances with bar counsel. The respondent’s answers did not fully respond to the requests for information and documentation contained in bar counsel’s letters. By judgment dated December 29, 2004, and effective immediately, the Supreme Judicial Court entered an order administratively suspending the respondent from the practice of law pursuant to S.J.C. Rule 4:01, § 3(2).

On January 5, 2006, the respondent met with bar counsel and provided additional information and documentation in response to each grievance. On January 5, 2006, bar counsel signed and gave to the respondent a waiver of hearing and assent to entry of order of reinstatement provided the respondent filed with the court by no later than January 31, 2005, the required affidavit of reinstatement. On January 18, 2005, the respondent filed with the court an affidavit of compliance pursuant to S.J.C. Rule 4:01, § 3. On January 20, 2005, the court entered a judgment reinstating the respondent as a member of the bar of the Commonwealth.

By knowingly failing without good cause to respond to requests for information by bar counsel in the course of processing two complaints, the respondent violated S.J.C. Rule 4:01, § 3, and therefore Mass. R. Prof. C. 3.4(c) and 8.1(b).

The respondent was admitted to the Bar of the Commonwealth on November 10, 1964. In aggravation, the respondent was disbarred on August 12, 1982, after he pleaded guilty on October 23, 1981 to two indictments charging him with falsely making a return and attestation of a notary public, and third indictment charging him with uttering and publishing a forged instrument purported to be a deed for real estate. Matter of Gerald J. Zyfers, 3 Mass. Att’y Disc. R. 200 (1982). The respondent was reinstated to practice on November 30, 1998. Matter of Gerald J. Zyfers, 14 Mass. Att’y Disc. R. 801, 801 (1998). In further aggravation, the respondent engaged in multiple violations of the disciplinary rules, and the respondent had substantial experience in the practice of law.

In mitigation, the respondent was experiencing personal pressures in 2003 and 2004 due to his diagnosis with cancer in the fall of 2003, for which he received radiation treatment between December 2003 and March 2004. The delay in the divorce case did not result in any ultimate harm to the client, because he and his wife reconciled. The respondent also returned the $700 fee to the divorce client.

The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for discipline. On November 13, 2006, the Board voted to accept the parties’ recommendation and to impose a public reprimand.

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



BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2006. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.