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Commonwealth of Massachusetts

Public Reprimand No. 2007-26



DONNA J. BOGGS

Order (public reprimand) entered by the Board October 30, 2007.

SUMMARY1


This matter arose from the respondentís conduct in two cases. In one case, the respondent represented a client in a divorce proceeding that went to judgment in the spring of 2006. The client told the respondent immediately after learning of the judgment that she wanted to appeal. The respondent knew that there was a deadline for noticing an appeal, but she did not calculate or inform the client of the appeal deadline. In this case, a notice of appeal had to be filed no later than May 1, 2006.

During April 2006, the client repeatedly asked the respondent to start an appeal or, if the respondent declined to pursue the appeal, to inform her of the appeal deadline and protect her appellate rights. In the middle of April, the respondent told the client that she was leaving on vacation and would discuss the appeal upon her return. The respondent did not tell the client that she had not calculated the appeal deadline or advise the client to consult another lawyer. The respondent never ascertained the deadline or noticed an appeal for the client.

By late April 2006, the respondent had returned from vacation and decided not to handle the appeal, but she did not then notify the client of her decision, tell the client that the client was responsible for ascertaining the deadline and initiating the appeal or take other action to protect the clientís rights. The client had erroneously determined on her own that the appeal period expired on May 5, 2006. At the end of April, the client sent several messages to the respondent insisting that an appeal be initiated by that date. The respondent failed to answer the messages before the actual deadline of May 1, 2006. On May 3, 2006, the client sent the court a pro se notice of appeal that was rejected by the court as untimely.

The respondentís failure to notify the client promptly that she would not be handling the appeal, inform herself or her client of the deadline and procedure for appeal, advise the client that the client would be responsible for noticing the appeal, and file a timely notice of appeal or otherwise protect the clientís appeal rights violated Mass. R. Prof. C. 1.1 (failure to provide competent representation), 1.2(a) (failure to seek clientís lawful objectives 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 and explain a matter to the extent reasonably necessary to permit clientís informed decisions). The respondentís termination of her representation without timely notifying the client of her decision not to handle the appeal and without taking reasonable steps to protect the client violated Mass. R. Prof. C. 1.16(d).

In the second case, a landlord hired the respondent in September 2006 to collect back due rent from former tenants. The client gave the respondent copies of an unsatisfied execution on a judgment for about $9,000 against the tenants that had been obtained by the client in June 2005. The client told the respondent that the tenants had vacated the premises in August 2006 owing another $6,500 and provided documentation of the additional arrearage. The respondent agreed to handle the case on a contingent fee basis but never executed a written contingent fee agreement with the client. Although the respondent prepared a district court complaint against the tenants to collect the additional arrearage, she failed to file the complaint.

The respondent also failed to start supplementary process to collect on the earlier judgment or take other action of substance to pursue the clientís claims. In October 2006, the respondent misrepresented to the client that she had filed the clientís case in court and would call the court to speed up the matter. The respondent said that she would let the client know when there was action on the case. The respondent failed to contact the client thereafter.

In January 2007, the client asked the respondent for copies of her records for tax purposes and also asked about the progress of the case. The respondent misrepresented to the client that she was ready to file the case in court. When the client questioned the respondent about her prior representation that the case was in court, the respondent said that she was unsure whether or not suit had been filed and would call the client back after checking the status. The respondent did not call the client back or provide the requested copies. A few days later, the client discharged the respondent and asked for her original records. The respondent later returned the records, but she never informed the client that no lawsuit had been filed.

The respondentís failure to take timely action to enforce the judgment, collect the additional arrearage or otherwise pursue the clientís claims violated Mass. R. Prof. C. 1.1, 1.2(a) and 1.3. The respondentís false representations to the client that she had filed suit and that she was ready to file the case violated Mass. R. Prof. C. 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). The respondentís failure to inform the client of the true status of the case and respond adequately to the clientís inquiries violated Mass. R. Prof. C. 1.4(a) and (b). Her failure to execute a written fee agreement violated Mass. R. Prof. C. 1.5(c).

In mitigation, the client in the first case, through new counsel, subsequently obtained leave to file a late notice of appeal. In aggravation, that client was vulnerable and lived out of state without ready access to other lawyers in Massachusetts. The cumulative effect of the respondentís conduct in both cases is also a matter in aggravation.

The respondent was admitted to the Massachusetts bar in 2002. She has no history of discipline.

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 October 15, 2007, 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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