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Commonwealth of Massachusetts

Public Reprimand No. 2008-11



JOHNATHAN R. ELLIOTT

Order (public reprimand) entered by the Board April 30, 2008.

SUMMARY1


In or around April, 2004, the respondent was retained to represent a client on drug trafficking charges pending in the United States District Court for the District of Massachusetts. The client faced a mandatory life sentence on the charges due to the amount of drugs involved and the clientís long record of prior convictions.

On or about June 29, 2004, the United States District Court issued a scheduling order requiring the respondent to file by July 30, 2004, a motion to suppress or notice that no motion to suppress would be filed. The court also scheduled a non-evidentiary hearing for September 3, 2004. The respondent did not file a motion or notice and did not appear in court on September 3, 2004. The matter was continued to September 8, 2004, for a status conference. The respondent did not appear in court on September 8, 2004, until after the case had been called and continued.

The clientís trial was scheduled for November 15, 2004. The respondent appeared on that date and informed the court that the client would plead guilty. The client pleaded guilty and the matter was continued for sentencing. Between November 15, 2004, and March 11, 2005, the respondent failed to return a number of calls from the probation department at the United States District Court made to obtain the information necessary to complete a pre-sentencing report regarding the client. Thereafter, the respondent cooperated with the probation department, which filed a pre-sentence report regarding the client on April 27, 2005. The respondent then failed to appear in court for the clientís scheduled sentencing hearing on April 29, 2005. The court dispatched two deputy marshals to locate the respondent and bring him before the court. The marshals contacted the respondent, who appeared and informed the court that he had mis-calendared the hearing date. The court then terminated the respondent as the clientís attorney and appointed an attorney to represent the client.

On new counselís motion, the court allowed the client to withdraw his guilty plea. The client subsequently entered into a plea agreement with the government whereby the client would receive a sentence of life imprisonment which could be revised upon motion of the United States Attorney in the event that the client provides substantial assistance in the investigation or prosecution of another person who has committed a criminal offense. The client pleaded guilty to the United States District Court criminal charges, and was sentenced to life imprisonment.

The respondentís failure to appear on behalf of a client at scheduled court hearings, failure to comply with the courtís order concerning the filing of a motion and failure to communicate with the probation officer assigned to complete the clientís pre-sentence report, was in violation of Mass. R. Prof. C. 1.1, 1.2 (a), 1.3, 3.4 (c) and 8.4(d) and (h).

The respondent also without good cause, failed to reply to two letters from the Office of Bar Counsel regarding a complaint filed by another client who had retained the respondent to represent him in a criminal matter. The respondentís failure to reply resulted in bar counsel filing a petition for administrative suspension of the respondent on June 28, 2007, pursuant to S.J.C. Rule 4:01, ß 3(2). The Court issued an order administratively suspending the respondent on June 29, 2007. The respondent was reinstated to the practice of law without opposition from bar counsel after the respondent sent bar counsel his answer to the clientís grievance by fax on July 27, 2007.

The respondentís failure to cooperate with bar counselís investigation, resulting in his administrative suspension from the practice of law, the respondent was in violation of Mass. R. Prof. C. 8.4 (d), (g) and (h) and Supreme Judicial Court Rule 4:01ß 3.

In aggravation, the respondent received an admonition in 2004 for misconduct in two matters for his failure to communicate with a client, and failure to cooperate with bar counselís investigation (AD 04-18, 20 Mass. Att'y Disc. R. 694 (2004)). In mitigation, the respondent suffered from depression, health problems and personal problems during the time in which this misconduct occurred. Although the respondent claimed in 2004 that his conduct was mitigated by depression when he received the admonition, he did not then appreciate the seriousness or extended nature of his condition and he terminated therapy prematurely. The respondent is now being treated for his depression and his other health issues have stabilized.

The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for discipline. The Board of Bar Overseers accepted the partiesí recommendation and imposed a public reprimand on April 16, 2008, conditioned upon the respondentís continuation in therapy with a licensed mental health professional with expertise in treating depression. The respondent agreed to meet with his therapist at least twice per month, for a period of not less than one year. The respondent is no longer in private practice and his current employer, an agency, is aware of his health and depression issues. As an agency staff member, the respondentís work is supervised and periodically evaluated by a senior staff member.


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



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