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Commonwealth of Massachusetts

Public Reprimand No. 2008-18



JAMES J. DOUGHERTY

Order (public reprimand) entered by the Board August 19, 2008.

SUMMARY1


In May 2001, the seller of a convenience store and gas station entered into a purchase and sale agreement to sell the store and station. The agreement required the seller to provide an environmental report stating that the site complied with applicable environmental regulations. The seller retained a licensed site professional engineer (the “engineer”) to prepare the report.

On June 4, 2001, the engineer’s environmental report was submitted to the buyer. The report concluded that the property met all applicable standards. On July 9, 2001, relying on the report, the buyer purchased the store and gas station.

In March 2002, gasoline odors exceeding acceptable levels were detected in residential properties adjacent to the gas station. The owner of the property retained an environmental engineering company that determined that the gasoline odors resulted from recent and historic gasoline leaks from the underground gasoline tanks.

On June 24, 2004, the seller brought suit in the Massachusetts Superior Court alleging, among other things, that the engineer had been negligent in the preparation of the initial environmental report. On August 11, 2004, the engineer was served with a copy of the complaint. Instead of filing an answer, the engineer wrote a letter to the seller’s counsel explaining his actions and denying any liability.

On October 29, 2004, plaintiff’s counsel filed with the court a request for default based on the engineer’s failure to file an answer to the complaint. The engineer was out of the country at the time and did not know that the motion for default had been filed. On November 10, 2004, the court entered a default against the engineer.

In May 2005 the engineer returned to Massachusetts and learned for the first time that a default had entered. He did not take any action to remove the default.

In August 2005, the engineer received a notice of deposition and then retained the respondent as his counsel. The engineer told the respondent that his report was intended to be limited in scope and was not to be considered as a site assessment. The engineer told the respondent that a default had entered against him in the case. The respondent agreed to take action to remove the default and protect the engineer’s rights but did not file a motion to remove the default. The respondent did not charge or collect a fee for his representation.

On September 27, 2005, the respondent and the engineer attended the engineer’s deposition. At his deposition, the engineer acknowledged that he was aware of the default and that the respondent would be filing a motion to set aside the default.

On October 17, 2005, pursuant to the provisions of Superior Court Rule 9A, the respondent sent to plaintiff’s counsel a motion to remove the default entered against the engineer. On October 27, 2005, plaintiff’s counsel sent the respondent an opposition to the motion to remove the default. The respondent failed to file the motion and the opposition with the court, and he did not advise the engineer that he had not taken any action to set aside the default.

On March 30, 2007, plaintiff’s counsel filed with the court a motion for judgment of default and for a hearing on an assessment of damages against the engineer for April 11, 2007. The respondent received a copy of the motion in due course. The respondent knew that the engineer was out of the country and how to reach him, but he did not inform the engineer of the motion or advise the engineer that it was important to appear at the hearing.

On the morning of April 11, 2007, the respondent filed with the court a motion to continue the hearing because the engineer was out of the country. When the matter was called, the respondent made an oral motion to vacate the entry of default against the engineer. The respondent’s motion was denied and the hearing on the assessment of damages was continued to June 4, 2007. The engineer was to have returned to the country by then.

In late May the engineer returned to the country. The respondent informed the engineer that the motion to vacate the entry of default had been denied. The respondent advised the engineer that the engineer should be present at the hearing on the assessment of damages scheduled for June 4th.

On the morning of June 4, 2007, the respondent filed with the court a written motion to set aside the default against the engineer, supported by the engineer’s affidavit raising his defenses. In violation of Rule 9A, the respondent had not previously served the motion on plaintiff’s counsel.

On June 4, 2007, plaintiff’s counsel, the respondent, and the engineer appeared in the superior court. At that time, the respondent’s motion to set aside the default judgment was denied based on the delay in the filing of the motion and the respondent’s failure to abide by Rule 9A. That same day, a default judgment was entered against the engineer in the amount of $222,044.42. The judgment was never collected as the client did not reside in the country and had no assets available for attachment.

The respondent’s lack of thoroughness and preparation reasonably necessary for the representation violated Mass. R. Prof. C. 1.1. The respondent’s lack of diligence and failure to seek the client’s objectives violated Mass. R. Prof. C. 1.2(a) and 1.3. The respondent’s failure to keep the engineer advised of the status of the matter and to advise the engineer of the consequences of not appearing in court violated Mass. R. Prof. C. 1.4(a) and (b).

The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation that the respondent receive a public reprimand. In mitigation, the engineer sustained no actual financial harm as a result of the respondent’s conduct and did not pay a fee to the respondent. The Board of Bar Overseers accepted the parties’ recommendation and imposed a public reprimand on August 11, 2008.


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



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