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Commonwealth of Massachusetts

Public Reprimand No. 2008-9



MICHAEL R. LANDERS

Order (public reprimand) entered by the Board March 17, 2008.

SUMMARY1


In July 2003, a married couple entered into a contract with a contractor to remodel a portion of their home. The contract required the contractor to purchase and maintain general liability insurance. The contractor spoke with an insurance agent about obtaining the needed coverage, but the agent never obtained the insurance.

In January 2004, the home owners terminated the contractor based on their dissatisfaction with the work. The home owners then retained the respondent to represent them in their claim for damages against the contractor. The respondent never charged or collected a fee in the case.

In February 2004, the respondent learned that the contractor had never obtained the required insurance, and he incorrectly advised the clients that they had a claim against the insurance agent and his company for failing to provide coverage. The respondent failed to appreciate that general liability insurance would not cover poor workmanship, and that the failure to obtain the insurance was not relevant to his clientsí claim for damages.

On May 18, 2004, the respondent filed suit in the superior court against the contractor, the insurance agent, and the agentís company. The respondent alleged, among other things, that the agent had made false and misleading statements to his clients and concealed material information from them. The respondent knew that his clients had never communicated with the agent or with anyone else at the agentís company, and he had no other good faith basis for making these claims.

On June 8, 2004, the contractorís attorney filed his appearance in the matter and the contractorís motion for a more definite statement was allowed by agreement. On June 22, 2004, counsel for the agent and the agentís company filed an appearance and an answer denying any liability. The respondent did not initiate any discovery in the matter and did not respond to the contractorís motion for a more definite statement.

On November 16, 2004, the respondent and the contractorís attorney agreed that the claims against the contractor would be dismissed with prejudice. The respondent advised his clients to allow the dismissal because the contractor had no assets. The respondent did not appreciate, and therefore did not explain to his clients, that the claims against the contractor were the only claims that had any possible merit.

On September 7, 2004, the agentís attorney served interrogatories on the respondent. Although the clients prepared responses to the interrogatories and returned them to the respondent by the middle of October 2004, the respondent did not have his clients sign the answers and serve them on insurerís lawyer.

On December 28, 2004, the agentís counsel filed an application for entry of final judgment of dismissal based on the failure to file a response to the interrogatories. The respondent received the pleading in due course, but failed to notify his clients of the application.

On January 10, 2005, the respondent signed the interrogatory answers in his own name and served them on defense counsel. On January 11, 2005, the court dismissed the complaint with prejudice. The respondent received the order, but he did not notify his clients that their claims had been dismissed with prejudice.

On January 20, 2005, the respondent filed a motion for relief from judgment, claiming that he had filed the response to the interrogatories. A hearing was scheduled on the motion. The respondent did not inform the clients of the pending motion, and he did not have his clients sign the interrogatory answers. On February 17, 2005, after hearing, the court took the matter under advisement.

In March and April 2005, the respondent attempted to negotiate a settlement of his clientsí claims against the agent and the agentís company. Defense counsel rejected the settlement demands and demanded that the respondentís clients pay the insurerís attorneysí fees.

On November 22, 2005, the court affirmed the dismissal of the clientsí claims. The respondent failed to inform his client of the courtís action.

The respondentís failure to provide competent representation to his clients violated Mass. R. Prof. C. 1.1. The respondentís failure to keep the client informed of the status of the case and explain the matter to his clients sufficiently to permit them to make an informed decision about the case violated Mass. R. Prof. C. 1.4(a) and (b). The respondentís failure to pursue the case and his lack of diligence in handling the case violated Mass. R. Prof. C. 1.2(a) (lawyer shall seek the lawful objectives of his client) and 1.3 (lawyer shall act with reasonable diligence and promptness in representing a client). The respondentís conduct in making frivolous allegations violated Mass. R. Prof. C. 3.1 (lawyer shall not bring a proceeding unless there is a basis for doing so that is not frivolous) and 8.4 (d) and (h) (conduct prejudicial to the administration of justice and conduct that adversely reflects on the fitness to practice law).

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 respondent had only been admitted to the bar for two years and had not charged or collected a fee for the representation. The Board of Bar Overseers accepted the partiesí recommendation and imposed a public reprimand on March 10, 2008.


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



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