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Commonwealth of Massachusetts

Public Reprimand No. 2009-08


Order (public reprimand) entered by the Board April 28, 2009.


In about 1995 or 1996, a buyer of a house engaged a lawyer to represent her in a civil claim against the contractor. The lawyer filed suit, and on May 28, 1999, after a jury trial, the court granted the contractorís motion for a directed verdict. The buyer then engaged a different lawyer to represent her on an appeal. The appellate lawyer failed to timely file the appeal, causing it to be dismissed.

In about June 2001, the buyer retained the respondent to pursue a claim for malpractice against the trial lawyer. The respondent did not discuss with the client that she also had a potential claim against the appellate lawyer and that he would not be pursuing that claim.

The respondent told the client that he would charge a contingent fee, and that the client was responsible for paying the costs and expenses of the litigation. The respondent did not obtain the clientís signature to a written contingent fee agreement. The respondent knew that an expert would be required to support a claim of malpractice, but he did not explain adequately to the client that prosecuting the case would require her to provide funds in advance to pay for experts.

Between July of 2001 and April of 2002, the respondent spoke to defendantís counsel about possibly settling the malpractice claim but performed no other work of substance on the case. Between January and May of 2002, the client wrote and called the respondent on a number of occasions to inquire about the status of her case. The respondent failed to promptly comply with the clientís reasonable requests for information about her case. On May 23, 2002, the respondent filed a civil complaint on behalf of the client in the Bristol County Superior Court, alleging negligence by the trial lawyer.

Over the course of four years following the filing of the lawsuit, the respondent periodically requested that the client provide him with funds to pay filing fees, costs of expert witnesses, and other expenses. The client did not provide these funds. From May of 2002 to December of 2005, the respondent failed to conduct discovery or respond to discovery requests and retain an expert witness. He failed timely to pay the civil litigation fee after receiving notice from the court that the payment was due. The respondent did not inform the client that he would or could take no action of substance in her case without funds from her to pay for an expert or other costs of litigation. He also failed to promptly respond to telephone calls from his client asking him about the status of her case.

On August 8, 2005, the court issued a notice scheduling the trial for January 4, 2006, and notifying the parties that a joint pre-trial memorandum was to be filed by August 9, 2005. Defendantís counsel promptly provided the respondent with a draft pre-trial memorandum. The respondent did not finalize the pre-trial memorandum and take reasonable steps to timely file the joint pre-trial memorandum with the court.

On or about October 31, 2005, the defendantís counsel sent the respondent a motion to compel production of documents. The respondent did not notify the client of the motion, and he did not take any action to respond to or to oppose the motion. On December 13, 2005, the court allowed the defendantís motion, and ordered the client to produce documents on or before December 27, 2005. Although the respondent informed the client of the order, he did not take any action to comply with the order, and he did not inform the client that he had not and would not take any action to comply with the order.

On December 14, 2005, the respondent filed the joint pre-trial memorandum, and on December 19, 2005, the respondent filed an assented-to motion to continue the trial. On December 23, 2005, the court allowed the motion to continue the trial, and set July 5, 2006, as the trial date.

In about November and December of 2005, the respondent asked the client to provide him with funds to pay the costs of expert witnesses. The respondent did not inform the client that he would not and could not proceed with her case without funds to pay an expert and would no longer take any action on her behalf in the case. The client did not provide the respondent with the requested funds, and the respondent did not perform further work on the clientís case. The respondent did not seek permission from the court for withdrawing his appearance on behalf of the client.

On or about January 3, 2006, the respondent received a motion from the defendant seeking entry of a default judgment due to the clientís failure to produce documents as required by the courtís order. The respondent did not inform the client that he had received the motion and that he did not plan to oppose or respond to the motion for default. On January 24, 2006, the defendantís motion for default was allowed without opposition. The respondent did not inform the client that her case had been dismissed. In about June of 2006, the client contacted the court and learned that her case had been dismissed.

By failing to handle his clientís legal matter with reasonable preparation, diligence, and promptness, the respondent violated Mass. R. Prof. C. 1.1 and 1.3. By failing to promptly comply with his clientís reasonable requests for information, and to explain a matter to the extent reasonably necessary to permit his client to make informed decisions regarding the representation, the respondent violated Mass. R. Prof. C. 1.4(a) and (b). By entering into a contingent fee agreement with his client without executing a written fee agreement, the respondent violated Mass. R. Prof. C. 1.5(c). By withdrawing from his clientís representation without first giving his client reasonable notice and without obtaining permission from the tribunal, the respondent violated Mass. R. Prof. C. 1.16(b)(4) and 1.16(c).

The respondent was admitted to practice on June 10, 1974. In aggravation, the client lost the right to pursue her attorney malpractice case to trial, although the case presented substantial legal and factual problems that would have made recovery difficult. In further aggravation, the respondent received an admonition in January of 2002 for neglecting two civil litigation matters by failing to file suit in either matter before the statute of limitations expired. Admonition No. 02-03, 18 Mass. Attíy Disc. R. 606 (2002). In mitigation, the respondent was seriously injured in an assault in March of 2004, and remained out of work for several months thereafter. The respondent was also acting as the primary caregiver for his elderly parents during the period of the representation. The respondent did not receive any legal fees for his representation, and he was not reimbursed by his client for the filing fee and litigation expense fee.

The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for a public reprimand. The board accepted the partiesí recommendation, and on April 13, 2009, the board ordered a public reprimand, subject to conditions that the respondent (1) attend a CLE course designated by bar counsel concerning professional responsibility and the practice of law; (2) provide proof to bar counsel that he is maintaining professional liability insurance coverage in an amount of at least $250,000/$500,000 in effect for a period of two years from the entry of the public reprimand; and (3) within ten days of the entry of the public reprimand, contact the Director of the Law Office Management Assistance Program (LOMAP), and make arrangements for LOMAP to inspect and audit the respondentís law office practices within six months from the date of the reprimand.

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

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