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Commonwealth of Massachusetts

Public Reprimand No. 2009-11



JEFFREY S. GLASSMAN

Order (public reprimand) entered by the Board May 11, 2009.

SUMMARY1


In the fall of 2005, the respondent was retained on a one-third contingent fee basis to represent a driver who had been injured in a two-car collision. The other vehicle had crossed the center line, striking the driver clientís car head-on.

The driver client had two passengers, one of whom was rendered a paraplegic as a result the collision. The second passenger also suffered severe injuries. The driver clientís injuries were less serious than either of his passengersí. The driver referred the passengers to the respondent, who agreed to represent each of them as well for a contingent fee.

The other vehicle, which was insured in another state, carried single limit liability coverage of $400,000 per occurrence. The driver client had coverage of $50,000 per person and $100,000 per occurrence. The available insurance was grossly insufficient to cover the total damages sustained by the respondentís three clients. Neither driver had personal assets available to satisfy claims arising from the accident.

In the circumstances, the interests of the respondentís three clients were directly adverse to each other. The respondentís representation of each client was or might have been materially limited by his responsibilities to the other clients. The respondent did not provide reasonably sufficient information to the clients to permit them to appreciate the full significance of the common representation. The respondent could not reasonably believe that the representation of any one of these clients would not be adversely affected by his representation of the other clients and therefore could not obtain their informed consent to the conflicts.

A few weeks after retaining the respondent, the paraplegic client discharged the respondent and engaged other counsel. Thereafter the respondent represented the driver client and the remaining passenger client. The respondentís continued representation of those clients placed him in a position of ongoing conflict. The respondent did not provide reasonably sufficient information to permit either client to appreciate the full significance of the dual representation. The respondent could not reasonably believe that his representation of one of the clients would not be adversely affected by his representation of the other.

The respondent also represented his remaining clients in the same matter in which he had previously represented his former client, the paraplegic passenger. The remaining clientsí interests were materially adverse to those of the former client in that matter. The respondent did not obtain the former clientís consent after consultation to his continued representation of the remaining clients.

In early 2006, the other insurer offered an aggregate settlement of the $400,000 policy limits to the former client and the respondentís remaining clients collectively, subject to their apportionment of the proceeds among themselves. Thereafter the respondent negotiated with the former clientís new counsel over apportionment of the proceeds on a percentage basis between the former client on the one hand and the respondentís clients on the other. In the spring of 2006, the respondent agreed to allocate two-thirds of the proceeds from the other driverís insurance, or $266,667, to the former client and one-third, or $133,333, to be divided between the respondentís remaining clients. On that basis, the respondent accepted the insurerís settlement offer on behalf of his clients.

The remaining passenger clientís damages alone exceeded the one-third share of $133,333 allocated to the respondentís two clients. The respondent apportioned $76,667, or 57.5%, to the passenger client and $56,665, or 42.5%, to the driver client. The respondent did not disclose to the clients adequately the nature of all the claims involved and any implications of the allocation and division of the proceeds. Therefore, the respondent did not obtain the clientsí fully informed consent to the settlement.

While awaiting payment of the other driverís insurance proceeds, the respondent made a claim for his passenger client against his driver client and presented the claim to the driver clientís insurer. The respondent could not have obtained the clientsí consent after consultation to the conflicts arising from his representation of the passenger client in that claim. The respondent subsequently settled that claim on behalf of the passenger for the driverís policy limits.

By undertaking to represent the adverse interests of the driver and the passengers when the respondent could not reasonably believe that his representation of all three clients would not adversely affect his relationship with any of the clients and without, in any event, obtaining each clientís consent after consultation, the respondent violated Mass. R. Prof. C. 1.4(b) and 1.7(a). By representing the three clients when his representation of each client might be materially limited by his responsibilities to another and when he could not reasonably believe that his representation would not be adversely affected, the respondent violated Mass. R. Prof. C. 1.4(b) and 1.7(b).

By representing the driver and the remaining passenger when their interests were adverse to the interests of a former client in the same transaction, without the former clientís consent after consultation, the respondent violated Mass. R. Prof. C. 1.9(a). By failing to inform the remaining clients adequately of the full nature of the conflicts, the respondent violated Mass. R. Prof. C. 1.4(b) and 1.8(g). By failing to decline the common representation of the three clients and failing subsequently to withdraw from representing the remaining clients despite their conflicting interests, the respondent violated 1.16(a)(1).

The respondent had no history of discipline. In aggravation, the respondentís representation of the driver client and the remaining passenger prejudiced the interests of that passenger.

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, conditioned on an audit of the respondentís law practice by the Law Office Management Assistance Program (LOMAP). On May 11, 2009, 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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