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Commonwealth of Massachusetts

Public Reprimand No. 2010-14



DANIEL JOSEPH KELLEHER

Order (public reprimand) entered by the Board June 25, 2010.

SUMMARY1


On March 17, 2005, the respondent filed a verified complaint in the Superior Court Department on behalf of his client against a company and certain individuals. The respondent alleged, in substance, that the company was liable for certain obligations of a defunct predecessor company that the predecessor company owed to his client. The argument turned on whether the transfer of the predecessor company to the defendant was a sham. At all applicable times, the respondent explained to his client that his claim was difficult both on the law and as a matter of proof, but that discovery might uncover a sufficient link between the two companies to induce a cash settlement.

On September 21, 2005, the defendants filed a motion to dismiss and a memorandum in support. The defendants argued that the complaint failed to state a claim for relief and in the alternative, that the claims were time barred. The substance of the motion to dismiss was an argument that the defendant successor company owed no duty to his client. The respondent received the motion to dismiss and then obtained one or more continuances to file an opposition with a final hearing date of July 6, 2006. The respondent did not file an opposition by July 6, 2006, and did not appear at the hearing. On July 13, 2006, the defendants’ motion to dismiss was allowed based on the fact that no opposition had been filed. On the same date, a judgment of dismissal entered dismissing the plaintiff’s complaint against all defendants. The respondent received the judgment of dismissal but did not notify his client of the filing of the motion to dismiss, the hearing date or of the ruling on the motion. The client learned of the dismissal on his own in early July 2007.

The respondent took no further action on the case until the summer of 2007, when he consulted with another attorney who then filed a motion to vacate the judgment of dismissal and a memorandum of law.

Each defendant filed an opposition to plaintiff’s motion, arguing in substance the plaintiff could not demonstrate a likelihood of success on the merits due to laches and lack of standing.

On December 12, 2008, the court denied the motion to vacate, finding no excusable neglect. The court found that the respondent failed to act promptly in filing and serving his motion.

The respondent’s failure to act with reasonable promptness and diligence by failing to brief and argue in opposition to the motion to dismiss and his failure to timely file a motion to vacate the dismissal, were in violation of Mass. R. Prof. C. 1.1, 1.2(a) and 1.3.

In aggravation, the respondent received a prior admonition in May 2007 for failure to cooperate with bar counsel and an admonition in June 2008 for a failure to communicate with a client and lack of diligence. The neglect, failures to respond and lack of diligence in the later admonition occurred about the same time frame as the events described herein. In mitigation, during the time frame of the events in question, the respondent’s concentration was clouded by the death of his two nieces in a tragic automobile accident and by the death of a close friend. After June 2008, the respondent obtained assistance in law office management and treatment for his personal issues. The respondent has paid back to his former client a $1,000 initial fee that the client paid.

This matter came before the board on June 14, 2010, on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand. The board accepted the parties’ recommendation and imposed a public reprimand on condition that the respondent maintain malpractice insurance.


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



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