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Commonwealth of Massachusetts

Public Reprimand No. 2010-25



H. ERNEST STONE

Order (public reprimand) entered by the Board August 31, 2010.

SUMMARY1


On December 17, 2002, a defendant was found guilty of thirty-one drug related offenses in the United States District Court, District of Maine and on April 2, 2003, was sentenced to a term of forty-seven and one-half years in prison. Trial counsel for the defendant filed a notice of appeal of the conviction and withdrew from the case. The defendant was provided a court-appointed attorney to represent him in his appeal. On May 4, 2004, the Court of Appeals affirmed the verdict, but found that six of the thirty-one counts were duplicative of other counts and remanded the case to the district court for resentencing. On June 25, 2004, the district court resentenced the defendant to a term of forty-seven and one-half years on his convictions.

In January 2004, while incarcerated in a federal penitentiary, the defendant sent a letter to the respondent seeking his assistance in filing a 28 U.S.C. ß 2255 petition to vacate, set aside, or correct his sentence. The respondent agreed to assist the defendant in the preparation and filing of a ß 2255 petition and in any other proceedings necessary to challenge the conviction. The respondent requested a retainer of $7,500 for his initial review of the defendantís case. He advised the defendant that he would notify him of his fee for preparing a ß 2255 petition after he reviewed the trial documents and completed his assessment of the case.

A petition for relief under 28 U.S.C. ß 2255 must be filed within one year from the date of final judgment in a case. In the defendantís case, the date of final judgment was determined to be June 25, 2004, the date of the resentencing. Thus, the petition had to be filed no later than June 24, 2005.

On February 12, 2004, the respondent sent a letter to the defendant asking to be paid the $7,500 so he could begin to work on the case. The letter also informed the defendant that the respondentís fee for representing the defendant on a ß 2255 petition would be $45,000, which would include the $7,500 initial payment.

The defendantís mother sent the respondent a check for $7,500 on May 17, 2004. The respondent visited the defendant in prison in Texas in December 2004. On March 24, 2005, the defendantís brother sent the respondent a $35,000 check on behalf of the defendant. Between January 6, 2004, and June 24, 2005, the respondent reviewed the pleadings and transcripts from the defendantís trial and appeal. He also hired an investigator to review the circumstances of the defendantís case. Notwithstanding these efforts, the respondent lost track of the limitation period and failed to prepare or file a petition by June 24, 2005.

On September 26, 2005, three months after the filing deadline, the respondent filed a five-page ß 2255 petition. The respondent did not inform the defendant that he had filed the ß 2255 petition after the one-year limitation period and did not send the defendant a copy of the petition he filed. Between March 24, 2005, and April 13, 2006, the defendant called and wrote to the respondent on numerous occasions, but the respondent failed to respond to the defendantís efforts to communicate with him.

On December 27, 2005, the government filed and served on the respondent a motion to dismiss the defendantís petition on the grounds that the petition was filed after the one-year statutory deadline. By court order, the respondentís response to the governmentís motion to dismiss was due on or before January 17, 2006. Despite two extensions of time to respond to the governmentís motion to dismiss, the respondent did not file an opposition or otherwise respond to the motion. The respondent also did not inform the defendant that the government had filed a motion to dismiss the ß 2255 petition and that the respondent had not filed and would not file a response.

On February 2, 2006, a U.S. magistrate issued a report in which she recommended that the court grant the governmentís motion and dismiss the defendantís petition based on his failure to oppose the motion to dismiss and the failure to file the petition within the one-year limitations period. The defendant had ten days from the service of the magistrateís findings and recommendation to file an objection with a supporting memorandum. The respondent did not file an objection to the magistrateís report. On February 22, 2006, the court adopted the magistrateís recommendation and issued a judgment dismissing the defendantís petition.

On April 13, 2006, the respondent informed the defendant that the court had rejected his ß 2255 petition. On or about September 30, 2007, the respondent visited with the defendant at prison and informed him that he had not filed the petition in a timely manner and that he had not opposed the governmentís motion to dismiss. Immediately after this visit, the defendant discharged the respondent and demanded that the respondent return the defendantís complete file and refund the fee he had been paid.

Under the circumstances, the respondentís fee of $42,500 was clearly excessive. The respondent failed promptly to return the defendantís file to the defendant and also failed promptly to refund the unearned portion of his fee. Subsequently, the respondent did turn over the defendantís file to the defendant.

On about January 25, 2008, the defendant filed, pro se, a motion pursuant to F.R.Civ.P. 60(b) to reopen his 28 U.S.C. ß 2255 proceeding based on the respondentís lack of diligence and failure to inform him about the status of his ß 2255 petition. The defendant also filed a proposed new ß 2255 petition, citing the same issues the respondent had raised in the dismissed petition. On June 30, 2008, the magistrate allowed the defendantís motion.

On or about January 29, 2009, the magistrate recommended that the defendantís pro se petition be denied based on her finding that no substantial showing of the denial of a constitutional right had been made. The court affirmed this recommendation on March 19, 2009. On April 2, 2009, the court denied the defendantís motion for reconsideration.

By failing to take any action of substance on his clientís case between June 2004 and August 2005, and by filing an untimely petition on his clientís behalf, the respondent violated Mass. R. Prof. C. 1.1 (competence), 1.2(a) (lawyer to seek lawful objectives of client), and 1.3 (diligence). By failing to keep his client reasonably informed about the status of his case, by failing promptly to respond to his clientís request for information about his case, and by failing to explain the matter sufficiently to permit the client to make an informed decision about the representation, the respondent violated Mass. R. Prof. C. 1.4(a) and (b) (communication with client). The respondentís misrepresentations by omission to his client about the status of the case violated Mass. R. Prof. C. 8.4(c) (conduct involving deceit or misrepresentation). By failing promptly after his discharge to return to his client the clientís file and the unearned portion of the fee and by collecting a clearly excessive fee, the respondent violated Mass. R. Prof. C. 1.5(a) (excessive fee) and 1.16(d) and (e) (obligations to client upon discharge).

In mitigation, the defendant was not ultimately harmed by the respondentís failure to file the petition within the statutory period as the defendantís claims of constitutional violations during his trial were without merit. In addition, the respondent entered into an agreement with the defendantís brother to repay the unearned fee he had received. The respondent fully complied with the repayment terms.

The parties stipulated that the appropriate sanction for the respondentís misconduct was a public reprimand. On August 16, 2010, the Board of Bar Overseers voted to adopt the partiesí stipulation and proposed sanction and the respondent received a public reprimand.


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



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