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Commonwealth of Massachusetts

Public Reprimand No. 2010-3



PAUL E. KENNEDY

Order (public reprimand) entered by the Board January 22, 2010.

SUMMARY1


In the fall of 2000, the respondent’s longtime client and personal friend (the borrower) sought and obtained a loan commitment from a mortgage lender for a $100,000 loan for a business enterprise. The borrower negotiated the loan, which was to be secured by a mortgage on his home, without the assistance of counsel.

At the closing, the borrower thought that the lender had substituted a higher variable interest rate rather than the lower fixed rate the borrower believed had been negotiated. The borrower telephoned the respondent from the closing in Rhode Island to discuss his options. The respondent advised the borrower to either walk away from the deal or go forward with the closing and then sue the lender for unfair business practices. The borrower decided to go forward with the closing.

After the closing, the borrower met with the respondent to discuss bringing a claim against the lender. The respondent agreed to make some telephone calls to the lender and write to the closing attorney. The respondent did not inform the borrower that he was limiting his representation to attempting to reach a settlement and that the borrower would have to consult another lawyer if a lawsuit against the lender was necessary. The respondent did not obtain the borrower’s consent after consultation to this limitation.

In the fall of 2000, the respondent attempted to telephone the lender and wrote to the closing attorney, but received no response to his inquiries. In the years following his efforts, the respondent explained to the borrower the difficulties of pursuing the case and advised him to contact the banking commissioners in both Massachusetts and Rhode Island, but he did not inform the borrower that the borrower would have to retain other counsel if he wished to file a lawsuit and that he should do so before the statute of limitations ran on his claim. The statute of limitations against the lender expired in 2006.

The respondent’s failure to seek the consent of the borrower after consultation to limit the objectives of the representation violated Mass. R. Prof. C. 1.2(c). The respondent’s failure to explain to the borrower that he did not intend to pursue a civil lawsuit against the mortgage lender and that he should seek alternative representation before the expiration of the statute of limitations violated Mass. R. Prof. C. 1.4(b).

The respondent was admitted to practice on November 24, 1970. In aggravation, the borrower lost his right to pursue a civil claim against the mortgage lender, although his claim was complicated by his decision to go forward at the closing. In further aggravation, the respondent received an admonition in August of 2005 for engaging in similar misconduct in violation of Mass. R. Prof. C. 1.2(c) and 1.4(b). Admonition No. 05-27, 21 Mass. Att’y Disc. R. 729 (2005). In mitigation, the respondent was suffering from serious medical conditions during the period of the misconduct.

The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for a public reprimand, with the condition that the respondent, 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 respondent’s law office practices within six months from the date of the reprimand. On January 11, 2010, the board ordered a public reprimand, subject to the terms of probation set out in the stipulation.


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



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