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Commonwealth of Massachusetts

Public Reprimand No. 2010-34



KENNETH H. BERKLAND, JR.

Order (public reprimand) entered by the Board December 13, 2010.

SUMMARY1


The respondent, Kenneth H. Berkland, Jr., Esq., is an attorney duly admitted to the Bar of the Commonwealth on December 17, 1980. He had no prior discipline.

On May 24, 2003, a vacation home in New Hampshire was destroyed in a gas explosion. The ownerís youngest daughter, then age five, was killed in the accident, while his wife, two other minor children and his parents (collectively the client) suffered both emotional and physical injuries.

After an investigation by the New Hampshire Fire Marshall and the New Hampshire Attorney Generalís Office, it was determined that the explosion was likely caused by a gas line that was cut during a construction project. When the gas and a gas appliance were turned on, an explosion ensued.

In June 2003, the client retained Attorney James Ciapciak (disbarred effective August 19, 2009. on unrelated matters). On December 19, 2005, a lawsuit was filed in New Hampshire. The defendants were the general contractor, a subcontractor, the worker who cut the line and his supervisor.

On March 30, 2006, the respondent entered an appearance in the New Hampshire case, pro hac vice. At this time, the respondent was associated with Ciapciakís firm as of counsel. The respondent did not receive appropriate or adequate assistance in dealing with an unusually complex and emotionally overwhelming case.

On May 15, 2006, the general contractor filed interrogatories to be answered by the plaintiff, as well as requests for production of documents. The respondent did not inform his client that interrogatories had been served and did not send copies of the interrogatories to his client or request him to provide answers.

On August 10, 2006, opposing counsel filed a motion for a conditional default and on September 22, 2006, the court granted a conditional default for failure to respond to interrogatories. On September 25, 2006, notice of the default was sent to the respondent. On September 27, 2006, the respondent provided opposing counsel with supplemental documents requested in discovery, but not the answers to interrogatories.

On October 13, 2006, opposing counsel filed a motion for final default for the respondentís failure to file answers to the interrogatories. The respondent did not file answers and on December 22, 2006, the court entered a final default against the plaintiffs on their claims against the general contractor. On January 8, 2007, the respondent filed a motion for reconsideration of the order of final default. However, the respondent did not, at that time, file answers to interrogatories.

On January 24, 2007, the respondent, for the first time, sent the interrogatories and draft interrogatory answers to his clients for review and or signature.

On January 26, 2007, the court denied the respondentís motion for reconsideration of the entry of final default and on February 5, 2007, the respondent filed a second motion to reconsider entry of final default. The respondent accepted responsibility for his failure to complete the responses to the interrogatories. However, the respondent still did not file answers with his second motion for reconsideration. On February 8, 2007, opposing counsel filed an opposition arguing in part that answers were still not filed.

On February 9, 2007, the respondent sent answers to interrogatories to opposing counsel and notified the court that the answers had been sent. However, on February 26, 2007, the court denied the respondentís second motion for relief from judgment.

On November 28, 2007, the client learned for the first time of the conditional default, the final default and the respondentís efforts to undo the defaults.

The clientís claim for damages has since been settled in an amount satisfactory to the client.

The respondentís failure to seek the clientís lawful objectives, his failure to act with reasonable diligence and his failure to adequately communicate with the client was in violation of Mass. R. Prof. C. 1.1, 1.2(a), 1.3 and 1.4.

This matter came before the Board of Bar Overseers on a stipulation of facts and joint recommendation for discipline by public reprimand. The Board of Bar Overseers voted to adopt the partiesí recommendation and imposed a public reprimand.


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



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