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Commonwealth of Massachusetts

Public Reprimand No. 2010-35



JAMES G. PEPE, JR.

Order (public reprimand) entered by the Board December 21, 2010.

SUMMARY1


In early 2009, the respondent defended a client in a summary process proceeding brought by the clientís landlord. The client claimed that the landlord had failed to remediate mold in her apartment. On the respondentís advice, the client hired an environmental consultant to inspect her unit for the presence of mold, and the consultant provided a written report to the respondent confirming the presence of mold in the apartment.

The respondent timely filed an answer and counterclaims, including a claim pursuant to M.G.L. c. 93A. At the case management conference in March, the parties agreed to serve discovery requests by no later than March 27, 2009, and responses to discovery by May 15, 2009. This agreement was entered as an order of the court. The respondent advised his client that she could expect a trial sometime in June 2009.

After the case management conference, the respondent took no further action of substance on the clientís behalf, including filing answers to interrogatories propounded by the plaintiffs. The plaintiffs moved for final judgment due to the defendantís failure to answer the interrogatories, and the respondent did not respond to the motion. The court scheduled a hearing on the motion for July 13, 2009.

The respondent failed to respond to most of his clientís inquiries for information about her case, and he failed to advise her that he had received interrogatories, that the plaintiff had filed a motion for final judgment due to her failure to respond to the interrogatories, and that a hearing had been scheduled on the motion. On two occasions, the respondent misrepresented to the client that the trial date had been continued when he knew a trial had never been scheduled.

On July 2, 2009, the client terminated the respondentís services and demanded that he return her file to her immediately. The respondent failed to advise the client that a hearing on the motion for final judgment was scheduled for July 13, 2009, and that she should retain the services of another lawyer to represent her. The client learned of the hearing through contacting the Attorney Client Assistance Program (ACAP) of the Office of Bar Counsel.

The respondent failed to seek leave of the court to withdraw as required by the rules of the court, he failed to appear at the hearing on the motion for final judgment, and he failed to timely return the clientís file to her. Due to the respondentís failure to appear, the court continued the motion for hearing to late September 2009.

In early September 2009, the respondent left the clientís file, including the leases, the environmental consultantís report, and the pleadings filed by the plaintiffs regarding the interrogatories and motion for judgment, at a copy store to be copied. The client had not authorized the respondent to show her file to store employees. The respondent retrieved the original file, but he did not pick up or pay for the copy. After making several unsuccessful attempts to reach the respondent, the store employees destroyed the copy.

Three weeks prior to the hearing on the motion for final judgment, the respondent delivered the clientís original file to her without any pleadings filed by the plaintiffs. On the date set for a hearing on the motion for final judgment, the parties entered into a settlement agreement that provided for mutual releases of the partiesí claims and for the defendant to receive the funds in escrow.

The respondentís client filed a request for investigation into his conduct. The respondent failed without good cause to cooperate with the investigation and intentionally misrepresented to bar counsel that he would be sending the file to her. Bar counsel was required to obtain a subpoena to secure the respondentís appearance and production of documents.

By failing to timely respond to the interrogatories and to oppose the motion for judgment, the respondent violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3. By failing to advise his client of the interrogatories, failing to respond to his clientís requests for information and by failing to notify her of the motion for judgment, the respondent violated Mass. R. Prof. C. 1.4(a) and (b).

By misrepresenting that he had secured a continuance of the trial date, and by misrepresenting to the client that a trial had been scheduled, the respondent violated Mass. R. Prof. C. 8.4(c). By failing promptly to file a motion to withdraw once he had been discharged by his client; by failing promptly to return to the client her papers; and by failing to take adequate steps to protect the clientís interests, including informing her of a scheduled hearing on the motion for judgment, the respondent violated Mass. R. Prof. C. 1.16. By failing to appear for hearings scheduled in the housing court when he was still attorney of record and his withdrawal had not been approved by the court, the respondent violated Mass. R. Prof. C. 1.16 (c), 3.4(c), and 8.4(d).

By exposing his clientís confidential information to the copy store employees without his clientís consent, the respondent violated Mass. R. Prof. C. 1.6(a). By knowingly failing to without good cause to respond bar counselís request for information, the respondent violated Mass. R. Prof. C. 8.1(b) and 8.4(g). By intentionally misrepresenting to bar counsel that he would be sending the clientís file under separate cover, the respondent violated Mass. R. Prof. C. 8.1(a) and 8.4(c).

On December 13, 2010, this matter came before the Board of Bar Overseers on a stipulation of facts and rule violations with a joint recommendation that the respondent receive a public reprimand for his misconduct with the condition that the respondent attend and complete an MCLE course designated by bar counsel. The board voted to accept the stipulation and recommendation and sanctioned the respondent by public reprimand with the condition that the respondent attend and complete an MCLE course designated by bar counsel.


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



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