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Commonwealth of Massachusetts

Public Reprimand No. 2010-5



JAGRUTI D. ACHARYA

Order (public reprimand) entered by the Board May 10, 2010.

SUMMARY1


In November 2006, the respondent was appointed to represent the father in a care and protection proceeding involving the fatherís one-month-old son. The child was in Department of Children and Families (DCF) custody. The case was not heard until October 2007.

In May 2007, father was incarcerated. From May until October 2007, DCF was required by law to provide a service plan for the father, but it failed to do so. In addition, DCF failed in its responsibility to make all reasonable efforts to arrange visits with the father despite his repeated requests, while he was incarcerated, to see his son.

In July 2007, the father began participating in a 90-day substance abuse program in prison. The respondent called the program coordinator a few weeks after the father enrolled and learned that the program coordinator did not have a favorable opinion of the father and was otherwise unwilling to testify at trial. The respondent failed to contact the program coordinator again and therefore did not learn that the father made good progress in the program and received a favorable final program report on October 1, 2007.

In October 2007, the respondent represented the father in the trial on termination of his parental rights. The respondent was unfamiliar with the case law applicable to the hearing, was unable to prove the fatherís successful completion of the program, and failed to question the DCF social worker about DCFís failure to provide a service plan for father or facilitate adequate visitation with his son. The court entered judgment terminating fatherís parental rights, citing, among other things, the fatherís failure to corroborate his claim that he had successfully completed the substance abuse program.

The respondent filed a notice of appeal, and her client was appointed another lawyer. On February 27, 2008, appellate counsel filed a motion for a new trial alleging ineffective assistance of counsel.

The respondent opposed the fatherís motion for a new trial and defended her conduct by filing an affidavit in the trial court that included information gained in the course of her representation of father. The father had not consented to this disclosure, and the disclosure was not necessary for the respondent to defend herself against allegations concerning her representation. The affidavit also included an unintentionally false representation regarding fatherís program records.

On the same day that the respondent filed the affidavit, she appeared at a non-evidentiary hearing on fatherís motion for a new trial and again revealed confidential information gained in the course of her representation of father. The respondentís remarks were inaccurate, and she could not have reasonably believed that her disclosures of confidential information were necessary to defend against an allegation of ineffective assistance of counsel.

The respondentís conduct in failing adequately to research the law pertinent to the fatherís case and investigate the fatherís participation in the substance abuse program violated Mass. R. Prof. C. 1.1, 1.2(a) and 1.3. The respondentís failure to adduce critical evidence in favor of her client at trial constituted a violation on Mass. R. Prof. C. 1.1. The respondentís conduct in disclosing information gained in the course of representing the father when she could not have reasonably believed that her disclosures were necessary to defend herself against allegations of ineffective assistance of counsel violated Mass. R. Prof. C. 1.6(a) and 1.9(c). The respondentís conduct in making unintentionally false representations to the court about the trial proceedings violated Mass. R. Prof. C. 8.4(d) and (h).

In mitigation, the respondent was relatively inexperienced in the relevant area of practice, and this matter was her first trial. The respondentís disclosure of confidential information was not intended to harm the client but to explain her own conduct. To rectify her errors, the respondent submitted an affidavit to the appeals court on January 20, 2009, correcting her prior misrepresentations to the court. Her conduct also caused no harm because the evidence in favor of terminating parental rights was overwhelming, and her client was found to have suffered no prejudice at trial due to the respondentís actions. Following these events, the respondent took several CLE classes to educate herself on her ethical obligations and the law.

The matter came before the Board of Bar Overseers on a stipulation of facts and rule violations and a joint recommendation for a public reprimand. On March 8, 2010, the Board voted to sanction the respondent by public reprimand, noting that the respondent's disclosures were not reasonable because they involved an unintentional misrepresentation, they were based on a misunderstanding of the law, and they were unnecessary to defend her conduct.


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



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