ORDER OF PUBLIC REPRIMAND

This matter came before the Board on a Petition for Discipline and a Stipulation of the Parties waiving hearing and requesting that the matter be resolved by the imposition of a public reprimand. On April 12, 1999, the Board voted to accept the stipulation of the parties and their joint recommendation to administer a public reprimand to Ms. Cross without further proceedings before a hearing Committee. A summary of the charges giving rise to the reprimand is attached to this order.

Whereupon, pursuant to Supreme Judicial Court Rule 4:01, Sect. 8(2), and the Rules of the Board of Bar Overseers, Sect. 3.57, it is ORDERED AND ADJUDGED that KATHLEEN E. CROSS, Esq. be and hereby is PUBLICLY REPRIMANDED.

By: Richard M. Zielinski, Esq.

Board of Bar Overseers

Administered: July 20, 1999

SUMMARY1

In or about December 2, 1997, the respondent's law firm on behalf of the plaintiff filed a civil suit in U.S. District Court against a corporate defendant and one of its principals. The civil complaint, a request for a waiver of service of summons, and a waiver of service of summons were sent certified mail to both defendants in Connecticut at that time.

Late in the afternoon of April 1, 1998, the respondent realized that neither defendant had returned the waiver of service and that April 1, 1998 was the last day of the 120-day time limit for service. The respondent attempted unsuccessfully to find a Connecticut constable to make service and then decided to make service herself. Accompanied by a friend, the respondent drove to Connecticut on the evening of April 1, 1998.

The respondent first went to the defendants' business address. The building was closed. The friend remained in the car while the respondent convinced a cleaning woman to let the respondent into the building. The respondent left the summons and complaint at the door to the defendants' office.

The respondent and her friend then drove to an address that they believed to be the residence of the individual defendant. In fact, however, although the street address was the same, they were in the wrong town. At the respondent's direction, the friend left the summons and complaint in a bag attached to the garage door.

The respondent then filled out the return of service and the friend signed it. On or about April 7, 1998, the respondent filed the return of service in the U.S. District Court. The return of service stated that service was made by the friend on April 1, 1998 at both the defendants' place of business and residence.

When the respondent filed the return of service, she knew or should have known that she, not her friend, had in fact made service at the defendants' place of business and that the statement that the friend had made such service was not accurate. The respondent's conduct in filing the return of service when she knew or should have known the return contained information that was not true and correct was in violation of Mass. R. Prof. C. 8.4(d) and (h).

On or about April 21, 1998, the defendants' counsel filed a motion to dismiss for, among other reasons, lack of timely service. On or about May 5, 1998, the respondent filed an opposition to the motion to dismiss, along with an affidavit from the respondent. In the opposition, the respondent conceded that service of process was defective and asked for additional time to make service. In the affidavit, the respondent admitted that the residence address at which service was made was incorrect. She further stated, however, that her friend had also left copies of papers at the business address, although the office was closed.

When she filed this affidavit, the respondent knew or should have known that her sworn statement that her friend, as opposed to the respondent herself, left copies of the papers at the business address was not accurate. Her conduct in this respect was also in violation of Mass. R. Prof. C. 8.4(d) and (h).

In mitigation, the respondent in her opposition to the motion to dismiss did not attempt to claim that service was valid and thus the misrepresentations in the return of service and the affidavit were not material.

The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand. The Board accepted the parties' recommendation and imposed a public reprimand on July 20, 1999.

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