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Commonwealth of Massachusetts

NO. PR 99-13



IN RE: HERMAN W. HEMINGWAY

SUMMARY1



On August 27, 1996, the respondentís client was a passenger on a bus operated by the Massachusetts Bay Transportation Authority (MBTA) when she was attacked by another passenger while the bus was in operation. She received emergency medical care and suffered personal injury and disfigurement as a result of the attack. On August 28, 1996, the client retained the respondent to represent her in any potential claim against the MBTA for inadequate intervention or safety protocols which might have contributed to her injuries. The respondent agreed to pursue the matter on a contingent fee basis, but no written contingent fee agreement was tendered or executed.

On August 29, 1996, the respondent sent a letter of representation to the MBTA and transmitted a standard medical authorization form to the clientís medical provider. The respondent further instructed his client to attempt to locate any potential witnesses by riding the same route at about the same time of day. However, the client was unwilling or unable to locate any witnesses and the respondent undertook no investigation himself.

On divers times and occasions between August 29, 1996, and February 1998, the respondent had discussions with a representative of the MBTA regarding settlement, but the respondent did not mail any demand or prepare any settlement package. The clientís medical provider did not respond to the respondentís initial inquiry of August 28, 1996, but the respondent did not follow up or obtain the pertinent medical records.

In February 1998, the respondent met his client at the respondentís office to discuss the case. On February 20, 1998, the respondent reported that he was still negotiating with the MBTA. The respondent, however, made no contact with the MBTA after February 20, 1998, and took no further action on the case after his meeting with his client.

In September 1998 the client consulted with other counsel regarding the case and was informed, at that time, that the claim against the MBTA was time-barred because the respondent did not file suit within two (2) years of the incident. On September 10, 1998, the client filed a complaint with Bar Counsel. The respondent did not reply to correspondence from Bar Counsel until compelled to do so by subpoena. After being subpoenaed, the respondent cooperated fully with Bar Counselís investigation.

At no time did the respondent research or investigate the limitation period for claims against the MBTA and was unaware that the limitation period is two years as provided in G.L. c. 161A ß 21.

The respondentís conduct, including his failure to conduct any meaningful investigation of the circumstances of the case and his failure to research the applicable limitation period, constituted inadequate preparation and neglect of a legal matter entrusted to him. For conduct prior to January 1, 1998, the respondent violated Canon Six, DR 6-101(A)(2) and (3). For conduct after January 1, 1998, the respondent violated Mass. R. Prof. C. 1.3 and 1.4(a). The respondentís conduct in failing to reduce the contingent fee agreement to writing was in violation of S.J.C. Rule 3:05, Canon Two, DR 2-106(C). The respondentís failure to cooperate with Bar Counselís investigation, was in violation of S.J.C. Rule 4:01, ß 3, and Mass. R. Prof. C. 8.4g.

In aggravation, the respondent had prior discipline, including two prior private reprimands for neglect and incompetence.

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 partiesí recommendation and imposed a public reprimand on February 14, 2000.

1 Order (public reprimand) entered by the Board February 14, 2000.



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