admonition no. 18-01 failing to communicate adequately ... · admonition no. 18-03 classification:...

ADMONITION NO. 18-01

CLASSIFICATIONS:

Failing to Act Diligently [Mass. R. Prof. C. 1.3] Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:

In February of 2016, a client retained the respondent to file a petition to modify his alimony agreement and a petition to obtain guardianship of his disabled adult son from his ex-wife. The respondent filed both petitions in March of 2016 and promptly received the summons on the alimony petition. In May or June of 2016, the guardianship petition was returned to him from the court due to missing information. Although the respondent informed the client he would refile the guardianship petition in July of 2016, he did not refile it until October of 2016. Due to an administrative matter with the court, the filing was again not accepted. The respondent successfully filed the guardianship petition in December of 2016 and received the summons on the guardianship petition. Throughout this time, the respondent failed to promptly communicate with the client about the delays in the matters.

In January of 2017, the respondent served both the alimony petition and the guardianship petition. The respondent received discovery requests in both matters in March of 2017, but failed to provide responses to discovery. Communication broke down between the respondent and the client in April of 2017. In May of 2017, the respondent withdrew from his representation of the client and successor counsel filed an appearance. Successor counsel completed discovery and the matters were concluded. The client was not prejudiced as a result of the respondent’s misconduct.

The respondent’s failure to act diligently in representing the client violated Mass. R. Prof. C. 1.3. The respondent’s failure to adequately communicate with the client violated Mass. R. Prof. C. 1.4(a).

The respondent was admitted to practice in Massachusetts in 2002. He has no prior discipline. The respondent received an admonition for his conduct in this matter.


CLASSIFICATIONS:

False or Misleading Communication [Mass. R. Prof. C. 7.1] Firm Names and Letterhead [Mass. R. Prof. C. 7.5]

SUMMARY:

The respondent is the principal in a law firm in which he historically has employed at least one associate. Between 2000 and 2012 the respondent employed an attorney, first as an associate and later “of counsel” to the firm. The respondent owned the office building where one of the firm’s offices was located. In 2005, he put signage on the building’s façade including the associate’s name. The sign was displayed prominently above the main entrance to the building on a main street near the local courthouse.

In August 2012, the associate left the respondent’s employ entirely and in December 2012, began working in a government position. Eighteen months later, having noticed that the building’s façade still displayed her name, the now former associate contacted the respondent and requested that he remove it. The respondent acknowledged that he needed to do so and agreed to do it. By October 2016, the respondent had not removed her name from the building’s external façade.

The respondent removed the signage from the building nearly four years after the associate left the firm, and only after a complaint had been filed with bar counsel.

By holding his firm out to the public as including the associate for almost four years after she had left the firm, the respondent violated Mass. R. Prof. C. 7.1 and 7.5(a).

The respondent has been a member of the Massachusetts bar since 1987 and has no prior discipline. He received an admonition for the above misconduct.


CLASSIFICATION:

Improper Disclosure of Confidential Information [Mass. R. Prof. C. 1.6]

SUMMARY:

The respondent disclosed a confidential client communication in the administration of an estate.

The respondent was retained to represent a client as personal representative of the client’s brother’s estate. The decedent died testate survived by a daughter. The daughter was sole remainder beneficiary and primary beneficiary of the estate. The client subsequently retained separate counsel to represent him personally in his own claim against the same estate. The decedent’s girlfriend, not an heir-at-law, was also pursuing a claim.

On August 3, 2017, the respondent sent an email to his client with copies to the lawyers for the daughter and for the girlfriend, as well as a copy to the lawyer representing the client in his personal claim.

In his email, the respondent informed his client of his opinion that the client cannot appropriately and objectively serve as personal representative of the estate while at the same time suing it. He further advised his client to withdraw as personal representative and indicated that if his client did not resign, the respondent would move to withdraw as counsel.

The respondent’s client declined to resign as personal representative on the advice of other counsel that he was not required to do so under case law. On August 16, 2017, the client discharged the respondent, and, on August 17, 2017, the respondent transmitted his file to successor counsel and withdrew.

Without permission of his client, the respondent disclosed to third parties legal advice that he had given to his client, in violation of Mass. R. Prof. C. 1.6(a). The respondent did not appreciate that this legal advice was confidential and might be used, rightly or wrongly, as ammunition to seek the removal of the personal representative by a beneficiary or claimant.

The respondent was admitted in December 1987 and has no prior discipline. Accordingly, the respondent received an admonition.


CLASSIFICATIONS: Handling Legal matter when not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1] Failing to Act Diligently [Mass. R. Prof. C. 1.3] Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4] SUMMARY: Bar counsel filed a petition for discipline against the respondent alleging violation of rules 1.1, 1.3 and 1.4 in connection with his representation of a married couple who were seeking a mortgage modification. The respondent admitted the charges and, pursuant to BBO Rules, § 3.19(c), relinquished the right to be heard in mitigation, requesting only a hearing on disposition.

On March 19, 2013, the client designated the respondent to be his authorized third-party representative to communicate with Wells Fargo Home Mortgage (Wells Fargo) on all issues pertaining to his loan modification. On September 1, 2013, the respondent notified Wells Fargo of his representation of the clients and sent it their request for mortgage assistance and other documentation. On December 7, 2013, Wells Fargo offered the clients an FHA Home Affordable Modification Program (HAMP) trial plan. By letter of December 28, 2013, the respondent sent the clients’ FHA HAMP Trial Plan and the first payment to Wells Fargo. The clients agreed to pay, and paid, $1,392.12 for three months during the trial period.

On March 22, 2014, Wells Fargo approved the loan modification and sent the

final modification agreement directly to the clients for their execution. On March 24, 2014, they signed and returned the notarized agreement. However, the dates on the husband’s signatures did not include the year 2014. On April 18, 2014, Wells Fargo sent to the respondent via Fed-Ex a new final modification agreement for the clients to sign and return. The respondent received the communication but failed to open it or send it to his clients for their signatures. Between January and June 2014, the respondent failed to communicate with his clients and failed to return telephone calls from the wife. Between May and June 2014, the respondent also failed to respond to numerous telephone calls and messages from Wells Fargo.

On July 15, 2014, Wells Fargo denied the loan modification. By letter dated

August 5, 2014, Wells Fargo returned to the clients their mortgage payment for August 2014 and notified them that they had breached the terms of their agreement and were facing foreclosure proceedings. On or about August 11, 2014, the husband spoke to a loan specialist at Wells Fargo and learned that the respondent had received a final loan agreement for his execution and that because the clients had failed to sign and return the loan modification documents, they were no longer in the loan modification program. The husband telephoned the respondent on the same date. The respondent told him that he had received the Wells Fargo package but that he put the envelope in his file without opening it. The respondent opened the package while the husband was on the phone. The respondent told him to tell Wells Fargo that it was the respondent’s fault. The respondent took no further action of substance on behalf of his clients. Even though there was no evidence that Wells Fargo began foreclosure proceedings or foreclosed, the hearing committee found harm in the clients’ receipt of information that: (1) they had breached the terms of their agreement and were facing foreclosure proceedings; and (2) they were no longer in the loan modification program.

Matter of Kane, 13 Mass. Att’y Disc. R. 321, 327 (1997), established presumptive

sanctions for neglect, providing that absent aggravating and mitigating factors, “[a]dmonition is generally appropriate when a lawyer has failed to act with reasonable diligence in representing a client or otherwise has neglected a legal matter, and the lawyer’s misconduct causes little or no actual or potential injury to a client or others.” Kane and its progeny teach that an admonition may be appropriate even in the presence of some actual harm. E.g., Admonition No. 17-20, 33 Mass. Att’y Disc. R. __ (2017) (after obtaining execution on his client’s behalf, lawyer did not convey settlement offer to defendant and neglected the matter for over two and a half years, ceasing communication with client until the filing of OBC complaint and eventually settling on substantially the same terms); Admonition No. 17-16, 33 Mass. Att’y Disc. R. __ (2017) (lawyer’s failure to file motion to reopen immigration matter, after deportation order, resulted in client’s arrest and detention for several days); Admonition No. 16-15, 32 Mass. Att’y Disc. R. __ (2016) (lawyer’s failure to follow up after drafting letter, pro bono, to client’s employer protesting termination, failure to respond to client’s requests for information and subsequent failure to file properly at MCAD and take action on client’s behalf resulted in lost claim); Admonition No. 06-05, 22 Mass. Att’y Disc. R. 853 (2006) (lawyer in divorce case filed complaint and secured temporary orders but then allowed case to become inactive, causing dismissal and termination of client’s temporary support and health insurance orders; client retained new lawyer who caused orders to be reinstated the following month).

On January 8, 2018, the matter came before the Board of Bar Overseers without objection or appeal by either party. The board voted to adopt the report of the hearing committee, and issued an admonition.


CLASSIFICATIONS:

Failing to act diligently [Mass. R. Prof. C. 1.3]

Failing to communicate adequately with client [Mass. R. Prof. C. 1.4]

SUMMARY:

The respondent represented a client in his application for asylum. On October 22, 2015, the client’s application for asylum was denied by the Immigration Court. The respondent filed a timely appeal from the denial of the client’s application for asylum with the Board of Immigration Appeals. On October 19, 2016, the client’s appeal was dismissed by the Board of Immigration Appeals.

The client retained the respondent to file a petition for review to the U.S. Court of Appeals for the Ninth Circuit. The respondent failed to timely file the petition for review with the Ninth Circuit.

On May 31, 2017, the respondent and the client received a decision from the Board of Immigration Appeals ordering his removal from the United States. The respondent failed to contact the client to inform him about the status of his case and to consult with him about his options.

Subsequently, the client learned that the respondent had failed to file his petition for review with the Court of Appeals. The Executive Office of Immigration Review at the U.S. Department of Justice denied the client’s pro se motion to reissue the October 19, 2016 decision on the grounds that the respondent and the client had been served with notice and they had not filed a timely appeal.

The client retained new counsel and successor counsel filed a motion to reopen on the client’s behalf based upon the respondent’s ineffective assistance of counsel. This time, the U.S. Department of Justice ruled in the client’s favor and reissued the decision. The client has filed an appeal from that decision and his appeal is back on track.

The respondent’s conduct in failing to file the client’s petition for review with the U.S. Court of Appeals violated Mass. R. Prof. C. 1.3.

The respondent’s conduct in failing to adequately communicate with the client violated Mass. R. Prof. C 1.4.

The respondent was admitted to the Massachusetts bar in 2003 and has no prior discipline. The respondent received an admonition for his conduct, conditioned upon attendance at a CLE course designated by bar counsel.


CLASSIFICATIONS: No Written Fee Agreement [Mass. R. Prof. C. 1.5(b)(1)] Unauthorized Practice of Law [Mass. R. Prof. C. 5.5(a)] SUMMARY:

The respondent is a Massachusetts attorney living in Vietnam. He was contacted by a Vietnamese woman living in Arizona. She had been referred to the respondent after learning that he was a Vietnamese-speaking attorney who might be able to help her. The woman reported that she had just been hospitalized after being physically assaulted by her husband. She was seeking the immediate assistance of an attorney to obtain a protective order against her husband and generally assist her with their looming divorce. She told the respondent that she did not know of any Vietnamese lawyers in Arizona and was in desperate need of his help.

Although the respondent was not licensed to practice law in Arizona, he agreed to represent the woman. They orally agreed that he would begin working on her legal matter immediately and, in return, receive $5,000.00. The respondent did not provide the woman with a written fee agreement.

After receiving the fee, the respondent worked on the woman’s case. He communicated frequently with her and reviewed documents relating to divorces and protective orders in Arizona. He also prepared a lengthy victim-witness statement for the woman and submitted it to the Arizona prosecutor responsible for the criminal charges that had been filed against her husband. He asked the Arizona prosecutor to forward the statement to the presiding judge in the criminal proceeding.

At no point did the respondent seek or obtain court permission in Arizona to undertake this legal representation. At no point did he seek the assistance of local counsel in Arizona prior to rendering legal advice or services to his client.

The woman ultimately found an Arizona-based attorney to help her and decided to terminate the respondent. She requested a $3,000 refund on the grounds that the respondent had not earned the full $5,000 fee and, in any event, was not authorized to do the requested legal work. After she filed a complaint with bar counsel, the respondent agreed to provide the woman with the $3,000 refund.

By rendering legal advice and services to a client in Arizona legal matters, which included preparing documents intended to affect or secure legal rights for that client in Arizona, the respondent violated Mass. R. Prof. C. 5.5(a). By failing to provide his client with a writing that confirmed the scope of the representation and/or basis or rate of his fee or any future fees for his work on her legal matter, the respondent violated Mass. R. Prof. C. 1.5(b)(1).

AD NO. 18-06 Page Two

The respondent was admitted to practice in Massachusetts in 2002 and has no disciplinary history. He received an admonition for the above misconduct.


CLASSIFICATIONS:

Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4(c)] Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)] Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4(h)]

SUMMARY:

The respondent represented a client in a divorce proceeding in which the parties agreed to forgo child support. After the divorce was granted, the client’s ex-wife served the respondent’s client with a complaint for modification seeking child support. After a continuance, a pretrial conference was scheduled in August of 2016. On the date of the pretrial conference, the respondent was ill. He informed his client that he would not be able to make it to court. His intern called the court to inform them he would not be there. The court held the pretrial conference and ordered the respondent’s client to pay child support.

After receiving the decision in October of 2016, the respondent spoke to more experienced attorneys, who suggested he file a motion for relief from judgment based on his illness. One of these attorneys sent the respondent a sample motion and affidavit, which the respondent filled in for his case. Because the model affidavit that he had received was signed by the client in that case, the respondent drafted the affidavit in his case for the client’s signature, rather than his own. Believing time was of the essence, and because the client was unable to come to the respondent’s office, the respondent signed his client’s name under oath. The respondent then filed the motion and affidavit with the probate and family court. The motion for relief from judgment was denied without hearing.

By signing his client’s name on the affidavit under oath, the respondent made a misrepresentation that the signature was that of the client, in violation of Mass. R. Prof. C. 8.4(c); engaged in conduct prejudicial to the administration of justice, in violation of Mass. R. Prof. C. 8.4(d); and engaged in conduct that adversely reflects upon his fitness to practice law, in violation of Mass. R. Prof. C. 8.4(h).

The respondent became a member of the bar in the Commonwealth in 2011. He has no prior discipline. He received an admonition for his conduct on the condition that he attend a continuing legal education course designated by bar counsel.


CLASSIFICATION:

Improper Disclosure of Confidential Information [Mass. R. Prof. C. 1.6(a)]

SUMMARY:

The respondent agreed to represent a client in a divorce proceeding in December 2016. By July 2017, a dispute had arisen between the client and the respondent over fees and the direction for the representation, and the client informed the respondent that she wanted the respondent to withdraw from the representation. The respondent filed a motion to withdraw with an affidavit in support of the motion. The respondent’s affidavit described in detail the respondent’s history of representing the client, including comments on the client’s strategic directives, and said that the client had become uncooperative and unwilling to pay the fees that the respondent believed were owed. The information the respondent disclosed in the affidavit was more extensive than was necessary to support the motion for withdrawal. The respondent did not obtain the client’s consent to disclose the confidential information contained in the affidavit.

By revealing confidential information related to the representation of a client in an affidavit accompanying a motion to withdraw, without the client’s consent and to a greater extent than was necessary to effectuate the withdrawal, the respondent violated Mass. R. Prof. C. 1.6(a).

The respondent was admitted to practice in 2013 and had received no prior discipline. The respondent received an admonition, on the condition that the respondent attend a continuing legal education program designated by bar counsel.


CLASSIFICATIONS:

Withdrawal without Protecting Client or Refunding Unearned Fee or Expense [Mass. R. Prof. C. 1.16(d)] Responsibilities of Partner or Supervisory Lawyer [Mass. R. Prof. C. 5.1(b)]

SUMMARY:

A U.S. citizen wife and her undocumented husband hired the respondent in Massachusetts and paid him to seek adjustment of the husband’s immigration status. The respondent was then in the process of moving his practice to another state and commuting periodically to his Massachusetts office, which remained open at the time. The respondent arranged for another lawyer to work at his Massachusetts office and cover his Massachusetts cases as needed during the transition. The respondent had direct supervisory authority over this lawyer, who lacked sufficient experience to handle the husband’s immigration case without oversight and guidance. The respondent delegated responsibility for the case to the subordinate lawyer but did not engage in adequate supervision of the lawyer’s activities. His failure to do so violated Mass. R. Prof. C. 5.1(b).

Although the subordinate lawyer did preliminary work on the case, the final filings needed to adjust the husband’s status were never submitted or completed. The couple eventually discharged the respondent and asked him to return the unearned portion of their fee payments. In violation of Mass. R. Prof. C. 1.16(d), the respondent failed to make a timely refund.

The respondent had no history of discipline. Through new counsel, the husband has since obtained permanent resident status. The respondent has now made a full refund. He received an admonition for his misconduct.


CLASSIFICATION:

Failing to communicate adequately with client [Mass. R. Prof. C. 1.4(a) and (b)]

SUMMARY:

Prior to May 2014, the client was represented in contract litigation by a partner of the firm that employed the respondent. In May 2014, the firm removed the partner from representation of the client and assigned the respondent to represent him. At that time, the case had been pending for several years, the discovery deadline had expired, and the matter was scheduled to go to trial in the summer of that year. Because of the events that caused the removal of the partner from the litigation, the firm agreed it would not charge the client for the respondent’s legal work through the end of the trial.

The client believed that certain documentation was crucial to proving his claims at trial. It was not clear whether the defendant, a third party, or both had control of the documents. The respondent agreed that he would move to postpone the trial and would make efforts to obtain, through a motion to compel or by trial subpoena, the documents in question. The respondent successfully postponed the trial to October. However, the respondent decided that the documents identified as crucial by the client were unnecessary and redundant and that the cost of obtaining them would be disproportionate to the value of the case. Thus, the respondent did not follow through with his promises to obtain the documents. The case was tried in October 2014 and resulted in a jury verdict for the client, but the jury awarded no damages.

The respondent, however, did not inform the client until shortly before the trial that he had not followed through on his promise to pursue the documents or of the resulting change in trial strategy. In the month immediately preceding the rescheduled trial, the respondent failed to communicate with the client about trial preparation and failed for many weeks to respond to the client’s very frequent e-mails and other communications begging the respondent to communicate with him. On several occasions, the respondent agreed to call the client on a specified day but did not do so. At one point, the respondent admitted to the client that working on the client’s case prevented the respondent from billing profitable time.

By failing to communicate with the client in the month preceding the trial and failing to respond to all of the client’s requests for information and for a meeting or telephone call, the respondent violated Mass. R. Prof. C. 1.4(a), as then in effect. By failing to advise the client of the reasoning behind his decision that the documents identified by the client were not necessary to a successful trial of the case, the respondent violated Mass. R. Prof. C. 1.4(b), as then in effect.

The respondent received an admonition for his misconduct.


CLASSIFICATIONS:

Conflict Directly Adverse to Another Client [Mass. R. Prof. C. 1.7(a)] Imputed Disqualification Generally [Mass. R. Prof. C. 1.10(a)] SUMMARY:

Respondents A and B worked at the same law firm, where Respondent A was a litigation associate and Respondent B was a senior real estate partner.

In August 2014, a client engaged Respondent A to represent him in his divorce. The wife was represented in the divorce by her own lawyer. The Probate Court entered an automatic restraining order that prohibited either party from selling assets while the case was pending. The marital assets included real estate purchased by the wife in 2012. The property was being used as a rental property, and the husband did not wish to retain the property, although he wanted the equity in the property to be addressed as part of the divorce.

In the spring of 2015, the wife’s real estate agent contacted Respondent B and asked him to represent the wife in the sale of the property. Respondent B performed a conflict check that did not disclose the conflict that the husband was a current client of the firm and the wife was an adverse party in the pending divorce matter handled by Respondent A.

Respondent B represented the wife in the sale of the property at the same time that Respondent A was representing the husband in the divorce. Neither Respondent A nor Respondent B was aware of the other lawyer’s simultaneous representation of a client who was directly adverse to the lawyer’s own client. Because the clients were directly adverse to each other in the divorce, the conflict could not have been cured by seeking the clients’ consent to the concurrent representation.

The concurrent representation of two clients with adverse interests by two lawyers at a firm, without prior consent from both clients after consultation, and where it would not have been permissible to seek client consent, violated Mass. R. Prof. C. 1.7(a) (as in effect prior to July 1, 2015) (concurrent conflict of interest), and Mass. R. Prof. C. 1.10(a) (imputed disqualification).

Respondent A was admitted to practice in 2012, and Respondent B was admitted to practice in 1979. Neither lawyer had received prior discipline. The lawyers received admonitions for their conduct, on the condition that each attend a continuing legal education course designated by bar counsel. Their law firm has also made appropriate changes to its conflict-checking system.


CLASSIFICATIONS: Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]

Failing to Act Diligently [Mass. R. Prof. C. 1.3]

Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:

In May 2008, the respondent’s aunt died. Under the will, the respondent was named executrix and trustee of the aunt’s estate. The aunt’s will divided the estate in half, leaving one half to the respondent and the respondent’s sister and established a trust for the remainder for the benefit of four other family members (the beneficiaries). The trust was largely funded with bank accounts and stock liquidations. The will directed the respondent to administer the trust corpus in payments of $500 per beneficiary per month, “factoring in any cost of living and inflation charges” until fully disbursed. Throughout the entirety of the time period that the estate has been open, the respondent sent each beneficiary $500 per month in accordance with the will and trust.

Between 2008 and 2017, the beneficiaries of the aunt’s estate repeatedly requested an inventory of the estate and an accounting. The beneficiaries also requested that the estate be finalized and closed so that they could understand how the trust was funded. The respondent failed to provide the beneficiaries with the requested inventory and also failed to file any accountings with the court as required.

Because the respondent failed to file any accountings, the beneficiaries were compelled to file a petition to render an account with the court. In 2018, counsel for the respondent filed with the Probate Court a First Account and a Petition for Allowance of Account which was assented to by the beneficiaries. The bulk of the estate has now been paid out to the beneficiaries, with minor duties remaining to close out the estate.

The respondent had no experience in handling estate matters and sought no assistance despite being a partner in a firm with experienced probate counsel. The respondent’s neglect of the matter was in violation of Mass. R. Prof. C. 1.1 and 1.3. The respondent also failed to keep the beneficiaries reasonably informed about the status of the estate, in violation of Mass. R. Prof. C. 1.4.

The respondent was admitted in 1986, and has no prior disciplinary history. She received an admonition with a requirement that she attend a CLE program designated by bar counsel.


CLASSIFICATION: Failing to Act Diligently [Mass. R. Prof. C. 1.3] SUMMARY:

The respondent filed a fee application and a supporting affidavit in the course of representing a client. This affidavit was cut and pasted from an affidavit in another case without any substantial revision. The effect was an erroneous representation of the respondent’s hours and services. The problem was subsequently discovered and the fee application denied by the court.

The misrepresentations in the respondent’s fee affidavit did not derive from

wrongful intent. Instead, they were the product of inattention brought on by severe mental illness that was undiagnosed at the time in combination with extreme personal and professional stress. The respondent therefore lacked adequate focus and rushed the submission of the affidavit without recognizing that he had failed to revise the original affidavit to reflect his actual time and charges. His ensuing negligent misrepresentations in the affidavit violated Mass. R. Prof. C. 1.3.

The respondent had no history of discipline and caused no harm to his client.

His mental illness has since been diagnosed, and he has entered treatment. The respondent received an admonition for his misconduct, on condition that he continue in treatment for at least the next two years, comply with his therapist’s treatment recommendations, and authorize the therapist to report any noncompliance during that period to bar counsel.


CLASSIFICATION:

No Written Fee Agreement [Mass. R. Prof. C. 1.5(b)1]

SUMMARY:

In 2015, the respondent agreed to represent a client in a criminal matter pending in Superior Court. The client agreed to pay and ultimately did pay the respondent an agreed-upon flat fee for his work on the case. The respondent failed, however, to communicate in writing the scope of this representation and basis or rate of his fee at the inception of the engagement or any time thereafter. By failing to do so, the respondent violated Mass. R. Prof. C. 1.5(b)(1).

The respondent was admitted to practice in Massachusetts in 1989 and has no prior record of discipline. He received an admonition for his misconduct.


CLASSIFICATIONS:

No Written Fee Arrangement [Mass. R. Prof. C. 1.5(b)]

Failure to Maintain Legal Fees and Expenses Paid in Advance in Trust Account [Mass. R. Prof. C. 1.15(b)(3)] Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)] SUMMARY:

In or about January 2016, the respondent agreed to represent a client in bringing a claim against a police department. In March 2016, the client paid the respondent $500 on account, to be used for litigation costs. The respondent did not deposit the $500 advance for costs to his IOLTA account.

In December 2016, the respondent agreed to represent the client in an upcoming hearing in the probate and family court regarding a modification to his child support payments. The respondent appeared at the hearing. The respondent proposed a $1,000 flat fee for the representation, but did not prepare a written fee agreement. The client paid the respondent $500.

Between January and May 2017, the respondent worked on finalizing a complaint concerning the police incident. By May 2017, the client and respondent’s relationship had deteriorated and the respondent terminated the representation. The respondent did not immediately reply to the client’s requests for the return of his file and his fee.

In July 2017, the client filed a request for investigation with bar counsel. Thereafter, the respondent returned the client’s documents and refunded the $1,000 total fee paid by the client.

By failing to deposit to his client trust account the advance payment for expenses that he received from the client, the respondent violated Mass. R. Prof. C. 1.15(b)(3). By failing to prepare a written fee agreement for the modification case, the respondent violated Mass. R. Prof. C. 1.5(b). By failing to promptly return the client’s file upon termination of the representation, the respondent violated Mass. R. Prof. C. 1.16(e).

The respondent was admitted to the Massachusetts bar in 2014. He had received no prior discipline. The respondent received an admonition for his conduct.


CLASSIFICATIONS: Alluding to Matters not Supported by Admissible Evidence [Mass. R. Prof. C. Rule 3.4(e)]

Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. Rule 8.4(d)]

SUMMARY:

The respondent was the prosecutor in a criminal case. During the closing argument to the jury, the respondent inadvertently but improperly referred to a matter that had been excluded from evidence. In addition, the respondent went beyond the evidence in her closing when she argued that a trial witness was reluctant to testify because she felt pressure from individuals sitting in the courtroom gallery. The defendant’s conviction was overturned on appeal based on the respondent’s improper closing argument.

The respondent’s closing argument violated Mass. R. Prof. C. Rules 3.4(e) (alluding to matters not supported by admissible evidence) and 8.4(d) (conduct prejudicial to the administration of justice). She received an admonition for her misconduct.


CLASSIFICATION:

Improper Disclosure of Confidential Information [Mass. R. Prof. C. 1.6]

SUMMARY:

The respondent represented a client as an heir of an estate in a probate court dispute concerning the personal representative’s conduct. During the representation, a fee dispute arose between the client and the respondent. The client contacted the Office of Bar Counsel’s intake office to complain about the respondent.

The respondent moved to withdraw, asserting, among other reasons, that the “[client] had repeatedly contacted the Office of Bar Counsel with misleading and/or false information.” The other reasons the respondent asserted in the motion included that there had been “a breakdown in the attorney/client relationship,” the respondent and the client “were no longer able to effectively communicate,” and they had “differing views of the management” of the matter.

The respondent’s disclosure that the client had contacted bar counsel with purportedly misleading and false information was harmful to the client and unreasonable. The disclosures potentially damaged the client’s credibility in the ongoing litigation. The respondent failed first to ascertain if his additional, more limited, disclosures would have been sufficient to effectuate the withdrawal. The court scheduled the motion for a hearing. When the client failed to appear, the court allowed the respondent’s motion without argument or opposition.

By disclosing confidential information about his client that was harmful and exceeded what was reasonable and necessary to effectuate the withdrawal, the respondent violated Mass. R. Prof. C. 1.6(a).

The respondent has been a member of the bar since 2008 and has no disciplinary history. He received an admonition for the above misconduct, conditioned upon attending a continuing legal education course designated by bar counsel.


CLASSIFICATIONS: Handling a Legal Matter When Not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1] Failing to Seek Client’s Lawful Objectives or Abide by Client’s Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)] Failing to Act Diligently [Mass. R. Prof. C. 1.3] Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4] SUMMARY:

In September of 2015, the respondent filed a personal injury claim to recover for injuries his client sustained at work. The client had suffered serious head injuries in September of 2012. About a month before the statute of limitations was to run, the case was referred to the respondent by the client’s previous attorney, a friend of the respondent who had become ill.

The referring attorney suggested that the respondent discuss the case with the

client’s caretaker. After speaking to the previous attorney and the client’s caretaker, the respondent filed the complaint focused primarily on the theory of a code violation. The respondent filed the complaint days before the statute of limitations would expire. The respondent later met with the client and they executed a contingent fee agreement, but the respondent never discussed with the client the role the client’s caretaker should have in the matter.

Several months later, the respondent obtained information disproving the code

violation theory. He also received other information that he believed would prevent his client from recovering any significant damages, including a medical record showing that the client tested positive for cocaine in the emergency room after the incident, and that his client had been sanctioned and suspended previously. The respondent therefore determined that the lawsuit lacked merit. He contacted the client’s caretaker to inform her that he had to dismiss the lawsuit because it was frivolous. At the respondent’s suggestion, opposing counsel drafted, and the respondent signed, a joint stipulation for dismissal with prejudice. The parties filed the joint stipulation, which the court allowed.

The respondent did not discuss with his client, or the caretaker, what it meant to

dismiss a case with prejudice or the consequences of dismissing a case after the statute of limitations had expired. The respondent did not consider, or discuss with the client, the option of filing a motion to withdraw his appearance should the client disagree with his assessment. The respondent did not discuss with his client, the possibility of amending the complaint to add additional theories of liability.

AD NO. 18-14 Page Two

The respondent’s failure to discuss with his client the caretaker’s role and decision-making authority violated Rule 1.1 and Rule 1.4.

The respondent’s failure to obtain his client’s consent to dismiss the complaint violated Rule 1.2(a) and Rule 1.4(b).

The respondent’s failure to appreciate and discuss with the client the existence of alternatives that might have preserved the client’s claim violated Rule 1.1, Rule 1.3, and Rule 1.4(a) and (b).

In mitigation, the respondent became a member of the bar of the Commonwealth in 2011 and had no prior experience in civil litigation when he took on the case. Further, the underlying case was of doubtful viability. The respondent has no history of prior discipline.

The respondent received an admonition for his conduct on the condition that he

attend a continuing legal education course designated by bar counsel.


CLASSIFICATION: Improper Disclosure of Confidential Information [Mass. R. Prof. C. 1.6]

SUMMARY:

In February 2014, the respondent agreed to represent a client in a personal injury matter. In or about October 2013, the client had slipped and fallen at a friend’s home, sustaining injuries to her knee.

On August 29, 2016, the respondent filed a civil complaint on behalf of the client with the court. By September 2017, after the client’s deposition, the relationship between the respondent and the client had deteriorated. The respondent was concerned that statements made by the client at her deposition were inconsistent with the client’s prior statements.

In September 2017, the respondent filed a motion for leave to withdraw with the court. The respondent stated in his motion that he could not rely on certain of the client’s representations as to what had occurred and her damages. The respondent served a copy of the motion on the client. After hearing, with the client present and being heard, the court allowed the respondent’s motion for leave to withdraw.

The respondent’s motion went beyond what was necessary to support his withdrawal, and his statement was unnecessarily detrimental to his client’s interests, in violation of Mass. R. Prof. C. 1.6(a).

The respondent was admitted to the bar in 1984 and has no prior disciplinary history. He received an admonition conditioned on attending a CLE program designated by bar counsel.

ADMONITION NO. 18-16 CLASSIFICATIONS: Improper Acquisition of Interest in Litigation [Mass. R. Prof. C. 1.8(i)] False Statement to Third Party [Mass. R. Prof. C. 4.1(a)] Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4(c)] Conduct Adversely Reflecting on Fitness to Practice Law [Mass. R. Prof. C. 8.4(h)]

SUMMARY:

The respondent represented the wife (client) in a divorce case. As part of the divorce, the husband was to sell the marital home and the client was to receive a portion of the proceeds. The sale of the marital home occurred approximately nine months after a separation agreement had been executed and a judgment of divorce nisi had entered. As the respondent had not billed her, the client was unaware that there were any outstanding fees due to the respondent at the time that the separation agreement was executed. After the closing on July 27, 2017, the respondent asserted to the closing attorney that he held a lien on the client’s share of the proceeds to pay his outstanding fees. The respondent did not hold a lien and had never filed a notice of lien with the probate court. The respondent directed the closing attorney to hold a portion of the sale proceeds in escrow to pay his lien. The respondent finally advised the closing attorney to release the funds to the client in May 2018.

The respondent attempted to obtain a proprietary interest in the subject matter

of litigation in violation of Mass. R. Prof. C. 1.8(i). The respondent misrepresented to the closing attorney that he held a lien on the sale proceeds, when he knew that he did not, in violation of Mass. R. Prof. C. 4.1(a), 8.4(c) and 8.4(h).

The respondent received an admonition for this misconduct.


CLASSIFICATIONS:


Failing to Seek Client's Lawful Objectives or Abide by Client’s Decisions to Settle or Enter Plea [Mass. R. Prof, C. 1.2(a)]

Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4 (a)] SUMMARY:

In April 2008, the respondent agreed to represent a client in a claim for personal injuries he suffered as a result of a December 23, 2007, automobile accident in Worcester, MA. The respondent and client did not enter into a written fee agreement.

On May 21, 2008, the respondent sent notice of his representation to the insurance company, and by August 27, 2008, made a demand to settle his client's personal injury claim. Between September 4, 2008, and June 22, 2009, the insurance company and the respondent periodically communicated regarding requests for the client's medical records and lost wage documentation; specifically, the insurance company was seeking MRI record(s) for an injury that preceded the 2007 accident. The respondent provided the insurance company with his client's medical records for treatment directly related to the December 2007 accident, but failed to produce the requested MRI record(s).

The respondent failed to properly file his client's claim in court by December 23, 2010, and the statute of limitations passed. The respondent failed to communicate this to his client.

In the meantime, in November 2010, the insurance company and the respondent agreed to arbitrate the matter. In December 2010, January 2011, January 2012, February 2012 and February 2015, the respondent repeatedly failed to deliver the requested MRI record(s) despite numerous requests by the insurance company. In October 2016, six years after the statute had passed, the respondent produced the requested MRI record(s).

In November 2016, the client learned that the statute of limitations had passed. He terminated his relationship with the respondent and reported the matter to bar counsel.

The respondent, through his malpractice insurer, has since paid the client an amount of money that was agreed to by the client. The amount was based upon the amount the client could have expected to recover if the claim had been pursued.

By failing to file his client's personal injury claim before the expiration of the statute of limitations and failing to provide the necessary medical records to the insurance company, the respondent violated Mass. R. Prof. C. 1.2(a) and 1.3. By failing to update the client regarding the status of the case, the respondent violated Mass. R. Prof. C. 1.4 (a).

The respondent was admitted to the Massachusetts bar on November 28, 1969 and has no prior discipline. He received an admonition.


CLASSIFICATIONS:

Handling Legal Matter when Not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1] Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)]

SUMMARY:

The respondent represented a wife in a very contentious divorce proceeding in which child custody was a central issue. During the proceeding, the Court appointed a Guardian Ad Litem (“GAL”) to investigate the parenting plan for the parties’ son and, in particular, the husband’s fitness as a parent. The GAL ultimately authored three reports which were provided to the Court and counsel for the parties. In one report, the GAL recommended that the husband undergo a psychiatric evaluation. The parties thereafter entered a stipulation in which the husband agreed to undergo the evaluation. The stipulation was filed with and endorsed by the Court.

Prior to conducting the psychiatric evaluation, the evaluating doctor asked the respondent and his opposing counsel for any and all documents that might be relevant to his evaluation, including any GAL reports that had been submitted in the matter. Under Standing Order 02-08 of the Probate Court, those reports were impounded and not available for distribution absent a written order from the court. To obtain such an order, counsel first would have to file a motion and supporting affidavit seeking relief from impoundment.

Contrary to Standing Order 02-08, the respondent provided the GAL reports to the doctor without first seeking and obtaining an order from the Court. The doctor proceeded with his evaluation and submitted his report to counsel for both parties. However, the Court later rejected the report on the grounds that it relied on the GAL reports. The Court specifically found that the respondent violated Standing Order 02-08. The respondent’s client was not prejudiced by this finding; she was awarded full legal and physical custody of her son.

The respondent did not intentionally violate Standing Order 02-08. He mistakenly believed that, pursuant to the stipulation filed with the Court, he was authorized to comply with the evaluating doctor’s document requests. His mistaken belief was reinforced by the fact that his opposing counsel was aware of his transmission of the GAL reports to the doctor but did not object at the time. The respondent acknowledged, however, that, by failing to obtain a written court order allowing said transmission, he failed without good cause to comply with the standing order.

By failing to understand and adhere to Standing Order 02-08, and in particular by disseminating the impounded GAL reports without court permission to do so, the respondent violated Mass. R. Prof. C. 1.1 and 8.4(d).

The respondent was admitted to practice in Massachusetts in 1984 and has no prior discipline. He received an admonition for the foregoing misconduct.

ADMONITION NO. 18-19 CLASSIFICATION: Failing to Act Diligently [Mass. R. Prof. C. 1.3] SUMMARY:

In 2016, the respondent was retained by a client to help him resolve his unlawful immigration status. In particular, the respondent agreed to file paperwork with the Immigration Court seeking to rescind a removal order that was entered against the client in 2005. Given the passage of time, the respondent would need to file a motion to reopen that proceeding on the basis that his client did not receive proper notice of the prior proceeding or that his client should be granted asylum.

After interviewing the client, the respondent advised his client to file a motion to reopen based only on lack of notice. He further advised his client that, based on his experience, it would be best to submit a bare-bones motion that focused entirely on the hardship caused by the removal order if enforced. In practical terms, what this meant was that the respondent’s motion would rely mostly on his interview of the client which, in his view, gave him enough information to present an overall hardship defense. He would not and did not pull the client’s file from the Immigration Court. As a result, the respondent never learned, and the client never disclosed, that the client had, in fact, received notice of the 2005 removal hearing.

The respondent accordingly filed the client’s motion to reopen. It argued that the client had no prior notice of the 2005 hearing and that enforcing the removal order would inhumanely separate the client from his wife and child. Contrary to the rules of the Immigration Court, however, the respondent’s motion did not attach or otherwise incorporate by reference any evidence regarding the lack of notice, such as an affidavit from his client. The motion also failed to make an argument for asylum based on the respondent’s earlier assessment that there were insufficient grounds for said argument.

The respondent’s motion to reopen was denied. As an initial matter, the judge faulted the respondent for failing to provide any evidence in support of his motion. The judge then denied the motion on the ground that the Government had produced evidence from the Immigration file showing that the client, in fact, had prior oral and written notice of the 2005 hearing.

The client subsequently filed an appeal with successor counsel. The appeal conceded that he had prior notice of the 2005 removal hearing. However, it argued that the matter nonetheless should be reopened because the respondent rendered ineffective assistance of counsel by failing to conduct a sufficient investigation into the client’s

AD NO. 18-19 Page Two case. As a result, the respondent failed to pursue a more viable basis to reopen the removal proceedings -- the client was eligible for asylum based on the changed conditions in his home country. The appeal asserted that, because there were such changed conditions, the matter should be remanded for further review. Affidavits from the client and his wife were submitted in support of this asylum argument.

The Immigration Court dismissed the client’s appeal. In doing so, the Court rejected the assertion that the conditions in the client’s home country were such that the client might be eligible for asylum. This being so, the Court found that the Immigration judge correctly declined to reopen the matter because the client had proper notice of the 2005 hearing. The Court explained that, even if the respondent rendered ineffective assistance of counsel in the case, his mistakes ultimately did not prejudice or otherwise harm the client’s case.

By failing to submit any evidence in support of the motion to reopen and by failing to review his client’s Immigration file before filing said motion, the respondent violated Mass. R. Prof. C. 1.3.

The respondent was admitted in 2000 and has no prior disciplinary history. He received an admonition for the foregoing misconduct.

ADMONITION NO. 18-20 CLASSIFICATION: Unauthorized Practice of Law [Mass. R. Prof. C. 5.5(a)] SUMMARY:

The respondent was administratively suspended from the practice of law in Massachusetts for failure to file his annual registration statement and pay his annual fees. The respondent was unaware that he had been administratively suspended and continued practicing law at a city law department. Nine months later, the respondent learned of his administrative suspension. He immediately ceased practicing law and submitted a request for reinstatement along with payment for all outstanding registration fees. He was reinstated shortly thereafter.

The respondent’s conduct in this matter constituted the unauthorized practice

of law in violation of Mass. R. Prof. C. 5.5(a). The respondent has been a member of the Massachusetts bar since 1998 and

has received no prior discipline. He accordingly received an admonition for his misconduct.


CLASSIFICATION: Withdrawal Without Protecting Client or Refunding Fee or Expense [Mass. R. Prof. C. 1.16(d)] SUMMMARY: On November 30, 2017, a client retained the respondent to represent him at a domestic restraining ordering hearing scheduled for December 5, 2017 in the Framingham District Court, and in connection with a G.L.c. 119, § 51A investigation by the Department of Children and Families of suspected abuse. The respondent and the client signed a fee agreement, and the client paid the respondent a $2,500 flat fee. The next day, the client was arrested and charged with forcible rape of a child. The respondent and the client mutually agreed to terminate the respondent’s representation, and the client retained a criminal defense attorney to represent him. On December 3, 2017, the respondent agreed to refund the client’s entire $2,500 flat fee. The respondent sent the client his file on December 5, 2017. In her cover letter, she informed him that the refund check would be sent under separate cover. Over the next two months, the respondent failed to refund the fee to the client. During this period, the respondent repeatedly assured the client that the check would be sent shortly. On January 18, 2018, the respondent sent an email to the client apologizing for the delay and inconvenience and agreeing to send him the check that week. The respondent did not mail the check to the client until January 29, 2018, and the client did not receive the check until January 31, 2018, after he had filed a complaint with bar counsel.

The respondent’s failure to promptly refund the unearned advance fee when the representation ended is conduct in violation of Mass. R. Prof. C. 1.16(d).

The respondent was admitted in 2009 and has no prior discipline. The respondent

received an admonition for her conduct.


CLASSIFICATION: Failure to Notify of Receipt or Disburse Promptly [Mass. R. Prof. C. 1.15(c)] SUMMARY: The respondent represented the tenants in a summary process eviction action that had been brought against them by their landlord. The landlord was seeking possession, back rent, and damages. The tenants raised counterclaims for breach of quiet enjoyment, breach of warranty of habitability, and violations of Massachusetts General Laws c. 93A, and c. 186. Among other things, the tenants claimed that they had been unlawfully charged $6,000 for water by the landlord in violation of G.L. c. 186, § 22. On March 9, 2018, the parties and their attorneys negotiated a summary process agreement. The terms included judgment for the landlord for possession only. The tenants agreed to vacate the property by April 30, 2018 and leave the premises in “broom clean” condition. The landlord agreed to pay the tenants $6,500 in resolution of the counterclaims. The settlement payment was to be made in two parts, $1,800 immediately, with the balance of $4,700 to be paid on or by April 30, 2018. The respondent agreed to hold the second settlement payment of $4,700 in escrow pending the tenants’ compliance with their obligations under the terms of the settlement agreement. On April 16, 2018, the respondent received a cashier’s check in the amount of $4,700 from the landlord. The respondent deposited the check to her IOLTA account and notified her clients that she had received the funds. On about April 19, 2018, forgetting her obligations under the escrow agreement, the respondent drew a check from the IOLTA account in the amount of $4,700 payable to her clients, who picked up the check. The respondent did not seek or obtain the permission of the landlord’s attorney to release the escrow funds to the tenants early or even satisfy herself that the apartment was vacant and “broom clean.”

On April 30, 2018, the tenants vacated the rental property. On May 1, 2018, after inspecting the property, the landlord notified the respondent that the premises had not been left in “broom clean” condition. On May 3, 2018, the landlord demanded that the respondent pay her the $4,700 escrow funds. The landlord provided the respondent with an estimate that showed over $4,700 in anticipated charges for remediation. The respondent notified the landlord that the tenants adamantly disputed the charges for repairs and claimed that the damages were pre-existing and that they were entitled to the escrow funds under the settlement agreement. The respondent undertook to promptly resolve the dispute over entitlement to the escrow funds. She

AD NO. 18-22 Page Two also called upon the tenants to return the funds to her so that she could hold the funds in escrow until the dispute was resolved, but they refused to do so. The respondent reimbursed the escrow using $4,700 of her own funds. Shortly thereafter the parties resolved the dispute over the escrow funds with an agreement that the landlord would receive the $4,700 that the respondent had returned to escrow.

By distributing the escrowed funds without mutual agreement or court order, the

respondent violated Mass. R. Prof. C. 1.15(c). The respondent was admitted to practice in 2004, and had received no prior

discipline. Given the absence of ultimate harm to the parties, the lack of any intention to harm the landlord, and the complete restitution of the escrow that the respondent made from her own funds, the respondent received an admonition for her conduct in this matter, on the condition that she attend a continuing legal education program identified by bar counsel on the subject of legal ethics.


CLASSIFICATIONS:

Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]


SUMMARY: The respondent represented a client as co-guardian of an elderly relative based on physical incapacity. The other guardian was a bank. The client provided ongoing care for the ward, who had substantial assets under management by the bank. After research and consultation with a tax practitioner, the respondent and the guardians conceived an estate plan to reduce the taxable estate through various inter vivos gifts. The respondent filed a petition in the probate court to establish the plan and obtained interim orders for the deposit of funds into court pending approval of the plan. The deposited funds were held in interest-bearing bank accounts. The respondent believed that the deposits into court would establish completed gifts under the tax codes and thereby exclude the funds from the ward’s taxable estate.

A trial on the estate plan was scheduled and then continued indefinitely by the court after questions about the plan’s efficacy were raised by guardians ad litem appointed to review the matter. In the meantime, and unbeknownst to the respondent at the time, the ward had executed a will leaving her entire estate to the client. The ward died, and the estate was probated. The estate was not taxable without the deposited funds, which remained in the bank accounts with interest accruing. Years went by without further action on the respondent’s part. The respondent’s failure to take timely and adequate steps to effect the disposition of the deposited funds violated Mass. R. Prof. C. 1.1 (failure to provide competent representation to a client) and 1.3 (failure to act with reasonable diligence and promptness in representing a client).

The respondent eventually consulted with the client about resolving the matter of the

deposited funds. The client retained new counsel who determined, after further research, that the deposits into court had not resulted in completed gifts absent court approval. On a petition by the new counsel, the prior orders were vacated and the deposited funds recaptured for the ward’s estate. Those funds, with accumulated interest, were released to the client. With the recaptured funds, the estate became liable for estate taxes, interest and possible penalties.

The respondent had been admonished in 1990 for unrelated misconduct. In this case, the

respondent acted in good faith but reached a point of genuine uncertainty over the proper resolution of a thorny legal problem. His ensuing misconduct resulted from avoidance and inattention rather than any wrongful intent, and he realized no personal gain from the delay. The client was fully aware of the issues but expressed no interest in the deposited funds during the years of inaction. The respondent has agreed to reimburse the client for any interest and penalties to be assessed against the estate and placed sufficient funds in escrow to cover the anticipated maximum liability. He received an admonition for his misconduct in this case.


CLASSIFICATION: Conflict Directly Adverse to Lawyer’s Own Interests [Mass. R. Prof. C. 1.7(a)(2)] SUMMARY:

In 2015, the respondent agreed to represent a family member pro bono in a criminal matter pending in district court. The matter involved allegations that the family member had tampered with evidence during the course of an ongoing police investigation. After filing his appearance in the matter, the respondent filed a motion for discovery from the Commonwealth as well as a motion to dismiss the charges against his relative. In the motion to dismiss, the respondent argued that the Commonwealth would be unable to prove that any evidence had been tampered with.

The respondent should not have agreed to represent his relative due to a potential conflict of interest. Specifically, his relative was alleged to have tampered with evidence using the respondent’s home internet network. For this reason, the respondent was personally connected to the alleged crime and potentially could have been charged as his relative’s accomplice (along with any others having access to his network). Although the respondent disclosed this potential conflict to his relative and obtained his consent to the representation, this consent was not confirmed in writing. Moreover, and in any event, there was a significant risk that the representation would be materially limited by the respondent’s personal interest in the legal proceeding and related events.

The respondent acknowledged his personal connection to the underlying events to the Court. Moreover, the relative was satisfied with the representation and did not complain of the conflict. In either event, shortly after filing the motion to dismiss, the respondent voluntarily withdrew from the matter due to the foregoing conflict of interest concerns. Successor counsel thereafter filed an amended motion to dismiss, which was allowed by the court.

By representing a client in circumstances where there was a significant risk that the representation would be materially limited by his own personal interests in the matter, the respondent violated Mass. R. Prof. 1.7(a)(2).

The respondent has been a member of the Massachusetts bar since 1985 and has received no prior discipline. He accordingly received an admonition for his misconduct.


CLASSIFICATIONS:

Conduct Disrupting Tribunal [Mass. R. Prof. C. 3.5(d)]

Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)]

SUMMARY:

The respondent received an admonition for unprofessional behavior toward a clerk magistrate.

In 2015, the respondent became agitated at the length of time it was taking for his client’s arraignment. At side bar, the clerk magistrate advised the respondent the arraignment could not take place until an interpreter was present. As the respondent walked away, he muttered a profanity directed at the clerk magistrate.

As a result of the respondent’s profane remark and the ensuing interaction with the clerk magistrate, the arraignment had to be further delayed and moved to another session to be heard by a judge.

The respondent’s verbal abuse of the clerk magistrate was conduct prejudicial to the administration of justice, in violation of Mass. R. Prof. C. 8.4(d) and conduct intended to disrupt a tribunal, in violation of Mass. R. Prof. C. 3.5(d).

The respondent was admitted to the Massachusetts bar on January1,1994, and has no prior disciplinary history. The respondent received an admonition for his conduct.

ADMONITION NO. 18‐26 CLASSIFICATIONS: No Written Fee Arrangement [Mass. R. Prof. C. 1.5b1]

Improper Contingent Fee [Mass. R. Prof. C. 1.5c]

SUMMARY:

In March 2017, the respondent commenced to represent a client in a pending post‐

foreclosure summary process action. The parties agreed that the respondent would defend the summary process case for a flat fee of $7,500.00 plus a one‐third contingency if there was any cash settlement or payment of damages. The client paid the flat fee of $7,500 in installments.

No written fee agreement was executed for either the flat fee portion of the case or the contingent fee portion. The respondent had experience representing hold‐over tenants after foreclosure and typically had written fee agreements. The respondent diligently represented the client in the summary process case. Ultimately, the case settled with a cash for keys agreement at $10,000.00. Upon receipt of the $10,000, the respondent prepared a settlement sheet showing receipt of the $10,000.00 and a fee of one‐third. The client signed the settlement sheet and received his two‐thirds.

On June 18, 2018, the client sent a written protest to the respondent, received on June 21, 2018. The client complained that he should not have to pay both a flat fee and a contingent fee for the same case. The respondent reviewed the file and found no written fee agreement. He then immediately agreed to refund the one‐third fee in total. On July 16, 2018, the client signed a revised settlement sheet deleting the contingent fee. The client then received the refund.

The respondent’s failure to reduce the fee agreement to writing violated both Mass. R. Prof. C. 1.5(b)(1) and 1.5(c).

The respondent was admitted in 1985 and has no prior discipline. The respondent received an admonition for his misconduct.


CLASSIFICATIONS:

Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4(c)] Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)] Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4(h)]

SUMMARY:

The respondent represented a client in a divorce proceeding in which the parties agreed to forgo child support. After the divorce was granted, the client’s ex-wife served the respondent’s client with a complaint for modification seeking child support. After a continuance, a pretrial conference was scheduled in August of 2016. On the date of the pretrial conference, the respondent was ill. He informed his client that he would not be able to make it to court. His intern called the court to inform them he would not be there. The court held the pretrial conference and ordered the respondent’s client to pay child support.

After receiving the decision in October of 2016, the respondent spoke to more experienced attorneys, who suggested he file a motion for relief from judgment based on his illness. One of these attorneys sent the respondent a sample motion and affidavit, which the respondent filled in for his case. Because the model affidavit that he had received was signed by the client in that case, the respondent drafted the affidavit in his case for the client’s signature, rather than his own. Believing time was of the essence, and because the client was unable to come to the respondent’s office, the respondent signed his client’s name under oath. The respondent then filed the motion and affidavit with the probate and family court. The motion for relief from judgment was denied without hearing.

By signing his client’s name on the affidavit under oath, the respondent made a misrepresentation that the signature was that of the client, in violation of Mass. R. Prof. C. 8.4(c); engaged in conduct prejudicial to the administration of justice, in violation of Mass. R. Prof. C. 8.4(d); and engaged in conduct that adversely reflects upon his fitness to practice law, in violation of Mass. R. Prof. C. 8.4(h).

The respondent became a member of the bar in the Commonwealth in 2011. He has no prior discipline. He received an admonition for his conduct on the condition that he attend a continuing legal education course designated by bar counsel.


CLASSIFICATION: Improper Division of Fee with Other Lawyer [Mass. R. Prof. C. 1.5(e)] SUMMARY:

The respondent signed a fee agreement with a client that paid him one-third of the recovery, plus expenses. He had another lawyer assist him on the case. When the case was settled, the respondent paid the other attorney a fee from his portion of the settlement amount. The client was unaware of the agreement to split the fee with the second lawyer. The respondent’s improper division of fees violated Mass. R. Prof. C. 1.5(e).

The respondent was admitted in 2000 and has no prior discipline. He received

an admonition for his conduct in this matter.


CLASSIFICATIONS: Handling legal matter when not competent or without adequate preparation [Mass. R. Prof. C. 1.1] Failing to act diligently [Mass. R. Prof. C. 1.3] Failing to communicate adequately with client [Mass. R. Prof. C. 1.4] SUMMARY:

The respondent is an experienced insurance defense lawyer. In 2013, an insurance company, pursuant to its obligations under a commercial liability policy, engaged the respondent to defend its insured, an elderly construction tradesman who was being sued for allegedly causing a fire at a worksite.

After being appointed defense counsel, the respondent arranged to meet the

client for the first time at the scene of the fire. Several other individuals were also present for the meeting, including a cause-and-origin expert and a public insurance adjuster, both of whom had been retained by the insurance company.

Prior to allowing his client to address the group, the respondent did not

adequately explain his role as insurance defense counsel or secure the client’s informed consent to the customary dual representation of the insured and the insurer. He also failed to prepare the client to answer questions concerning his involvement in the project and failed to explain the potential ramifications of the client’s answers. As a result, the client, who was unsophisticated in legal and insurance matters, stated that he had been working on the project in “partnership” with another worker when such was not legally the case. Because the insurance policy was issued to a sole proprietorship, the client’s supposed admission prompted the insurance company to deny coverage of the claim. Subsequent litigation against the company vindicated the insured’s right to coverage.

By failing initially to confer with his client in a private, confidential setting; by

failing to exercise reasonable care in explaining the tripartite relationship among the insurer, the insured, and insurance defense counsel; and by failing to secure his client’s assent to such dual representation, the respondent violated Mass. R. Prof. C. 1.1., 1.3, and 1.4.

The respondent was admitted to the bar in 1974 and has no prior record of

discipline. He received an admonition for his misconduct.

ADMONITION NO. 18-30 CLASSIFICATION: Failure to Timely Communicate Basis of Fee [Mass. R. Prof. C. 1.5(b)] SUMMARY: On June 30, 2017, the client was arrested for violation of a harassment prevention order. On July 10, 2017, the client engaged the respondent to represent her in the matter. The respondent said he would charge the client a flat fee of $1500 and the client wrote a check to the respondent for that amount. The respondent did not present the client with a written fee agreement or otherwise communicate to the client in writing the rate or basis of the fee and the scope of the representation. By failing to communicate to the client in writing the rate or basis of the fee and the scope of the representation, the respondent violated Mass. R. Prof. C. 1.5(b).

The respondent received an admonition for this conduct.


CLASSIFICATIONS:

Withdrawal without Protecting Client or Refunding Unearned Fee or Expense [Mass. R. Prof. C. 1.16(d)] Responsibilities of Partner or Supervisory Lawyer [Mass. R. Prof. C. 5.1(b)]

SUMMARY: A U.S. citizen wife and her undocumented husband hired the respondent in Massachusetts and paid him to seek adjustment of the husband’s immigration status. The respondent was then in the process of moving his practice to another state and commuting periodically to his Massachusetts office, which remained open at the time. The respondent arranged for another lawyer to work at his Massachusetts office and cover his Massachusetts cases as needed during the transition. The respondent had direct supervisory authority over this lawyer, who lacked sufficient experience to handle the husband’s immigration case without oversight and guidance. The respondent delegated responsibility for the case to the subordinate lawyer but did not engage in adequate supervision of the lawyer’s activities. His failure to do so violated Mass. R. Prof. C. 5.1(b).

Although the subordinate lawyer did preliminary work on the case, the final filings needed to adjust the husband’s status were never submitted or completed. The couple eventually discharged the respondent and asked him to return the unearned portion of their fee payments. In violation of Mass. R. Prof. C. 1.16(d), the respondent failed to make a timely refund.

The respondent had no history of discipline. Through new counsel, the

husband has since obtained permanent resident status. The respondent has now made a full refund. He received an admonition for his misconduct.

ADMONITION NO. 18-32 CLASSIFICATION: Improper Disclosure of Confidential Information [Mass. R. Prof. C. 1.6(a)] SUMMARY:

The respondent agreed to represent a client in a divorce proceeding in December 2016. By July 2017, a dispute had arisen between the client and the respondent over fees and the direction for the representation, and the client informed the respondent that she wanted the respondent to withdraw from the representation. The respondent filed a motion to withdraw with an affidavit in support of the motion. The respondent’s affidavit described in detail the respondent’s history of representing the client, including comments on the client’s strategic directives, and said that the client had become uncooperative and unwilling to pay the fees that the respondent believed were owed. The information the respondent disclosed in the affidavit was more extensive than was necessary to support the motion for withdrawal. The respondent did not obtain the client’s consent to disclose the confidential information contained in the affidavit.

By revealing confidential information related to the representation of a client

in an affidavit accompanying a motion to withdraw, without the client’s consent and to a greater extent than was necessary to effectuate the withdrawal, the respondent violated Mass. R. Prof. C. 1.6(a).

The respondent was admitted to practice in 2013 and had received no prior

discipline. The respondent received an admonition, on the condition that the respondent attend a continuing legal education program designated by bar counsel.


CLASSIFICATION:

No Written Fee Arrangement [Mass. R. Prof. C. 1.5(b)(1)]

SUMMARY:

Beginning on or about July 2017, the respondent commenced to represent an elderly person in a civil matter. The respondent agreed with the client and his family to charge a flat fee of $4,000.00, which was paid. The respondent did not have a written fee agreement or confirm the basis of the fee or the scope of the representation in writing.

The client died before the work was completed, which led to a dispute over the amount of refund due. That dispute has since been resolved.

The respondent’s failure to communicate in writing the basis of the fee and the scope of the services included in the fee was conduct in violation of Mass. R. Prof. C. 1.5(b)(1).

The respondent was admitted in 1975 and has no prior discipline. The respondent received an admonition for his misconduct.


CLASSIFICATIONS: Handling legal matter when not competent or without adequate preparation [Mass. R. Prof. C. 1.1] Failing to Act Diligently [Mass. R. Prof. C. 1.3] SUMMARY:

The respondent was retained by married clients as a divorce mediator to negotiate and draft a separation agreement. This work was performed between April and November of 2013. The parties agreed to divide the assets contained in the husband’s pension plan, which necessitated the preparation of a Qualified Domestic Relations Order (QDRO). Despite his relative inexperience in the preparation of QDRO’s, the respondent agreed to prepare the QDRO for the clients. The respondent incorrectly designated the husband’s 401(K) plan in the QDRO instead of the pension plan and the QDRO was approved by the court. Subsequently, the parties discovered the error in the QDRO and retained an expert to redraft the QDRO, which was ultimately approved by the court. The respondent reimbursed the parties the fee paid to the expert to redraft the QDRO.

The respondent’s drafting of the QDRO when not competent or without adequate

preparation violated Mass. R. Prof. C. 1.1. The respondent’s failure to act diligently in representing the clients violated Mass. R. Prof. C. 1.3.

The respondent was admitted to practice in Massachusetts in 1977. He has no prior discipline. The respondent received an admonition for his conduct in this matter.


CLASSIFICATION:

Improper Financial Assistance to Client [Mass. R. Prof. C. 1.8e]

SUMMARY:

The respondent represented a client in a Land Court case against the client’s sister, who was represented by her own counsel. The sister was seeking to partition a property that she jointly owned with the brother. The brother wished to purchase the property. The court ordered that the property be sold, and that all the sale proceeds be held in escrow pending the outcome of a commissioner’s determination regarding adjustments to each party’s share of the net proceeds. After valuing the property, the parties agreed that the house would be sold to the brother for $390,000.

Although there was over $132,000 in equity in the property that would eventually be divided, the brother needed to finance the full amount of the $390,000 sale price because the net proceeds were to be held in escrow after the sale pending the commissioner’s recommendation. The brother obtained a bank loan for $325,000, which was to be used in part to pay off the existing mortgage. The brother still needed approximately $72,000 to purchase the property. When the brother was unable to raise the remainder of the funds, the respondent decided to lend his client the money. Although the respondent was lending his client more than half of the equity in the property, the respondent expected to be repaid from the award the brother would receive in the partition action. The respondent notified the sister’s counsel and the commissioner of his intention to loan the brother the funds, and neither initially raised any objection.

Approximately nine months later, the client received a net award from the partition action that was approximately $5,000 less than the amount of the funds loaned by the respondent. The respondent and the client agreed that the client could repay the amount owed to the respondent over time. The respondent did not charge the client any interest on the loan and did not obtain any personal benefit from the transaction.

By providing financial assistance to a client in connection with a pending litigation matter, the respondent violated Mass. R. Prof. C. 1.8(e).

The respondent was admitted to practice in 1981 and had received no prior discipline. The respondent received an admonition for his conduct, on the condition that he attend a continuing legal education course designated by bar counsel.


CLASSIFICATION: Failing to Act Diligently [Mass. R. Prof. C. 1.3] SUMMARY:

The respondent filed a fee application and a supporting affidavit in the course of representing a client. This affidavit was cut and pasted from an affidavit in another case without any substantial revision. The effect was an erroneous representation of the respondent’s hours and services. The problem was subsequently discovered and the fee application denied by the court.

The misrepresentations in the respondent’s fee affidavit did not derive from

wrongful intent. Instead, they were the product of inattention brought on by severe mental illness that was undiagnosed at the time in combination with extreme personal and professional stress. The respondent therefore lacked adequate focus and rushed the submission of the affidavit without recognizing that he had failed to revise the original affidavit to reflect his actual time and charges. His ensuing negligent misrepresentations in the affidavit violated Mass. R. Prof. C. 1.3.

The respondent had no history of discipline and caused no harm to his client.

His mental illness has since been diagnosed, and he has entered treatment. The respondent received an admonition for his misconduct, on condition that he continue in treatment for at least the next two years, comply with his therapist’s treatment recommendations, and authorize the therapist to report any noncompliance during that period to bar counsel.

admonition no. 18-01 failing to communicate adequately ... · admonition no. 18-03 classification:...

Documents