May 1, 2010
A Night At The Movies
A report of a recent bar discipline case from the web page of the Massachusetts Board of Bar Overseers:
On about June 11, 2000, at about 2:00 a.m., a friend of the respondent’s slipped and fell in the ladies’ room at a movie cinema, hitting her head. She immediately reported the accident to a cinema employee, who filed a report. There were no witnesses, and the friend declined medical assistance at the scene.
In February of 2001, the friend retained the respondent to represent her in a claim against the cinema. The respondent attempted to negotiate a settlement with the cinema, but with no success.
On June 10, 2003, the respondent filed suit against the cinema. After discovery, the cinema moved for summary judgment, the respondent filed an opposition, and, on April 27, 2006, summary judgment was granted in favor of the defendant. By this point, the respondent had determined that the case had little merit, but she did not inform her client that further proceedings were not justified. The respondent told the client only that she would appeal from the judgment.
The respondent filed the appeal late, and it was dismissed as untimely. She then filed a Rule 60(b) motion for relief from judgment, which was denied on May 21, 2007. The respondent filed an appeal from the denial of the motion. Throughout this period, the respondent kept the client accurately informed of orders of the court but did not tell that client that she had decided not to pursue the appeal if it were reinstated.
The respondent sought and obtained four extensions of time in which to file a brief on appeal, but she did not file the brief. The respondent did not inform the client that she had decided not to file a brief and that she should either withdraw the appeal or seek new counsel to represent her. The respondent also did not seek permission from the court to withdraw from the client’s representation.
Between May and December of 2007, the client attempted to contact the respondent for information about the status of her appeal and to obtain a copy of her file. The respondent did not respond to these inquiries and did not send her client a copy of the file. In November of 2007, the client terminated the respondent’s representation, and on December 26, 2007, the client filed a request for investigation with bar counsel.
In January of 2008, the respondent returned the file to her client. However, the respondent intentionally failed without good cause to reply to letters from bar counsel and to file an answer to her client’s complaint until after she was served with a subpoena from the Board of Bar Overseers.
By failing to explain to her client that she would not pursue the appeal because she had concluded that the appeal would not be successful and that the client should seek alternative representation if she wished to pursue the appeal, the respondent violated Mass. R. Prof. C. 1.2(e), 1.4(a) and (b), and 1.16(d). By failing to seek permission from the court to withdraw after deciding not to pursue the appeal, and by failing to seek permission to withdraw from the court when her continued representation meant violating a rule of professional conduct, the respondent violated Mass. R. Prof. C. 1.16(a)(1) and (c). By failing to respond to communications from her client requesting information about the status of her appeal, the respondent violated Mass. R. Prof. C. 1.4(a). By failing to return the file within a reasonable time after her client’s request and upon termination of the representation, the respondent violated Mass. R. Prof. C. 1.16(d) and (e). By intentionally failing without good cause to respond to bar counsel’s correspondence, the respondent violated S.J.C. Rule 4:01, § 3(1)(b), and Mass. R. Prof. C. 3.4(c), 8.1(b), and 8.4(g).
The respondent was admitted to practice in Massachusetts on December 22, 1982. In aggravation, the respondent received a public reprimand in 1996 for similar misconduct.... In mitigation, the respondent was suffering from depression and other serious medical conditions at the time of the misconduct. The respondent sought treatment and substantially cut back on her practice.
The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for a public reprimand with conditions requiring the respondent to be evaluated by Lawyers Concerned for Lawyers (LCL); follow LCL recommendations, attend the LCL Solo Practitioners Group, and be monitored by LCL for two years; and have her law office practices audited by the Law Office Management Assistance Program. On February 8, 2010, the board ordered a public reprimand, subject to the terms of probation set forth in the stipulation.
The case is Matter of Root. (Mike Frisch)
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