Friday, March 4, 2011
A recent public reprimand is summarized on the web page of the Massachusetts Board of Bar Overseers:
Beginning in 2006, the respondent represented a window company in litigation with a homeowner concerning the installation of replacement windows. After a district court trial in July 2007, the court entered a judgment for the window company on the contract, and a judgment on the homeowner’s counterclaim for breach of contract with double damages and attorney’s fees under M.G.L. c. 93A. The specific facts found to warrant c. 93A damages were the company’s unauthorized charge on the homeowner’s credit card and a collection telephone call made to the homeowner’s husband while hospitalized.
Upon reconsideration, the trial court rescinded the c. 93A damages and attorney’s fees on the sole basis that the homeowner had failed to serve a c. 93A demand letter on the window company detailing the unfair and deceptive acts that warranted c. 93A relief. The homeowner appealed to the Appellate Division of the District Court from the decision rescinding the c. 93A damages.
The respondent filed the window company’s brief and a supplementary appendix in August 2008. In the statement of facts section, the respondent falsely stated: “For purposes of the appeal, the plaintiff will rely upon and adopt the findings of fact set forth in the trial judge’s Amended Decision and Order. Those findings are as follows….” There followed nearly three pages of single-spaced and indented text purporting to recite the trial court’s findings of fact. In introducing and formatting the statement of facts in this fashion, the respondent intended to state and imply that the statement included a full verbatim copy of the trial court’s findings. However, the respondent’s recitation of facts did not include all of the trial court’s findings. Among other things, the respondent intentionally left out all reference to the hospital telephone call, and references to the credit card charge as “unauthorized”, without the use of ellipsis or other indication of editing.
After a hearing before the Appellate Division of the District Court on November 7, 2008, the court issued an opinion. The court agreed that c. 93A, § 9(3), exempts counterclaims from the requirement of filing a demand letter, but upheld the lower court’s decision to rescind double damages because the window company did not have sufficient notice of the basis of the c. 93A claim.
The court further found that the respondent engaged in “as brazen a piece of misrepresentation as we have ever seen,” by deleting “certain words, phrases and sentences without use of an ellipsis, or any other indication of editing.” The court imposed double costs of the appeal upon the window company, to be paid by the respondent to the homeowner, and awarded appellate attorney’s fees to the homeowner.
The respondent’s conduct in falsely representing that the statement of facts was a complete presentation of the findings of the lower court violated Mass. R. Prof. C. 8.4(c), (d) and (h).
In mitigation, the respondent had never filed a brief on appeal before this. The deletions from the facts of the unauthorized credit card charge and the telephone call to the client’s hospitalized husband seeking payment were intended as argument. In further mitigation, the respondent frequently referred to the unauthorized credit card charge and the telephone call to the client’s hospitalized husband in the statement of the case and the argument section of his brief. The court recognized the disparity in the facts and there was no harm.