Wednesday, March 9, 2011

Massachusetts' disciplinary board reprimands lawyer for intentionally misstating on appeal the trial judge's findings of fact

This seems to be the day for appellate lawyer smackdowns (see below). According to the ABA Journal (with a hat tip to our sister publication the Legal Profession Blog), the Massachusetts Board of Bar Overseers issued a public reprimand to a lawyer who misstated a trial judge's findings of fact in a brief he filed with the state appeals court.

Lawyer Vincent Cragin had presented the statement of facts in single-spaced, indented format, implying it was a full copy of the factual statement, according to a Feb. 3 summary of the disciplinary findings by the Massachusetts Board of Bar Overseers. The blunder led a Massachusetts appeal court considering the appeal to call Cragin’s omission a 'brazen' misrepresentation.

The Legal Profession Blog posted portions of the disciplinary summary.

Cragin had represented Pella Windows Inc. in breach of contract litigation with homeowner Mary Burman, who had in turn sought double damages for what she deemed to be unfair and deceptive acts. The company’s alleged wrongdoing had included making unauthorized charges on Burman’s credit card (later refunded) and placing a collections call to her husband while he was in the hospital.

When Cragin included findings of fact in the appeal, he omitted references to the hospital call and the credit card charge.

'In as brazen a piece of misrepresentation as we have ever seen, Pella deleted certain words, phrases, and sentences without use of an ellipsis, or any other indication of editing,' the appeals court wrote in its 2009 opinion in the contract dispute. 'Defeating one's hope that the deletions were the result of sloppy copying and proofreading, rather than dishonesty, is the fact that all the information deleted is helpful to Burman, or harmful to Pella.'

It was the first appellate brief Cragin had filed, and he frequently referred to the phone call and unauthorized charges in his statement of the case and his argument section of his brief. He viewed the deleted facts as parts of his argument, the Board of Overseers says.

You can read the rest here.


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Misrepresentation can cause a great deal of unnecessary time and expense as courts will evaluate matters when they normally would not. Hopefully this attorney will learn from this experience and become a better lawyer as a result.

Posted by: George E. Bourguignon, Jr. | Apr 13, 2011 6:38:55 PM

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