Serving The Dead

A Massachusetts attorney was suspended for six months and one day for serving a summary judgment motion on opposing counsel of record. The problem? He knew that counsel of record had recently died. The memorandum and order in the case notes:

Paul Irwin [opposing counsel] died on September 8, 2006, and the respondent learned of this death on September 26, 2006, by virtue of a telephone call from Attorney Michael Eschelbacher. Eschelbacher informed the respondent that he was the attorney for the Irwin estate and that he would be meeting with the [opposing client] Calcagnis to discuss settlement or referral to successor counsel. The respondent, in turn, informed Eschelbacher that he would be filing a motion for summary judgment shortly.

After that telephone call, Eschelbacher failed to contact the respondent again, despite having indicated he would. The respondent, for his part, did not contact Eschelbacher — the respondent apparently lost the note with Eschelbacher's name on it. Rather, the respondent, knowing that Irwin had employed a paralegal, telephoned and left numerous messages at Irwin's office, which the respondent knew to be located in his home. Although the name of Irwin's paralegal was in the respondent's files, he never reviewed his files to find it. Instead, the respondent assumed his messages were being forwarded by the paralegal to the attorney for the estate. The respondent never received a response to his messages. No successor attorney filed an appearance on behalf of the Calcagnis.

On February 9, 2007, the respondent mailed the summary judgment motion papers to Irwin's office, and on March 5, 2007, the respondent filed in the Superior Court the motion for summary judgment and statement of material facts. He included in the motion package a signed notice of filing in compliance with Superior Court Rule 9A (b) (2), indicating that his motion was served on the attorney of record for the defendants and further declaring, "I certify that no opposition was served in a timely fashion by the opposing party." On March 20, 2007, the respondent's motion for summary judgment was allowed without a hearing and judgment entered for Nike on May 21, 2007, in the amount of $268,225.57. The respondent obtained an execution, which was levied and suspended.

The Calcagnis learned of the levy, retained new counsel, and filed an emergency motion to set aside the judgment. The respondent opposed the motion arguing that the judgment should be preserved because the Calcagnis could not meet their burden of showing a likelihood of success on the merits. He did not concede that service had been improper. The Superior Court judge allowed the motion to set aside the judgment. The respondent was sanctioned and ordered to pay all the Calcagnis’ costs and attorney's fees in connection with the motion for summary judgment and their own emergency motion to set aside the judgment. The respondent paid the sanction as ordered, in the amount of $15,000, and withdrew his appearance for Nike.

The hearing panel rejected the suggestion that the rule requiring service on opposing counsel justified such service after counsel had died. (Mike Frisch)