In the Matter of Christopher F. Long

MEMORANDUM AND ORDER

This matter came before the court on an Information filed by the Board of Bar Overseers (board) pursuant to S.J.C. Rule 4:01, § 8 (4), recommending that the respondent, Christopher F. Long, be suspended from the practice of law for three months and that his reinstatement be subject to the conditions of probation set forth in the Hearing Committee's report.

Bar counsel commenced disciplinary proceedings on two counts before the board on February 18, 1998. A hearing committee recommended that the respondent receive a public reprimand for violations of Canon 1, DR 1 102 (A) (4) (conduct involving dishonesty, fraud, deceit, or misrepresentation); Canon 1, DR 1 102(A)(5) (conduct prejudicial to the administration of justice); Canon 1, DR 1 102 (A) (6) (conduct reflecting adversely on fitness to practice law); Canon 6, DR 6 101 (A) (3) (neglect of a legal matter); Canon 7, DR 7 101 (A) (1) (failure to seek lawful objectives of client); Canon 7, DR 7 101 (A) (2) (failure to carry out professional services contract); Canon 7, DR 7 101 (A) (3) (prejudice or damage to client through course of professional relationship); and Canon 7, DR 7 102 (A) (5) (knowingly making a false statement). Bar counsel then appealed from the report of the hearing committee to the board, seeking a suspension of eighteen months.

Bar counsel argues that an eighteen month suspension is required because the respondent harmed two different clients through his neglect and misrepresentations and because of the respondent's deliberate misrepresentations to the court. The respondent argues that neither client was harmed by his actions. He also maintains that an eighteen month suspension is excessive and would be devastating to him, his family, and his clients. The relevant findings of the hearing committee, as to each of the two counts against the respondent, are summarized below.

In October, 1988, Peter Pietraszek purchased a lot in a real estate subdivision being developed by John Carrigg and others. Pietraszek paid $72,000 and was represented by Attorney Arthur Frank in the transaction. Pietraszek also retained Attorney Frank to secure permits needed by Pietraszek to construct a home and to install a septic system on the lot. By November, 1989, Pietraszek became dissatisfied with Attorney Frank's services and retained the respondent to secure the necessary permits and to bring action against Carrigg and others. Because the respondent and Pietraszek had been friendly through most of their lives, they only had a casual agreement as to fees. Subsequently, they had a misunderstanding regarding the fee arrangement because the agreement was never reduced to writing.

Between November, 1989 and October, 1990, the respondent successfully secured the permits Pietraszek required to complete the construction of his home. On approximately September 4, 1991, Pietraszek met with the respondent to discuss filing a complaint against Carrigg and others. The respondent then received a copy of the deed from Carrigg to Pietraszek. After reviewing the deed, the respondent met with Pietraszek and informed him that certain disclosures in the deed would adversely impact Pietraszek's ability to recover damages against Carrigg.

Nevertheless, the respondent filed a complaint on Pietraszek's behalf against Carrigg and others on approximately October 23, 1991. This case was designated as a "fast track" matter. The respondent took little to no further action on this matter. Although the respondent knew that he was required to serve the defendants in this suit within ninety days of filing the complaint and knew that failure to do so could result in the action being dismissed, he never served any of the defendants. Between October 23, 1991, and November 1, 1993, Pietraszek asked the respondent thrice whether the defendants had been served. The respondent never insured service and falsely informed Pietraszek that each defendant had been served and that any delays were the result of a court backlog. On approximately April 2, 1992, the action was dismissed because the defendants were never served with an appropriate summons. The respondent denies receiving a copy of this judgment at that time.

In April, 1993, Pietraszek asked the respondent about the status of this litigation. The respondent falsely represented to Pietraszek that the delay was a result of court backlog. In November, 1993, Pietraszek contacted the court himself and learned for the first time that his case had been dismissed in April, 1992. Pietraszek confronted the respondent about the dismissal, and the respondent denied knowledge of the dismissal. Pietraszek discharged the respondent. In January, 1994, Pietraszek retained another attorney to bring a legal malpractice case against the respondent. In October, 1997, Pietraszek dismissed the suit in exchange for $150,000, paid by the respondent's liability carrier.

The hearing committee also made findings of fact with respect to a second matter. On approximately April 16, 1996, Albert McSweeney filed a petition seeking guardianship of his granddaughter, Paulette McSweeney. Pursuant to a legal services contract, Paulette's father, James Farristall, arranged for the respondent to represent him in the proceedings. On approximately July 8, 1996, the respondent filed an appearance on behalf of Farristall and opened a file in his office under Farristall's name. Approximately one week later, the court issued a pretrial order which scheduled a pre trial conference for October 2, 1996, and provided that the failure of any party to appear could result in the matter being ordered to an immediate hearing. The respondent received a copy of this order, but neither provided a copy to Farristall nor informed him that he had to appear in court on October 2. The respondent did no further work on behalf of Farristall at this point.

In mid September, the respondent checked his calendar and noticed that he was required to appear on October 2 for the McSweeney pre trial conference. The respondent did not recollect representing anyone named McSweeney and did not remember Farristall's connection to the matter. On approximately October 1, the respondent telephoned the court and learned that he represented Farristall in the matter. The respondent located Farristall's file and spoke with Farristall that evening. Farristall informed the respondent that he could not come to court on such short notice without the risk of losing his job. The respondent informed Farristall that he would request a continuance of the pretrial conference.

On the morning of October 2, the respondent spoke with someone at the court and requested a continuance by intentionally misrepresenting that he needed the continuance because he was on trial in another court. After the judge in the McSweeney matter learned of this request, he instructed his staff to call the respondent and find out the name of the case, the name of the court, and the name of the judge in the matter the respondent mentioned. The respondent intentionally misrepresented these facts to the judge's staff and the staff member told the respondent that the pretrial conference would be continued. The judge was concerned about the information the respondent had given to his staff, and, consequently, telephoned the other court at which the respondent stated he was to appear. The judge learned that the respondent was not scheduled to appear at this other court. Subsequently, the judge ordered the McSweeney guardianship to an immediate trial/resolution. He awarded permanent guardianship of Paulette to her grandfather. The respondent did not make any efforts to determine the status of the matter after his failure to appear at the pretrial conference.

The judge then filed a complaint with the Office of Bar Counsel. Subsequently, the respondent apologized for the misrepresentations he made in order to obtain the continuance. The judge testified that he believed a public reprimand rather than a suspension would be the appropriate treatment by the Board of Bar Overseers.

On consideration of the entire record, I conclude that the hearing committee's findings of fact are supported by substantial evidence. These findings warrant the conclusion that the respondent violated Canon 6, DR 6 101 (A) (3), Canon 7, DR 7 101 (A) (1), Canon 7, DR 7 101 (A) (2), and Canon 7, DR 7-101 (A) (3) by failing to effect service of the complaint in the Pietraszek lawsuit and thus failing to carry out a contract of employment and prejudicing a client's matter; and Canon 1, DR 1 102 (A) (4) by falsely representing to Pietraszek that the defendants had been served and that any delay was because of court backlog. In addition, these findings support the hearing committee's conclusions that the respondent violated Canon 1, DR 1 102 (A) (4), Canon 1, DR 1 102 (A) (5), Canon 1, DR 1 102 (A) (6), Canon 1, DR 6 101 (A) (3), Canon 7, DR 7 101 (A) (1), Canon 7, DR 7 101 (A) (2), Canon 7, DR 7 101 (A) (3), and Canon 7, DR 7 102 (A) (5) by intentionally making misrepresentations to court staff in an effort to obtain a continuance of the McSweeney pre trial conference.

I now turn to the question of determining the appropriate sanction for the respondent's misconduct. The purpose of discipline is to protect the public and to maintain the integrity of the bar. Matter of Saab, 406 Mass. 315, 328, 6 Mass. Att'y Disc. R. 278, 291 (1989). I agree with the board that the most serious misconduct here is the respondent's deliberate misrepresentations to the court. Bar counsel argues that the respondent's actions here merit the same discipline as ordered in In the Matter of McCarthy and In the Matter of Neitlich. See In the Matter of McCarthy, 416 Mass. 423, 431 432.(1993) (attorney before city board elicited false testimony, introduced into evidence false documents, and failed to correct record suspended for one year); In the Matter of Neitlich, 413 Mass. 416, (1992) (attorney actively misrepresented terms of pending transaction to court and another attorney suspended for one year).

The board distinguished McCarthy and Neitlich, noting that the attorneys in those cases perpetrated fraud as to substantive matters. As the board noted, "the respondent lied to get himself (and his client) out of a scheduling jam produced by his own neglect, but he did not seek to defraud the court on any substantive issue before it." I agree with the board that the respondent's actions here are more akin to those in Matter of Dolan because in Dolan, as here, the misrepresentations did not concern material matters in dispute. See Matter of Dolan, 10 Mass. Att'y Disc. R. 59, 60, 64 (1994) (attorney filed a stipulation as to settlement though his client had not consented to settlement subject to public censure and probation). In addition to the respondent's misrepresentations to the court, I must also consider the violations of the Canons the respondent committed in relation to the Pietraszek matter. Where the attorney has committed multiple offenses, the cumulative effect of these violations should be weighed. Matter of Saab, 406 Mass. 315, 326 327, 6 Mass. Atty. Disc. R. 278, 288 290 (1989). Through his actions in both matters, the respondent violated multiple provisions of the Canons.

At the same time, it is appropriate to consider mitigating factors when determining the appropriate sanction. In the Matter of Hurley, 418 Mass. 649, 652 (1994). First, the respondent sought out the judge in the McSweeney matter and personally apologized. He also apologized to the judge he named when he falsely stated that he could not appear at the McSweeney pretrial conference. A second mitigating factor is that these violations occurred between four and nine years ago. Since that time, the respondent has been representing clients in Massachusetts without complaint.

In light of the relevant case law and the mitigating factors here, I conclude that three months' suspension is appropriate. Therefore, it is ORDERED that the respondent, Christopher F. Long, be suspended from the practice of law for three months and that on reinstatement he be placed on probation for a period of three (3) years, subject to the probationary conditions set forth in the hearing committee's report.

By the Court,

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Ruth I. Abrams
Associate Justice
Supreme Judicial Court


DATED: 12 May 2000