No. BD-2015-098
S.J.C. Order of Term Suspension entered by Justice Lenk on May 23, 2017.
MEMORANDUM OF DECISION
This matter came before me on an information and recommendation of the Board of Bar Overseers (board) that the respondent be suspended from the practice of law in the Commonwealth for a period of one year and one day for multiple instances of neglect of his clients. The respondent did not file an answer in response to bar counsel's petition for discipline, and did not appear before the board at a scheduled hearing to consider the appropriate sanction for his misconduct. He therefore was defaulted and the assertions in bar counsel's petition were deemed admitted. See, e.g., Matter of Gustafson, 464 Mass. 1021, 2022 (2013); Matter of Johnson, 444 Mass. 1002, 1002 (2005). The respondent also did not appear at a duly scheduled hearing before me on April 20, 2017, at which bar counsel appeared.
Having carefully considered bar counsel's petition and her representations at the hearing before me, I conclude that the board's recommendation of a suspension of the respondent from the practice of law for one year and one day is appropriate.
Background. Bar counsel's petition for discipline states that the respondent, who was administratively suspended during the course of bar counsel's investigation, has failed to respond to clients' telephone calls, electronic mail messages, and letters; has not responded to clients' requests for information or for the return of their files; has failed to appear in court on scheduled hearing dates in client matters, in some cases resulting in the clients' default; has failed to respond to motions to compel further answers to discovery; has failed to respond to communications from bar counsel; and has failed to cooperate with bar counsel in the course of the investigation See S.J.C. Rule 4:01, § 8 (6).
Bar counsel's petition states that the respondent's misconduct was in violation of Mass. R. Prof. C. 1.1 (competence); Mass. R. Prof. C. 1.3 (diligent representation of client's interests); Mass. R. Prof. C. 1. 4 (a) (keeping client informed of the status of client's matter); Mass. R. Prof. C. 1.16 (s) (failing to withdraw from case and to return file· after ceasing representation of client); Mass. R. Prof. C. _8.1 (b) (failing to respond to a lawful demand for information from bar counsel) and Mass. R. Prof. C. 8.4 (g) (failing to cooperate with bar counsel without good cause).
The respondent’s current location is unknown. A message on the respondent’s office telephone number states that the voice mail messaging system has not been set up on that number; since September, 2013, the respondent has not responded to electronic communications or to letters sent to his last registered home address. Indeed, administrative staff and attorneys in neighboring offices in the building where the respondent had maintained an office have advised bar counsel that the respondent has not been seen in his office since September 11, 2015.
In November, 2015 a commissioner was appointed by this court to wind up the respondent’s affairs take charge of funds held in his IOLTA account and try to distribute the funds to their rightful owners, and to return files to clients.
2. Discussion. As the respondent has been defaulted, and bar counsel’s assertions of misconduct are deemed admitted, the sole question before me is the appropriate sanction to be imposed. For the reasons explained below, I agree with the board that the appropriate sanction is a suspension from the practice of law in the Commonwealth for a period of one year and one day.
a. Standard of review. “We generally afford substantial deference to the board’s recommended disciplinary sanction.” Matter of Griffith, 440 Mass. 500, 507 (2003). At the same time, the disciplinary sanction imposed should not be "markedly disparate from judgments in comparable cases." Matter of Foley, 439 Mass. 324, 333 (2003), quoting Matter of Finn, 433 Mass. 418, 422-423 (2001). The "primary concern in bar discipline cases is 'the effect upon, and perception of, the public and the bar,' and we must therefore consider, in reviewing the board's recommended sanction, 'what measure of discipline is necessary to protect the public and deter other attorneys from the same behavior.'" Matter of Lupo, 447 Mass. 345, 356 (2006), quoting Matter of Finnerty, 418 Mass. 821, 829 (1994) and Matter of Concemi, 422 Mass. 326, 329 (1996). Nonetheless, "each case must be decided on its own merits and every offending attorney must receive the discipline most appropriate in the circumstances.' Matter of Foley, supra, quoting Matter of the Discipline of an Attorney, 392 Mass. 827, 837 (1984).
b. Appropriate sanction. This case involves a combination of different types of misconduct by the respondent, involving multiple, unrelated client matters, over a period of years. The respondent neglected at least four client matters, resulting in significant harm to the clients; failed to communicate with the clients about the status of their matters, despite their requests that he do so; failed to appear in court at scheduled hearings in the clients' matters; failed to return client files; and failed to comply with requests for information from bar counsel. Although there does not appear to be a precisely comparable case, involving the same combination of misconduct, “[t] he court 'need not endeavor to find perfectly analogous cases, nor must we concern ourselves with anything less than marked disparity in the sanctions imposed.'" See Matter of Doyle, 429 Mass. 1019, 1014 (1999), quoting Matter of Hurley, 418 Mass. 649, 655 (1994).
Attorneys found to have neglected client matters, causing harm to their clients, in conjunction with other misconduct, have received somewhat varying sanctions. See Matter of Brunelle, 29 Mass. Att'y Disc. R. 62 (2013) (attorney suspended from practice of law for six months, stayed for two years, on conditions, for l neglecting one client's matter and failing to keep client accurately informed about status of her case); Matter of Scannell, 21 Mass. Att'y Disc. R. 580 (2005) (attorney with history of public and private reprimands suspended for one year and one day for neglect of three client matters, failure to provide competent representation, failure to act with reasonable diligence, and failure to communicate adequately with his clients about status of their matters, which caused harm to one client); Matter of O’Connor, 21 Mass. Att'y Disc. R. 525 (2005) (previously admonished attorney suspended for six months for neglecting two client matters and making negligent and intentional misrepresentations as to status of cases to clients and to bar counsel); Matter of Kane, 13 Mass. Att'y Disc. R. 321, 325 (1997) (public reprimand where respondent failed diligently to represent client and to communicate adequately with client, where client "was not ultimately harmed").
Taking the foregoing into account, I conclude that the appropriate sanction is a suspension from the practice of law for one year and one day, a sanction which necessarily will require that the respondent apply for reinstatement at the end of that period, and demonstrate to the satisfaction of the board that he is fit to resume the practice of law. See S.J.C. Rule 4:01, § 18(2) (c). Not markedly disparate from sanctions imposed in similar cases, this sanction fulfills the fundamental purpose of protecting the public and deters other attorneys from similar misconduct.
3. Conclusion. An order shall enter suspending the respondent from the practice of law in the Commonwealth for a period of one year and one day.
By the Court
Barabara A. Lenk
Associate Justice
Entered: May 23, 2017
1 The complete order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.
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