In the Matter of Mark S. Shuman

MEMORANDUM OF DECISION

This matter came before me on an information and record of proceedings, filed February 15, 2001, and the vote and memorandum of the Board of Bar Overseers (board), dated December 11, 2000. The matter was initiated by bar counsel's petition for discipline brought before a hearing committee (committee) of the board. The petition alleged, among other things² that Mark S. Shuman (respondent) violated S.J.C. Rule 3:07, Canon 1, DR 1 102(A)(4), (5), and (6) as appearing in 382 Mass. 769 (1981) ;³ S. J.C. Rule 3:07, Canon 6, DR 6 101(A)(2), and (3), as appearing in 382 Mass. 783 (1981) ;⁴ S.J.C. Rule 3:07, Canon 7, DR 7 102 (A) (5) , as appearing in 382 Mass. 785 (1981);⁵ and S.J.C. Rule 3:07, Canon 9, DR 9 102(B)(2), as appearing in 382 Mass. 795 (1981),⁶ by making false representations concerning the identity of an expert witness and the substance of his proposed testimony, and by losing a client's file and neglecting his case for approximately one year.

The committee concluded that respondent had violated these canons, but that there were significant mitigating circumstances. Specifically, the committee found that the respondent was shouldering an extremely heavy case load of approximately 300 cases and that he was forced to relocate his office several times, often on an emergency basis, which severely disrupted his practice and exacerbated existing case management problems. Based in large part on these mitigating circumstances, the committee recommended a public reprimand and a two year probation, subject to certain conditions.⁷ Bar counsel appealed to the board, requesting that the board amend the committee's report to add a finding that the respondent improperly filed a civil action after being discharged by his client. Bar counsel also sought a sanction of suspension for a term of one year and a day.⁸

The board adopted the committee's findings of fact and conclusions of law, but modified its suggested disposition. The board recommended a six month suspension. The board filed an information with the county court, pursuant to S.J.C. Rule 4:01, § 8(4), as appearing in 425 Mass. 1309 (1997).

Bar counsel now seeks a suspension of one year and a day. Respondent seeks adoption of the committee's recommended sanction, a public reprimand with a two year probation period, subject to certain conditions.

I. FACTS⁹

A. Respondent's Practice

The respondent was admitted to the Massachusetts bar on June 10, 1987. After practicing in three small firms over the course of four years, respondent started his own practice in September, 1991. He developed his practice through referral of cases other attorneys did not want to litigate, and, as a result, had a large number of difficult cases. By 1993, he had a heavy case load of approximately 300 active cases.

Between 1995 and 1996, the respondent was forced to relocate his office a number of times, often on an emergency basis. The result of these upheavals, in addition to his already unmanageable case load, was that work was performed only in "emergency mode." That is, projects were completed just before or on a court imposed deadline. The respondent frequently worked from 7 A.M. to 2 A.M. the following morning.

B. The Ebert Matter

In June, 1992, Krissie Ebert retained the respondent to represent her in a premises liability action. She claimed that she suffered emotional distress as a result of being held at gunpoint in her apartment by three men who allegedly gained entry into the apartment through a door with a broken lock. On November 24, 1992, the respondent filed a civil complaint on Ebert's behalf against the estate of the trustee of the realty trust that owned her apartment building.

At some point after the complaint was filed, the defendant's insurer offered $9,000 to settle the case. The adjuster indicated that if a few thousand dollars more would resolve the matter, the money could be obtained.

In August, 1993, the respondent prepared answers to defendant's interrogatories. One of the interrogatories requested the name and address of any experts Ebert intended to call at trial and a summary of his or her opinions. The respondent prepared and filed an answer to the interrogatory, stating that Ebert had not yet determined whom she would call as her expert and that she would supplement her answer prior to trial.

On August 10, 1995, the court scheduled a pretrial conference in Ebert's case for September 22, 1995. Under the scheduling order, the parties were required to submit a pretrial memorandum, containing, inter alia, the names of any experts they expected to call at trial, together with the subject matter of the expert's testimony and the substance and grounds for all facts and opinions about which the expert was expected to testify. The respondent had not attempted to obtain an expert witness and was concerned that if he did not identify an expert in the pretrial memorandum, he might be precluded from calling one at trial.

On September 22, 1995, the respondent and defendant's counsel submitted a joint pretrial memorandum to the court. In the memorandum, the respondent listed Norman Bates, a security expert with whom he had consulted previously, as Ebert's expert and described Bates's expected testimony. Despite this representation, the respondent had not communicated with Bates about the Ebert matter.

At the pretrial conference, which the respondent did not attend,¹⁰ the judge ordered Ebert, through counsel, to provide the defendant with an expanded statement of Bates's opinion, and the basis for it, by October 20, 1995. On or about October 20, 1995, without communicating with Bates, the respondent prepared a supplemental expert interrogatory answer, setting forth what he represented to be Bates's expected testimony and the basis of that testimony. The respondent signed the supplemental interrogatory and sent it to defendant's counsel on October 20, 1995.

The respondent did not contact Bates until February, 1996. Bates, who had learned in December, 1995, or January, 1996, that the respondent had listed him as an expert in the Ebert matter and described his expected testimony, informed the respondent that he would not serve as an expert in the case.

On April 16, 1996, the Ebert case was scheduled for mediation. That day, the respondent transmitted defendant's counsel a facsimile informing him that Bates would not be acting as an expert for Ebert and that he expected to identify another expert "very shortly."

On April 16, 1996, the respondent's cocounsel, with the client's consent, settled Ebert's case for $14,000. The settlement amount was based on the $9,000 originally offered, plus an additional $5,000 representing coverage available based upon a medical payment provision in defendant's insurance policy.

C. The Walsh Matter

In the summer of 1993, Thomas Walsh retained the respondent to represent him in a possible medical malpractice action. The respondent later attempted to work on the matter, but discovered that he had misplaced the file. Unsure of the client's name, address, or telephone number, the respondent concluded that he was unable to contact Walsh. In early August, 1994, approximately one year later, Walsh contacted the respondent and was informed that "little" work had been done on the case because the file had been misplaced.

D. Prior Discipline

In 1993, the respondent received an informal admonition for failing to place the amount of a disputed fee in a trust account pending resolution of a dispute with predecessor counsel.

II. ANALYSIS

The sole issue on appeal is the appropriateness of the sanction imposed by the board: a six month suspension from the practice of law. To determine whether the sanction is appropriate, I must decide whether the board's recommendation "is 'markedly disparate' from the sanction imposed in other similar cases." Matter of Brown, 12 Mass. Att'y Discipline Rep. 23, 27 (1996), quoting Matter of Alter, 389 Mass. 153, 156 (1983). I also recognize that each case must be decided "on its own merits and every offending attorney must receive the disposition most appropriate in the circumstances." Matter of the Discipline of an Attorney, 392 Mass. 827, 837 (1984).

Here, the controversy turns primarily on the appropriate sanction for the respondent's misrepresentations in the Ebert matter concerning Bates's expected testimony in the joint pre- trial memorandum and supplemental interrogatory answer.¹¹ Bar counsel argues in favor of a suspension of a year and a day, contending that such a suspension is "standard" in cases like this one, where attorneys make misrepresentations to the court and opposing counsel. The respondent, on the other hand, contends that a public reprimand with a two year probation period is appropriate. Both positions are incorrect.

Contrary to bar counsel's position, this court has imposed a wide range of discipline in this type of case, from public censure to a three year suspension.¹² See, e.g., Matter of Kerlinsky, 428 Mass. 656, 664 (1999) (three year suspension imposed for "persistent and extended pattern of improper and unethical behavior," including the filing of false and misleading affidavits and interrogatory answers); Matter of Dolan, 10 Mass. Att'y Discipline Rep. 59 (1994) (public censure with two year's probation imposed for misrepresentations made concerning settlement authority). Thus, there is no applicable "standard" sanction. Rather the sanction must be determined based on the unique circumstances of this case. Matter of the Discipline of an Attorney, supra at 837.

The sanction urged by the respondent is equally inappropriate. Citing Matter of Cross, Matter of Dolan and Matter of Long, the respondent contends that his conduct warrants only a public reprimand combined with a period of probation. See Matter of Cross, 15 Mass. Att'y Discipline Rep. 157 (1999) (public reprimand); Matter of Dolan, supra at 62 64 (public censure with two years' probation); Matter of Long, No. BD 99-053, slip op. at 6 8 (three month suspension).

However, in each of these cases, the misrepresentations did not concern substantive matters. In Matter of Cross, for example, the attorney filed a return of service that contained false information. Id. at 157-158. In Matter of Dolan, the attorney misrepresented his settlement authority "to encourage a difficult client to accept what the respondent considered to be the best outcome in the face of diminishing returns." Id. at 63. In Matter of Long, the attorney misrepresented that he was on trial in another court to obtain a continuance. Id. at slip op. at 5.

The respondent's conduct is readily distinguished. His misrepresentations went to the heart of a substantive matter: the existence of expert testimony supporting Ebert's claim. By naming Bates as Ebert's expert and providing the grounds for Bates' opinion, the respondent misrepresented the substance and relative strength of the claim. Moreover, the respondent failed to correct the record for six months, waiting until the day of the scheduled mediation to inform opposing counsel that Bates would not be serving as Ebert's expert.

Such misconduct cannot be taken lightly. "As an officer of the court, an attorney is a 'key component of a system of justice, . . . and is bound to uphold the integrity of that system by being truthful to the court and opposing counsel." Matter of Neitlich, 413 Mass. 416, 423 (1992), quoting Nix v. Whiteside, 475 U.S. 157, 174 (1986). "A violation of that obligation warrants and requires a meaningful sanction." Matter of McCarthy, 416 Mass. 423, 431 (1993).

In addition to this serious misconduct, there are other factors to be considered. The neglect of the Walsh matter and the respondent's prior disciplinary record are aggravating factors, suggesting the imposition of a lengthier suspension. See Matter of Garabedian, 416 Mass. 20, 24 25 (1993) (prior misconduct supports more severe sanction, otherwise the misconduct "would count for nothing"); Matter of Dawkins, 412 Mass. 90, 96 (1992) (existence of prior discipline, even if unrelated, is a "substantial factor in selecting the level of discipline"); Matter of Saab, 406 Mass. 315, 327 (1989) ("sanction based on consideration of prior discipline is not . . . . markedly disparate from the handling of other cases").

However, the committee found that the respondent's actions "were not intended to perpetrate a fraud on the court or opposing party" and his misconduct was "due largely to the emergency state of affairs occasioned by the numerous office upheavals and unmanageable case load, which would have derailed the most seasoned practitioner."¹³ While the chaotic state of the respondent's practice was not, in and of itself, a mitigating factor, it is evidence of the respondent's intent. The fact that the respondent did not intend to "perpetrate a fraud on the court," is relevant to my decision.¹⁴

Considering the prior sanctions imposed for this type of action, and the above factors (misconduct in the Walsh matter, respondent's prior disciplinary record, and his lack of intent), I conclude that a six month suspension is appropriate.

A judgment shall be entered suspending the respondent from the practice of law for six months.

 

FOOTNOTES:

¹ The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

² I cite here only those disciplinary rules that both the hearing committee and board found to have been violated.

³ DR 1 102(A) provides, in pertinent part: "A lawyer shall not . . . (4) [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation[;] (5) [e]ngage in conduct that is prejudicial to the administration of justice[;] (6) [e]ngage in any other conduct that adversely reflects on his fitness to practice law."

⁴ DR 6 101(A) provides, in pertinent part: "A lawyer shall not * * * (2) [h]andle a legal matter without preparation adequate in the circumstances[;] (3) [neglect a legal matter entrusted to him."

⁵ DR 7 102(A)(5) provides, in pertinent part: "In his representation of a client, a lawyer shall not . . . (5) [k]nowingly make a false statement of law or fact."

⁶ DR 9 102(B) provides, in pertinent part: "A lawyer shall . . . (2) [i]dentify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable."

⁷ The conditions were: (1) "within one (1) year of the final decision by the Board of Bar Overseers or the Supreme Judicial Court, the respondent shall take and pass a course in Professional Responsibility at an accredited law school; (2) the respondent shall take and pass a case management course selected by Bar Counsel; (3) the respondent shall carry malpractice insurance of at least $250,000 during the term of probation; (4) the respondent's legal practice shall be supervised by an attorney approved by Bar Counsel, with his supervising attorney meeting with him weekly for the first six (6) months and thereafter, as deemed necessary by the supervising attorney, but no less often than monthly; and (4) the supervising attorney shall make quarterly written progress reports to Bar Counsel."

⁸ All attorneys suspended for more than one year must petition for reinstatement and carry the burden of demonstrating their fitness to resume the practice of law. Those suspended for a lesser term may be reinstated on motion at the end of the term of suspension if certain other conditions have been met. See S.J.C. Rule 4:01, § 18, as appearing in 430 Mass. 1329 (2000).

⁹ These facts are drawn from the committee's findings of facts, which were adopted by the board and not challenged by the parties.

¹⁰ The respondent's cocounsel attended the conference.

¹¹ The typical sanction for neglect of a client matter is an admonition. See Matter of Kane, 13 Mass. Att'y Discipline Rep. 321, 324 (1997). Thus, the respondent's neglect of the Walsh matter will be considered as an aggravating factor in determining the appropriate level of discipline for the more serious misconduct in the Ebert matter.

¹² I recognize that bar counsel is simply referencing the statement in Matter of McCarthy, 416 Mass. 423, 431 (1993), that the "minimum sanction" for "perpetrat[ing] a fraud on a tribunal" is a one year suspension. See also Matter of Aufiero, 13 Mass. Att'y Disc. Rep. 6, 24 (1997) (one year suspension is "standard" sanction for making false representations to tribunal). However, as this court's later decisions make clear, lesser sanctions may be appropriate where the misrepresentations do not rise to the level of a "fraud on a tribunal," especially where mitigating factors are present. See, e.g., Matter of Finnerty, 418 Mass. 821 (1994) (six month suspension for misrepresentations concerning attorney's worth in financial statement); Matter of Long, No. BD 99 053 (May 12, 2000) (three month suspension for misrepresentations to court to obtain continuance); Matter of Dolan, 10 Mass. Att'y Discipline Rep. 59 (1994) (public censure with two years' probation for misrepresentations concerning settlement authority).

¹³ S.J.C. Rule 4:01, § 8(4), as appearing in 425 Mass. 1309 (1997) (committee is the "sole judge of the credibility of the testimony presented at the hearing").

¹⁴ The respondent's lack of intent removes this case from the realm of Neitlich and McCarthy, and the one year "minimum" suspension. See Matter of Neitlich, 413 Mass. 416, 422 (1992) (attorney "actively misrepresented" terms of sale and "deliberately concealed" existence of an agreement, thus "perpetrat[ing] a fraud on the court and opposing counsel"); Matter of McCarthy, supra at 431 ("[b]y eliciting false testimony, introducing in evidence false documents, and failing to correct the record when he had the opportunity to do so, the respondent perpetrated a fraud on a tribunal").