In the Matter of Kenneth M. Levine

BOARD MEMORANDUM ¹

 

A petition for discipline was filed by Bar Counsel on August 30, 2001 against the respondent, Kenneth M. Levine. The petition charged the respondent with two counts of misconduct in connection with the respondent’s representation of plaintiffs in two medical malpractice cases. A Hearing Committee recommended that the respondent receive a public reprimand. Bar Counsel appeals, seeking a two-year suspension. Oral Argument was held before the full board on August 11, 2003. We adopt the Committee’s factual findings, but amend its conclusions of law, and for the reasons set out below, we dismiss Bar Counsel’s appeal and adopt the Committee’s recommendation of a public reprimand.

THE HEARING COMMITTEE’S FACTUAL FINDINGS

The respondent Kenneth M. Levine was admitted to the Massachusetts bar on December 19, 1981. Since his admission, the respondent has concentrated his practice in the area of medical malpractice.

Newman Matter

Sometime before August 10, 1995, Hope Newman and her husband were referred to the respondent by Mrs. Newman’s father, Allen Rubin, an attorney who had referred numerous clients to the respondent in the past. Mrs. Newman had recently experienced an ectopic pregnancy while a patient of Harvard Community Health Plan (HCHP). When Mrs. Newman began suffering severe cramping early in the pregnancy, she contacted her treating obstetrician who recommended an ultrasound. Despite the recommendation, HCHP refused to schedule her for the ultrasound. When she continued to have pains the following day, Mrs. Newman sought treatment from an obstetrician not affiliated with HCHP, who performed an ultrasound, and sent Mrs. Newman immediately to Brigham and Women’s Hospital. Two days after her initial call to HCHP, she underwent surgery for an ectopic pregnancy. However, one of Mrs. Newman’s fallopian tubes had already ruptured and had to be removed. The surgeon told Mrs. Newman that she should have been monitored more closely by HCHP considering that she had a history of difficult pregnancies.

On August 10, 1995, the Newmans met with the respondent and Marlene Landa, a nurse who worked with the respondent, to ascertain whether the Newmans could sue HCHP or others, as they felt they had a case for what they perceived as Mrs. Newman’s mistreatment. Although Mrs. Newman did execute requests for medical records, she did not execute a contingent fee agreement with the respondent, and the subject of a fee never came up during any of the discussions between the Newmans and the respondent. Mrs. Newman assumed it would be a contingent fee arrangement because that is how she understood attorneys were to be paid.

At some point after the meeting of August 10, 1995, but before reviewing Mrs. Newman’s medical records, Ms. Landa opined to the respondent that Mrs. Newman did not have a medical malpractice case. At some point thereafter, Ms. Landa reviewed Mrs. Newman’s medical records, and subsequently reiterated to the respondent her opinion that Mrs. Newman did not have a medical malpractice case.

Between the meeting of August 10, 1995 and March 1996, neither the respondent nor anyone from his office contacted Mrs. Newman. However, in March 1996, the respondent sent a note to Ms. Landa, requesting that they “go over Hope Newman. I need to do something with it.” Sometime in March 1996, Ross Annenberg, an attorney in the respondent’s office, called Mrs. Newman and asked her to send him a note updating the office on her medical condition. Mrs. Newman wrote to the respondent that she had been undergoing drug fertility treatments, had had two miscarriages, and had recently started with Boston IVF but had not yet become pregnant.

The respondent never had Mrs. Newman’s medical records reviewed by a physician expert witness, however, he testified, and the Committee credited his testimony, that he spoke by telephone with Dr. Edelberg, an expert, concerning the case. The respondent believed the case was not worth an expert unless the Newmans wanted to pay for one. On April 3, 1996, the respondent wrote to Mrs. Newman requesting a meeting “to learn more about your present medical status and discuss the case generally.”

The respondent believed the Newmans’ case was weak, and he told Attorney Rubin in April 1996 that he did not believe the Newmans had a case; nonetheless he met with Mr. and Mrs. Newman sometime that month. Mrs. Newman testified, and the Committee credited her testimony, that the respondent told the Newmans he would file their case before the statute of limitations ran out. At the time of this meeting, the respondent did not tell the Newmans that he would not file the case. In August, the respondent again sent a note to Ms. Landa asking if there wasn’t something he could do with the case, which he called “no case,” but Ms. Landa again expressed her opinion that there was no case.

The respondent did not respond to several communications from Mrs. Newman between December 1996 and February 1997, including a letter in which Mrs. Newman updated him on her medical condition, and a fax in which she reminded him that the statute of limitations was running out and that, if the case had not yet been filed, she needed to be informed so that she could make other arrangements.

In late February 1997, the respondent received a telephone call from Mr. Newman’s corporate attorney who conferenced in the Newmans so that they could participate in the call. The respondent informed the Newmans that he was talking with an expert, and that he would file the complaint, even though he still believed that Mrs. Newman’s case was not viable. The Committee found that the respondent continued to handle the Newman case because he wanted to continue to get referrals from Attorney Rubin.

On March 14, 1997, the respondent filed a complaint in Suffolk Superior Court naming HCHP as the only defendant. At the time he filed the complaint, it was the respondent’s opinion that there would be a problem showing causation between any errors or omissions on the part of HCHP and Mrs. Newman’s difficulties bearing children, which was the subject of the complaint, yet predated the situation with HCHP.

The respondent failed to serve the complaint on HCHP within 90 days of filing as required by the Massachusetts Rules of Civil Procedure. On June 11, 1997, after the 90 days had elapsed, the respondent filed a motion to extend the time to serve HCHP with the complaint, alleging it was brought for “good cause”. On July 1, 1977, Judge Sikora of the Superior Court ordered the respondent to file a new motion specifying “the ground constituting good cause why service” had not been made within 90 days. On July 14, 1997, Superior Court Judge van Gestel dismissed the Newmans’ complaint, without prejudice. The respondent received notice of the dismissal on July 15, 1997. Ten days later, he filed a motion to vacate the dismissal and to extend time for service of process. In his memorandum in support of the motion to vacate, the respondent stated that it had been difficult to determine who the most appropriate defendant was, and that more time was needed to ensure the proper defendants were brought in.

On July 31, 1997, Judge van Gestel granted the motion to vacate dismissal and ordered that service be made on HCHP by August 29, 1997. On August 11, 1997, HCHP was served with the complaint. HCHP filed an answer to the complaint, and, shortly thereafter, HCHP filed a motion to dismiss the complaint based on failure to timely serve without good cause. The respondent filed an opposition to this Motion; however, on December 30, 1997, Judge Smith allowed HCHP’s motion to dismiss, finding that the respondent had failed to establish good cause for the failure to make timely service.

The respondent failed to communicate with the Newmans between February 1997, and October 1998, and he sent them no copies of pleadings he had filed in their case. The respondent did not inform the Newmans that their complaint had been dismissed; however, on January 16, 1998, the Newmans did learn of the dismissal through Attorney Rubin, who had in turn learned of it from a third party.

The respondent timely filed a notice of appeal of the allowance of HCHP’s motion to dismiss. On January 16, 1998, Attorney Rubin wrote to the respondent advising him that he had the docket entries on his daughter’s case, that the dismissal was appealable and that he trusted the respondent would timely take the necessary action. On January 22, 1998, the respondent replied to Attorney Rubin that he had already filed a Notice of Appeal and intended to pursue it. The respondent filed a brief with the Appeals Court, which affirmed the dismissal without opinion in June 1999.

In September 1998, the Newmans filed a complaint with the Office of Bar Counsel. Sometime thereafter, the Newmans learned from Attorney Rubin of the denial of their appeal.

Harris Matter

In July 1996, Attorney George Zevitas referred Thomas Harris to the respondent. Mr. Harris had undergone cataract surgery in October 1995, performed by Dr. Chalfin, during which a complication consisting of a posterior capsular rupture occurred. As a result, Mr. Harris suffered from constant tearing, watering, redness, and impaired vision in his left eye. Subsequent surgery by a retina specialist at Massachusetts Eye and Ear Infirmary did not alleviate the problems. At the time of the hearings on Bar Counsel’s complaint, Mr. Harris was deceased.

In July 1996, the respondent met with Mr. Harris who told the respondent he believed his difficulties were caused by Dr. Chalfin’s negligence. Indeed, at the time he referred Mr. Harris to the respondent, Attorney Zevitas informed the respondent in writing of a history of complaints and civil actions against Dr. Chalfin. At some time after the July 1996 meeting, the respondent agreed to represent Mr. Harris in connection with a possible malpractice claim against Dr. Chalfin. However, the respondent never entered into a written contingent fee agreement with Mr. Harris and no evidence was presented that there was any discussion or agreement on the fee arrangement. Mrs. Harris admitted that her husband did not tell her of any conversations with the respondent regarding a fee arrangement, and she simply assumed there was a contingent fee arrangement. On July 25, 1996, the respondent sent Mr. Harris several medical releases, which Harris signed and returned.

The respondent met once with Mr. Harris in February 1997, and Mr. Harris understood from that meeting that the respondent was proceeding with a malpractice case against Dr. Chalfin on his behalf. Mr. Harris had suffered a stroke in September 1996 and he moved to Hawaii in April 1997. Mr. Harris called and wrote the respondent numerous times over the next six months, but the respondent did not reply to any of the phone calls or letters. On January 9, 1998, the respondent’s assistant, Sharon Toto, wrote to Mr. Harris, requesting a copy of his records from the Hawaiian Eye Center, where Mr. Harris had informed the respondent he was now treating.

On January 17, 1998, Mr. Harris wrote to Ms. Toto, enclosing a letter from Dr. Bruce Ballon of the Hawaiian Eye Center describing his examination and treatment of Mr. Harris. In his letter, Mr. Harris asked about the medical malpractice case, pointing out that “1998 is statutory limitation date”. Neither the respondent nor anyone from his office responded to Mr. Harris.

On October 16, 1998, the respondent wrote a memo to Marlene Landa, stating “we don’t know much about this case” and requesting that she get updated information. The respondent never spoke with Mr. Harris’ treating physician, Dr. Melvin Wong, in Hawaii, although Mr. Harris had told the respondent at one point that Dr. Wong thought Mr. Harris had received poor follow-up care after the cataract surgery.

Even though the respondent had not yet consulted with a medical expert regarding Mr. Harris’ claim, on October 19, 1998, he filed a complaint in the U.S. District Court for the District of Massachusetts against Dr. Chalfin, based upon diversity of citizenship since Mr. Harris had informed the respondent that he had permanently moved to Hawaii (“Chalfin 1”). The case was assigned to Judge Lindsay. As he had in the Newmans’ case, the respondent again failed to serve the defendant within the time prescribed by the Federal Rules of Civil Procedure. In fact, at the time Chalfin 1 was filed, neither the respondent nor anyone in his office had attempted to locate Dr. Chalfin.

During the 120 days following his filing of Chalfin 1, the respondent and his associate, Attorney Ross Annenberg, did make efforts to locate Dr. Chalfin, all of which were unsuccessful. The respondent admitted that he called no one on Cape Cod to see if they knew of Dr. Chalfin’s whereabouts, except a malpractice defense attorney, and did not call the referring attorney, George Zevitas, notwithstanding the fact that Attorney Zevitas had advised the respondent, in his initial letter, that he knew there was a history of complaints against Dr. Chalfin. The respondent had Attorney Annenberg do an internet search for Dr. Chalfin, but Attorney Annenberg was not well versed in the use of the internet. The respondent called the Board of Registration in Medicine around the time the complaint was filed and was given Dr. Chalfin’s former office address; the respondent called there and was informed that they would not tell him where Dr. Chalfin could be reached. Attorney Annenberg also checked tax records for Hyannis and searched the Folio Medical Directory, with no success. The respondent also contacted various specialty boards in medicine, the AMA Physicians Selection Program and some other attorneys in Massachusetts in his efforts to obtain Dr. Chalfin’s address, also all without success. Neither the respondent nor Attorney Annenberg checked telephone books for Cape Cod, nor did anyone check the Barnstable Registry of Deeds or various local court dockets for cases against Dr. Chalfin. The respondent found out Dr. Chalfin’s whereabouts in 2000 only by the chance occurrence of another client coming to him with a complaint about Dr. Chalfin.

On March 25, 1999, Judge Lindsay entered an order, which the respondent received, requiring that proof of service be filed or the complaint would be dismissed in 20 days. The respondent did not file a proof of service. On April 21, 1999, Judge Lindsay entered an order dismissing the complaint, which the respondent received. The respondent did not inform Mr. Harris that the case had been dismissed until February 2000.

On July 31, 1999, shortly after moving back to Massachusetts, Mr. Harris suffered a second stroke. Several months later, Mr. Harris asked his wife to contact the respondent, which she did. Mrs. Harris testified she left a message for the respondent, but she could not remember whether the respondent returned her call.

On December 29, 1999, Mr. Harris called the Office of Bar Counsel and spoke with Assistant Bar Counsel Allison Mills Cloutier. Mr. Harris told Attorney Cloutier that he was looking for assistance in getting information about his medical malpractice claim against Dr. Chalfin because he has having difficulty getting information about the status of the case from his attorney. Assistant Bar Counsel learned from Attorney Zevitas that the respondent had filed the case for Mr. Harris against Dr. Chalfin, and she called Mr. Harris to convey that information. In that conversation, Mr. Harris told Ms. Cloutier that he had not heard from the respondent.

In January 2000, Ms. Cloutier contacted the respondent’s lawyer, and discussed Mr. Harris’ inquiry regarding the status of his case. Thereafter, the respondent’s paralegal called Mr. Harris to schedule a meeting at Mr. Harris’ home on January 28, 2000. In a subsequent telephone conversation, Mr. Harris told Ms. Cloutier that the respondent did not appear for that meeting. The respondent explained his failure to attend was because his secretary had given him the wrong address. Mr. Harris did meet with Attorney Annenberg from the respondent’s office in February 2000.

On January 21, 2000, the respondent filed a second complaint in federal district court identical to the first (“Chalfin 2”), which was assigned to Judge Young. In completing the civil cover sheet for this complaint, the respondent failed to disclose the existence of Chalfin 1.

On April 20, 2000, just one day short of the one-year time limit under the Federal Rules of Civil Procedure, the respondent moved for relief from the judgment of dismissal entered in Chalfin 1 for failure to serve the defendant. The motion stated that the plaintiff had been unable to locate the defendant until recently, but it did not disclose that an identical complaint, Chalfin 2, was pending before Judge Young. That day, Judge Lindsay denied the respondent’s motion without prejudice “pending the filing of an affidavit of counsel setting forth the efforts made to locate the defendant, and when and how the defendant was located.”

On May 9, 2000, the respondent filed a renewed motion in Chalfin 1 with supporting affidavit and memorandum of law. Without disclosing in his motion that he had already filed Chalfin 2, the respondent stated in this motion that “[t]he Plaintiff would be highly prejudiced if this motion is not allowed because the statute of limitations on this action has run, thus the Plaintiff is barred from filing another action.” The following day, Judge Lindsay denied the renewed motion and the respondent did not appeal the dismissal of Chalfin 1.

Meanwhile, the respondent failed to serve Dr. Chalfin with the complaint in Chalfin 2, and it, too, was dismissed. The respondent did not appeal the dismissal of that case, either.

Undaunted by his series of defeats in federal court, on June 29, 2000, the respondent filed a complaint in the Barnstable County Superior Court against Dr. Chalfin (“Chalfin 3”) which was essentially the same complaint that the respondent had filed twice before in federal district court. This time, the respondent successfully served Dr. Chalfin.

On August 2, 2000, an attorney representing Dr. Chalfin filed an answer to the complaint that raised the statute of limitations as an affirmative defense.

On September 15, 2000, an associate in the respondent’s office wrote to Dr. William Flitte, a Board-certified opthamologist with a practice in Maryland, enclosing Mr. Harris’ medical records for his review. On September 28, 2000, Dr. Flitte sent the respondent a letter reporting that there was “absolutely no cause [of] action in this case” because there was “no causation” – “the damages, although significant, were not related in anyway to anything Dr. Chalfin did….” The respondent did not inform Mr. Harris of Dr. Flitte’s opinion of lack of causation at that time. Up to that time, neither the respondent nor any one on his behalf had consulted an expert regarding the validity of Mr. Harris’ malpractice case.

Nonetheless, the respondent went forward with a medical malpractice tribunal in Barnstable Superior Court. The respondent argued that Dr. Chalfin’s conduct “[fell] below the standard of care...”, admitting both that he did not have a letter from a physician to support the allegations, and that the letter he had received “was not one that was sufficient to present to the tribunal panel.” The respondent did not present Dr. Flitte’s letter, nor did he tell the tribunal that Dr. Flitte’s letter opined that there was no cause of action in the case.

On October 5, 2000, the tribunal found that there was insufficient evidence to “raise a legitimate question of liability” and ordered the complaint (Chalfin 3) dismissed within 30 days unless a $12,000.00 bond was posted pursuant to the applicable Massachusetts statute.

On October 14, 2000, even though he already had the results, the respondent wrote to Mrs. Harris reporting that the medical tribunal had been held and that he was pessimistic about the results. He also enclosed for the first time a copy of Dr. Flitte’s opinion letter. It was not until October 24, 2000, that the respondent informed Mr. and Mrs. Harris of the tribunal’s decision. Mr. Harris did not file the bond or appeal the decision, and the case was dismissed. The respondent testified that he should have turned the case down.

THE COMMITTEE’S CONCLUSIONS OF LAW

Representation of the Newmans

The Committee found that the respondent neglected a matter, in violation of Canon Six, DR 6-101(A)(3) (lawyer shall not neglect a legal matter entrusted to him) in two ways: by failing to communicate with the Newmans concerning the status of their case and by failing to inform the Newmans that the case had been dismissed.

The Committee concluded, however that Bar Counsel had failed to prove a number of the other charges brought, namely:

1. Failure to communicate with the Newmans concerning the status of the case did not constitute a violation of Canon Seven, DR 7-101(A)(1) (lawyer shall not intentionally fail to seek the lawful objectives of his client), (2) (lawyer shall not fail to carry out a contract of employment with a client), or (3) (lawyer shall not prejudice or damage his client during the course of the professional relationship), since Bar Counsel had failed to prove that the Newmans had a viable claim and, therefore, it did not appear that the respondent could have achieved the results sought by the Newmans nor that his misconduct caused any cognizable harm.

2. Failure to serve HCHP within the time required, resulting in the dismissal of the complaint and the Newmans’ claims being barred by the statute of limitations, did not violate Canon Seven, DR 7-101(A)(1) (lawyer shall not intentionally fail to seek the lawful objectives of his client), (2) (lawyer shall not intentionally fail to carry out a contract of employment with a client), or (3) (lawyer shall not prejudice or damage his client during the course of the professional relationship) or Canon Six, DR 6-101(A)(2) (lawyer shall not handle a legal matter without adequate preparation) or (3) (neglect), because the respondent’s failure to make timely service was not due to neglect or inadequate preparation (he, at all times, knew how and where to serve HCHP), but rather to the fact that there was no cause of action against an individual defendant and the clients’ objectives were not to pursue HCHP alone, because of, inter alia, the charitable cap on recovery.

3. Failure to inform the Newmans of the dismissal of their case, the appeal and the dismissal pursuant to the appeal did not violate Canon Seven, DR 7-101(A)(1) (lawyer shall not intentionally fail to seek the lawful objectives of his client) and (2) (lawyer shall not intentionally fail to carry out a contract of employment with a client) and (3) (prejudice or damage a client), based on the Committee’s prior findings concerning the clients’ objectives and the lack of an economically viable cause of action.

4. Filing the lawsuit on behalf of the Newmans did not violate Canon One, DR 1-102(A)(5) (conduct prejudicial to the administration of justice) and (6) (conduct adversely reflecting on fitness to practice), Canon Six, DR 6-101(A)(2) (inadequate preparation) and (3) (neglect), and Canon Seven, DR 7-101(A)(1) (lawyer shall not intentionally fail to seek the lawful objectives of his client) and (2) (lawyer shall not intentionally fail to carry out a contract of employment with a client), and (3) (prejudice or damage to client), and DR 7-102(A)(2) (in representing a client, lawyer shall not knowingly advance a claim or defense that is unwarranted under existing law), in light of the Committee’s finding that the lawsuit against HCHP, although not economically viable, was not frivolous. The Committee found the respondent could not meet the clients’ objective to recover damages from an individual not subject to the statutory cap on recovery.

5. The respondent did not fail to adequately investigate the Newmans’ claims, in violation of the above-cited disciplinary rules.

6. The respondent did not falsely represent to the Newmans that he was consulting with an expert in violation of Canon One, DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and (6) (conduct adversely reflecting on fitness to practice), as the evidence showed that the respondent told the Newmans that he was “talking to” an expert and, in fact, that he was.

7. The respondent did not make a knowingly false representation in his brief to the Appeals Court that he had “employed many methods of determining the correct Defendant to serve” and this conduct, therefore, did not violate Mass. R. Prof. C. 3.3(a)(1) (lawyer shall not make a false statement of material fact to a tribunal) and Mass. R. Prof. C. 8.4(c) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation), (d) (conduct prejudicial to the administration of justice) and (h) (conduct adversely reflecting on his fitness to practice law). The respondent discussed the case on a number of occasions with other employees of his firm and he and others reviewed the medical records to try to ascertain if there were other possible defendants.

8. Failure to have the Newmans sign a written contingent fee agreement did not violate S.J.C. Rule 3:05, and Canon One, DR 1-102(A)(5) (conduct prejudicial to the administration of justice) or (6) (conduct adversely reflecting on fitness to practice), because the Committee found that there was no fee agreement and the matter of a fee was never discussed.

Representation of Mr. Harris

The Committee found that the respondent neglected his client’s case in two general respects: (a) the respondent’s failure to respond to Mr. Harris’ requests for information about his case and his failure to maintain adequate communications with Mr. Harris prior to January 1, 1998, violated Canon Six, DR 6-101(A)(3) (neglect), and the respondent’s failure to respond and to maintain adequate communications after that date violated Mass. R. Prof. C. 1.1 (lawyer shall provide competent representation to client), and (b) the respondent’s failure to locate the whereabouts of and to serve Dr. Chalfin within 120 days of the filing of the complaint violated Mass. R. Prof. C. 1.1 (lawyer shall provide competent representation to client), 1.2(a) (lawyer shall seek the lawful objectives of client) and 1.3 (lawyer shall act with reasonable diligence and promptness), particularly in light of the respondent’s failure to contact the referring attorney, who had written to the respondent originally about the case, representing he was aware of other cases against Dr. Chalfin.

The Committee also found that Bar Counsel did not prove that the respondent failed to adequately investigate Mr. Harris’ claim for malpractice prior to January 1, 1998, and thus did not violate Canon Six, DR 6-101(A)(2) (inadequate preparation) and (3) (neglect), and after that date, did not violate Mass. R. Prof. C. 1.1 (lawyer shall provide competent representation to client) and 1.3 (lawyer shall act with reasonable diligence and promptness). The Committee concluded that the respondent’s waiting to obtain additional medical records from his client and waiting to obtain an expert opinion was not an ethical violation.

The Committee found the three suits the respondent filed against Dr. Chalfin were not frivolous at the time they were filed, since the existence of a defense that the statute of limitations had run does not establish that the underlying claim was frivolous.

The Committee further found that the respondent did not make knowingly false representations in the memorandum of law and the affidavit filed in Chalfin 1 concerning his efforts to locate Dr. Chalfin; thus there was no violation of Mass. R. Prof. C. 3.3(a)(1) (lawyer shall not knowingly make a false statement of material fact or law to a tribunal) and 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), (d) (conduct prejudicial to the administration of justice) and (h) (conduct adversely reflecting on fitness to practice). The record in fact supported the respondent’s representations that he caused an internet search to be conducted, and that the physician who purchased Dr. Chalfin’s practice refused to give the respondent information concerning Dr. Chalfin’s whereabouts.

In addition, the Committee found that Bar Counsel failed to prove the respondent made knowingly false representations to Harris that he had presented “medical information” to the malpractice tribunal, since the respondent did present medical records to the tribunal, and therefore did not violate Mass. R. Prof. C. 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), (d) (conduct prejudicial to the administration of justice) and (h) (conduct adversely reflecting on fitness to practice).

Finally, the Committee found the respondent’s failure to have Mr. Harris sign a written contingent fee agreement did not violate S.J.C. Rule 3:05, and Canon One, DR 1-102(A)(5) (conduct prejudicial to the administration of justice) or (6) (conduct adversely reflecting on fitness to practice), because there was no fee agreement and the matter of a fee was never discussed.

OTHER FINDINGS AND RECOMMENDATION

The Committee found that neither the respondent’s claim that Bar Counsel’s claims were stale nor his claim that his due process rights had been violated had any merit.

The Committee found that the respondent’s multiple misconduct in this matter, his neglect of two cases and his failure to communicate with the clients in both matters, must be considered in aggravation. Matter of Saab, 406 Mass. 315, 326-327 (1989).

Although Bar Counsel had requested a three-year suspension, the Committee rejected most of Bar Counsel’s more serious charges, and found only that the respondent neglected his clients’ cases by failing to adequately communicate with them concerning their cases. The Committee recommended a public reprimand.

BAR COUNSEL’S APPEAL

Bar Counsel raises five issues on appeal: (1) the Hearing Committee erred in finding that the Newmans were not interested in pursuing HCHP because of the charitable immunity cap; (2) consequently, the respondent’s failure to serve HCHP was a violation of Canons 6 and 7 because he neglected the matter, he failed to achieve the lawful objectives of the client, he failed to carry out his contract with his client and his conduct resulted in prejudice or damage; (3) the Hearing Committee erred in finding that the use of the term “many” in the Appeals Court brief on the Newman case was not deceptive and misleading; (4) the Hearing Committee erred in finding the respondent did not file frivolous suits in both the Newman and Harris cases; and (5) the proper sanction for such misconduct would be a suspension rather than public reprimand. We adopt the Hearing Committee’s Findings of Fact, but amend its Conclusions of Law as follows, addressing each of Bar Counsel’s five grounds for appeal seriatim.

The Committee’s legal conclusion that the respondent’s conduct did not violate Canon Seven because Mrs. Newman’s goal was to bring suit against BOTH HCHP and the individual doctors is in error. We, therefore, amend the Committee’s conclusions of law to reflect that the failure to serve the complaint on HCHP violated Canon 7, DR 7-101(A)(1) (lawyer shall not intentionally fail to seek the lawful objectives of his client), (2) (lawyer shall not intentionally fail to carry out a contract of employment with a client) and (3) (prejudice or damage a client). As the Committee found, Mrs. Newman did testify she understood her claim would be brought against HCHP and the doctors who treated her; indeed all the witnesses testified that they understood that some physician(s) would be named as defendant(s), as they perceived the doctors were culpable for Mrs. Newman’s medical problems. However, the Committee’s conclusion appears to be grounded on its finding that the client’s objectives were to sue HCHP AND one or more physicians, and therefore, the respondent’s failure to serve HCHP as the sole defendant did not compromise the client’s rights. This conclusion misconstrues the meaning of Canon 7, DR 7-101(A)(1)-(3). In order to violate these provisions, an attorney need not intend to harm the client. It is enough that the lawyer commits an intentional or knowing act, which ultimately causes the client harm. See e.g. Matter of Kerlinsky, 13 Mass. Disc. R. 359 (1997). In this case there was uncontroverted evidence that notwithstanding the client’s understanding of who would be sued, the respondent agreed to file the case, actually filed the case against HCHP alone, and then intentionally failed to serve HCHP despite his clear ability to do so. Once he filed the case, he had an ethical duty to timely serve the defendant and let the case proceed on the merits. By knowingly failing to serve the complaint, he unilaterally made a decision which extinguished any value the client’s claim had, even if minimal.

We affirm the Committee’s finding that the respondent’s failure to serve HCHP did not constitute neglect or inadequate preparation in violation of Canon 6, since, as the Committee found, the failure to serve was knowing, not negligent. Kerlinsky, supra at 377. In declining to reverse the Committee’s findings in this regard, we note, as did the Committee, that Bar Counsel did not include the Canon Six charges in his proposed findings and conclusions.

We likewise affirm the Committee’s finding that the respondent’s use of the term “many” in the Appeals Court brief on the Newman case to describe his efforts made to ascertain the “correct defendant to serve” was not deceptive and misleading. The term “many” is imprecise and not susceptible of the precise quantification Bar Counsel urges, and, in light of the testimony that, at the very least, the respondent made three attempts to determine what physicians could be liable to the Newmans, we find Bar Counsel’s persistence in pressing the issue on appeal inexplicable.

We reject Bar Counsel’s request to find that the respondent filed frivolous suits in the Newman or Harris cases. Although the SJC has not defined “frivolous” for the purposes of bar discipline, the comments to Mass. R. Prof. C. 3.1 advise that the filing of an action or defense is not frivolous even if the lawyer “believes the client’s position ultimately will not prevail. The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.” Rule 3.1, Comment 2 (emphasis added). See also Van Christo Advertising, Inc. v. M/A-COM/LCS, 426 Mass. 410, 416, 688 N.E.2d 985 (1998) (“Rule 11 authorizes a judge to impose attorney's fees and costs where an attorney has failed to show a subjective good faith belief that the pleading was supported in both fact and law” [internal quotations omitted]). This case is clearly distinguishable from Kerlinsky, in which the legal and factual frivolousness of complaints filed by the respondent was apparent from documents in his possession, and he knowingly filed pleadings containing false statements and fabricated facts in order to create viable causes of action. Because none of those factors exist in the present case we cannot say that the evidence supported the conclusion that either the Newman or Harris case was frivolous when filed. Therefore, we reject Bar Counsel’s appeal on this issue.

However, we reject the Committee’s finding that respondent’s conduct vis-à-vis the Harris claim prior to January 1, 1998, was not a violation of Canon Six, DR 6-101(A)(2) (inadequate preparation) and (3) (neglect) and, after that date, a violation of Mass. R. Prof. C. 1.1 (lawyer shall provide competent representation to client) and 1.3 (lawyer shall act with reasonable diligence and promptness). He failed to take all reasonable steps to ascertain Dr. Chalfin’s whereabouts; he allowed the statute of limitations to lapse, which necessitated the repeated filings in order to “resurrect” the claim; and he failed to take reasonable steps following the filing of the suit to obtain an expert to testify on Mr. Harris’ behalf. All this constituted neglect and demonstrated a lack of competence.

RECOMMENDATION FOR DISCIPLINE

Notwithstanding the bevy of charges lodged in the initial complaint, the case reduces to one of failure to seek the lawful objectives of the client, neglect and failure to communicate with the clients. We believe a public reprimand is the proper discipline. Bar Counsel admits that public reprimand would be an appropriate sanction for the violations found by the Committee, and the few changes we have made as a result of this appeal do not alter the appropriate discipline. The respondent made no misrepresentations in the course of representing both the Newmans and Mr. Harris. However, the respondent did not sufficiently investigate or prepare the cases prior to filing, or shortly thereafter, and did not, in the case of the Newmans, take appropriate steps to secure the identity of other potential defendants. The fact that, in each case, the respondent attempted vigorously to get dismissed cases reinstated or he filed new cases in an effort to obtain adjudication on the merits mitigates the offense but does not exonerate the respondent. We cannot ignore the fact that it was his conduct that caused the cases to be dismissed in the first place. Nonetheless, we cannot say that the respondent’s conduct caused any client serious injury or potentially serious injury. Contrast, Matter of Shaughnessy, S.J.C. No. BD-2002-061 (Sosman, J., June 10, 2003) (on appeal) (one year and a day suspension for attorney who committed multiple disciplinary offenses, including neglect, a pattern of repeated misrepresentations to client and co-counsel over a span of more than two years, threat to file a baseless counterclaim against another attorney who tried to assist former client, aggravated by a history of prior discipline and lack of insight into wrongful nature of misconduct); Matter of Ross, S.J.C. No. BD-03-051 (Greaney, J., Sept. 9, 2003) (six-months’ suspension for numerous instances of neglect spanning a long period of years, with substantial harm resulting). While we have found that the extinction of the Newmans’ ability to sue HCHP resulted in damage or prejudice under Canon Seven, DR 7-101(A)(3), that damage certainly did not rise to the level involved in both Shaughnessy and Ross. In addition, Shaughnessy was guilty of intentional misrepresentations to the client and co-counsel, not present here. Finally, unlike Shaughnessy, the respondent in this case has no history of discipline. Thus, this case is distinguishable from those relied upon by Bar Counsel, and we recommend a public reprimand.

Respectfully submitted,

By: ___________________________
James B. Re
Secretary

Approved: December 8, 2003

¹ Compiled by the Board of Bar Overseers based on the record of proceedings before the Board.