In re the Discipline of an Attorney

884 N.E.2d 450, 451 Mass. 131, 2008 Mass. LEXIS 216
CourtMassachusetts Supreme Judicial Court
DecidedApril 11, 2008
StatusPublished
Cited by7 cases

This text of 884 N.E.2d 450 (In re the Discipline of an Attorney) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Discipline of an Attorney, 884 N.E.2d 450, 451 Mass. 131, 2008 Mass. LEXIS 216 (Mass. 2008).

Opinion

Botsford, J.

Bar counsel appeals from the decision of the single justice dismissing the petition for discipline of an attorney. Principally at issue is the propriety of certain provisions in the attorney’s form contingent fee agreement that go beyond the terms of the model contingent fee agreement set out in the Massachusetts Rules of Professional Conduct. Bar counsel also challenges the attorney’s conduct in misrepresenting the existence of a statutory lien pursuant to G. L. c. 221, § 50, in failing to notify one client promptly of his receipt of personal injury protection (PIP) funds, and in refusing to provide another client’s successor counsel with a statement of his reasonable time and expenses after his discharge by the client.

We conclude that the attorney committed professional misconduct in knowingly misrepresenting on several occasions to insurers the existence of a statutory lien under G. L. c. 221, § 50, in his favor, and in failing to notify and inform his client promptly about his receipt of PIP funds for the client. We further conclude that an admonition is the appropriate discipline for this misconduct.

In the circumstances of this case, we disagree with bar counsel’s claims that discipline should be imposed because of the challenged terms of the attorney’s contingent fee agreement. However, looking to the future, we doubt whether it is appropriate for a contingent fee agreement to contain a provision — as the attorney’s agreement did in this case — giving a lawyer, on discharge by the client before termination of the matter for which representation was sought, a right to recover an amount greater than the fair value of the lawyer’s services and expenses up to the date of discharge. In addition, to the extent that a lawyer includes terms in a contingent fee agreement that materially depart from those in the model contingent fee agreement included in Mass. R. Prof. C. 1.5 (f), as amended, 432 Mass. 1302 (2000),1 we conclude that the lawyer should explain those terms specifically to the client, and should obtain the client’s written consent to them. We refer these issues to the standing advisory committee on the rules of professional conduct.

1. Background. The procedural background of this case is as [133]*133follows. In January, 2003, bar counsel filed a petition for discipline against the attorney, charging professional misconduct in relation to his representation of three personal injury clients under contingent fee agreements entered into between the attorney and each of the clients. A special hearing officer (hearing officer) appointed by the Board of Bar Overseers (board) conducted fourteen days of hearings and issued a report in March, 2004; the hearing officer recommended dismissal of the petition. Bar counsel appealed to the board. In October, 2005, the board issued a memorandum of decision and voted to adopt the hearing officer’s findings of fact, but to modify his conclusions of law with respect to the attorney’s intentionally false assertion of a statutory lien on certain settlement proceeds under G. L. c. 221, § 50, and to resolve the petition for discipline by admonition of the attorney.2 The board concluded that the attorney’s false assertion of the lien violated Mass. R. Prof. C. 8.4 (c), 426 Mass. 1429 (1998) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and Mass. R. Prof. C. 8 (h), 426 Mass. 1429 (1998) (conduct adversely reflecting fitness to practice law). At bar counsel’s request, the board filed an information in the county court on March 28, 2006. After hearing, a single justice issued an order adopting the recommendation of the hearing officer and dismissing the petition for discipline.

We summarize the findings of the hearing officer that are relevant to this appeal.3 The attorney was admitted to practice in the Commonwealth in 1961. From 1998 to 2003, he had a high-volume practice, concentrating in motor vehicle accident and other personal injury cases and regularly maintaining active files for 1,800 to 2,000 clients. He employed four attorneys and twelve secretaries.

The attorney used a form contingent fee agreement during those years. It provided that the attorney would be compensated by being paid one-third of any recovery obtained for the client (plus reasonable expenses and disbursements), and specified [134]*134that no counsel fee was to be paid if there was no recovery. The agreement also contained the following paragraphs, appearing as its final provisions before the signature lines:

“6. If the attorney is discharged by the client prior to the conclusion of this representation, the attorney is entitled to be then compensated for his reasonable expenses and disbursements. Further, the attorney is to be compensated for the fair value of the services rendered to the client up to the time of discharge or one third of any settlement offer that had been made at time of discharge, whatever is greater, and hereby authorize [yz'c] the applicable insurance carrier to add the name of the attorney as payee on any draft issued by said insurance carrier, but the amount of the fee shall not be due to the attorney until the subject matter litigation is concluded pursuant to Paragraphs 2 and 3 above.[4]
“7. In addition to any statutory liens, client grants attorney an assignment and general lien as security for the payment of legal fees and expenses of the attorney and said lien is to continue in the event the services of the attorney are terminated by either party.
“8. If the client and attorney are unable to resolve their differences on the question of any fee, and or expenses, they hereby agree to make a good faith effort at resolving their disputes. If the dispute cannot be resolved, the client and attorney agree to place the matter before the Fee Arbitration Board of the Worcester County Bar Association and agree to be bound by the decision.
“This agreement and its performance are subject to Rule 1.5 of the Rules of Professional Conduct adopted by the Massachusetts Supreme Judicial Court.
“I HAVE READ THE ABOVE AGREEMENT BEFORE SIGNING IT, AND I, _ HEREBY ACKNOWLEDGE THAT I HAVE RECEIVED A COPY OF THIS CONTINGENT FEE AGREEMENT THIS_DAY OF_20_.”

[135]*135During the same years, the attorney followed a practice of presenting each new automobile accident client with a form document called “client authorization” (client authorization form) and obtaining the client’s signature on it. The client authorization form allowed the attorney to (1) execute documents, including PIP benefit applications and medical payment forms, on the client’s behalf; (2) indorse the client’s name on any checks received for PIP or medical payments; and (3) hold the funds in the attorney’s interest on lawyers’ trust account (IOLTA) pending a final settlement or trial of the client’s case. In addition, the client authorization form allowed the attorney to charge and take a fee from any PIP or medical payments received on behalf of the client. The form also authorized the attorney to take a fee for “processing” the PIP and medical payment benefits on the client’s behalf and stated that the fee was to be determined after the payments were collected.

On September 28, 1998, Jennifer Gallant retained the attorney to represent her in connection with a recent car accident in which she had been injured; Gallant was nineteen years old.

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Cite This Page — Counsel Stack

Bluebook (online)
884 N.E.2d 450, 451 Mass. 131, 2008 Mass. LEXIS 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-discipline-of-an-attorney-mass-2008.