Attorney Sanctioned: Attempted To Enforce Contingent Fee But Contingency Did Not Occur
The full Massachusetts Supreme Judicial Court affirmed a single justice’s misconduct findings and 27 month suspension for fee misconduct and false statements in actions to collect the fee.
The matter involved a contingency on a counterclaim in a foreclosure action. The client eventually proceeded with other counsel.
The court
As to his violation of rule 1.5 (a) by attempting to charge or collect an excessive fee, Diviacchi argues that the hearing committee, board, and single justice all improperly evaluated the fee with the benefit of hindsight rather than as of the time the contingent fee agreement was executed. In the circumstances of this case, however, Diviacchi’s violation was not that the fee contemplated by the agreement was unreasonable. The hearing committee found that the contingency called for in the agreement did not occur. The client recovered nothing on her counterclaim. Any funds obtained by the client did not come from her adversary in the Federal court litigation, but from the third party to whom she sold the property, a transaction with which Diviacchi did not assist. We agree with the committee, board, and single justice that the fee agreement did not cover this eventuality.
As to the violations of rules 1.1, 1.2, and 1.3, Diviacchi argues that he simply declined to file motions and a petition for bankruptcy that were, in his professional judgment, meritless. The single justice found this argument unpersuasive, as do we. The violations of these rules were not based merely on his not filing any particular motion or petition, but on his persistent refusal to take any action in furtherance of the client’s clear desire to avoid foreclosure. Moreover, he refused to participate in settlement negotiations and refused to meet with the client to discuss her case. We agree that Diviacchi violated the rules as charged…
As to his violations of rules 3.3 and 8.4 by making sworn false statements to court, Diviacchi maintains, without citation to authority, that his statements should be evaluated under a subjective, good faith basis standard. That is not the law. “[A]n assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry” (emphasis added). Mass. R. Prof. C. 3.3 comment 2.6 Diviacchi’s false allegations about the client’s supposed “standard habit and business routine of dealing with lawyers” were made on his own behalf and purportedly on his own personal knowledge. The allegations were found by the committee to be false. Diviacchi has offered no evidence that he conducted a reasonably diligent inquiry prior to making them.
(Mike Frisch)