No Disavowing Stipulation In Reciprocal Discipline

The Rhode Island Supreme Court has imposed reciprocal discipline based on a Massachusetts sanction

The facts giving rise to the Massachusetts Order of Public Reprimand are fully set forth in a stipulation entered into between respondent and the Board of Bar Overseers, and related attachments. The relevant facts are as follows.

In January 2014, respondent agreed to represent two brothers pursuing employment discrimination and wage and hour claims against a former employer. The clients executed contingent fee agreements that provided for payment of a one-third contingent fee upon any recovery for damages and reimbursement for costs regardless of whether or not a recovery occurred. The agreement also provided that respondent would charge the clients an hourly fee if they rejected a settlement offer; if respondent terminated the representation; or if the clients  discharged respondent, even if for cause.

In September 2014, respondent filed a civil action on behalf of the clients in the United States District Court for the District of Massachusetts. The respondent failed to comply with a discovery order to file answers to interrogatories, and the defendants in that case filed a motion to dismiss the clients’ claims and for sanctions. The respondent failed to timely oppose the motion to dismiss and failed to appear at the scheduled court hearing on the motion. The court dismissed the clients’ case and imposed a sanction in the amount of $3,000. The respondent filed a notice of appeal with the United States Court of Appeals for the First Circuit and entered an appearance on behalf of the clients. However, despite having been granted over ten extensions of time in which to file a brief, he failed to do so. The appeal was dismissed for failure to file a timely brief.

As noted above, he had stipulated to the misconduct

Despite having entered into a stipulation in Massachusetts admitting the facts, acknowledging his rule violations, and agreeing to the imposition of public discipline, respondent seeks to disavow portions of his stipulation and asks this Court to adopt a less severe sanction. We conclude, however, that respondent has failed to persuade us that the imposition of reciprocal discipline is unwarranted…

We are of the opinion that the stipulation entered into by the respondent, an experienced litigator with over thirty years of experience, is dispositive of any claim he may have that reciprocal discipline is unwarranted. We note that among the provisions contained in that stipulation is the following: “[I]n consideration of this agreement, each party has forgone other allegations or defenses and submission of evidence on the merits and disposition which might have been advanced had the case been litigated.” The respondent received the benefit of his bargain in the Massachusetts proceeding, and he is bound by his stipulation. He cannot now disavow that stipulation before this Court.

Accordingly, we accept the recommendation of Disciplinary Counsel that we impose identical reciprocal discipline, and the respondent is hereby publicly censured.

(Mike Frisch)