A Federal Case

A summary of a recent sanction is posted on the web page of the Massachusetts Board of Bar Overseers involves an attorney who had accepted a federal case but was not admitted to the federal district court.

Sanction 

The respondent stipulated to a suspension of one year, with six months stayed on conditions…

The attorney had been retained in June 2014

The respondent did not apply for admission in the federal court until sometime after February 19, 2015, and he was not admitted until May 19, 2015. He did not familiarize himself with either the law concerning civil rights claims against municipal entities or the procedural rules of the federal court. The respondent was unaware that ghostwriting is generally prohibited in the First Circuit.

Nevertheless, he drafted the client’s civil rights complaint, which the client filed pro se in November 2014, on the day before the limitations period would otherwise have lapsed. From then until May 2015, the respondent drafted other documents for the client to file pro se and in some instances attempted unsuccessfully to file them for the client.

The respondent failed to check the case docket and did not keep himself apprised of essential deadlines in the federal case. The client was not prepared for or advised to make the mandatory initial disclosures, due in February 2015, resulting in the defendants filing a motion to compel.

The respondent failed to advise the client to appear at an initial scheduling conference, resulting in an order for a second scheduling conference. The order warned that “[f]ailure…to appear in person or through counsel…may result in dismissal….” The respondent failed to advise the client to appear at that conference, as well, and the court contacted the client directly to warn of the risk of dismissal. In addition, the respondent failed to advise the client whether and how to respond to the draft joint supplemental scheduling statement, requested by the court, the defendants had prepared.

In April 2015, the defendants moved to dismiss the case. The respondent did not file an opposition brief or advise the client to do so. The court ordered the client to respond to the motion by May 15, 2015 or else the case would be “subject to dismissal for lack of prosecution.” The respondent learned of the court’s order and prepared a brief in opposition to the motion to dismiss, but the court rejected it because the respondent was not yet admitted to practice in federal court. The respondent then filed the brief with the client listed as acting “pro se.” In the opposition, the respondent wrote that the client “most recently retained Attorney Douglas Martin to prosecute this matter accordingly.” The respondent’s representation was intentionally false, as he had been retained almost one year earlier.

The case was eventually dismissed

The respondent did not inform his client. Almost a year later, the client learned of the dismissal during a telephone call to the court clerk. In December 2016, the client filed a pro se opposition to the motion to dismiss. The court treated the “opposition” as a motion to vacate the dismissal and denied it.

The sanction was accepted by a justice of the Supreme Judicial Court. (Mike Frisch)