“Don’t Pick Up Your Phone”
A misdirected email led to a public reprimand by the Massachusetts Board of Bar Overseers.
Respondent was retained to defend a civil action on behalf of a company and one of its owners
On March 10, 2022, a few days prior to trial, the Court held a pretrial hearing. The respondent informed the judge that a trial likely was not going to be necessary because his clients had been consulting with a bankruptcy attorney and were either going to default or file for bankruptcy protection prior to trial. The respondent stated that it was unclear to him whether both of his clients had retained the bankruptcy attorney, or just Giving Tree. The judge stated that if only Giving Tree was filing for bankruptcy protection, they would still need to address the claims against Mr. Bairos individually. CSI’s counsel alleged that the defendants were withholding information about their bankruptcy plans in order to encourage CSI not to prepare for trial.
The judge stated that he wished to telephone the bankruptcy attorney from the bench, and CSI’s counsel provided the bankruptcy attorney’s phone number to the clerk. While the clerk was dialing the bankruptcy attorney’s number, the respondent took his cell phone from his pocket and sent the bankruptcy attorney an email that stated “Court is going to call you. Don’t pick up.” He also sent the bankruptcy attorney a text message that stated: “Don’t pick up your phone.” The bankruptcy attorney did not pick up the phone because he was occupied with another client, and not because of the respondent’s email and text.
The respondent did not inform the judge that he was sending the email and text to the bankruptcy attorney. However, he inadvertently copied the email to CSI’s counsel. The next day, CSI’s counsel brought the email to the judge’s attention.
By sending an email and a text message in which the respondent advised the bankruptcy attorney not to answer the Court’s call during the hearing, the respondent violated Mass. R. Prof. C. 3.5(d), 8.4(d) and 8.4(h).
(Mike Frisch)