Negligent Falsehoods In Fee Matter Sanctioned

A Justice of the Massachusetts Supreme Judicial Court has ordered a 30-day suspension with a requirement of passing the MPRE for an attorney’s negligent overbilling in a fee request to the court in a class action matter that had been settled for approximately $300 million

This matter came before me on an information and record of proceedings filed by the Board of Bar Overseers (board), pursuant to S.J.C. Rule 4:01, § 8 (6), as appearing in 453 Mass. 1310 (2009). The board adopted the principal finding of the hearing committee that the respondent, Garrett J. Bradley, acted negligently when, after only a cursory review of a declaration and a schedule attached thereto, he signed the declaration prepared by his law firm partners based on a template created by a separate law firm, which acted as lead counsel in a class action in Federal District Court. The respondent did not conduct a reasonable inquiry to determine the veracity of the information he was signing despite knowing that the declaration, which he averred as “true and correct,” would be relied upon by the District Court judge in determining the reasonableness of his firm’s application for a fee award following a class action settlement. See Arkansas Teacher Retirement Sys. v. State St. Bank & Trust Co., 512 F. Supp. 3d 196, 209–210 (D. Mass. 2020)  (ATRS).

The hearing committee found, and the board adopted the finding, that despite his oath, the respondent did not read the declaration in its entirety until shortly before the District Court judge held a hearing in the wake of a newspaper article questioning the veracity of, and highlighting apparent inconsistencies in, the respondent’s declaration as well as those filed by other plaintiffs’ firms in the class action. Thus, the hearing committee found, and the board adopted the finding, that the respondent did not know that the declaration and attached schedule contained materially false and misleading statements.

Due, in part, to the respondent’s negligence, the District Court judge relied on the erroneous information provided by the respondent and other plaintiffs’ counsel in determining to make an original fee award of approximately $75 million to plaintiffs’ class action counsel. See ATRS, 512 F. Supp. 3d at 210. A comprehensive investigation ensued in the wake of the discovery of the false and misleading information in the firms’ submissions to the District Court judge; the investigation culminated in a report by a special master appointed by the judge to investigate all fee application issues. The judge adopted the special master’s report in an order, id. at 270,  citing Fed. R. Civ. P. 53 (f), and determined that the original fee award was inflated relative to fee awards in comparable class action settlements. The judge thereafter reduced the fee award to $60 million, id. at 259, allocating specifically reduced amounts to certain plaintiffs’ firms, including the respondent’s firm, in view of, inter alia, the firms’ respective material misrepresentations to the judge. As it pertains to the respondent, the judge referred the matter to the board for whatever action it deemed appropriate.

Following an investigation, the Office of Bar Counsel charged that the respondent intentionally had presented false and misleading information to the District Court judge knowing that the judge would rely on the misrepresentations to assess the reasonableness of the fee award to plaintiffs’ counsel. A hearing was held before the committee, during which bar counsel offered the respondent as the sole witness. The board adopted the finding of the hearing committee that bar counsel had failed to show the respondent’s conduct was other than negligent. This negligent conduct, the board determined, violated MassachusettsRules of Professional Conduct 1.3 (diligence); Rule 3.3 (d) 4 (candor toward tribunal); Rule 3.4 (c) (knowingly disobeying one’s obligations under rules of tribunal); Rule 8.4 (d) (conduct prejudicial to administration of justice); and Rule 8.4 (h) (conduct adversely reflecting on lawyer’s fitness to practice law).

Relying principally on Matter of Serpa, 30 Mass. Att’y Disc. R. 358 (2014) — a bar discipline matter in which an experienced defense attorney was found to have recklessly submitted a false affidavit in opposition to his former client’s motion for a new criminal trial, which the motion judge denied on the basis of the attorney’s sworn representations, and was suspended from the practice of law for sixty days — the board has recommended that the respondent’s negligent conduct result in a term suspension of six-months-and-one-day, and that, whatever the length of suspension, he be required to take and pass the Multistate Professional Responsibility Examination (MPRE). The respondent contests only the board’s recommended sanction, arguing that it is markedly disparate in view of the finding that his conduct was negligent and not intentionally or recklessly misleading; he contends that, in view of that finding, a public reprimand best comports with our case law. See Matter of Foster, 492 Mass. 724, 752-753 (2023) (absent aggravating factors, public reprimand warranted for negligent  conduct).

A hearing was held before this court on March 20, 2025, attended by the respondent, his counsel, and assistant bar counsel. Upon consideration of the record and the arguments before the court, it is ordered that the respondent’s license to practice law be, and the same hereby is, suspended for a period of thirty (30) days and that, as a condition of reinstatement to the professional bar, he be required to take and pass the MPRE.

Proposed sanctions of both sides rejected

the court concludes that this case falls short of warranting the board’s recommended sanction of six-months-and- one-day. The hearing committee found that the respondent’s misrepresentation, albeit under oath and in the context of an ex parte proceeding, was negligent rather than intentional; nor was it “reckless.” Compare Serpa, 30 Mass. Att’y Disc. R. at 373 (“Although not rising to the same level of culpability as an intentional misrepresentation under oath, . . . the respondent’s reckless misrepresentations under oath warrant a” suspension [emphasis added]). Moreover, it was not coupled with a separate incident of misconduct, compared to the illegal fee charged in Serpa.

The respondent argues that a suspension of any length would be “markedly disparate” not only from the sanction imposed in Serpa, but also from sanctions imposed in other cases involving discrete negligent misrepresentations. See Matter of Lepore, 21 Mass. Att’y Disc. R. 400, 426-427 (2005) (public reprimand for negligent misrepresentation to Department of Industrial Accidents and failure to disclose client’s receipt of earned 29 income while receiving workers’ compensation payments, along with mitigating circumstances); Matter of Ged, 20 Mass. Att’y Disc. R. 159, 160-161 (2004) (public reprimand for negligent misrepresentations in affidavits for attorneys’ fees regarding time spent on two cases). See also Matter of Wilson, 17 Mass. Att’y Disc. R. 608, 617, 620. (2001) (attorney made misrepresentations to court, some deliberate and some negligent, and communicated ex parte with judge; single justice imposed public reprimand in lieu of suspension but noted it was “a close question”). Moreover, the respondent notes that the full court has endorsed the principle that “absent aggravating and mitigating factors,” suspension is generally warranted for conduct that, “in addition to causing serious or potentially serious injury, involves ‘repeated failures to act with reasonable diligence, or . . . a pattern of neglect.'” Matter of Foster, 492 Mass. at 753, quoting Matter of Kane, 13 Mass. Att’y Disc. R. 321, 327-328 (1997).

As noted above, however, while the respondent’s conduct was not determined to be “reckless,” there are rule violations and aggravating factors here that were not present in Serpa or in Foster, as regards the supervising attorney in Foster, see note 23, supra. Unlike in Serpa, the board found in aggravation that the case received significant publicity that brought disrepute to the legal profession.25 Additionally, unlike in Serpa, the misrepresentation in the respondent’s case was made during an ex parte proceeding, which triggers a heightened duty of candor to the court. See Mass. R. Prof. C. 3.3 (d). Moreover, unlike in Foster, as it pertains to negligent supervision of junior attorneys, the respondent made representations under oath. The court also considers that the District Court expended significant resources unearthing the misrepresentations by plaintiffs’ counsel, including the respondent’s firm. Considering the foregoing, the court concludes that a suspension of thirty days is warranted.

Respondent is a former member of the Massachusetts House of Representatives. (Mike Frisch)