Bar News - February 22, 2013
Professional Conduct Committee
In the Matter of H. Paul Carroll
RECIPROCAL DISCIPLINE - PUBLIC CENSURE SUMMARY
H. Paul Carroll was admitted to the Bar of the Commonwealth of Massachusetts in 1999. On July 16, 2004, Mr. Carroll agreed to represent a client in a medical malpractice action on a contingent fee basis. There was no fee agreement. When the respondent filed the civil complaint, he was aware that the client had been diagnosed as suffering from cystic fibrosis by others at Beth Israel Hospital by October of 2001.
The respondent did not serve the complaint on the defendants within 90 days of filing, as required by Mass. R. Civ. P. Rule 4(j). He filed an Emergency Ex Parte Motion To Enlarge Time For Service, which was granted that day. On the date service of the complaint on the defendants was due, Mr. Carroll filed a second Emergency Motion to Enlarge, which was granted, bringing the deadline to December 19, 2004. A total of six emergency motions to enlarge were allowed. On May 31, 2005, a judgment of dismissal was entered in favor of all defendants.
The respondent took no action to seek relief from the dismissal of the case until June 2006. From at least May 2005 through at least July 2006, the respondent failed to keep the client reasonably informed about the status of the case and failed to explain the options to the extent reasonably necessary to permit the client to make informed decisions.
On June 28, 2006, the respondent filed an ex parte motion to vacate the dismissal, together with an affidavit in support. This motion was granted and the respondent was given 20 days to make service on the defendants. On August 18, 2006, the defendants filed a motion for reconsideration of the courtís allowance of the motion to vacate. The respondent filed an opposition and the court denied the motion. The defendants appealed to the Appeals Court from the courtís denial of their motion for reconsideration. On January 7, 2009, the Appeals Court issued a decision reversing the order vacating the judgment of dismissal and ordering the dismissal of the complaint. The court ruled that the respondent had not filed his motion to vacate in a timely manner under Mass. R.Civ.P. Rule 60(b). It also ruled that the respondent had not provided good cause for his failure to make timely service of process under Mass.R.Civ. P. Rule 4(j). On February 18, 2009, judgment entered in the superior court dismissing the complaint.
On January 27, 2009, the respondent filed a second civil complaint in Suffolk Superior Court on the clientís behalf against the same defendants. The complaint contained similar claims to those made in the first action in 2004. The respondent obtained service of process on the three defendants in the normal course. On June 1, 2009, the defendants filed a joint motion to dismiss based upon the applicable statutes of repose and of limitations, and in opposition to the motion by the respondent. The court allowed the motion to dismiss for the reasons advanced by the defendants. Judgment was entered dismissing the clientís claims on September 15, 2009.
In entering into a contingent fee agreement that was not in writing and signed by the respondent and the client, the respondent violated Mass. R. Prof. C. 1.5(c).
In failing to make service of process on the defendants in a timely manner in the 2004 civil action, and in failing to seek to vacate the dismissal of the 2004 civil action in a timely manner, the respondent violated Mass. R. Prof. C. 1.1, 1.2(a), 1.3 and 8.4(d) and (h).
In failing to maintain reasonable communications with the client about the status of his case and to explain the matter to the extent necessary to permit the client to make informed decisions, the respondent violated Mass. R. Prof. C. 1.4(a) and (b).
In aggravation, as a result of the respondentís lack of diligence, the clientís claims became time-barred by the statute of limitations. The respondent had no malpractice insurance.
This matter came before the Mass. Board of Bar Overseers on a stipulation of facts and rules violations and a joint recommendation that a sanction of public reprimand be imposed conditioned on the respondentís obtaining malpractice insurance. On December 12, 2011, the board voted to accept the stipulation of the parties and to administer a public reprimand to the respondent.
The New Hampshire Supreme Court has determined, as defined in Rule 37, that a public censure is "substantially similar" discipline in New Hampshire to the public reprimand ordered by Massachusetts. The Committee and the respondent agree that a public censure is warranted in this case. Accordingly the Committee issues a Public Censure to H. Paul Carroll in reciprocal discipline, and all costs. The matter is public record and is available for inspection at the Attorney Discipline Office, 4 Chenell Drive, Suite 102, Concord, NH 03301 and at www.nhattyreg.org.
January 16, 2013
Marshall, Keri J. advs. Daniel Shepard # 09-028
PUBLIC CENSURE WITH CONDITIONS SUMMARY
On November 27, 2012, the Professional Conduct Committee issued a Public Censure with Conditions to Keri J. Marshall for violations of New Hampshire Rules of Professional Conduct 8.1(b), 5.3(a), 5.3(b) and 8.4(a), by clear and convincing evidence.
Ms. Marshall represented the complainantís wife in a domestic proceeding. In July 2008, the Respondent filed an Assented to Motion to Continue in the Portsmouth Family Division, seeking to continue a hearing scheduled for August 20, 2008. The motionís title, as well as the cover letter to the court, reflected the motion as having the complainantís assent. Nothing in the body of the motion stated that he had been contacted or that he had assented. Ms. Marshallís standard office policy required that the staff member who transcribed a motion to continue bore the responsibility to contact the other side and seek assent. In a pleading dated August 18, 2008, the complainant sought to continue a hearing scheduled for that September. In that motion, he contended that he was neither consulted nor contacted prior to Ms. Marshallís filing of the July 2008 Assented to Motion To Continue, and as such, the motion was not "assented to." It is out of the dispute concerning whether complainantís assent was provided that this complaint arose.
In response to the complaint, Ms. Marshall provided an affidavit signed by a member of her office specifying the staff member had telephoned the complainant and secured his assent. The affidavit indicated the call occurred on or around July 2, 2008. However, the notice of hearing to which the continuance pertained did not issue until July 22, 2008. Upon questioning by the Assistant General Counsel of the inconsistency of the dates, Ms. Marshall acknowledged the date provided in the affidavit could not be correct.
Ms. Marshall was asked to correct the error and re-submit the affidavit. In addition, Ms. Marshall was instructed to produce any other records at her office that might confirm a call to the complainant had actually occurred. Ms. Marshall did not review time sheets, billing records or other materials that might have shed light on the issue. On October 6, 2010, a Kingston police officer interviewed the member of Ms. Marshallís office staff. When confronted with certain implausibilities inherent, the staff person confessed that in fact she could not confirm she made the call to the complainant. Among other reasons, she told the officer she signed the affidavit because she trusted Ms. Marshall and also she feared losing her job should she not comply with Ms. Marshallís affidavit requests. That revelation, which Ms. Marshall learned for the first time in May 2011 when she reviewed the report of the police interview, prompted her to conduct the investigation she should have conducted in response to the Attorney Discipline Officeís April 2010 request. Ms. Marshallís investigation revealed (1) a different office staff person had prepared the motion to continue, (2) no billing or time sheets revealed a telephone call to the complainant, and (3) the phone call to the complainant the respondent had asserted took place probably never occurred.
Ms. Marshall violated N.H. R. Prof. Conduct 8.1(b) by failing to correct a misapprehension concerning the date recited in the affidavit of her office staff. Ms. Marshall violated N.H. R. Prof. Conduct 5.3(a) by failing to have in place a system by which she and her staff could later confirm they had called for an assent. Rule 5.3(b) was violated because Ms. Marshall failed to make any real effort to ensure her office staffís conduct was compatible with Ms. Marshallís own professional obligations. By virtue of the above violations, the Committee also finds a violation of Rule 8.4(a).
The Committee issued a Public Censure with Conditions, and reimbursement of all costs associated with the investigation and prosecution of this matter. The complete Order is available on our website at www.nhattyreg.org and at the Attorney Discipline Office at 4 Chenell Drive, Suite 102, Concord, NH 03301.
January 18, 2013