IN RE: JOSEPH O. ANDERSON

NO. BD-2015-098 S.J.C. Order of Term Suspension entered by Justice Lenk on May 23, 2017.1

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1 The complete order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

SUFFOLK, ss.

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

NO. BD-2015-098

IN RE: JOSEPH 0. ANDERSON

MEMORANDUM OF DECISION

This matter came before me on an information and

recommendation of the Board of Bar Overseers (board) that the

respondent be suspended from the practice of law in the

Commonwealth for a period of one year and one day. for multiple

instances of neglect of his clients. The respondent did not. file

an answer in respdnse to bar counsel's petition for discipline,

and did not appear before the board at a scheduled hearing to

consider the appropriate sanction for his misconduct. ·- He

therefore was defaulted �nd the assertions in bar counsel's

petition were deemed admitted. See, e.g., Matter of Gustafson,

464 Mass. 1021, 2022 (2013); Matter of Johnson, 444 Mass. 1002,

1002 (2005). The respondent also did not appear at a duly

scheduled hearing before me on April 20, 2017, at which bar

counsel appeared.

Having carefully considered bar counsel's petition and her

representations at the hearing before me, I conclude that the

board's recommendation of a suspension of the respondent from the

practice of law for one year and one day is appropriate.

Background. Bar cou?sel's petition for discipline states

that the respondent, who was administratively suspended during

the course of bar counsel's investigation, has failed to respond

to clients' telephone calls, electronic mail messages, and

letters; has not responded to clients' requests for information

or for the return of their files; has failed to appear in court

on scheduled hearing dates in client matter_s, in some cases

resulting in the clients' default; has failed to respond to

motions to compel further answers to discovery; has failed to

respqnd to communications from bar counsel; and µas failed to

cooperate with bar counsel in the course of the investigation

See S . J. C. Rule 4 : o 1, § 8 ( 6) .

Bar counsel's petition states that the respondent's

misconduct was in vi6lation of Mass. R. Prof. C. 1.1

(competence); Mass. R. Prof. C. 1.3 (diligent representation of

client's interests) ; Mass. R. Prof. C. 1. 4 ( a) (keeping client

informed of the status of client's matter); Mass. R. Prof. C.

1.16 (s) (failing to withdraw from case and to return file· after

ceasing representation of client); Mass. R. Prof. C. _8.1 (b)

(failing to respond to a lawful demand for information from bar

counsel) and Mass. R. Prof. C. 8.4 (g) (failing to cooperate

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with bar counsel without good cau_se) :

The respondent 1 s current location is unknown. A message on

the respondent 1 s office telephone number states that the v oice

mail messaging system has not been set up on that number; since

September, 2013, the respondent has not responded to electronic

communications or to letters sent to his last registered home

address. Indeed, administrative staff and attorneys in

neighboring offices in the building where the respondent had

maintained an office hav e adv ised bar counsel that the respondent

has not been seen in his office since September 11, 2015.

In November, 2015 a commissioner was appointed by this court

to wind up the respondent 1 s affairs 1 take charge of funds held in

his IOLTA account and try to distribute the funds to their

rightful owners, and to return files to clients.

2. Discussion. As the respondent has been defaulted, and

bar c ou nsel 1 s assertions of misconduct are deemed admitted, the

sole question before me is the appropriate sanction to be

imposed. For the reasons explained below, I agree with the board

that the appropriate sanction is a suspension from the practice

of law in the Commonwealth for a period of one year and one day .

a. Standard of review. 11 We generally afford s ubstantial

d e ferenc e .to the board I s r e commended disciplinary sanction . 11

Matter of Grif f ith , 44 0 Mass . 5 00, 5 07 (200 3). At the same t ime,

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the disciplinary sanction imposed should not be "markedly

disparate from judgments in comparable cases." Matter of Foley,

439 Mass. 324, 333 (2003), quoting Matter of Finn, 433 Mass. 418,

422-423 (2001). The "primary concern in bar discipline cases is

'the effect upon, and perception of, the public and the bar,' and

we must therefore consider, in reviewing the board's recommended

sanction, 'what measure of discipline is necessary to protect the

public and deter other attorneys from the same behavior.'"

Matter of Lupo~ 447 Mass. 345, 356 (2006), quoting Matter of

Finnerty, 418 Mass. 821, 829 (1994) and Matter of Concemi, 422

Mass. 326, 329 (1996). Nonetheless, "each case must be decided

on its own merits and every offending attorney must receive the

discipline most appropriate in the circumstances.'' Matter of

Foley, supra, quoting Matter of the Discipline of an Attorney,

392 Mass .. 827, 837 (1984).

.b. ·· Appropriate sanction. This case involves a combination

of different types of misconduct by the respondent, involving

multiple, unrelated client matters, over a period of years. The

respondent n~glected at least four client matters, resulting in

significant harm to the clients; failed to communicate with the

-clients about the status of their matter~, despite their requests

that he . do so; failed to appear in court at scheduled hearings in

the clie~ts' matters; failed to return client files; and failed

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to comply with requests for information from bar counsel.

Although there does not appear to be a precisely comparable case,

involving the same c_ombination of misconduct, 11 [t] he court 'need

not endeavor to find perfectly analogous cases, nor must we

concern ourselves with anything less than marked disparity in the

sanctions imposed.'" See Matter of Doyle, 429 Mass. 1019, 1014

(1999), quoting Matter of Hurley, 418 Mass. 64~, 655 (1994).

Attorneys found to have neglected client matters, causing

harm to their clients, in conjunction with other misconduct, have

received somewhat varying sanctions. See Matter of Brunelle, 29

Mass. Att'y Disc. R. 62 (2013) (attorney suspended from practice

of law for six months, stayed for two years, on conditions, for l

negl~cting one client's matter and failing to keep client

accurately informed about status of her case); Matter of

Scannell, 21 Mass. Att'y Disc. R. 580 (2005) (attorney with

history of public and private reprimands suspended for one year

and one day for neglect of three client matters, failure to

provide competent representation, failure to act with reasonable

diligence, and failure to communicate adequately with his clients

about status of their matters, which caused harm to one client);

Matter of oiconnor, 21 Mass. Att'y Disc. R. 525 (2005)

(previously admonished attorney suspended ' for six moI?-ths for

neglec ting t wo client matters and making negligent and ·.If;'

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intentiorial misrepresentations as to status of cases to clients

and to bar counsel); Matter of Kane, 13 Mass. Att'y Disc. R. 321,

325 (1997) (public reprimand where respondent failed diligently

to represent client and to communicate adequately wit~ client,

where client "was not ultimately harmed").

Taking the foregoing into account, I conclude that the

appropriate sanction is a suspension from the practice of law for

one year and one day , a sanction which necessarily will require

that the respondent apply for reinstatement at the end of that

period, and demonstrate to the satisfaction of the board that he

is fit to resume the practice of law. See S.J.C. Rule 4:01,

§ 18(2) (c). Not markedly disparate from sanctions imposed in J

similar cases, this sanction fulfills the fundamental purpose of

protecting the public and deters other attorneis from similar

misconduct.

3. Conclusion. An order shall enter suspending the

respondent from the practice of law in the Commonwealth for a

period of one year and one day.

Entered: May 23,- 2017

By the Court

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Barbara A. Lenk Associate Justice

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