Appendix — In re Kerlinsky

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OFFICE OF THE CLERK

In the

Supreme Court of the United States

October Term, 1998

In the Matter of Louis Kerlinsky

Petitioner

Petition for a Writ of Certiorari

to the Supreme Judicial Court of the

Commonwealth of Massachusetts

Appendices To

Petition for Writ of Certiorari

Louis Kerlinsky

Counsel of Record

RECEIVED 29 Vanguard Lane

MAY 1 0 1999 Longmeadow, MA 01106

97-817

OFFICE OE THE CLERK (413) 567-8171

SUPREME COURT, U.S.

Neer

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Index to Appendices

Appendix Page

Decision of Mass.

Supreme Judicial Court,

In the Matter of Louis Kerlinsky,

428 Mass. 656, 704 N.E.2d 903 (1999)... l

and

MI piers hai Seitinck ace deco tirade din ecet eal ec i4

Memorandum of Decision by

Ee on ee a 15

and

Decision of Appeal Panel,

In re Louis Kerlinsky,

13 Mass. Attorney Discipline

ITE HU TEOT A gc 15

Report of Hearing Committee (1995)........ 38

and

Supplement (1996), unreported................. 88

Order denying rehearing

ONY Ae NOP R 91

Petition for Discipline (1994)....00000.......... 92

Petition for Rehearing (1999) ee |

656 428 656 (1999

In the Matter of Kerlinsky

IN THE MATTER OF LOUIS KERLINSKY

Suffolk, November 5, 1998 - January 14, 1999.

PRESENT: WILKINS, C.J., GREANEY, FRIED, MARSHALL &

IRELAND, JJ.

Attorney at Law, Disciplinary proceeding, Suspension. Board

of Bar Overseers.

Evidence at a hearing on bar discipline was sufficient for the

Board of Bar Overseers properly to conclude that the

respondent attorney had violated several provisions of

Canons 1, 6, and 7, S.J.C. Rule 3:07, as appearing in 382

Mass. 768 (1981). [662]

An appeal panel of the Board of Bar Overseers was authorized

under $.J.C. Rule 4:01, § 8 (3), as appearing in 381 Mass.

784 (1980), to reverse the hearing committee’s finding that

an attorney had not violated Canon 1, S.J.C. Rule 3:07, as

appearing in 382 Mass. 769 (1981), and the hearing

committee’s initial and supplemental findings supported the

appeal panel's conclusion. [662-664]

Three years’ suspension from the practice of law was the

appropriate discipline for an attorney who, after having been

publicly censured previously, engaged in a persistent and

extended pattern of improper and unethical behavior that included

neglecting a client's case, prosecuting a frivolous claim, and filing

false and misleading affidavits and interrogatory answers. [664-

666]

INFORMATION filed in the Supreme Judicial Court for the

county of Suffolk on September 2, 1997.

The case was heard by Lynch, ee

Louis Kerlinsky, pro se

Nancy E. Kaufman, Assistant Bar Counsel.

APPENDIX A

657 428 Mass. 656 (1999)

In the Matter of Kerlinsky

MARSHALL, J. This bar discipline case concerns the conduct

of Louis Kerlinsky (respondent) in representing Diane

Kourouvacilis in a damage suit against General Motors

Corporation (GM) and Avis Rent-A-Car (Avis) following an

automobile fire. The respondent makes numerous challenges to

the two-year suspension recommended by the Board of Bar

Overseers (board) and imposed by the single justice. We limit

our discussion to his claims regarding the sufficiency of the

evidence on which the board concluded he had violated several

provisions of the Canons of Ethics, the authority of the appeal

panel of the board to amend the decision of the hearing

committee, and the appropriate discipline to impose.

Bar counsel filed a petition for discipline against the

respondent on May 23, 1994, alleging violations of S.J.C. Rule

3:07, Canon DR 1-102 (A) (4), (5), and (6), as appearing in 382

Mass. 769 (1981); Canon 6, DR 6-101 (A) (3), as appearing in

382 Mass. 783 (1981); Canon 7, DR 7-101 (A) (1), (2), and (3),

as appearing in 382 Mass. 784 (1981); and DR 7-102 (A) (2),

(5), and (7), and (B) (1), as appearing in 382 Mass. 785 (1981).'

Between October, 1994, and March, 1995. a hearing

‘New Massachusetts Rules of Professional Conduct became

effective on January 1, 1998, replacing the former Canons of

Ethics and Disciplinary Rules. S.J.C. Rule 3:07. as appearing in

4426 Mass. 1303 (1998) (Massachusetts Rules of Professional

Conduct). The relevant parts of the former Canons and

Disciplinary Rules in effect at the time of the respondent’s

challenged conduct state:

“DR 1-102. Misconduct.

“(A) A lawyer shall not: . .

“(4) Engage in conduct involving dishonesty, fraud,deceit,

Or misrepresentation.

“(S) Engage in conduct that is prejudicial to the

administration of justice.

658 428 Mass. 656 (1999)

In the Matter of Kerlinsky

committee of the board conducted six days of hearings at which

two witnesses testified and 167 exhibits were introduced in

evidence. Bar counsel recommended a three-year suspension.

On December 11, 1995, the hearing committee issued its report

recommending a one-year suspension with readmission “only

upon application and the satisfactory completion of an ethics

examination.” The hearing committee concluded that the

respondent had violated DR 6-101 (A) (3), DR 7-101 (A) (1),

(2), and (3), DR 7-102 (A) (2) and (7), and DR 7-102 (B) (1),

and that the respondent had not violated any of the provisions of

Canon 1. Both parties took an appeal from the hearing

“(6) Engage in any other conduct that adversely reflects

on his fitness to practice law.”

“DR 6-101. Failing to Act Competently

“(A) A lawyer shall not: . .

“(3) Neglect a legal matter entrusted to him.”

“DR 7-101. Representing a Client Zealously.

“(A) A lawyer shall not intentionally

“(1) Fail to seek the lawful objectives of his client through

reasonably available means permitted by law and the

Disciplinary Rules, except as provided by DR 7-101 (B).

A lawyer does not violate this Disciplinary Rules,

however, by acceding to reasonable requests of opposing

counsel which do not prejudice the rights of his client, by

being punctual in fulfilling all professional commitments,

by avoiding offensive tactics, or by treating with courtesy

and consideration all persons involved in the legal

process.

“(2) Fail to carry out a contract of employment entered

into with a client for professional services, but he ma

withdraw as permitted under DR-1 10, DR 5-102, and D

5-105.

659 428 999

In the Matter of Kerlinsky

committee’s report.

On July 30, 1996, an appeal panel of the board remanded the

case to the hearing committee for clarification of its findings and

rulings. The appeal panel sought information regarding whether

the respondent’s violation of DR 7-101 (A) (1), (2), and (3) was

intentional, whether his violation of DR 7-102 (A) (2) and (7)

was done knowingly, and whether the respondent had knowingly

violated DR 7-102 (A) (5).? The hearing committee issued

supplemental findings and a report on August 19, 1996, finding

“(3) Prejudice or damage his client during the course of

the professional relationship, except as required under DR

7-102 (B).”

“DR 7-102. Representing a Client Within the Bounds of the

Law.

“(A) In his representation of a client. a lawyer shall not: .. .

“(2) Knowingly advance a claim or defense that is

unwarranted under existing law, except that he may

advance such claim or defense if it can be supported by

good faith argument for an extension. modification, or

reversal of existing law. . .

“(5) Knowingly make a false statement of law or fact. __

“(7) Counsel or assist his client in conduct that the lawyer

knows to be illegal or fraudulent.”

“(B) A lawyer who receives information clearly establishing

that

“(1) His client has, in the course of representation,

perpetrated a fraud upon a person or tribunal shall

promptly cali upon his client to rectify the same, and if his

client refuses or is unable to do so, he shall reveal the

fraud to the affected person or tribunal. except when the

information is protected as a privileged communication.”

660 428 Mass. 656 (1999)

In the Matter of Kerlinsky

that the respondent’s conduct, and therefore his violation of DR ©

7-101 (A) (1), (2), and (3), was intentional, that he knowingly

violated DR 7-102 (A) (2), and that he had not violated DR 7-

102 (A) (5). The committee also noted that the respondent had

knowingly violated DR 7-102 (A) (7). On May 29, 1997, the

appeal panel issued its report, adopting the initial and

supplemental findings of the hearing committee and upholding the

hearing committee’s rulings that the respondent had violated

Canons 6 and 7. The appeal panel disagreed with the hearing

committee’s dismissal of the alleged violations of Canon 1, and

ruled that the respondent had violated DR 1-102 (A) (4), (5), and

(6). The appeal panel recommended a two-year suspension, and

suggested that “the respondent complete continuing legal

education courses in ethics, and pass the MPRE between the date

of suspension and any petition for reinstatement.”

On July 14, 1997, the board voted unanimously to adopt the

appeal panel report and recommended discipline. The board filed

an information in the county court on September 2, 1997, and a

single justice of this court suspended the respondent for two

years on December 3, 1997, from which the respondent appeals.

We vacate the decision of the single justice and order that the

respondent be suspended for a period of three years.

1. We summarize the extensive facts found by the hearing

committee and upheld by the appeal panel. Some details of other

cases related to the one giving nse to the discipline sought here

illuminate the challenged conduct of the respondent.

The respondent was admitted to the bar of the

Commonwealth in 1952, and has represented Kourouvacilis in a

number of matters, including a 1981 divorce, a personal injury

and property damage suit arising from an automobile accident in

1983, a wrongful discharge case filed in December, 1987, and the

automobile fire suit against GM and Avis at issue here, filed in

October, 1988. In July, 1983, Kourouvacilis was involved in an

automobile accident while driving a Chevrolet automobile that

she had purchased from Avis in 1979.* The respondent agreed to

represent Kourouvacilis on a contingent fee basis in a suit against

*The hearing committee had made no ruling on the alleged

violation of DR 7-102 (AS)

tert

;

SS =

661 ~428 Mass. 656 (1999)

In the Matter of Kerlinsky

the other driver, and, in June, 1984, filed suit on behalf of his

client. The complaint alleged that the automobile had been

policy limits from the insurers of both Kourouvacilis and the

other driver.

In August, 1984, Kourouvacilis was discharged from

employment at Monson State Hospital (Monson) for excessive

absenteeism. In Ovember, 1987, the respondent agreed to

Kourouvacilis purchased from Avis caught fire while she was

Operating it; the car was destroyed. The respondent agreed to

Avis raised warranty, negligence, deceit, fraud. and GL. ¢.93A

Claims, specifically alleging that the fire was caused by “defective

wiring.

Neither did the respondent investigate his client’s claims of

personal injury When he first agreed to represent her.

Kourouvacilis made no claims of physical injury, or that she had

Sought medical treatment as a result of the fire. The fire

department official's report similarly stated that Kourouvacilis

The Chevrolet automobile had over 17,000 miles on the

odometer when Kourouvacilis purchased it

‘This suit also alleged a claim against the American

Federation of State, County, and Municipal Employees

(AFSCME), Kourouvacilis’s union. alleging a violation of its duty

to her of fair representation

‘Between November. 1985, and April, 1988. the

662 428 Mass. 656 (1999)

In the Matter of Kerlinsky

had suffered no injuries.’ The respondent attempted to document

Kourouvacilis’s alleged injuries through Dr. Metz, alleging that

Dr. Metz treated her for migraine headaches resulting from

“smoke inhalation.” Dr. Metz’ records, however, indicated that

Kourouvacilis last visited his office in February, 1985, nine

months before the fire. Kourouvacilis testified during depositions

that Dr. Metz had treated her for migraines after the fire; the

respondent did not counsel her to correct her misstatements, even

after she was unable to produce documentation of any postfire

treatment.

The respondent also drafted a statement for Walter Grzebian,

a front-end mechanic, stating that, based on his experience and

training, the fire was caused by defective wiring installed by GM.*

In a telephone conversation, Grzebian told the respondent that it

was “ridiculous” that he had been subpoenaed to give deposition

testimony because he did not “know anything [about] the

[Chevrolet] or what could cause the fire.”

In interrogatories and an affidavit prepared by the

respondent, he falsely represented that expert witnesses were

available to testify in support of Kourouvacilis’s claims. He

prepared interrogatory answers identifying “Matheson,” “Grez,”

“Lt. Colburn, Fire Marshall [sic],” and Dr. Metz as expert

witnesses, despite the fact that he had neither consulted nor

retained any of them as expert witnesses, and knew that none

respondent's investigation consisted of two letters to GM seeking

a settlement and demand letters to GM and Avis pursuant to G.L.

c.93A. Two and one-half years after agreeing to represent

Kourouvacilis in this matter, the respondent wrote to the fire

department official responsible for investigating the fire, and

received his report in May, 1988. In June, 1988, the fire official

left a message for the respondent, stating that he did not

remember anything about the fire. The respondent never returned

the telephone call, and never spoke directly to the fire official.

*The respondent also failed to investigate whether, as

Kourouvacilis had told him, the Chevrolet was new at the time

she purchased it from Avis. Kourouvacilis also stated that the

automobile required only maintenance, in direct contradiction to

the allegations of the automobile’s unfitness after the 1983

accident.

663 —428 Mass. 656 (1999)

In the Matter of Kerlinsky

judgment. On appeal we affirmed the entry of su

judgment. Kourouvacilis y. General Motors C. orp., 410 Mass.

706 (1991).

The respondent also advanced misstatements about

Kourouvacilis’s employment and alleged wages lost as a result of

observed in Kourouvacilis ” She was not retained as an expert.

"The respondent had requested that Kourouvacilis obtain

Statements from “auto mechanics regarding the cause of [her]

664 428 Mass. 656 (1999)

In the Matter of Kerlinsky

the fire. In answers to GM interrogatories, he advanced his

client’s claim that she lost two weeks of wages and her position

at “Adral Co.” In answers to Avis’s interrogatories, he advanced

her claim that she had not been employed for two years after the

fire because of resulting emotional problems, and that her lost

earning capacity totaled $36,000. These statements were not

only consistent as between GM and Avis, but they contradicted

and jeopardized the theory of Kourouvacilis’s Monson suit. In

that case, Kourouvacilis claimed that she was ready and able to

work after her 1984 termination, but had been unable to find

work until June, 1986. The respondent advanced these

misstatements of his client, and did not counsel her to correct

either the misstatements or the inconsistencies.

2. Sufficiency of the evidence. The respondent makes

numerous challenges regarding the sufficiency of the evidence on

which the board concluded that he had violated the several

provisions of Canons 1, 6, and 7. Among other challenges, he

claims that he did not neglect any legal matter entrusted to him,

that he did not fail to represent his client zealously, that he did

not advance a claim that was unwarranted under existing law,

that his client did not clearly perpetrate a fraud that he was

thereby required to reveal, and that he did not counsel or assist

his client in conduct that he knew to be illegal or fraudulent. We

have reviewed the entire record and are satisfied that there was

more than adequate evidence to support each of the violations

We see no reason to provide a point-by-point rebuttal to the

respondent's arguments

3. Authority of the panel. The respondent challenges the

authority of the appeal panel to reverse the hearing committee's

finding that he did not violate DR 1-102 (A) (4), (5), and (6)

The appeal panel erred, he claims, because these violations

require a determination of intent, a matter within the province of

the hearing committee as the “sole judge of the credibility of the

testimony presented at the hearing.” Matter of Saab, 406 Mass

315, 328 (1989). Supreme Judicial Court Rule 4:01, § 8(3), as

appearing in 381 Mass. 784 (1980), states

“The Board may adopt the findings of fact submitted by

the hearing committee or the panel or revise such findings

returned it to the respondent on April 13, 1989

665 428 Mass. 656 (1999)

In the Matter of Kerhinsky

which it determines to be erroneous, paying due respect to the

rols of the hearing committee or the panel as the sole judge of the

credibility of the testimony presented at the hearing.”

The appeal noted specifically that it was authorized to make the

revision “since it does not involve the determination of the

credibility of any witness’ s testimony.” We are satisfied that the

findings to the disciplinary rules at hand The appeal panel

discovery material and pleadings based on false

Statements of fact the respondent knew to be false; (2)

fraudulently procured affidavits; (3) permitted deposition

testimony to stand uncorrected when he knew it

contained false statements: and (4) engaged in conduct

that delayed litigation, complicated discovery, and wasted

the time and resources of the courts.”

upon the respondent’s fitness to practice in violation of DR 1-10?

(A) (4), (5), and (6).”!°

4. Appropriate discipline. The respondent argues that a

'wO-year suspension of his license js a miscarnage of justice and

“We amended this tule, effective July |, 1997 The substance

of the rule is now contained in SJC Rule 4 Ol. § 8 (4), as

appearing in 425 Mass. 1309 (1977). and states in part

“The Board shall review. and may revise, the findings of

fact, conclusions of law and recommendation of the

hearing committee judge of the credibility of the

testimony present at the hearing.“

666 428 Mass. 656 (1999)

In the Matter of Kerlinsky

grossly disparate.” We disagree. In bar discipline cases, we

“inquire whether the judgement is markedly disparate from those

ordinarily entered by the various single justices in similar cases.”

Matter of Clooney, 403 Mass. 654, 658 (1988), quoting Matter

of Alter, 389 Mass. 153, 156 (1983). The “primary factor” in bar

discipline is “the effect upon, and perception of, the public and

the bar.” Matter of Finnerty, 418 Mass. 821, 829 (1994),

quoting Matter of Alter, supra.

The facts of this case establish that the respondent engaged

in a “ ‘persistent and extended pattern of improper and unethical

behavior’ of the sort that would justify a suspension.” Matter of

Saab, supra at 825, quoting Matter of McInerney, 389 Mass.

528, 5331 (1983). The respondent neglected his client’s case.

He prosecuted a frivolous claim, needlessly consuming the

resources of the judicial system for several years. He filed false

and misleading affidavits and interrogatory answers.

The appeal panel concluded that a two-year period of

suspension from the practice of law was appropnate. It did so

reasoning “(t]he existence of prior discipline, unlike the absence

of prior discipline, is a ‘substantial factor in selecting the level of

discipline.’ Matter of Dawkins, 412 Mass. 90, 96 (1992),

quoting Matter of Bryan, 411 Mass. 288, 291 (1991). “We

consistently have considered a record of past misconduct, even

if unrelated to the current charges, in determining the appropriate

sanction.” Matter of Dawkins, supra, and cases cited. The

existence, as well as the timing, of the respondent’s prior

disciplinary record persuades us that a suspension longer than

that imposed by the single justice is appropriate

The respondent also argues that S J.C. Rule 4:01, § 8 (3),

as appearing in 38] Mass. 784 (1980), is unconstitutional because

it allows an attorney to be punished on proof by a preponderance

of the evidence as opposed to “clear and convincing evidence.”

[Bar discipline charges need only be proven by a preponderance

of the evidence.” Matter of Budnitz, 425 Mass. 1018, 1018 n.1

(1997), citing Matter of Mayberry, 295 Mass. 155, 167 (1936),

and the respondent’s constitutional claim is without merit

667 428 Mass. 656 ( 1999)

In the Matter of Kerlinsky

The respondent was publicly censured in 1989 for charging

a fee in excess of the fee set Out in the contingent fee agreement

He refused to turn over the Portion of the recovery to which the

Client was entitled, and withheld funds from the client to pay

pendency of and subsequent to his earlier disciplinary proceedings

warrants more severe discipline.'' His earlier public censure

Obviously was not sufficient to dissuade him from engaging in

In Matter of Tobin, 417 Mass. 8} (1994). we last surveyed

Cases in which three-year Suspensions were imposed. In that

Case, we reduced a three-year suspension imposed by a single

Justice to eighteen months J at 91. We noted that “[t]hose

attorneys who had not been convicted of crime yet received

three-year Suspensions demonstrated a pattern of neglect and

deceit or misused substantial sums of clients’ funds.” Jd At 89

n.8. We are satisfied that the respondent's conduct in this case

nses to the level of a “pattern of neglect” warranting a three-year

Suspension. /d Since Tobin, a single Justice has imposed a

three-year Suspension in Matter Of Dittami, 12 Mass Att’y

Discipline Rep. 98 (1996), which we view as analogous to the

Present case. In that case, the attorney engaged in conflicts of

interest while mediating a business dispute and made written

misrepresentations while defending himself in a civil action. /d

at 101. The respondent in that case, as in this case. previously

had received a public censure. /d at 1113 Although the board

in that case, as it did here, recommended a 'wO-year suspension.

the single justice increased the suspension to three years. /d at

be appropriate where, as here. the respondent has engaged in

behavior that demonstrates a “pattern of neglect or deceit ”

Matter of Ti Obin, supra

"Bar counsel commenced the initial disciplinary proceedings

against the respondent on September 26, 1986. which resulted in

the public censure affirmed by Matter Of Kerlinsky, 406 Mass. 67

668 428 Mass. 656 (1999)

In the Matter of Kerhinsky

We are persuaded that an increase in the period of

suspension is appropriate based on the number of violations the

respondent committed both her and in his earlier disciplinary case.

“The simultaneous consideration of separate violations .. . is an

established part of the disciplinary system of this

Commonwealth.” Matter of Saab, supra at 326. The Board

found that the respondent violated ten separate disciplinary rules

in this case and six in the earlier case. Matter of Kerlinsky, supra

at 71-72. The cumulative effect of these violations further

supports our conclusion that an additional period of suspersion

is appropriate. The board concluded, accurately in our view, that

the “respondent lacks any appreciation that his behavior was

improper and violated the Canons of Ethics.” “[{I]mposing any

sanction less severe ... would ‘undermine[] the clear standards

of [Matter of the Discipline of an Attorney, 392 Mass. 827

(1984)], and, in the process diminish[{] the court’s credibility

in an area where the public interest requires steadfast protection

of clients’ nghts.” " Matter of Dawkins, supra at 97, quoting

Matter of Driscoll, 695, 705 (1991) (Greaney, J., dissenting)

The decision of the single justice is vacated and a judgment

is to be entered in the Supreme Judicial Court for the county of

Suffolk ordering that the respondent be suspended from the

practice of law for a three-year period

So ordered.

(1989)

The respondent in Jobin had, among other violations,

“intentionally and fraudulently induced the complainant to retain

him for unnecessary probate services.” Matier of Tobin, 417

Mass. 81, 91 (1994)

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT FOR THE

COMMONWEALTH

AT BOSTON, JANUARY 14, 1999

IN THE CASE NO SJC-07626

IN THE MATTER OF LOUIS KERLINSKY

Pending in the Supreme Judicial Court

for the County of Suffolk NO. BD-97-050

ORDERED, that the following entry be made in the

docket; viz. -

Judgment is to be entered in the Supreme Judicia! Court

re eee

SEE OPINION ON FILE

APPENDIX A - supplement

13 Mass. Attorney Discipline Reports 359 363

Louis Kerlinsky

Memorandum of Decision

The respondent is suspended from the practice of law of two

years from this date hereby for the reasons stated in the report of

the appeal panel.

In making my decision I have taken notice of the opinion of

the Supreme Judicial Court in Kourouvacilis v. General Motors,

410 Mass. 706 (1991)

Neil L. Lynch

December 3, 1997 Associate Justice

Report of Appeal Panel

This matter came before a Panel of the Board of Bar

Overseers on appeal of the respondent and cross-appeal of Bar

Counsel. On May 23, 1994, Bar Counsel filed a Petition for

Discipline alleging violations of: Canon One, Disciplinary Rules

1-102(A)(4), (5) & (6); Canon Six, Disciplinary Rule 6101(A)(3);

and Canon Seven, Disciplinary Rules 7-101(A){1), (2), & (3),

Disciplinary Rules 7-102(A)(2), (5), (7) and 7-102(B)(1). On

December 11, 1995, the Hearing Committee submitted a report

finding violations of: DR 6-101(A)(3),; DR 7-101(A)(1),(2), &

(3), DR 7-102(A\(7); and DR 7-102(B)(1). The Committee did

not find violations of DR 1-102(A)(4), (5), and (6); and DR

7102(A)(S). The Committee recommended a suspension from

the practice of law for one year, with readmittance only after

application and the completion of an ethics examination

On appeal, respondent objects to the Committee’s findings

of fact and requests a dismissal of the charges. On cross-appeal,

Bar Counsel seeks a finding of a violation of Canon One and a

three-year suspension from the practice of law. Briefs were filed

by both parties to the appeal and cross-appeal

On June 10, 1996, oral argument was heard by Daniel C

Crane, Esq. (Chair), Naomi Gordon, and Richard P. Melick, Esq.,

APPENDIX B

13 Mass. Attorney Discipline Reports 359 364

Louis Kerlinsky

scenes

appeal panel further upholds the rulings of the Hearing

Committee with respect to the violations of Canon Six and Canon

alleged violations of Canon One and rules that the respondent

engaged in dishonest and fraudulent conduct which was

prejudicial to the administration of justice in violation of Canon

One. Disciplinary Rule 1-102(A)(4). (5), and (6)

For the reasons discussed below, the appeal panel

of law and strongly suggests the respondent complete continuing

legal education Courses in ethics, and pass the MPRE between the

date of the suspension and any petition for reinstatement

Factual Background

The appeal panel rules that the evidence supports the

findings of the hearing committee hich are summarized and set

forth in part below

The respondent represented Ms Diane Kourouvacilis

("Kourouvacilis”) in a number of matters including: a 198]

divorce; a 1983 car accident (“1983 accident”) involving her

1979 Chevrolet Monte Carlo (“Monte Carlo”): a claim alleging

wrongful termination against her employer filed on December |

1987: and a suit filed on October 27. 1988 arising from the

destruction of the Monte Carlo in a 1985 fire (“1985 fire’)

On or about August 6, 1984. Kourouvacilis was discharged

from her employment at Monson State Hospital for excessive

13 Mass. Attorney Discipline Reports 359 365

Lous Kerlinsky

absenteeism. On or about November 24, 1987, respondent

agreed to represent Kourouvacilis in a wrongful termination suit

against Monson State Hospital and against AFSCME,

Kourouvacilis’ union (“Monson Case”)

On November 1, 1985, Kourouvacilis’ Monte Carlo was

destroyed by a fire during its operation. On November 20, 1985,

respondent again agreed to represent Kourouvacilis in a claim for

damages from this fire against the manufacturer of the Monte

Carlo, General Motors Corporation (“GM”), and Avis-Rent-A-

Car (“Avis”). She purchased the Monte Carlo from Avis, in

Connecticut, with over 17,000 miles on the odometer in 1979

At the time of the fire, the odometer had over 73,000 miles on it

Furthermore, this car had been seriously damaged two years

earlier in the 1983 accident. After the 1983 accident, respondent

alleged the car was unsafe to drive and that Kourouvacilis was

under the treatment of Dr. Metz for migraine headaches caused

by this accident

Respondent failed to adequately investigate the cause and

origin of the 1985 fire. Respondent failed to immediately

determine which fire department investigated the 1985 fire

Likewise, he failed to identify the salvage yard where the Monte

Carlo had been brought. Even after receiving a report from

Kourouvacilis’ insurer that the cause of the 1985 fire could not

be determined, respondent did not attempt to inspect the car or

have it inspected by an expert. As a result, Kourouvacilis’ insurer

sold the car for salvage two months later, before an examination

of the Monte Carlo, expert or otherwise, occurred

Between November, 1985 and April, 1988, respondent's

investigation of the claims surrounding the 1985 fire amounted to

two letter to GM seeking a settlement and a c 93A demand letter

sent to GM and Avis

Two years and six months after agreeing to take the case,

respondent contacted Lt. Colburn, the fire department official

who investigated the 1985 fire’ He received a copy of Lt

Colburn’s report, on May 21, 1988. On June 15, 1988, Lt

13 Mass. Attorney Discipline Reports 359 366

Louis Kerlinsky

Colburn indicated that he did not remember anything about the

fire. Lt. Colburn left this message for respondent, along with his

phone number. Respondent did not return the call and never

spoke to Lt. Colburn

Respondent also failed to investigate whether or not the

Monte Carlo was bought new, even though it was important to

pursuing his client’s claim on the theory of res ipsa loquitur that

the car was new and in the same condition at the time of the 1985

fire as when it left the factory. Kourouvacilis told respondent she

had purchased the Monte Carlo “brand new” from Avis and that

it had required only regular maintenance Respondent knew Avis

was a rental car agency, and probably did not sell new cars

Moreover, respondent knew the Monte Carlo had required

repairs after the 1983 accident, because he had alleged in the

1983 accident that the car was unsafe to drive

Lacking the opinion of an expert regarding the cause and

origin of the fire and without evidence upon which an expert

could base an opinion, respondent filed a complaint against GM

and Avis raising warranty, negligence, deceit, fraud and c. 93A

claims on October 27, 1988. The only investigation respondent

had done revealed the source of the fire was unknown (through

U S.F.&G, Kourouvacilis’ auto insurer) and the fire could not be

remembered (through Lt. Colburn) Nevertheless, the complaint

specifically alleged the 1985 fire had been caused by a

manufacturing or design defect. present when the vehicle was

sold, and that the 1985 fire had been caused by “defective

winng.”

Respondent also failed to adequately investigate

Kourouvacilis’ allegations of personal Injury When the

respondent first agreed to represent Kourouvacilis in November.

1985, regarding claims arising from the 1985 fire, she did not

represent to him that she had been injured, sought medical

treatment, or incurred any medical bills as a result of this fire. As

a result, respondent did not file a PIP claim on her behalf The

report filed by Lt. Colburn. which respondent did eventually

13 Mass. Attorney Discipline Reports 359 367

Lows Kerlinsky

obtain, stated there were no personal injuries. Nonetheless,

respondent wrote to Carol Mathison, Kourouvacilis’ counselor

at Springfield Technical Community College, requesting a report

regarding the effects of the 1985 fire on Kourouvacilis’ physical

condition. On June 28, 1988 Ms. Mathison’s report similarly did

not document any physical injuries. It only stated an

“impression” of the effect the 1985 fire had on Kourouvacilis

The letter reported Kourouvacilis had a short attention span and

poor memory. The respondent never discussed the contents of

this letter with Ms. Mathison

Respondent also attempted to verify Kourouvacilis’ injuries

through Dr. Metz, alleging Dr. Metz treated Kourouvacilis for

migraine headaches caused from “smoke inhalation.” However,

Dr. Metz’s records indicated Kourouvacilis last saw Dr. Metz

nine months before the 1985 accident Nevertheless,

Kourouvacilis testified during depositions that she had been

treated by Dr. Metz for smoke inhalation after the 1985 fire. As

of May 19, 1989, respondent knew that the medical records

established Kourouvacilis had last been treated by the doctor

prior to the 1985 fire. In fact, on September 18, 1989, in

correspondence to Kourouvacilis, respondent stated it was “not

helpful to have misinformation in your interrogatory answers and

your sworn deposition” and demanded that she produce any

documentation that she saw Dr. Metz “at any time after October,

1985." Respondent never called upon his client to correct these

misstatements even after Kourouvacilis was not able to produce

such documentation

In answers to interrogatories and an affidavit prepared by

respondent, it was falsely represented there were expert witnesses

available to testify in support of Kourouvacilis’ claims

Respondent requested that Kourouvacilis obtain a statement from

“auto mechanics regarding the cause of [her] fire.” Kourouvacilis

left the message with respondent that her mechanic, whom she

referred to as “Grez,” was a front-end and suspension specialist

and did not do wining or electrical repairs but would be willing to

13 Mass. Attorney Discipline Reports 359 369

rr LL ee a

Lows Kerlinsk,

help. Kourouvacilis drafted a statement for “Grez” which stated

he did not do wiring or electrical repairs but had been advised by

Kourouvacilis that the fire marshal thought the 1985 fire had been

due to defective wiring. Respondent took this draft without

talking to the mechanic, whose real name is Walter Grzebien

(Grzebien”), drafted a second statement which omitted the

disclaimer of experience with electrical repairs and substituted,

“[bJased on my experience and training,” and attributed the Cause

of the 1985 fire to “defective wiring” installed by GM. Grzebien

signed the statement and returned it to the respondent on April

13, 1989

During an August, 1989 phone conversation with

respondent, Grzebien complained that it was “ridiculous” he had

been subpoenaed to testify at a deposition because he did not

“know anything [about] the Monte Carlo or w hat could cause the

fire.” At this time. respondent did not question Grzebien about

his testimony, training Of experience in automotive electrical

systems

Aside from respondent’s initia] correspondence with Carol

Mathison, during an August, 1989 deposition. she testified

Kourouvacilis had not reported any injury from the 1985 fire

Ms. Mathison also stated she could not provide the nexus

between the 1985 fire and Kourouvacilis’ emotional and

academic problems because she was not qualified to identify the

cause of the posttraumatic stre<< disorder she observed in

Kourouvacilis She further festified she had not been retained as

an expert in the case

Despite knowledge to the contrary, respondent prepared and

hled interrogatory answers falsely identifving Carol “Mathesoy

Walter “Grez,” “Lt. Colburn Fire Marshall.” and Dr Metz as

“sper witnesses. Respondent knew he had not consulted or

retained any of these Persons as experts. he had never received an

expert opinion from these persons, and that none of the listed

witnesses would testify in any way to support his client's claim

on any theory

13 Mass. Attorney Discipline Reports 359 370

Louis Kerlinsky

Respondent insisted on advancing this misinformation in his

Opposition to summary judgment. On October 6, 1989,

respondent prepared an affidavit signed by Kourouvacilis, under

the penalties of perjury, falsely representing she had been treated

by Dr. Metz after the fire in “October, 1985" and had bills from

him for treatment in 1986. Respondent further opposed the

summary judgment motion by attempting to file an unsworn

Statement of “—-Grez,” prepared by respondent which again

offered Grzebien’s “expert” opinion

Despite a lack of expert opinion on the cause and origin of

the 1985 fire or on the cause of Kourouvacilis’ injuries,

respondent pursued the case against GM and Avis even after the

tnal court granted summary judgment. The respondent appealed

the trial court's ruling based on the record. The appeal was

transferred to the Supreme Judicial Court on its own motion

The tnal court's decision was upheld in Kourouvacilis v. General

Motors Corp., 410 Mass. 706 (1991)

Respondent did not only advance misstatement of his client

on the subjects of the cause of the fire and her alleged injuries

He also advanced misstatements regarding her employment and

alleged lost earnings due to the 1985 fire. In response to GM

interrogatories, respondent advanced Kourouvacilis’ claim that

she lost two weeks’ worth of wages in 1985 and her job at “Adral

Co.” due to the 1985 fire Despite these allegations, in answers

to Avis interrogatories prepared and filed by respondent,

Kourouvacilis claimed that she had not been employed for two

years after the accident because of emotional problems caused by

the fire, and she claimed $36,000 in lost earning capacity. Not

only were these statements inconsistent within the case against

GM and Avis but, they were inconsistent with, and jeopardized,

the theory respondent was advancing on behalf of Kourouvacilis

in the Monson case. In the Monson case respondent and

Kourouvacilis consistently maintained she was ready and able to

work after her discharge from Monson but was unable to find

work until June, 1986. Respondent advanced Kourouvacilis’

~—~

musstatements and he failed to call upon his client to correct these

misstatements and inconsistencies during her sworn deposition

testimony

Discussion

Respondent could have pursued a recovery for his client’s

claims arising from the 1985 fire in two ways. First, he could

have proceeded on a theory of res ipsa loquitur Alternatively, he

could have provided expert witnesses to prove the cause and

origin of the fire and to prove the existence of a design or

manufacturing defect.’ See Kourouvacilis v. General Motors

Corp., 410 Mass. 706 ( 1991). It was clear from the outset that

Kourouvacilis’ claims arising from the 1985 fire could not prevail

on the theory of res ipsa loquitur. The car was purchased used

by Kourouvacilis, had been in an accident in 1983, after which

fire had over 73,000 miles on the odometer.’

Therefore, it was imperative to the success of the case that

respondent engage an expert to identify the cause and origin of

the fire and to prove that a design defect existed when it was last

possessed by either GM or Avis. See id at 708. Of course after

this was satisfied. respondent would also have the burden of

proving Kourouvacilis sustained damages as a result of this

design defect. See id at 712 Notwithstanding any novel

theories of law respondent was attempting to advance, he

violated the disciplinary rules by neglecting to properly

investigate the facts of the case and compounded his neglect by

Knowingly misrepresenting the facts to attempt to withstand the

defendants’ motions for summary judgment

Expert testimony is necessan fO prove a design defect

unless “a jury can find of their own lay knowledge that there

CxIsts a design defect which exposes users of a product to

unreasonable risks of injury.” Smith v Ariens Co., 375 Mass

620, 625 (1978) (citing Do Canto v. Ametek Inn . 367 Mass

13 Mass. Attorney Discipline Reports 359 372

Louis Kerlinsky

Disciplinary Rules 6-101(A)(3); 7-101(A)(1), (2), (3)

The appeal panel upholds the Hearing Committee’s ruling

that respondent neglected his client’s case that was entrusted to

him and intentionally: (1) failed to seek the lawful objectives of

his client; (2) failed to carry out a contract of employment on

behalf of his client; and (3) prejudiced his client during the course

of the professional relationship. Respondent neglected his client’s

case and failed to represent her zealously through: (1) the failure

to preserve key evidence; (2) the failure to engage necessary

expert witnesses; (3) the failure to speak with witnesses prior to

drafting their statements, (4) the continued delegation of duties

to a client who was clearly unable to adequately perform them;

and (5) the failure to resolve discrepancies between the sworn

deposition testimony of key witnesses and the information

provided to him by his client, which jeopardized the client’s claim

in another pending case also being handled by respondent. This

conduct constituted violations of DR 6-101(A)(3), and DR 7-

101(A)(1)(2) & (3)

While some authorities have postulated that neglect is

adequate to sustain a violation of DR 7-101(A), we need not

address that issue here. See Tuomi, Massachusetts Attorney

Conduct Manual, Volume 2, 7-11-7-16 (1992). The Hearing

Committee found that the “foreseeable and direct result” of the

776, 782 (1975)

"The Supreme Judicial Court noted, “There is no merit to the

plaintiff's argument that, even without expert testimony, she can

prove her case by invoking the doctrine of res ipsa loquitur. The

common experience of mankind in no way suggests that an

unexplained fire in an automobile six years after its purchase was

caused by a defect in the vehicle that had existed from the time of

the vehicle’s manufacture or sale” (citations omitted)

Kourouvacilis, 410 Mass. At 717

13 Mass. Attorney Discipline Reports 359 373

Lows Kerlinsky

intentional acts and omissions of the respondent was harm to his

client. (Supplementa) Findings at 2) The “purpose” of the

respondent is irrelevant. He intentionally acted and failed to act

in ways that harmed his client, in violation of DR 7-101(A).

Respondent failed to exercise a reasonable degree of skill and

care in the investigation of Kourouvacilis’ Claims. He made no

attempt to preserve the Monte Carlo. He knew one of two fire

departments investigated the fire but never attempted to contact

either. Likewise, he made not attempt to contact autobody shops

where the Monte Carlo may have been located

Even after receiving the insurance report on December 17.

1985, which indicated the cause of the fire could not be

determined, the respondent did not attempt to locate the Monte

Carlo or to have the car examined, not to mention engage an

expert witness. Respondent knew the Monte Carlo had

substantial mileage on the odometer and that it had been invulved

in @ senious accident in 1983. In fact. he alleged on behalf of

Kourouvacilis that the Monte Carlo was not safe to drive as a

result of the 1983 accident. The car was sold for salvage on

January 8, 1986. This eliminated any reasonable chance that the

cause and ongin of the fire could be established, seriously

prejudicing his client’s case

Respondent did not just fail to investigate his client’s Claim

and obtain expert witnesses. He attempted to compensate for his

lack of expert testimony, necessary to prove his case, by

fabricating the needed testimony from witnesses who were not

qualified to so testify. Without speaking to him directly,

respondent drafted a statement for Walter Grzebien. incorrectly

referred to as “Grez,” which provided an opinion that the cause

of the 1985 fire was due to defective wiring However.

respondent omitted the key information related to him by

Kourouvacilis, that Grzebien, a front-end and suspension

specialist who did not perform wining or electrical repairs, had no

Opinion on the cause and origin of the fire Respondent knew of

this limitation on Grzebien before he drafted the statement

13 Mass. Attorney Discipline Reports 359 374

Louis Kerlinsky

Nevertheless, respondent was relentless in presenting Grzebien as

an expert in the cause of the 1985 fire. During their first

conversation on August 7, 1989, Grzebien indicated he had no

opinion as to the cause of the fire. Nevertheless, approximately

three weeks later, respondent prepared answers to Avis

interrogatories listing Grzebien as an expert as to the cause of the

1985 fire.

The failure to speak with a witness prior to drafting a

statement was not an isolated occurrence. Respondent drafted a

statement for Lt. Colburn’s signature, without speaking to him,

indicating the cause of the 1985 fire was due to defective wiring

at the time the car was manufactured. Lt. Colburn never signed

this statement. Respondent contacted Lt. Colburn seeking the

fire report and a follow-up letter requesting clarification of the

report. However, when Lt. Colburn left his phone number with

the message that he did not remember the fire, respondent never

bothered to pursue the matter

The respondent delegated the primary responsibility of

obtaining evidence regarding injuries as well as expert evidence

regarding the cause of the 1985 fire to his client. This alone is

not neglect; however, the respondent delegated this duty to a

client who was not qualified to perform it. Respondent knew she

had a “poor memory” and “short attention span.” Respondent

did not provide adequate guidance to the client regarding the

information that was necessary to substantiate any claim.

Moreover, respondent received “clear and unequivocal

evidence” that Kourouvacilis was not adequately performing this

task The “expert” Kourouvacilis obtained was a mechanic who

was a front-end and suspension specialist who did not do wiring

or electrical repairs. She claimed to have spoken with a “fire

marshal” when the accident occurred. However, despite several

requests, she did not obtain a statement from the fire marshal.

Respondent’s continued delegation of tasks to Kourouvacilis,

despite the evidence she was not capable of adequately

performing the tasks, “can only be categorized as neglect.”

13 Mass. Attorney Discipline Reports 359 375

Louis Kerlinsky

Respondent did not attempt to resolve discrepancies between

statements made by Kourouvacilis and Dr Metz. Kourouvacilis

testified she had seen Dr. Metz “within a few days” of the

November, 1985 fire and had been under his care for injuries

suffered from the fire. On August 31, 1989, respondent prepared

and served answers to Avis’ interrogatories indicated that to the

best of Kourouvacilis’ knowledge she did not receive any medical

bills regarding the fire Approximately six weeks later. on

October 6, 1989. the respondent prepared Kourouvacilis’

affidavit stating she had bills from Dr. Metz for treatment after

the 1985 fire. However. Dr Metz’s deposition, consistent with

his records, indicated Kourouvacilis’ last visits to Dr. Metz

occurred nearly a year before her November, 1985 accident, on

January 18, 1985 and February 8, 1985. Proof of injury was

essential to the success of his client’s case. Respondent did not

call upon his client to correct the obvious inconsistencies between

her testimony and that of Dr Metz. More importantly, he

assisted his client in misrepresenting her treatment by Dr. Metz

by preparing and filing her affidavit of October 6, 1989 which he

then knew to be false Likewise, he did not call upon his client to

correct the inconsistencies between her unsupported statements

and Dr. Metz’s statements which were supported by records

Respondent also advanced the claim that Kourouvacilis was

disabled from work as a result of the 1985 fire. Not only was this

Claim unsupported by any medical opinion but. it also jeopardized

her concurrent claim for damages in the Monson case

Respondent and Kourouvacilis consistently maintained in the

Monson case that she was ready, willing and able to work after

her August, 1984 discharge from Monson State Hospital but

could not find work until June, 1986. Nonetheless. respondent

prepared and served answers to GM interrogatories which stated

Kourouvacilis lost two weeks of wages in 1985 from “Adral Co ”

due to the 1985 fire. and represented that she was employed

during 1985 as a data entry/word processor

This conduct by respondent, found by the hearing committee.

13 Mass. Attorney Discipline Reports 359 376

Lous Kerlinsky

constituted a lack of skill and care constituting neglect of a legal

matter entrusted to him in violation of DR 6-101(A)(3) and a

failure to zealously represent his client in violation of DR

7101(A)(1), (2), and (3)

Disciplinary Rule 7-102(A)(2)

Left with a lack of evidence to support his client’s claims

either because of neglect or because it was not there to begin

with, respondent compounded his misconduct by misrepresenting

facts and presenting unwarranted claims

The appeal panel affirms the ruling that respondent

knowingly advanced a claim that was unwarranted under the law,

in violation of DR 7-102(A)(2). Regardless of whether

respondent thought he was bringing a claim based on breach of

warranty, res ipsa loquitur, or some other similar, novel theory,

respondent knowingly advanced a claim for which he had no

evidence of personal injury to Kourouvacilis, thus advancing a

claim unwarranted under the law

The appeal panel agrees with respondent that in the context

of Canon Seven violations requiring a “knowing” violation,’ a

finding that the respondent “knew or should have known™ will

not satisfy the required element of “knowledge.” To hold that a

‘For purposes of respondent's charged violations, these

include DR 7-102(A)(2) (knowingly advancing a claim or

defense unwarranted under the law), DR 7-1102(A)(5)

(knowingly make a false statement), and DR 7-102(A)(7)

(counsel or assisting client in conduct known to be illegal or

fraudulent)

‘See, e.g. Hearing Committee Report p 10 (respondent

“knew or should have know” he lacked facts to establish prima

facie ability and he “knew or should have known” he lacked the

elements for a res ipsa case), Hearing Committee Report p. 15

(respondent “knew or should have known” his client's answers to

|3 Mass. Attorney Discipline Reports 359 377

Lows Kerlinsk,

“knew or should have known” standard satisfies the knowledge

requirement of Canon Seven violations implies a state of mind no

more culpable than neglect. DR 6-101(A)(3) addresses neglect

To hold that “knew or should have known” is equivalent to

“knowledge” would cause DR 7-102 violations to be subsumed

by DR 6-101(A)(3) violations. However. this does not relieve

respondent of his responsibility under DR 7-102(A)(2),* because

there were sufficient findings in the Hearing Committee Report,

as well as in the Supplemental Findings of the Hearing

Committee, indicating respondent had actual knowledge.

Respondent “knew he had no competent evidence of

personal injury damages,” is well supported in the evidence

(Supplemental Findings at 3) Kourouvacilis never complained

of any injury or conditions requiring medical care when she

initially met with respondent on November 20, 1985. The

insurance report stated that there were no injuries as a result of

the fire. Carol Mathison’s letter to respondent stated that

Kourouvacilis had not complained of any physical injury resulting

from the 1985 fire and she could not provide an expert opinion as

to the cause of Kourouvacilis’ post-traumatic stress disorder. Dr

Metz had no record of treatment for migraine headaches after the

November, 1985 fire Respondent prepared and served answers

to Avis interrogatories for his client as late as August 31, 1989,

which stated Kourouvacilis received and incurred no medical bills

interrogatones were inconsistent). Hearing Committee Report p

23 (respondent “should have known” the claims of unemployment

were false), Hearing Committee Report p. 28 (respondent “must

have known” expert evidence regarding defective wiring would

be difficult to get absent an expert inspection), Hearing

Committee Report p. 31 (respondent failed to correct his client's

false statements that he “knew or should have known” were false

Similarly, respondent's liability under DR 7-102(A)(7) is not

diminished

13 Mass. Attorney Discipline Reports 359 378

Louis Kerlinsky

from the fire to the best of her knowledge. The only evidence of

an injury were the assertions of Kourouvacilis which were

unsupported and highly contradictory.

Respondent had insufficient evidence to establish the

requisite liability, that is to prove a design defect existed in the

Monte Carlo. In Kourouvacilis v. General Motors Corp., 410

Mass. 706, 575 N.E.2d 7334 (1991), the Supreme Judicial Court

reviewed respondent’s theory of liability on her appeal of the trial

court’s allowance of the defendants’ motion for summary

judgment and noted: “[Kourouvacilis’] response to the

defendants’ motions is woefully inadequate, and indicates that she

has absolutely no competent evidence that the vehicle was

defective when purchased or that any such alleged defect was the

proximate cuase of her damages.” /d. at 771-712.°

Respondent similarly did not have sufficient evidence to

proceed on a theory of res ipsa loquitur. Respondent knew the

care never operated properly after the 1983 accident, as he

alleged in those proceedings that the Monte Carlo did not operate

well, required frequent repairs and was not safe to operate

Moreover, the Supreme Judicial Court briefly addressed the

validity of this theory, stating

There is no merit to the plaintiff's argument that, even

without expert testimony, she can prove her case by invoking

the doctrine of res ipsa loquitur. The common experience of

mankind in no way suggests that the unexplained fire in an

*Merely losing the motion for summary judgment does not

constitute a disciplinary violation. The reason there was no claim

warranted under law was because the facts did not support the

claim to begin with, regardless of prompt and adequate

preparation. Nevertheless, respondent neglected the case and

failed to zealously represent his client and persisted in pursuing

the claim through a combination of misrepresentations of

evidence and facts

13 Mass. Attorney Discipline Reports 359 379

Louis Kerlinsky tal

automobile six years after its purchase was caused by a

defect in the vehicle that had existed from the time of the

vehicle’s manufacture of sale

410 Mass. At 717. (citations Omitted)

The Supreme Judicial Court declined to sanction respondent

id. at 717. The issue before the court was to decide whether or

not the rule established by the United States Supreme Court in

Celotex Corp. v. Cartrett, 477 U.S. 317. 322; 106 S. Ct 2548.

2552 (1986), should be adopted by the Massachusetts Supreme

Judicial Court, and therefore the SJC held it was not appropnate

to issue sanctions. /d. at 711. 717

However, the court did not have information on respondent's

neglect of the case. his poor preparation and his failure to

zealously represent his client Further, the court did not have

occasion to review the issue of damages or the dishonest manner

in which respondent procured affidavits concerning liability

While this is relevant to bar discipline, it was not relevant to

consideration of the summary judgment. Therefore. the decision

not to impose sanctions does not provide a safe harbor for the

respondent. As discussed above, even if respondent had been

able to establish liability, there was insufficient e. idence to prove

damages and thus the pursuit of the claim was unwarranted under

the law, in violation of DR-7- 102(A)(2)

Disciplinary Rule 7-102(A 5). (7) & 7-102(B)(1)

The appeal pane! also affirms the Heanng Committee’s ruling

that respondent knowingly assisted his client IN perpetrating a

fraud in violation of DR 7-102(A)(7) and DR 7- 102(B)(1), but.

did not violate DR 7-102(AM(S) The respondent: (1) failed to

recognize false statements in the chent’s testimony that were

central to the case and failed to call upon his client to rectify the

false statements: and (2) prepared and answers to interrogatories

and affidavits that were clearly based on incorrect Statements of

13 Mass. Attorney Discipline Reports 359 380

Louis Kerlinsky

fact that the respondent knew to be false at the time of filing.

This case does not merely involve an attorney representing

a client who has lied. Respondent’s behavior crossed over from

representing a client who was untruthful to facilitating the client's

dishonesty. Not only did respondent fail to recognize material

misstatements of his client, but he prepared and filed sworn

statements and other pleadings with the court, based on these

misstatements, thus facilitating his client's dishonesty.

The respondent failed to recognize material misstatements in

Kourouvacilis’ testimony regarding the condition of the Monte

Carlo. These misstatements concerned issues that had been

central to the Monson case and were likewise central to the

claims arising out of the 1985 fire. Respondent had settled the

1983 accident one month prior to the 1985 fire. He knew the

1983 accident involved considerable property damage to the

Monte Carlo, in fact he alleged in that action the car did not

operate well, required frequent repairs, and was unsafe to drive

Nevertheless, on April 13, 1989, Kourouvacilis testified, in

respondent's presence, that the Monte Carlo had required only

routine maintenance after the 1983 accident, until the 1985 fire.

Respondent did not call upon his client to rectify this false

statement, thus aiding his client in perpetrating a fraud

Kourouvacilis also testified on Apnl 13, 1989, that she last

saw Dr. Metz in 1988 for treatment of migraine headaches caused

by the 1985 fire The subsequent depositions of the keeper of

records of Dr. Metz’s office, Dr Metz himself, as well as

respondent's own examination of the records indicated that Dr

Metz last saw her in January, 1985, and that she had a negative

EEG performed in February, 1985, approximately nine months

before the 1985 fire Despite this evidence indicating

Kourouvacilis had falsely testified at her deposition, respondent

did not call upon his client to clarify the misstatement

Instead respondent prepared and filed an affidavit with the

court, and served answers to interrogatories on behalf of

Kourouvacilis, that he knew were false. On September 15, 1989

13 Mass. Attorney Discipline Reports 359 38]

Louis Kerlinsky

respondent received a copy of the transcript of Dr. Metz’s

deposition from July 26, 1989. which respondent did not attend

Three days later, after he had reviewed the deposition transcript,

he contacted Kourouvacilis by letter, stating

Dr. Metz stated that he last saw you in January of 1985

Your accident was in October of 1985 It is not helpful

to have misinformation in your interrogatory answers and

your deposition. If you have any written indication that you

saw Dr. Metz at any time afler October of 1985 please

produce it for me in my office

Hearing Committee Attachment A

Respondent received no records documenting Kourouvacilis’

visits with Dr. Metz.’

Nevertheless, less than three weeks later, on October 6.

1989, respondent prepared and filed Kourouvacilis’ affidavit in

Opposition to summary judgment in which she stated she had

been treated by Dr. Metz in October, 1985, and that she had bills

from this treatment Respondent's September 18. 1989, letter

provides clear evidence that respondent knew then that the facts

in Kourouvacilis’ affidavit, which he later prepared and filed.

were untrue. When respondent prepared and filed her affidavit

containing this misinformation. he knowingly assisted his client

in making a false and fraudulent statement of fact to the court

Respondent prepared and served answers to GM

interrogatories on May 8, 1989, that identified Carol Mathison.

Dr. Metz, and Walter Grzebien, as expert witnesses he had .

retained. When he prepared these answers, respondent knew that

none of the identified experts had been retained in the case, let

alone held opinions whic supported his client's claims

Rempondens persisted in representing that Dr. Metz and Mr

Grzebien were expert witnesses whose opinions supported his

client's claims in answers to Avis interrogatories prepared and

served on August 31, 1989. In these answers to interrogatories.

"This was respondent's second request for records

documenting Kourouvacilis’ visits and bills from Dr. Metz. His

first request of Apnil 14, 1989, similarly produced no response

13 Mass. Attorney Discipline Reports 359 382

Louis Kerlinsky

respondent also represented that Lt. Colburn would testify as an

expert. Similar to Dr. Metz and Mr. Grzebien, respondent also

knew that he had not consulted or retained Lt. Colburn as an

expert

Additionally, respondent prepared and filed documents he

knew were false with regard to Kourouvacilis’ employment

status. Respondent filed a complaint on December |, 1987, in the

Monson case, alleging Kourouvacilis was unemployed from

October, 1984, through June, 1986, despite being able to work

Less then two years later, on March 2, 1989, in answers to GM

interrogatories, respondent represented that Kourouvacilis was

employed, and lost wages during 1985, the same time frame

during which respondent had previously claimed she was

unemployed. In fact, Kourouvacilis had been employed by

Admail in May, 1986, and at United Technologies/Hamilton

Standard from June 9, 1983 through June 12, 1986. Respondent

could have obtained this information with minimal effort which

could have clarified these misstatements regarding his client's

employment. Notwithstanding this, at the very least, respondent

knowingly provided answers to GM interrogatones in March,

1989, which were in clear contradiction to the complaint he filed

in December, 1987, in the Monson case

Respondent repeatedly ignored the facts that did not support

his client’s claims on issues of lability, loss of earning capacity

and physical injuries. Despite this repeated evidence that his

client's claims could not be supported, he prepared and served

answers to interrogatories containing false information on these

subjects and he resisted summary judgment based on false

statements on these matters in an affidavit he prepared for his

client to sign and which he submitted to the court to oppose the

summary judgment. Respondent knew there were false statement

of material facts in his client's deposition testimony and answers

to interrogatories, yet failed to call upon her to correct these

misstatements. Similarly, respondent knew he prepared and filed

swom answers to interrogatories and an affidavit that were

13 Mass. Attorney Discipline Reports 359 383

Louis Kerlinsky

——

clearly based on incorrect statements of fact. This conduct

amounted to a violation of DR 7- 102(B\1) and DR 7-102(A\7)

Disciplinary Rule 1-102(A)(4), (5), & (6)

Bar counsel appealed from the hearing committee's decision

to dismiss the alleged violations of DR }- 102(A)(4), (5), and (6)

Based upon its review of the findings in the hearing committee

report, the appeal panel revised the report to find and rule that

the respondent further engaged in fraudulent, dishonest conduct

which was prejudicial to the administration of justice, and

reflected adversely upon the respondent's fitness to practice in

violation of DR 1~102(A), (5). and (6).* The respondent: (1)

Prepared and served Opposing counsel with discovery material

and pleadings based on false statements of fact the respondent

knew to be false. (2) fraudulentiy procured affidavits; (3)

permitted deposition testimony to stand uncorrected when he

knew it contained false statements, and (4) engaged in conduct

that delayed litigation, complicated discovery, and wasted the

ume and resources of the courts

Respondent prepared and ser ed answers to interrogatories

that he knew were false It is immaterial that the other party was

not fraudulently induced to rely upon respondent's

muisrepresentations It is sufficient that respondent made

representations that he knew to be false See Matter of

McCarthy, 416 Mass 423. 430 (1993)

Respondent prepared and served answers to interrogatories,

regarding Dr Metz. that he knew were false Respondent

indicated that Dr Metz was his medical expert, even though he

had not spoken to him. had not retained him, and in fact never

“Supreme Judicial Court Rule 4.01, Section 8(3) authorizes

the panel to make such a revision since it does not involve the

determination of the credibility of any witness's testimony

13 Mass. Attorney Discipline Reports 359 384

Louts Kerlinsky

intended to call him as a witness. Despite knowledge that Dr.

Metz had not seen Kourouvacilis after the 1985 fire, evidenced

by respondent’s letter to Kourouvacilis noting there was

misinformation in her interrogatory answers, respondent still

prepared and filed his client’s affidavit stating she had been

treated by Dr. Metz after the 1985 fire, and she had bills to prove

Similarly, respondent prepared and filed answers to

interrogatories falsely representing that Lt. Colburn would testify

as an expert to the cause of the 1985 fire. At the time the

answers were filed, respondent knew Lt. Colburn had not been

retained as an expert and did not remember anything about the

fire, not to mention an opinion of the cause and origin.

Respondent fraudulently procured statements. He drafted

statements for Grzebien and Lt. Colburn without speaking to

either of them. In addition, he withheld material information from

Grzebien’s statement. A single incident of failing to speak to a

witness may amount only to neglect, and or the failure to

zealously represent the client. However, respondent's behavior

was repeated and was prejudicial to the administration of justice

because he filed statements and answers to interrogatories to

resist the motions for summary judgment

Kourouvacilis testified the Monte Carlo required only routine

maintenance after the 1983 accident. This was not only contrary

to Kourouvacilis’ previous testimony but, contrary to

respondent's claims in the 1983 accident case, that the car never

functioned properly after the accident and was dangerous to

dnve Respondent did not correct the testimony or call upon his

client to do so

Respondent pursued the claims arising from the 1985 fire

based on false statements and the affidavit he prepared for his

client which he knew contained materially false information

Even after the tnal court entered summary judgement against his

chent, respondent continued to rely on these false statements and

appealed the trial court’s ruling to the Supreme Judicial Court.

SE ET LE

13 Mass. Attorney Discipline Reports 359 385

Louis Kerlinsky

By preparing and filing documents known to the respondent to

contain false statements. the respondent wasted the time and

resources of the court and the Opposing parties. This conduct

constitutes violations of DR 1-102(A)(4), (5), and (6)

Disposition

Respondent’s behavior warrants a suspension from the

Practice of law for two years. Respondent prepared affidavits

and pleadings known to him to include materially false statements

for the court's consideration, warranting a one-year Suspension

See /n the Matter Of Friedman, 7 Mass Atty. R. 100 (1991). In

addition, he perpetrated a fraud on Opposing counsel by actively

misrepresent the facts of his client’s case, which also warrants a

sanction of one year’s Suspension. See Matter Of Neitlich, 413

Mass. 416 (1992) Moreover, respondent failed to call upon his

client to correct false deposition testimony when he had an

Opportunity to do so, which again warrants a sanction of one

year's suspension. See Matter of Mc arthy, 416 Mass. 423

(1993)

Respondent's behavior warrants the additional sanction of

two years because in addition to the above violations warranting

one year’s suspension, he also neglected a legal matter entrusted

to him. Respondent also has a prior disciplinary matter against

him for which he received a public censure.’ The prior discipline

involved charging a fee in a personal injury case in excess of the

fee contained in the contingent fee agreement. refusing to turn

over to the client the portion of the recovery to which the client

was indisputably entitled. and withholding funds from the client

[0 pay another attorney without the client's consent. Matter of

‘A public censure is the equivalent to a current public

reprimand

13 Mass. Attorney Discipline Reports 359 386

Louis Kerlinsky

Kerlinsky, 406 Mass. 67 (1989). In further aggravation,

respondent lacks any appreciation that his behavior was improper

and violated the Canons of Ethics.

Conclusion

For the foregoing reasons, the appeal panel revises the

findings and rulings of the hearing committee to include a

violation of DR 1-102(A)(4), (5), and (6) and otherwise adopts

the findings and rulings of the hearing committee but

recommends that respondent be suspended from the practice of

law for two years, and strongly suggests respondent complete

continuing legal education courses in ethics, and pass the MPRE

between the date of suspension and any petition for

reinstatement

Daniel C. Crane, Esq.

Chair

Naomi Gordon

Richard P. Melick, Esq.

Date

ie NG SES Dh pode Cen eth me Ssh

COMMONWEALTH OF MASSACHUSETTS

BOARD OF BAR OVERSEERS

OF THE SUPREME JUDICIAL COURT

BAR COUNSEL,

Petitioner

vs BBO FILE NO C6-91-0124

On May 23. 1994, Bar Counsel filed a Petition for Discipline

alleging misconduct by the Respondent, Louis Kerlinsky, an

attorney duly admitted to the practice of law in Massachusetts on

October 22, 1952. On June 1, 1994. the Respondent filed an

“Answer to Disposition Memo & Petition”

The Petition for Discipline alleges violations of Canon One.

DR 1-102 (A)(4), (5) and (6); Canon Six. DR 6-101(A)(3) and

Canon Seven, 7-10}(A{1, (2) and (3). DR 7-102 (A)(2), (5) and

(7) and DR 7-102 (B)(1)

A Hearing Committee conducted hearings in the matter on

October 12. 1994. December 14, 1994. January 17, 1995.

February 14, 1995. February 15, 1995 and March 3, 1995. The

following witnesses testified before the Hearing Committee

Louis Kerlinsky, Esq. and Wayne Soini. Esq. One-hundred and

Sixty-seven separate exhibits were introduced into evidence by the

Parties

Attomey S. Thomas Martinelli appeared for the Respondent

and represented the Respondent throughout the hearings

APPENDIX C

FINDINGS OF FACT

1. The Respondent, Louis Kerlinsky, Esq., was duly

admitted to the Bar of the Commonwealth on October 22, 1952

Since that time, he has primarily concentrated in Plaintiff's

personal injury litigation.

2. From 1981 to date, the Respondent has represented Diane

Kourouvacilis (Kourouvacilis”) in a number of matters. These

include:

a In 1981, the Respondent represented Kourouvacilis

in her divorce.

b. On August 4, 1983, the Respondent agreed to

represent Kourouvacilis on a contingent fee basis in a claim for

personal injury and property damage arising from an accident

which had occurred on July 26, 1983 (the “1983 accident”). In

the 1983 accident, another driver, Jerrold Towne (“Towne”),

collided with Kourouvacilis while she was operating her 1979

Chevrolet Monte Carlo (the “Monte Carlo”). The Respondent

brought suit against Towne in the Hampden Superior Court on

June 4, 1984. The Towne case was settled by the Respondent,

on behalf of Kourouvacilis, by payment of the policy limits from

Towne’s insurer and from Kourouvacilis’ own insurer in October

1985

c. On November 1, 1985, Kourouvacilis’ Monte Carlo

caught fire during operation and was destroyed (the “1985 fire”).

On November 20, 1985, one month after having settled the

Towne case, the Respondent agreed to represent Kourouvacilis,

on a contingent fee basis, in a claim for damages against General

Motors Corporation (“GM”) and Avis Rent-A-Car (“Avis”)

arising from the 1985 fire

d On or about August 6, 1984, Kourouvacilis was

discharged from her employment at Monson State Hospital for

excessive absenteeism. On or about November 224, 1987, the

Respondent agreed to represent Kourouvacilis, on a contingent

fee basis, in claims arising from Monson’s termination of her

employment (the “Monson case”). On December |, 1987, the

Respondent filed suit on behalf of Kourouvacilis in the Hampden

County Superior Court against the Commonwealth of

Massachusetts and Monson State Hospital for wrongful discharge

and against AFSCME. Kourouvacilis’ union. for allegedly

violating its duty of fair representation. Monson was stil] pending

at the conclusion of hearings on this matter

3. Kourouvacilis had purchased the Monte Carlo in 1979

from Avis in Connecticut with Over 17,000 miles on the

odometer.

4. The Monte Carlo was

accident. In addition, Kourouvac

alleged, on her behalf in the claim against Towne, that the 1983

accident caused her to suffer from migraine headaches for which

she received treatment from Dr Metz

5. On November 27, 1985, the Respondent sent demand

letters on Kourouvacilis’ behalf pursuant to G.L. c. 93A to GM.

which had manufactured the Monte Carlo, and to Avis, which had

sold the Monte Carlo to Kourouvacilis. regarding claims arising

Out of the 1985 fire

6. The Respondent represented in the c

that the Monte Carlo was not safe,

willfully violated c. 93A and the “Connecticut Consumer

Protection Act”: and that Kourouvacilis had Sustained damages

of $10,000 “because of the severe Tig

seriously damaged in the 1983

ilis claimed, and the Respondent

93A demand letters

that Avis and GM had

the Respondent filed suit for

personal injury and property damage resulting from the 1985 fire

in the Hampden Superior Court on behalf of Kourouvacilis

against GM and Avis (the “GM _ case”) raising warranty,

negligence, deceit, fraud. and c 93A claims The complaint

alleged, among other things, that the 1985 fire had been caused

bya “Manufacturing or design defect” which was “present when

said vehicle was sold by GMC” The complaint also

alleged that the 1985 fire had been caused by “defective wiring ”

8. At the time of the 1985 fire, the Monte Carlo had over

73,000 miles on the odometer

9. Lt. Colburn and Gerard Walsh of the Springfield Fire

Department responded to the 1985 fire Ly Colburn filed a

report stating that there were no personal injuries as a result of

the 1985 fire, that the source of ignition for the 1985 fire was an

“unspecified short circuit”, and that the “ignition factor” was

“electrical failure”

10. On November 20, 1985, Kourouvacilis did not tell the

Respondent that she had been injured in the 1985 fire, that she

had sought medical treatment or incurred any medical bills. The

Respondent did not, therefore, file a PIP claim on Kourouvacilis’

behalf in connection with the 1985 fire as he had done in

connection with the 1983 accident

11. On November 20, 1985, the Respondent knew that the

Springfield or Wilbraham fire department had responded to the

1985 fire and that the Monte Carlo had been towed to an auto

body shop. He did not then contact the fire department for

information or a report, nor did he ever take any steps to inspect

the Monte Carlo nor to have the Monte Carlo inspected by a

qualified expert

12. In the two years and eleven months from November 20,

1985, when the Respondent agreed to represent Kourouvacilis,

until the filing of the complaint in the GM case on October 27,

1988, the Respondent took the following actions with regard to

the preparation of the GM case

a On November 27, 1985, the Respondent wrote to

USF. & G., Kourouvacilis’ insurer, to ask for copies of

photographs, the appraisal, and “any reports concerning the cause

of the fire” On December 17, 1985, the Respondent received a

letter from U.S F_ & G enclosing the appraisal and photographs

of the Monte Carlo USF. & G advised the Respondent that

the cause of the 1985 fire could not be determined

b Between November 1985 and January 8, 1986, the

Respondent made no effort to preserve the Monte Carlo, to have

it inspected by experts, or otherwise to investigate the cause of

the fire USF & G, Kourouvacilis’ insurer, sold the Monte

Carlo for salvage on or about January 8, 1986

C Between November 1985 and Apnl 1988, the

Respondent undertook no investigation of Kourouvacilis’ claims,

other than to wnte to GM on two occasions to request a

settlement

SE EMRI Mil ie 8%

d On April 4, 1988. the Respondent wrote to

Kourouvacilis to advise her that the Statute of Limitations would

expire on the GM case at the end of October 1988. In the letter,

the Respondent advised Kourouvacilis not to bring suit because

the only damages she had incurred were to her car, which had

been paid for by U.S.F. & G , her insurer. At the same time, the

Respondent requested that she sent $80.00 if she desired to file

suit notwithstanding his advice

€. On May 7, 1988. the Respondent received a letter

from a claims representative for GM requesting his expert’s

report, the title to the Monte Carlo, names and addresses of

witnesses, insurance documentation, and medical records and

bills. The Respondent did not answer this letter. Instead. he

wrote, for the first time, to the Springfield and Wilbraham fire

and police departments for their incident reports

f The Respondent received Lt. Colburn’s incident

report on May 21, 1988. He did not understand how Lt. Colburn

had decided on the entries in the report. On June 2, 1988, the

Respondent wrote to Lt Colburn, “We would appreciate your

advising how you determined the fire was due to an electrical

wire or electrical failure. and whether in you[r} opinion this was

due to a manufacturing or design defect.” Lt. Colburn called the

Respondent's office on June 15, 1988. leaving his telephone

number and the message that he did not remember anything about

the 1985 fire’ The Respondent never spoke to Lt. Colburn

& The Respondent met with Kourouvacilis on May 24.

1988. Kourouvacilis represented to the Respondent that she had

purchased the Monte Carlo “brand new” from Avis and that it

had required no repairs other than regular maintenance. The

Respondent knew that Avis was a rental car agency and was

unlikely to sell new cars. but he never obtained the registration of

the Monte Carlo or took Other action to determine whether or

not Kourouvacilis had actually purchased the Monte Carlo new,

even though it was important to the Respondent's theory of res

‘psa loquitur to show that the Monte Carlo had been purchased

new and that it was in the same condition at the time of the 1985

fire as when it left the factory. In addition. the Respondent knew

that the Monte Carlo had required repairs as a result of the 1983

accident and frequently thereafter, since he had asserted in the

Towne case that as a result of the 1983 accident the Monte Carlo

was unsafe to drive.

h. Kourouvacilis had been enrolled at Springfield

Technical Community College (“STCC’”) in the fall of 1987 and

spring of 1988. On June 2, 1988, the Respondent wrote to

Kourouvacilis’ STCC counselor, Carol Mathison, for a report

regarding the effects of the 1985 fire on Kourouvacilis’ physical

condition. The Respondent knew that Kourouvacilis lacked

physical manifestations of any emotional injury she might have

sustained in the 1985 fire. In his letter to Mathison, the

Respondent suggested “weight loss”, “high blood pressure”, and

“smoke inhalation” as possible injuries which Mathison might

document. Mathison’s response of June 28, 1988, to the

Respondent did not document any physical injuries, nor did it

state any opinion, other than an “impression”, regarding the

effects of the 1985 fire on Kourouvacilis. Among other things,

Mathison’s letter reported that Kourouvacilis had described her

short attention span and poor memory. The Respondent never

discussed Mathison’s letter with Mathison

1 On October 27, 1988, the Respondent filed suit in the

Hampden Superior Court on behalf of Kourouvacilis against GM

and Avis because his client told him she wanted to sue. He

alleged warranty, negligence, deceit, fraud, and c. 93A claims

arising from the 1985 fire. The complaint alleged, among other

things, that the 1985 fire had been caused by a “manufacturing or

design defect” which was “present when said vehicle was sold by

GMC.” The complaint also alleged that the 1985 fire had

been caused by “defective wiring” The Respondent relied

entirely upon his client in making these claims, having obtained

no independent verification or expert advice or opinion and with

the knowledge that those persons who had investigated the 1985

fire (Lt. Colburn and the US F & G Investigator) either could

reach no conclusion or did not remember the incident

13. According to the Respondent's testimony, from the

outset of the attorney-client relationship regarding the 1985 fire,

the Respondent delegated to Kourouvacilis the primary

responsibility for locating an expert as to the cause of the 1985

fire and for documenting any medical problems she might have

The Respondent gave little or no guidance to Kourouvacilis as to

what would be needed to prove the product liability case. Based

upon the facts and proof assembled prior to the filing of the

complaint in the GM case, the Respondent advised the client that

she lacked actual damages to recommend proceeding with a

claim. Although not mentioned in his letter to Kourouvacilis

recommending against filing suit, the Respondent knew or should

have known that he lacked facts sufficient to make out a prima

facie liability case. The Respondent’s position is that he viewed

this case as a res ipsa loquitur case which would not require

direct expert testimony of causation, but. from his handling of the

Towne case involving the same Monte Carlo. he knew or should

have known that he lacked the requisite elements to make out a

res ipsa case on liability

14. Commencing in December 1988. GM and Avis served

the Respondent with document requests and interrogatories

seeking a description of Kourouvacilis’ physical injuries, an

itemization of her damages, and the identity of expert witnesses

expected to testify at trial. Several motions to compel and court

orders were required before any detailed responses to

interrogatories were provided by the Respondent

1S. Qn March 2, 1989. the Respondent filed Kourouvacilis’

first set of answers to GM’s interrogatories. The answers

represented (a) that Kourouvacilis was under Dr Lawrence

Metz’s care for migraine headaches “from smoke inhalation”, (b)

that Kourouvacilis had been receiving “care and treatment” for

Over one year” from her college counselor and continued to see

her counselor “from time to time”. and (c) that Kourouvacilis had

lost her job at “Adral Co.” due to a tw O-week absence caused by

the 1985 fire

16. Kourouvacilis was deposed by GM and Avis on Apnil

13, 1989. In preparation for the deposition, the Respondent told

Kourouvacilis by letter that it would be helpful if she would

obtain a statement from “auto mechanics regarding the cause of

your fire.” Kourouvacilis called the Respondent after receiving

this letter, leaving the message that her mechanic did only front-

end and suspension work and did not do wiring but would be

willing to help. Kourouvacilis also drafted a statement for the

mechanic, whom she identified as “Grez”, to sign. This statement

recited that Grez did not do wiring or electrical repairs but that

he had been advised by Kourouvacilis that the fire marshal

thought the 1985 fire had been due to defective wiring. Using

Kourouvacilis’ draft and without talking to “Grez”, whose true

name is Walter Grzebien, the Respondent drafted a statement for

his signature which omitted the disclaimer of experience with

electrical repairs and substituted, “[b]ased on my experience and

training”, and attributed the cause of the 1985 fire to “defective

wiring” installed by GM. Kourouvacilis delivered this statement

to Grzebien and returned it, signed, to the Respondent on Apnil

13, 1989

17. At her deposition and in the Respondent's presence,

Kourouvacilis falsely testified as follows

a The Monte Carlo had required only routine

maintenance after the 1983 accident until the 1985 fire. This

claim directly contradicted her prior deposition testimony and the

Respondent’s own representations in the Towne case that the

Monte Carlo had never operated properly after the 1983 accident

b. Kourouvacilis’ father and brother had inspected the

Monte Carlo after the 1985 fire, and her father had taken several

photographs of the Monte Carlo after the 1985 fire which

pictures had been provided to the Respondent Kourouvacilis’

testimony that her father and brother inspected the Monte Carlo

after the 1985 fire contradicted her sworn interrogatory answer

filed on March 2, 1989, that only the police and “[fJire marshals”

had inspected the Monte Carlo after the 1985 fire. In addition,

the Respondent knew that he had never received photographs

from Kourouvacilis taken by her father

C Kourouvacilis testified that she had seen Dr. Metz

“within a few days” of the 1985 fire and had last seen him “[a]

year ago [ ]” for migraine headaches caused by smoke inhalation

rhe Respondent allowed this representation to stand although he

knew that in the Towne case he had alleged that Kourouvacilis’

migraines were caused by the 1983 accident. In addition, at the

time of her deposition, Kourouvacilis had not produced any

records or bills of any treatment by Metz after the 1985 fire as the

Respondent had requested both at the time of his earlier

responses to interrogatories or in a preparation for the deposition

The Respondent allowed these representations to stand

knowing that they were false or with reckless disregard for

whether or not these claims were true or false. The Respondent

did not, at any time during the prosecution of the trial or appeal

of the GM case. call upon his client to correct these

representations, and he continued to prosecute the GM case on

the basis of these false statements

18. In fact, Kourouvacilis had never consulted Dr. Metz for

headaches after an office visit on January 18, 1985 and an EEG

administered in his office on February 8, 1995 (see Attachment

A), and she had not seen her college counselor, Carol Mathison,

since June 30, 1988 (see Attachment B) Kourouvacilis’ claims

that she had lost her job and “Adral Co.” in 1985 due to the 1985

fire were false and contradicted her claims in Monson that she

had been unemployed from October 1984 until June 1986 despite

her efforts to secure a job (see Attachment E) Nevertheless, the

Respondent filed Kourouvacilis’ answers to the interrogatories

either knowing they were false or with reckless disregard for

whether or not they were false

19. On May 8, 1989. the Respondent filed supplemental

answers to GM's interrogatories. These supplemental answers

again identified Dr. Metz and Caro! Mathison as expert witnesses

regarding her alleged injuries and identified “W

expert on the cause of the 1985 fire The Respondent knew when

he filed the May 8, 1989. supplemental answers that none of the

identified experts had been retained in the case, that he had not

spoken to any of the identified witnesses about the case, and that

neither Dr. Metz nor Carol Mathison had expressed an expert

Opinion that the 1985 fire had caused Kourouvacilis’ injury

Although the Respondent had a statement signed by Walter

Grzebien, the Respondent had drafted it without talking with

alter Grez” as her

Grzebien and without assuring himself that Grzebien, whom he

knew to specialize in front-end work and alignments, had the

qualifications and expertise to render an expert opinion regarding

the cause of an electrical fire (see Attachment C).

20. On May 19, 1989, the Respondent examined Metz’s

records regarding treatment of Kourouvacilis. The records

showed that Kourouvacilis’ last visit to Metz’s office was for and

EEG on February 8, 1985, nine months before the 1985 fire had

ever occurred. The EEG was negative. Regardless of the

Respondent’s state of mind prior to May 19, 1989 the

Respondent knew from reviewing these records that

Kourouvacilis had either intentionally or unintentionally

misrepresented that she had been treated by Dr Metz after the

1985 fire of November 1, 1985. The Respondent did not attempt

to reconcile these records with Kourouvacilis’ pnor sworn

statements, did not bring the contradiction to Kourouvacilis’ or

Dr. Metz’ attention, and took no action to correct the record in

the GM case regarding Kourouvacilis’ medical care from Dr.

Metz (see Attachment A)

21. On July 20, 1989, the Respondent filed “Plaintiff's

Further Answers to Interrogatories” as a result of a successful

motion by GM to compel further answers. The answers again

misrepresented that Dr. Metz had treated Kourouvacilis for

migraine headaches following the 1985 fire. In addition, the

answers misrepresented Kourouvacilis’ employment history by

listing employment as “Data Entry, Word Processing, 1985,

Springfield, MA”. The Respondent knew or should have known

that this last response was not consistent with Kourouvacilis’

resume, upon which the Respondent relied for this answer He

also knew or should have known that Kourouvacilis was claiming

contemporaneously, in her complaint and in interrogatory

answers in the Monson case, that she had no employment in

1985

22 GM and Avis deposed Dr. Metz and Grzebien on July

26, 1989. The deposition had been rescheduled once at the

request of the Respondent, however, the Respondent did not

attend either deposition because he was on tnal in another matter

GM and Avis continued the depositions to give the Respondent

an Opportunity to examine if he so desired. The Respondent

never ordered the transcripts of the depositions, never requested

funds from his client to do so, and never availed himself of the

opportunity to cross examine these witnesses at a continued

deposition. The Respondent also did not contact Metz and

Grzebien to ask them about their testimony. Had he done so, he

would have learned that Metz had testified. consistent with the

records which the Respondent had seen on May 19, 1989, that he

had not seen Kourouvacilis since January 1985 and had no

knowledge of her condition after that time except for a negative

EEG performed in his office in February 1985. If the Respondent

had spoken to or received the deposition testimony of Grzebien.

he would have heard that Grzebien did not consider himself an

expert, had no opinion regarding the cause of the 1985 fire and

had so informed Kourouvacilis previously

23. On August 7, 1989, Grzebien talked to the Respondent

by telephone Grzebien complained about having been

subpoenaed to a deposition and told the Respondent that it was

“ridiculous” for him to be a witness since he did not “know

anything [about] the Monte Carlo or what could cause the fire.”

[he Respondent did not ask Grzebien about his deposition

testimony, nor did he ask about Grzebien’s training and expertise

in automotive electrical systems. Instead, he attempted to secure

Grzebien’s agreement to the hypothetical theory that a car fire

involving the electrical system of a car that was in the same

condition as when the Monte Carlo left the factory must have

been caused by some defect in the design or manufacture of the

Monte Carlo

24. GM und Avis deposed Carol Mathison, Arthur

Kourouvacilis, and Peter Kourou acilis, among others, on

August 22, 1989. Arthur Kourouvacilis, Diane’s father. and

Peter Kourouvacilis, her brother. both testified that they had

neither inspected no photographed the Monte Carlo after the

1985 fire. Carol Mathison testified that in her initial interview

with Kourouvacilis, that Kourouvacilis Stated that she had

escaped the 1985 fire without injury and that she was not

qualified to identify the cause of the post-traumatic stress

disorder she observed in Kourouvacilis when Kourouvacilis was

enrolled in STCC and, therefore, could not provide the requisite

nexus between the 1985 fire and Kourouvacilis’ scholastic and

emotional difficulties. She also testified that she had not been

retained as an expert in the case. The Respondent attended these

depositions.

25. On August 31, 1989, the Respondent filed answers to

interrogatories propounded by Avis, after Avis moved

successfully to compel answers. The interrogatory responses

falsely identified Walter “Grez”; “Lt. Colburn, Fire Marshal”, Dr.

Metz; and Carol “Mathison” as the Plaintiff's experts. The

Respondent then knew that (i) he had neither consulted nor

retained these or any other persons as experts, (ti) that he had

never received an expert opinion from these persons and (iii) (a)

from the message he had received from Lt. Colburn (see Finding

of Fact Number 13f), (b) his discussion with Grzebien on August

7, 1989 (see Attachment D) and (c) the deposition of Mathison

that none of the listed witnesses would testify in a way which

supported his client’s claim, on any theory

26. The August 31, 1989, interrogatory answers also falsely

represented that Kourouvacilis had sustained $36,000 in lost

earnings due to her unemployment “for approximately 2 years

after the [1985 fire] because of the an[xie]ty, emotional distress

and post traumatic stress disorder ” The Respondent knew

that this claim was false or likely false because it directly

contradicted Kourouvacilis’ claims, in the Monson case, that she

had been available for and had actively sought employment in

1985 and 1986 and had actually been employed in 1986 (see

Attachment E)

27. The Respondent received the Grzebien and Metz

depositions of July 26, 1989 on September 15, 1989. He wrote

to Kourouvacilis that it was “not helpful to have misinformation

in your sworn interrogatory answers and your sworn deposition”

and demanded that she produce any documentation that she had

seen Dr. Metz “at any time after October 1985". Kourouvacilis

never did so, but the Respondent did not relent in pursuing the

claim in reliance on these Sworm misstatements and did not call

upon his client to correct the record

28. On September 22, 1989, GM and. on September 28,

1989, Avis filed motions for summary judgment and for sanctions

and other relief on the grounds that the Plaintiff was unable to

demonstrate that any defect in the Monte Carlo Caused the 1985

fire or that her alleged injuries were caused by the 1985 fire. In

support of the motion, GM relied upon:

a. a4 sworn affidavit signed by Lt. Eugene Colburn that

he was not a fire marshal, had not been retain

b. the deposition testimony of Walter Grzebien that he

c. the deposition testimony of Dr. Metz that he had not

seen Kourouvacilis since January 18, 1985, more than nine moths

before the 1985 fire and had no knowledge of any medical

problems after that date: and

d. the deposition testimony of Carol Mathison that

Stress disorder

29. The Respondent Opposed the motion for summary

& OF Communicating with Grzebien,

Metz, Mathison, or Lt Colburn. In support of his opposition. the

Respondent filed an affidavit, signed by Kourouvacilis under the

falsely represented that she had

¢ fire in October 1985 and that

r not the affidavit was false

led as part of his Opposition the

———____________ "Grez” (“Grez”

30. The Respondent also f;

unswor statement of “

statement) which he had drafted based solely on information

obtained from his client and his own modifications regarding

Grzebien’s qualifications which his client had taken to Walter

Grzebien on April 13, 1989, to be signed. (see Finding of Fact

Number 17 and Attachment D). The Respondent submitted this

statement notwithstanding the fact that he had since had a direct

discussion with Grzebien in which Grzebien contradicted the

content of the Respondent-prepared statement (see Finding of

Fact Number 24) and despite his knowledge of Grzebien’s

deposition testimony (see Finding of Fact Number 28).

31. The Hampden Superior court held a hearing on the

defendants’ motion to dismiss on October 10, 1989. Because the

“Grez” statement was not signed under the pains and penalties of

perjury, the court stated that it did not satisfy the requirements of

Mass. R. Civ. P. 56. It was therefore disregarded by the judge in

considering the motions for summary judgment

32. On October 13, 1989, after the hearing on the motion

for summary judgment, the Respondent visited Grzebien at his

shop to have him sign the same statement under oath. The

Respondent did not tell Grzebien that his statement would be

offered as an expert opinion on the cause of the 1985 fire or that

he would be called to testify as an expert at tnal. The

Respondent also did not ask Grzebien whether or not he

considered himself an expert on automotive electrical systems or

whether he could render an expert opinion on a car he had not

examined after the 1985 fire. When Grzebien stated that he was

not sure what caused the 1985 fire, the Respondent inserted the

word “probably” before the opinion of cause in order to allay

Grzebien’s concern, and Grzebien signed the statement. The

Respondent notarized Grzebien’s signature and filed the

Statement with the court on October 13, 1989

33. On November |, 1989, the Hampden Superior Court

granted the defendant’s motion for summary judgment on the

ground that the Plaintiff could not prove that the defect which

caused the 1985 fire existed in the Monte Carlo at the time of

purchase. The court disregarded the notarized “Grez” statement

because it was not timely filed

34. The Respondent continued to pursue Kourouvacilis’

the 1985 fire or on the case of injuries which Kourouvacilis

alleged. He filed a motion for reconsideration and eventually

appealed the case, which was transferred to the Supreme Judicial

Court on its own motion. The Supreme Judicial Court upheld the

trial court’s order in Kourouvacilis y General Motors Corp., 410

Mass. 706 (1991). The Court’s decision is attached hereto and

incorporated herein as Attachment F

THE MONSON CASE

35. As set forth in Finding of Fact Number 3d., the

Respondent agreed to represent Kourouvacilis in the Monson

case on or about November 24. 1987 and filed suit on behalf of

Kourouvacilis in the Monson case on December 1, 1987

Consequently, the GM case and the Monson case proceeded

simultaneously from December 1, 1987 until the Supreme Judicial

Court decision in 199]

36. The Monson complaint alleged that “[a]s a result of the

failure to reinstate the Plaintiff to her former position in October

1983, the Plaintiff was unable to obtain until June 1986 although

she tried to obtain other employment.” The apparent errors in

October 1984. not in 1983, and that the Respondent left out the

word “work” or “employment” after the word “obtain”

Kourouvacilis and the Respondent consistently maintained, in the

Monson case, at least until June 1994 that Kourouvacilis was

ready, able, and available for work after her discharge from

Monson but was unable to find work until June 1986

37 Simultaneously, in the GM case, the Respondent

Participated in Kourouvacilis’ filing of the following inconsistent

statements (see Attachment E)

a On March 22, 1989. in response to GM

interrogatones, Kourouvacilis claimed two weeks’ lost wages in

1985 and claimed that she lost her job at “Adral Co ” because of

absence due to the 1985 fire

b On April 13, 1989. at Kourouvacilis’ deposition,

attended by the Respondent, Kourouvacilis testified that she

worked in 1985 for “Admil”.

c. On July 28, 1989, the Respondent provided further

answers to GM interrogatories claiming that Kourouvacilis was

employed at data entry/word processing in 1985. This was listed

as her only employment.

d. On July 31, 1989, the Respondent provided answers

to Avis interrogatories claiming lost wages “since the fire

attributable in part to emotional distress”.

e. On August 31, 1989, the Respondent provided

further answers to Avis interrogatories stating that Kourouvacilis

had no employment for two years after the accident due to

anxiety and emotional distress “arising from the fire in the car

sold to me by Avis” and claiming lost earning capacity for these

two years of $36,000.

38. The Respondent should have known that the claims of

unemployment in the Monson case for the period October 1984

through June 1986 were false, when the Respondent received and

reviewed Kourouvacilis’ tax records for the years 1984 and 1986,

on or about April 20, 1989

39. On May 15, 1989, simultaneously alleging in the GM

case that Kourouvacilis was suffering from migraine headaches

and emotional distress due to smoke inhalation from the 1985

fire, the Respondent filed interrogatory answers in the Monson

case Claiming that Kourouvacilis was being treated by Dr. Metz

and by Carol Mathison and was unable to work from 1983

through 1987 due to migraine headaches and affliction of emotion

distress due to the wrongful termination at Monson.

40. Attached hereto as Attachments A through E are a

series of chronologies concerning this matter. The Hearing

Committee adopts the contents of these Attachments as Findings

of Fact and incorporates the content of these Attachments herein

DISCUSSION

CANON SIX

DID THE RESPONDENT'S HANDLING OF THE GM

CASE OR THE MONSON CASE CONSTITUTE “NEGLECT

OF A LEGAL MATTER ENTRUSTED TO HIM” _IN

VIOLATION OF DR 6-10] (A) (3)?

The Petition for Discipline alleges a violation of DR 6-

101(A\(3). DR 6-101(A)(3) States that, “A lawyer shall not (3)

Neglect a matter entrusted to him.”

1985 fire. irreparably prejudiced his ability to fully and fairly

assess the strengths and weaknesses of his client’s claim

needed to make out a prima facie case Later, after receiving clear

and unequivocal evidence that his client was (a) not successfully

and adequately assembling evidence as to cause of the 1985 fire

provided him by his client with regard to her treatment by Dr.

Metz and by Carol Mathison and the statement from Walter

Grzebien, were contradicted by the sworn deposition testimony

of each of these witnesses, the Respondent’s failure to speak with

or to continue the depositions of Dr. Metz, Ms. Mathison and

Mr. Grzebien, so as to determine which version of the facts was

correct, constituted neglect of the matter entrusted to the

Respondent.

Accordingly, the Committee finds that the Respondent

violated DR 6-101(A)(3).

CANON SEVEN

DID THE RESPONDENT’S CONDUCT, INCLUDING

HIS FAILURE TO HAVE _ KOUROUVACILIS’

AUTOMOBILE INSPECTED AFTER THE 1985 FIRE, HIS

FAILURE TO CONSULT ANY PERSON REASONABLY

QUALIFIED TO RENDER AN EXPERT OPINION ON THE

CAUSE OF THE 1985 FIRE OR ON THE CAUSE OF

KO ACILIS’ ALLEGED INJURIE

FAILURE TO PRODUCE DOCUMENTATION REQUIRED

TO OPPOSE THE DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT IN THE GM CASE CONSTITUTE

A VIOLATION OF CANON SEVEN, DISCIPLINARY RULES

7-101(a), 92) AND (3)?

When the Respondent agreed to represent Kourouvacilis for

damages arising out of the 1985 fire, he knew that the fire

occurred in a car with substantial mileage on its odometer, which

had been seriously damaged in at least one earlier accident.

Kourouvacilis’ insurer, U.S.F. & G. advised that the cause of the

1985 fire could not be determined. He had no evidence that his

client suffered or was treated for any personal injuries caused by

the 1985 fire

The Respondent made not attempt to preserve the Monte

Carlo or have it inspected before it was sold for salvage on

January 8, 1986. In 1988, he received the fire department report

which listed “electrical failure” as the “ignition factor”, a

conclusion later characterized as a guess by Lt. Colbum, the

writer of the report.

Between November 1985 and May 1988, the Respondent

undertook no investigation of Kourouvacilis’ Claims, other than

to write to GM on two occasions to request a settlement.

The Respondent delegated the entire responsibility for

locating an expert as to the cause of the 1985 fire and for

documenting any medical problems she might have to

Kourouvacilis. The Respondent gave no guidance to

Kourouvacilis regarding what would be needed to prove this

product’s liability case, even though he knew that she lacked the

education and experience to document the case.

In order to prevail against either Avis or GM, the

Respondent would have to prove that the wiring was defective

and that the defect was present when Avis or GM last had

possession of the Monte Carlo. Ultimately, he was unable to

show any evidence to such effect, and he knew in November

1985 that he had no such evidence. He also must have known

that without an expert inspection of the vehicle, he was unlikely

to get such evidence.

The result of such an inspection probably would not have

helped the case, but might have ended it before it began. Without

such an inspection, any recovery would be a virtual impossibility.

Given the absence of evidence of personal injury and the age

and condition of the Monte Carlo, the Respondent may well have

advised against the expense of an expert investigation and

dissuaded Kourouvacilis from making her claim, To pursue the

claim without investigating and collecting the necessary evidence

constituted, a violation of Disciplinary Rules 7-101(A)(1), (2) and

(3). If there was a claim, the chance of proving it was lost when

the Monte Carlo was sold for salvage

Moreover, the claim that Kourouvacilis was disabled from

work by the 1985 fire was unsupported by any medical opinion

It was also inconsistent with her claim in the Monson case that

she was able to work Pressing these unsupported assertions of

disability put Kourouvacilis’ claim for damages in the Monson

case at serious risk. Such conduct by the Respondent violated

Disciplinary Rules 7-101(A)(3)

DID THE RESPONDENT’S FILING OF PLEADINGS IN

_—:__—_ ©

THE.GM CASE WITHOUT GOOD GROUND FOR SUPPORT

CONSTITUTE A VIOLATION OF CANON _ SEVEN,

DISCIPLINARY RULES 7-102(A\(2)?

In Kourouvacilis v. General Motors Corp. 410 Mass. 706,

575 NE. 2d 734 (1991), the Supreme Judicial Court reviewed

the Respondent’s theory of liability and the evidence presented at

summary judgment on the issue of liability. The issue before the

Court was the nature of the burden on the parties to a summary

judgment motion.

Agreeing that “[Kourouvacilis] has absolutely no competent

evidence” as to liability, the Court nevertheless declined to

impose damage sanctions:

“The defendants characterize the plaintiff's appeal as

‘frivolous’ and ask for damages pursuant to Mass. R. App. P. 25,

as amended, 378 Mass. 925 (1979). See Glorioso V. Retirement

Bd. Of Wellesley, 401 Mass. 648, 518 NE. 2d 851 (1988). We

agree that much of the plaintiff's appellate argument is without

merit. However, the central issue was whether we would adopt

the rule laid down in Celotex Corp. V. Catrett, supra, a question

to which we have previously alluded but, until today, have not

answered. In those circumstances, it would not be appropriate

for us to deem this appeal frivolous. We decline to award

damages pursuant to Rule 25.”

Missing from the Court’s discussion is the issue of damages.

From the outset, the Respondent had no reasonable belief that a

claim for personal injuries could be supported by any medical

opinion. If somehow he had established liability for the 1985 fire,

his case would have ended there. He never had evidence to

support damages

For the Respondent to have proceeded as he did was 4

violation of Disciplinary Rules 7-102(A)

DID THE RESPONDENT'S FILING OF PLEADINGS

AND AFFIDAVITS WHICH CONTAINED STATEMENTS

HE KNEW TO BE FALSE OR WITH__RECKLESS

DISREGARD FOR WHETHER THE STATEMENTS MADE

THEREIN WERE TRUE OR FALSE AND HIS FAILURE TO

CALL UPON HIS CLIENT TO CORRECT__FALSE

NT TO CORRES) Se

REPRESENTATIONS AND TO WITHDRAW WHEN THOSE

FALSE STATEMENTS WERE NOT _ RECTIFIED

CONSTITUTE VIOLATIONS OF CANON SEVEN,

DISCIPLINARY RULE 7-102(A)(5) AND (7); AND CANON

SEVEN, DISCIPLINARY RULE 7-102(B) (1)?

The Respondent should not be held to remember or

constantly to check insignificant details in a client’s file. The

Respondent should be able reasonably to rely on factual

statements of his client which are logical on their face.

In the GM case, there were two issues: the condition of the

Monte Carlo at the time of the 1985 fire, and the damage to

Kourouvacilis.

The Respondent had settled the Towne case one month

before the 1985 fire. The Towne case involved substantial

property damage to the same Monte Carlo, and contained

averments of Kourouvacilis that the Monte Carlo did not operate

well, required frequent repairs, and was unsafe to drive.

The Respondent had no evidence to support his client’s

testimony that she was being treated by Dr. Metz for problems

caused by smoke inhalation. Her assertions that she lost work

because of the 1985 fire correctly contradicted her statements in

the Monson case that she was able to work. In May 1989, the

Respondent knew that Dr. Metz stated he had not treated

Kourouvacilis since February 1985

These are not minor discrepancies. They are at the center of

the case. If the Respondent had corrected the record when he

knew or should have known them to be false, his case would have

ended. He was, however, obliged to do so and his failure

constituted a violation of Disciplinary Rules 7-102(B)(1). It

follows that in preparing and filing discovery materials and

pleadings based on clearly incorrect statements of fact, the

Respondent violated Disciplinary Rules 7-102(A)(7)

CANON ONE

Having found violations of Canons Six and Seven, the

Committee declines to make findings of specific violations of

Canon One

The Respondent filed discovery materials containing false

information and failed to correct statements of his client which he

knew or should have known to be false. This conduct falls within

the proscriptions of Canon Six and subjects the Respondent to

disciplinary action.

Under all of the circumstances of the case, however, the

evidence is insufficient to support a finding that there was fraud

or deceit within the customary meaning of those terms. The

Respondent’s motives were to keep the case alive. He did not

reasonably believe that the Defendants would take the false

information at face value and rely to their detriment upon it. The

Defendants did not believe the information and did not rely on it.

They used the legal means at their disposal and ultimately

suffered no direct detriment over and above the cost of defending

the appeal. The Committee finds that this falls below the

standard required to make a finding of a specific violation of

Canon One, DR 1-102(A)(4).

The Committee does acknowledge that the conduct of the

Respondent delayed the litigation, obfuscated the discovery

process and ultimately presented the Supreme Judicial Court with

very weak “Facts” upon which to decide a novel question of law.

The Committee recognized that such conduct of the Respondent

may have been prejudicial to the administration of justice. In the

opinion of the Committee, however, the Committee finding that

such conduct violated Canons Six and Seven sufficiently

addresses the extent to which the Respondent violated the

disciplinary rules.

The Committee does not find that the Respondent is unfit to

practice law

OTHER FACTORS

In recommending discipline, the Hearing Committee has

considered the prior discipline of the Respondent. Further, the

Respondent does not acknowledge that any of his conduct in any

way violated the Canons of Ethics and shows no remorse

In mitigation, the Hearing Committee finds that the

Respondent did not act out of avarice and genuinely believes that

his actions were in the best interests of his client. His client did

not complain of his conduct. The Supreme Judicial Court did not

see fit to impose sanctions for his aggressive fight on liability in

spite of its finding that there was “absolutely no competent

The Committee recommends that the Respondent be

suspended from the practice of law for a period of one year and

readmitted only upon application and the Satisfactory completion

HEARING COMMITTEE

Date: December, 1995

B y_James P_ Rooney /s/___ ve

James P Rooney, Chair

By__Joel S._ Green berg /s/

tte

Joel § Greenberg, Member

By__Michael E. Mac Donald /s/ |

Michael F MacDonald. Member

ATTACHMENT A

Chronology Regarding Dr. Metz’ Treatment of Diane Kourouvacilis

128/83

1983 accident with Towne.

12/1/83

Respondent correspondence to

Kourouvacilis for her copies of

bills and reports from Dr. Metz.

Respondent also asks

Kourouvacilis whether she has

stopped treatment.

Date of Dr. Metz report to

Respondent. Dr. Metz indicates

Kourouvacilis’ migraines but that

when she is off her medication,

the migraines become more

migraines two to three times a

week and is unable to work. Dr.

Metz’ prognosis is that the

condition will improve with time.

1/18/85

Kourouvacilis last sees Dr. Metz

for migraines resulting from the

1983 accident.

2/8/85

Kourouvacilis is seen at Dr.

Metz’ office for an EEG which is

negative.

2/25/85

Kourouvacilis’ deposition in the

Towne case. Kourouvacilis

testifies that her absenteeism at

Monson State Hospital is due to

her medical problem: from the

1983 accident.

5/8/85

Dr. Metz’ bill to Kourouvacilis

showing last visits as 1/18/85 and

2/8/85. -

2/10/85

Dr. Metz’ correspondence to

Kerlinsky indicates that he last

saw Kourouvacilis on 1/18/95,

that she is progressing well and he

thinks that her migraine condition

is improving.

11/1/85

1985 fire which gives rise to the

GM case.

Respondent is retained by

Kourouvacilis regarding the 1985

fire; Kourouvacilis mentions no

medical problems in the intake

interview. ‘ 4

notes state, “Inhaled smoke, Dr.

Metz was seeing her’.

3/2/89

Respondent files answers to GM

inlerrogatories Stating that

Kourouvacilis is under Dr. Metz’

Care for migraines due to smoke

inhalation, no medica] bills are

4/13/89

Kourouvacilis is deposed by

General Motors; Kourouvacilis

States, in the Respondent's

Presence, that she saw Dr. Metz

after the fire for mugraines and

Kourouvacilis requesting records

of her visits and bills from Dr.

Metz; Kourouvacilis produces

nothing in response.

listed or provided. that she last saw Dr Merz

‘ sometime in 1988.

4/14/89 5/8/89

Respondent correspondence to Supplemental Answers to Genera]

states at bearing that he never

intended to call Dr. Metz as a

witness

Su9/89

Deposition of the Keeper of the

rds of Dr. Merz Office.

Keeper Produces records showing

Kourouvacilis’ jast Meeting

directly with Dr. Metz on

1/18/85, the taking of a negative

EEG on 2/28/85,

1/20/89

Respondent provides further

answers to GM interrogatories,

stating that Dr. Metz treated

Kourouvacilis for migraines

resulting from smoke inhalation

during the 1985 fire.

ATTACHMENT A

Chronology Regarding Dr. Metz’ Treatment of Diane Kourouvacilis

128/89

Dr. Metz’ deposition by General

Motors (Respondent did not attend

deposition).

8/31/89

Respondent provides further

answers to Avis interrogatories

listing Dr. Metz as an expert

witness but stating that

Kourouvacilis received and

incurred no medical bills

regarding the fire, to the best of

her knowledge.

2/15/89

Respondent receives a copy of

Dr. Metz’ deposition of 7/26/89.

2/18/89

Respondent correspondence to

Kourouvacilis stating that he has

now received and reviewed the

depositions of Dr. Metz and

Walter Grzebien, "Dr. Metz stated

that he last saw you in January of

1985. Your accident was in

October of 1985. Mr. Grzebien

stated that he had no idea as to the

cause of your fire. It is not

helpful to have misinformation in

your sworn interrogatory answers

and your sworn deposition. If you

have any written indication that

you saw Dr. Metz at any time

after October of 1985, please

produce it for me in my office.*

Kourouvacilis never produces the

requested proof of treatment.

A NT .

Chronology Regarding Dr. Metz’ Treatment of Diane Kourouvacilis

10/4/89 10/6/89

Respondent prepares affidavit for Respondent files Kourouvacilis’

Kourouvacilis, Stating that she saw

Dr. Mew after the fire on receipt

bills in 1986.

Sworn affidavit in Opposition to

Motors’ and Avis’ motion

jud

Paragraph | States, “I Diane

Kourouvacilis on Oath depose and

Say that I testified truthfully at my

deposition, that Dr. Metz treated

me after the fire in my Genera]

Motors’ car in October of 1985. I

had bills from him for this

treatment in 1986°

ATTACHMENT (B)

Chronology Regarding Carol Mathison’s Treatment of Diane Kourouvacilis

1985 fire. Kourouvacilis begins seeing Carol

Mathison as a counselor. In

Mathison’s deposition, she "|

indicates that Kourouvacilis told

ber that she escaped the 1985 fire

without injury.

5/24/88 6/2/88

Respondent meets with = Respondent correspondence to

Kourouvacilis. Kourouvacilis Mathison requesting a report of

indicates that she has seen her findings and stating that, “She

Mathison for treatment. needs to establish that she suffered

both mentally and physically, if

such is the case, from the incident

as she cannot recover for her

emotional distress unless she had

severe physical manifestations .

such as weight loss or high blood

pressure, etc., or unless she

Sustained some physical injury

such as smoke inhalation which

relates to her emotional and

mental injury.

Mathison correspondence to Kourouvacilis last see Mathison.

Respondent with her report.

12/5/88 3/2/89

Respondent responds to Avis Respondent answers GM

request for information by

forwarding Mathison’s report and

asking for a settlement offer.

interrogatories stating that

Kourouvacilis saw Mathison for

over a year and continues to see

Mathison “from time to time”.

The Respondent knew from

answer to Interrogatory Number

23 that Kourovuvacilis left school

in 1988 and that Mathison was a

school counselor.

ATTACHMENT (B)

Chronology Regarding Carol Mathison’s Treatment of Diane Kourouvacilis

4/13/89 3/8/89

Kourouvacilis’ deposition by Supplemental answers to GM

General Motors: Kourouvacilis interrogatories, again identifying

States that she saw Mathison for Mathison as an expert witness.

OnE {0 One and a half years and

last saw her sometime in 1987 or

1983.

1720/89 8/22/89

Further answers to GM Carol Mathison deposition by

interrogatories identify "Kathleen Genera] Motors and Avis.

Mathison” as the person who

treated Kourouvacilis for

States that she saw

Vvacilis from 11/4/87 to

8/31/89

Respondent files further answers

to Avis interrogatories listing

Mathison as an expert.

Respondent correspondence to

Kourouvacilis about Mathison's

testimony. Respondent asks

Kourouvacilis to document her

physical injuries from the 1985

fire, stating that, "No one else

Seems to remember [any physica]

injury)".

ATTACHMENT

Chronology Regarding Lt. Colburn

1/1/85 5/21/88

1985 fire. Respondent receives Li. Colburn’s

report.

6/2/88 6/15/88

Respondent correspondence to Lt. Lx. Colburn leaves a message with

Colburn, asking how it is that Lt. | Respondent's office that he does

Colburn determined that the fire

was electrical and whether Lt.

Colburn thought that the fire was

due to a defect in the Monte

Carlo.

not remember the fire.

8/10/88

Respondent sends Lt. Colburn’s

report to General Motors.

12/5/88

Respondent sends Lt. Colburn’s

report to Avis.

;

ld serdar eae

TTACHMENT

Chronology Regarding Lt. Colburn

8/26/89 1220/89

Respondent prepares a Statement Respondent Provides further

for Lt. Colburn’s Signature answers to GM interrogatories,

Without having spoken to Lt indicating that Kourouvacilis was

Colburn about its content. The informed by the fire marshal thar

statement provides in part that, "I: the cause of the fire was defective

is my opinion that the Cause of the

fire was due to defective wiring

the type of fire damage in the

Wiring that it was due to defective

Wiring which was defective when

it was installed by the

". Respondent

obtain the fire Marshal's signature

with whatever additions or

Corrections are needed in order for

him to sign the Statement. The

Statement is never Signed and

returned.

2/31/89

Respondent provides answers to

Avis interrogatories, attaching a

copy of Lt. Colburn’s report and

indicating that Lt. Colburn is the

source of evidence that an

unspecified short circuit caused

the fire due to defective Wiring.

8/31/89

Respondent provides further

answers to Avis interrogatories

Stating that Lr. Colburn is

directly to Le Colburn, knows

that Lr. Colburn does not

ATTACHMENT (C)

Chronology Regarding Lt. Colburn

9/13/89 9/18/89

Respondent correspondence to Lt. Colburn signs a sworn

Kourouvacilis informing her that affidavit on behalf of General

the deposition of Lt. Colburn was

postponed but will be rescheduled

and asking that Kourovvacilis

obtain a statement from Lt.

Colburn that, "The fire was due

to a defect in the manufacture of

the wiring. Please obtain a

statement from Mr. Corbin so that

we will know if he will so

Motors, indicating that he was

never the fire marshal, that he has

no memory of the Monte Carlo or

Kourouvacilis, that entries on the

report were “purely guesses” and

that he had previously informed

Kourouvacilis that he did not

know the cause of the fire.

ATTACHMENT ( D)

Chronology Regarding Grzebien

Lugs 3/13/89

1985 fire. Respondent Correspondence to

- Kourouvacilis asking her to obtain

Statements from mechanics

regarding the cause of the fire.

3/23/89 3/28/89

Kourouvacilis message left at Kourouvacilis provides

Respondent's office indicating Respondent with her draft ofa

that, “Her Mechanic does only Statement for "Grez". The

front-end Work and suspension but Statement indicates thar Grzebien

iS willing to help you if you need. does not do Wiring or électricaj

not do wiring * repairs and that he was informed

the GMC facto

4/10/89 4/13/89

Respondent Correspondence to Kourouvacilis returns the

Kourouvacilis enclosing a typed Respondent-prepared Statement

Statement for Grzebien’s Signed by Grzebien.

signature. Respondent had

October 31. 1985 was due to

defective Wiring which had been

installed by Genera] Motor in its

factory when the car was made". |

igs

Peco ta Heater) s mena

ATTACHMENT (D)

Chronology Regarding Grzebien

5/8/89

Respondent provides supplemental

answers to GM interrogatories

listing Grzebien as an expert as to

the cause of the fire.

125/89

Grzebien deposition by General

Motors and Avis. Grzebien

testifies that he does not do

electrical work, did not know the

cause of the fire and had not told

Kourouvacilis or the Respondent

that he would be an expert witness

in the case. Respondent did not

the fire was caused by defective

wiring.

attend this deposition.

73u 8/7/89

Respondent provides answers to Grzebien telephones the

Avis interrogatories indicating that Respondent and complains to the

Grzebien told Kourouvacilis that Respondent that it was

“ridiculous” that he be called as a

witness in connection with this

case. This is the first direct

conversation between the

Respondent and Grzebien.

8/31/89

Respondent provides further

answers to Avis interrogatories,

again listing Grzebien as an

expert witness as to the cause of

the fire.

2/15/89

Respondent receives copy of

Grzebien’s deposition of 7/26/89.

ATTACHMENT (D)

Chronology Regarding Grvebien

2/18/89 10/10/89

Respondent correspondence to Hearing on motion for summary

sworn deposition . . . I did speak

to Grzebien and he may be of

assistance based upon hypothetical

questions perhaps. He Stated that

repair work had been done by

Edward Pessolano of LTD Motors

on State Street for your 1983

accident, I suggest you get a

Statement from that Company and

Mr. Pessolano if you can”.

judgment. Respondent submits

the unsworn statement of Grzebien

which the Respondent had drafted

on 4/10/89 and received on

4/13/89 (This statement is not

accepted by the Court since it is

not signed under the pains and

penalties of perjury).

10/13/89

Respondent visits Grzebien at his

Sarage to have Grzebien swear to

the earlier statement and to

notarize his signature. When

Grzebien balks at executing this

Statement as is, the Respondent

adds the word “probably* prior to

the opinion as to cause and

obtains Grzebien's Signature

which the Respondent notarizes.

This statement is filed with the

Court in opposition to the motion

for summary judgment.

11/1/89

S judgment is granted in

ude Motors and Avis

(Grzebien’s statement is not

accepted or considered by the

Court since it was not filed

umely). —

ATTACHMENT (E)

Chronology Regarding Emplovment

125/33 8/6/84

1983 accident with Towne. Kourouvacilis discharged from

Monson State Hospital.

1/1/85 11/20/85

Respondent retained regarding

1985 fire. 1985 fire. Kourouvacilis says

nothing in intake interview

regarding lost wages.

5/86 6/9/83 to 6/12/86

Kéurouvacilis employed at Kourouvacilis employed at United

Admail as clerical person. Technologies/Hamilton Standard.

8/31/87 1124/87

Kourouvacilis provides Respondent agrees to represent

Respondent with application for

unemployment compensation filed

on 8/10/85, in which she states

she is able and available for full-

time suitable work.

Kourouvacilis on a contingent-fee

basis in the Monson case.

Complaint filed by Respondent in

the-Monsog case. In the

Complaint, it is alleged that --

Kourouvacilis was without work

from October 1984 through June

1986.

3/2/89

Respondent provides answers to

GM interrogatories in which

Kourouvacilis claims two weeks

of lost wages in 1985 from

"Adral Co." and claims that she

lost this job because of her

absence due to the 1985 fire.

ATTACHMENT (E)

Chronology Regarding Emplovment

4/13/89

Deposition of Kourouvacilis in

which she testifies that she

worked for "Admil* in 1985

through the Agentry Temporary

Services.

4/20/89

Respondent receives

Kourouvacilis’ tax records for

1984, 1986, 1987 and 1988 which

be forwards to the attorney for

Avis. The tax returns show

employment during the following

umes:

1984—two W2's from the

Commonwealth of

totalling

$6,514.42

1985—no return

1986—total income of $1,481

1987~employment with Kelly

ices totalling $2,538.63;

Milton Bradley totalling

$353.56; Sandi, Inc. d/b/a

Merry Maids totalling $167:

4/20/89 (continued)

1987—(cont.) the Agentry of

Springfield totalling $1,625.

and J.B. Riverfront, Inc.

totalling $704.77

1988—employment with Joseph:

Rosati totalling $3,360.

James Farrell, C.P.A.

totalling $757.58: and Movie

Shops Super Stores, Inc.

totalling $431.80

1989—employment with Avalon

Realty of Western Mass.

totalling $1,648.50: Creative

Chemicals, Inc. totalling

$368; Joseph Rosarti totalling

$1,400; The Agentry Group

1989—totalling $769.13; and

the Commonwealth of

Massachuserss, Department of

Employment and Trainin

$1,677

3/2/89

Respondent received ;

Kourouvacilis’ resume which

shows no employment from July

1983 through January 1987 and

which otherwise reflects

employment as follows:

5/88-1/89 office manager with

Joseph Rosatti, Inc.

1/88-3/88 computer/bookkeeping

for James F. Farrel],

C.P.A.

1/87-9/87 data entry/word

Processing

ATTACHMENT (E)

Chronology Regarding Emplovment

5/15/89

Respondent files interrogatory

answers in the Monson case

claiming that Kourouvacilis was

unemployed from 1983 through

1987 and stating that

Kourouvacilis was being treated

by Dr. Metz and Mathison and

was unable to work due to

migraine headaches and affliction

of emotional distress due to

wrongful termination at Monson.

128/89

Respondent provides further

answers to’'GM interrogatories

Claiming employment at data

entry/word processing in 1985 as

her only employment.

731/89

Respondent provides answers to

Avis interrogatories claiming lost

wages “since the fire attributable

in part to emotional distress”.

8/31/89

Respondent provides further

answers to Avis interrogatories

stating that Kourouvacilis had no

employment for two years after

the accident due to anxiety and

emotional distress, “arising from

the fire in the car sold to me by

Avis* and claiming lost earning

capacity for these two years of

$36,000.

3/12/9}

Respondent speaks to AFSCME

counsel; Wayne Soini about

potential back pay if Kourovuvacilis

were reinstated, position taken that

Kourouvacilis was ready, willing

and able to work but unable to

find employment from 1984

through 1991.

706 76 410 Mass. 706

ee Rap

Kourouvacilis y General Motors Corp

eee

DIANE KOUROUVACIL IS vs. GENERAL MoTors

CORPORATION & another’

Hampden, February 4, 199} . July 23, 199)

PRESENT: Liacy s,CJ.. WILKINS. Nx LAN, LYNCH & O"CONNor. JJ

Negligence, Manufacturer of motor vehicle, Seller of used goods. H arranty

Practice, Civil Summary judgment, Appeal

In a civil action the plaintiff's claim for treble damages against one

defendant pursuant to G.L. ¢. 23]. $85J, for the sale of personal

[708-716]

In a civil action the defendants’ motions for summary judgment were

toa manufacturing or design defect in its electrical system. where

the defendants demonstrated that the plaintiff would not be able to

prove that the alleged wuing defect existed when the defendants. the

automobile’s manufacturer and seller. last had Possession of the

vehicle. [716-7] 7)

CIVIL ACTION commenced in the Supenor Court Department on

October 27, 1988

A motion to dismiss was heard by George C. Kead Jr., J., and motions

for Summary judgment were heard by Constance Af Sx eeney. J, and Daniel 4

Ford, J. respectively

Avis Rent-A-Car

410 Mass. 706 77 707

Kourouvacilis v. General Motors Corp

The Supreme Judicial court on its own initiative transferred the

case from the case from the Appeals Court.

Louis Kerlinsky for the plaintiff.

John W. Gibbons for General Motors Corporation.

Thomas J. Donoghue for Avis Rent-A-Car.

O’CONNOR, J. This is the plaintiff's appeal from a judgment

dismissing in its entirety the plaintiff's complaint asserting clairns

against two defendants based on numerous theories of product

liability. In six counts, the complaint alleges the liability of General

Motors Corporation (General Motors) based on breach of warranty,

negligence (two counts), deceit, violation of G. L. C.93A, § 2 (1990

ed.), and violation of G. L. c. 231, § 85J (1990 ed.). In four other

counts, the plaintiff asserts the liability of Avis Rent-A-Car (Avis) for

breach of warranty, negligence, and violation of both c. 93A, § 2, and

c. 231, § 85J. The several allegations arise out of the plaintiff's

purchase of a 1979 Monte Carlo sedan automobile from Avis in

1979, which vehicle, a General Motors product, caught fire and was

destroyed in 1985. The fire is alleged to have been due to a

manufacturing or design defect in the vehicle’s electrical system.

The plaintiff asserts that, as a result, she sustained personal injury

and loss of the automobile.

A judge in the Supenor Court allowed General Motors’s motion

to dismiss the count alleging its violation of c. 231, § 85J, for failure

to state a claim. Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).

Following discover, another judge allowed Avis’s motion for

summary judgment on the counts alleging Avis’s negligence and its

violation of c. 93A, § 2, and c. 231, § 85J. Those counts, too, were

dismissed. At that point the only remaining count against Avis

asserted breach of warranty. Subsequently, a third judge allowed

motions for summary judgment in both defendants’ favor with

respect to the remaining counts. The judge explained his reasoning

in a memorandum accompanying his decision and order. The

plaintiff appealed, and we transferred the case from the Appeals

Court here on our own initiative’ We now affirm the judgment

entered in the Superior Court

708 78 410 Mass. 706

eT rSsitntitideanitee cena

Kourouvacilis y General Motors Corp

General Laws c 231, § 85) (1990 ed.), provides, “Whoever, by

deceit or fraud, sells personal property shall be liable in tort to a

Avis. Therefore, the Judge correctly ruled that the complaint failed

to state a cause of action under c. 231, § 85J, against General

Motors.

With respect to the remaining counts, all of which were

dismissed on summary judgment, the plaintiff would be unable to

Prevail against either defendant at trial without Proving that the

Possession of the vehicle Smith v. Ariens C 0., 375 Mass. 620, 626

(1978). See Fernandes v. Union Bookbinding Co., 400 Mass. 27,

37-38 (1987): Cocco y Deluxe Sys.. Inc., 25 Mass. App. Ct. 151,

153-154 (1987): Walsh y Atamian Motors Inc., 10 Mass. App. Ct.

unresponsive Finally, in Supplemental and further answers, the

issued by the Springfield fire department and Purportedly made out

by “E. Colbum Lieut.,” which indicates that the fire was Caused by

an “unspecified short circuit” involving “electrical failure” and

igniting “electrical wire ” No other anticipated testimony or witness

was revealed.

ee —

Sr ee ae

410 Mass. 706 709

Kourouvacilis v. General Motors Corp

The defendants did not support their motions for summary

judgment with affidavits or other materials showing that the fire

was not caused by wiring that was defective when the plaintiff

took possession of the vehicle from Avis. Instead, the defendants

supported their motions by the sworn deposition of Walter

Grzebien, the owner of Grez Automotive, and an affidavit of

Lieutenant Eugene Colburn, a firefighter employed by the

Springfield fire department at the time of the fire.

In his deposition, given in July, 1989, approximately four

years after the fire, Grzebien testified that he had first met the

plaintiff about two months prior to giving the deposition. At that

time, the plaintiff came into Grez Automotive and asked him

about some work she said Grez Automotive had done on her

automobile following a 1982 or 1983 collision in which the

vehicle had been involved. Grzebien testified that he had no

memory of working on the vehicle. He also testified that the

plaintiff told him that her automobile had burned and she wanted

to find out what caused the fire. During the deposition, the

following exchange between defense counsel and Grzebien

occurred

Q.: “As you sit her today do you have any recollection of the

condition of her car which was a 1979 Chevrolet Monte Carlo....?

A.: “No.”

Q.: “Have you been retained by [the plaintiff] or her lawyer

as an expert witness in this case?”

A.: “No.”

Q.: “Do you have any knowledge as to what caused the

fire?”

A.: “No, I don’t.”

Q.: “Did you tell [the plaintiff] that you had no knowledge

about what caused the fire?”

A.: “Yes, I did.”

Q.: “ You have no idea what caused the fire, if anything?”

A.: “No.”

710 410 Mass. 706

Kourouvacilis v. Genera! Motors Corp

Q.: “You have not been retained as a witness by [the plaintiff]?”

A.: “No.”

Q.: “Has [the plaintiff] mention[ed] her lawyer or has her

lawyer ever contacted you?”

A.: “No, he has not.”

Q.: “Did [the plaintiff} tell you at any time that you were going

to be an expert witness on her behalf?”

A.: “No, she didn’t.”

Q.: “Do you consider yourself to be an expert witness in this

case?”

A.: “No, I don’t.”

that anything about the vehicle caused the fire.” In addition, Colburn

swore that he had told the plaintiff all those things

The plaintiff s only timely response to Grzebien’s deposition

and Colburn’s affidavit was her own affidavit denying that Colburn

had told her he was “guessing” when he completed and filed his

report. In addition, the plaintiff attached to her affidavit a document

410 Mass. 706 711

Kourouvacilis v. General Motors Corp

Grzebien’s alleged statement because it was not in affidavit form.

See O'brion, Russell & Co., v. LeMay, 370 Mass. 243, 245

(1976). Also, three days after the motion hearing, the plaintiff

filed a duplicate of the alleged Grzebien statement, this time

purportedly signed by Grzebien under the pains and penalties of

perjury. The judge disregarded that document as well for the reason

that it was filed late. The judge’s action in that regard was proper.

Rule 56 (c) of the Massachusetts Rules of Civil Procedure, 365

Mass. 824 (1974), provides that a party resisting summary judgment

“prior to [not three days after] the day of hearing may serve opposing

affidavits.” See LoCicero v. Hartford Ins. Group, 25 Mass. App

Ct. 339, 341 n.2 (1988)

In arriving at the conclusion that the defendants were entitled to

summary judgment, the motion judge reasoned as follows: “In

moving for summary judgment, the defendants have the burden of

affirmatively demonstrating that there is no genuine issue of fact on

every relevant issue raised by the pleadings. Mathers v. Midland-

Ross Corp., 403 Mass. 688, 690 (1989). The burden on the moving

party may be discharged by showing that there is an absence of

evidence to support the non-moving party's case. Celotex Corp. V.

Catrett, 477 U.S. 317, 322 (1986). A complete failure of proof

conceming an essential element of the non-moving party’s case

renders all other facts immaterial. /d At 323. I rule that the

defendants have met their burden by submission of the affidavit of

Lt. Colburn and the swom deposition testimony of Mr. Grzebien. In

effect, they have affirmatively demonstrated the complete failure of

proof concerning an essential element of the plaintiff's claim, namely

the existence of a defect in the vehicle at the time of purchase.”

“One the defendants met their burden, ‘the burden shifted to the

plaintff to show with admissible evidence the existence of a dispute

as to material facts.” Godbout v. Cousens, 396 Mass. 254, 261

(1985). The plaintiff has not satisfied that burden. Her response to

the defendants’ motions is woefully inadequate, and indicates that

she has absolutely no competent evidence that the vehicle was defective

712 82 410 Mass. 706

Kourouvacilis v. General Motors Corp

US. 940 & 962 (1988). However, we think it makes eminent

in support of her allegations... that the decedent had been exposed

to [Celotex’s] asbestos Products.” /d At 319 The Court of Appeals

for the District of Columbia Circuit reverse, holding that the failure

of Celotex, the moving party, “ to Support its motion with evidence

motion, the Court of Appeals reasoned that the motion was

fatally defective because Celotex had not Supported its motion

with any affirmative evidence of the deceased's nONn-€xposure to its

iii en

a a re re

410 Mass. 706 83 713

Kourouvacilis v. General Motors Corp

products in the form of affidavits or otherwise. The result, the

Court of Appeals concluded, was that Catrett had no burden to

respond, and therefore it made no difference whether the three

documents produced by Catrett constituted inadmissible hearsay.

Id. at 321-322.

In reversing the Court of Appeals, the Supreme Court

reasoned that, while a party seeking summary judgment must

identify for the court the materials referred to in Fed. R. Civ. P.

56 (c), that is, “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any,” on which the party relies, there is “no express

or implied requirement in Rule 56 that the moving party support

its motion with affidavits or other similar materials negating the

opponent’s claim” (emphasis in original). /d. at 323.7 TheCourt

said: “[R]egardless of whether the moving party accompanies its

summary judgment motion with affidavits, the motion may, and

should, be granted so long as whatever is before the district court

demonstrates that the standard for the entry of summary judgment,

as set forth in Rule 56(c), is satisfied. One of the principal purposes

of the summary judgment rule is to isolate and dispose of factually

unsupported claims or defenses, and we think it should be interpreted

in a way that allows it to accomplish this purpose. .. . In cases like

the instant one, where [as here] the nonmoving party will bear the

burden of proof at tnal on a dispositive issue, a summary judgment

motion may properly be made in reliance solely on the ‘pleadings,

depositions, answers to interrogatones, and admissions on file.” Such a

” Rule 56 (c) of the Federal Rules of Civil Procedure is identical with the relevant

portion of Mass. R. Civ. P. 56 (c). and is as follows: “The motion shall be served at least

10 days before the time fixed for the hearing. The adverse party prior to the dav of

hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith

if the pleadings. depositions. answers to interrogatones. and admissions on file. together

with the affidavits, if any, show that there is no genuine issuc as to any maternal fact and

that the moving party is entitled to a judgment as a matter of law. A summary judgment.

interlocutory in character, may be rendered on the issue of liability alone although there

IS @ genuine issue as to the amount of damages.”

714 84 410 Mass. 706

Kourouvacilis v. General Motors C orp

motion, whether or not accompanied by affidavits, will be ‘made and

Supported as provided in this tule,’ and Rule 56(e) therefore requires

410 Mass. 706 85 715

Kourouvacilis v. General Motors Corp

her failure to identify witnesses in response to interrogatories, the

Court remanded the case to the Court of Appeals to consider that

question in the light of local law. /d. at 327.

Celotex Corp. v. Catrett, supra, was a five-to-four decision,

but at least three of the dissenters agreed with the Court’s

analysis of Fed. R. Civ. P. 56. Whiting in dissent, Justice

Brennan, joined by Chief Justice Burger and Justice Blackmun,

discussed rule 56 at length. We quote a small but relevant part

of that discussion as follows: “If the burden of persuasion at trial

would be on the nonmoving party, the party moving for summary

judgment may satisfy Rule 56's burden of production in two

ways. First, the moving party may submit affirmative evidence

that negates an essential element of the nonmoving party’s claim.

Second, the moving party may demonstrate to the court that the

nonmoving party’s evidence is insufficient to establish an essential

element of the nonmoving party’s claim... . If the nonmoving

party cannot muster sufficient evidence to make out its claim, a

trial would be useless and the moving party is entitled to

summary judgement as a matter of law. ... Plainly, a conclusory

assertion that the nonmoving party has no evidence is insufficient.

See ante at 328 (White, J., concurring). Such a ‘burden’ of

production is no burden at all and would simply permit summary

judgment procedure to be converted into a _ tool for

harassment Rather, as the Court confirms, a party who

moves for summary judgment on the ground that the nonmoving

party has no evidence must affirmatively show the absence in the

record.” (Citations omitted.) /d. at 331-332 (Brennan, J.,

dissenting)

Shortly after the Massachusetts Rules of Civil Procedure

became effective on July 1, 1974, we commented as follows: “We

view Rule 56 as a welcome, progressive addition to judicial

procedure in this Commonwealth. ‘It creates an excellent device to

make possible the prompt deposition of controversies on their merits

without a trial, if in essence there is no real dispute as to the salient

facts of if only a question of law is involved.” 3 W.W. Barron & A.

Holtzoff, Federal Practice and Procedure (Rules ed.) §11231,

716 410 Mass. 706

Kourouvacilis v. General Motors Corp

provided by the Rule, prior to trial, that the clzims and defenses

have no factual basis.”

plaintiff was required to respond by “Set(ting) forth Specific facts

showing that there is @ genuine issue for trial ” Mass. R. Ciy. P

56 (c). As a result of the plaintiff s failure in this regard, the

grant of summary judgment to the defendants was appropriate

Seen

410 Mass. 706 87 717

Kourouvacilis v. General Motors Corp

Nothing in Hopper v. Callahan, 408 Mass. 621 (1990), on

which the plaintiff relies, requires or suggests a different result.

Furthermore, there is no merit to the plaintiff's argument that,

even without expert testimony, she can prove her case by

invoking the doctrine of res ipsa loquitur. The common

experience of mankind in no way suggests that an unexplained

fire in an automobile six years after its purchase was caused by a

defect in the vehicle that had existed from the time of the

vehicle’s manufacture or sale. See Restatement (Second) of

Torts § 328D comment d (1965)

The defendants characterize the plaintiffs appeal as

“frivolous” and ask for damages pursuant to Mass. R. App. P. 25,

as amended, 378 Mass. 9225 (1979). See Glorioso v. Retirement

Bd. of Wellesley, 401 Mass. 648, 652 (1988). We agree that

much of the plaintiff's appellate argument is without merit

However, the central issue was whether we would adopt the rule

laid down in Celotex Corp. v. Catrett, supra, a question to which

we have previously alluded but, until today, have not answered.

In those circumstances, it would not be appropriate for us to

deem this appeal frivolous. We decline to award damages

pursuant to rule 2

Judgment affirmed.

COMMONWEALTH OF MASSACHUSETTS

BOARD OF BAR OVERSEERS

OF THE SUPREME JUDICIAL COURT

BAR COUNSEL.

Petitioner

LOUIS KERLINSKY.

)

V ) BBO File: C6-91-0124

)

Respondent )

SUPPLEMENTAL FINDINGS AND REPORT OF

RS RENTAL FINDING

The Appeal Panel requests the Hearing Committee to qualify its

findings and rulings. The Hearing Committee, after deliberation

of employment. or Prejudicing his client The committee finds,

APPENDIX C SUPPLEMENT

—$—<—<—<$<$$— ne

however, that the acts and omissions of the respondent were

themselves intentional. These acts and omissions constituted a

failure to seek the lawful objectives of respondent's client and a

failure to carry out his contract of employment with his client.

Prejudice and damage to the client was the foreseeable and direct

result and effect of these intentional acts and omissions. The

committee, therefore, finds that the respondent’s violations of DR

7-101(A)(1), (2), and (3) were intentional

2 Whether or not the respondent’s conduct, which

the Hearing Committee rules was in violation of DR 7-102 (A)(2)

and (7), as set forth in the report of the committee, was done

knowingly, and to clarify and/or make findings in support of the

Hearing Committee’s determination of whether the respondent

acted knowingly or not

FINDINGS:

The committee found that the respondent violated DR 7-

102(A) (2) not only because he advanced a claim with “absolutely

no competent evidence” as to liability, but also because he

advanced the claim with “no reasonable belief that a claim for

personal injuries could be supported by any medical opinion”.

“He never had evidence of damages.” See Report pp 29, 30

The committee finds that respondent knew he had no

competent evidence of personal injury damages, even if he

somehow thought he didn’t need evidence as to the cause of the

fire. His violation of DR 7-102 (A) (2) was a knowing violation

3 As the Hearing Committee made no ruling on the

alleged violation of DR 7-102 (A) (5), whether or not the

respondent knowingly violated this provision and to make

appropriate findings in support of its rulings on this allegation

FINDINGS

The committee does not find that the respondent himself

made any knowing misstatements of law or fact. But see findings

relative to DR 7-102 (7), Report pp 30. 3] His violation of DR

7-102 (7) was a knowing violation

On August 5, 1996 respondent filed a motion for the

recusal of Hearing Committee Member, Michael F MacDonald.

Esquire. Although member MacDonald found himself to be

action by the Hearing Committee Pursuant to the order of the

Appeal Panel, and Mr. MacDonald took no part in such

Proceedings

Date August 19, 1996 James P Rooney ‘sj _

James P Rooney, Esq Chair

Date August 19. 1996 Joel 5. Greenberg /s/_

Supreme Judicial Court for the

Commonwealth of Massachusetts

1412 Courthouse, Boston, Mass 02108

(617) 557-1020

Louis Kerlinsky

29 Vanguard Lane

Longmeadow, MA 01106

RE No. SJC 0726

IN RE: LOUIS KERLINSKY

NOTICE OF DENIAL OF PETITION FOR

REHEARING

The Petition for Rehearing filed in the above

captioned case has been considered by the Court and is

denied

Jean M. Kennett, Clerk

Dated: February 22, 1999

To Nancy E. Kaufman, Ass’t Bar Counsel

Arnold R. Rosenfeld, Bar Counsel

Michael Fredrickson, Boaard Counsel

Louis Kerlinsky

S.J.C. for Suffolk County

APPENDIX D

COMMONWEALTH OF MASSACHUSETTS

BOARD OF BAR OVERSEERS

OF THE SUPREME JUDICIAL COURT

crib it

BAR COUNSEL.

Petitioner

BBO FILE NO C6-91-0124

VS.

LOUIS KERLINSKY. ESQ.

Respondent

—

PETITION FOR DISCIPLINE

4:01, Section 8(2), and Sections 3 13(2) and 3:14 of the Rules of

the Board of Bar Overseers.

2 The respondent. Louis Kerlinsky, Esq., was duly

admitted to the Bar of the Commonwealth on October 22. 1952

3, From 1983 to date, the respondent has

represented Diane Kourouvacilis in a number of matters. These

include, but are not limited to, the following.

a In or about August 1983. the respondent agreed to

represent Diane Kourouvacilis (Kourouvacilis) on a contingent

arising fro an accident which had occurred on Or about July 26,

1983 (1983 accident). In that accident, another driver, Jerrold

Towne (Towne), collided with Kourouvacilis while she was

operating her 1979 Chevrolet Monte Carlo (Monte Carlo). The

respondent brought suit against Towne in the Hampden Superior

Court on June 4, 1984. The Towne case was settled in October

1985.

]

APPENDIX E

$$$ eee

b. On or about August 6, 1984, Kourouvacilis was

discharged from her employment at Monson State Hospital for

excessive absenteeism. On or about November 24, 1987, the

respondent agreed to represent Kourouvacilis on a contingent fee

basis on claims arising from Monson’s termination of her

employment. On December 1, 1987, the respondent filed suit on

behalf of Kourouvacilis in the Hampden County Superior Court

against the Commonwealth of Massachusetts and Monson State

Hospital for wrongful discharge and against AFSCME,

Kourouvacilis’s union, for allegedly violating its duty of fair

representation. Monson is still pending

c. On or about November |, 1985, Kourouvacilis’s

Monte Carlo caught fire during operation and was destroyed. On

or about November 20, 1985, the respondent agreed to represent

Kourouvacilis in return for a contingent fee in a claim for

damages against General Motors Corporation (GM) and Avis

Rent-A-Car (Avis) ansing from the car fire

4. On November 27, 1985, the respondent sent demand

letters on Kourouvacilis’s behalf pursuant to G.L. ch.93A to

General Motors, which had manufactured the Monte Carlo, and

to Avis, which had sold the car to Kourouvacilis in Connecticut

5 The respondent represented in the c. 93A demand

letters that Kourouvacilis’s car was not safe, that Avis and GM

had willfully violated c. 93A and the “Connecticut Consumer

Protection Act”; and that Kourouvacilis had sustained damages

of $10,000 “because of the severe fright and mental anguish

which she suffered as a result of this fire.” The respondent relied

entirely upon his client's representations and his assumptions

about Connecticut law in making these claims against GM and

Avis

6. Between November 1985 and January 8, 1986, the

respondent made no effort to preserve the car, to have it

inspected by experts, or otherwise to investigate the cause of the

car fire. USF&G, Kourouvacilis’s insurer, sold the Monte Carlo

for salvage on or about January 8, 1986

7. Qn October 27, 1988, the respondent filed suit in the

Hampden Superior court on behalf of Kourouvacilis against GM

The complaint

alleged, among other things, that the car fire had been caused by

vehicle was sold by...GMC.” The complaint also alleged that the

car fire had been caused by “defective wiring.” The respondent

8. Commencing in December 1988, GM and Avis

served upon the respondent document requests and

interrogatories seeking a description of Kourouvacilis’s physical

injuries, an itemization of her damages, and the identity of expert

first set of answers to GM’s interrogatories The answers falsely

represented (a) that Kourouvacilis was under Dr Lawrence

disregard for whether or not they were false

10 Kourouvacilis was deposed by GM and Avis on

April 13, 1989. Ip the respon

falsely tes

deposition testimony in 7owne that her car had never operated

properly after the 1983 accident. Kourouvacilis also falsely

testified that her father had taken several photographs of the car

after the car fire which had been provided to the respondent and

that she had seen Dr. Metz “within a few days” of the fire and

had seen him “[a] year ago.” The respondent either knew that

these representations were false or allowed these representations

to stand with reckless disregard for whether or not these claims

were true or false. The respondent did not call upon his client to

correct these representations, and he did not withdraw from

representation when the statements were not corrected.

11. On May 8, 1989, the respondent filed supplemental

answers to GM’s interrogatories. These supplemental answers

again identified Dr. Metz and Carol Mathison as expert witnesses

regarding her alleged injuries and identified “Walter Grez” as her

expert on the cause of the fire. The respondent knew when he

filed the May 8, 1989, supplemental answers that none of the

identified experts had been retained in the case and that neither

Dr. Metz nor Carol Mathison had expressed an expert opinion

that the car fire had caused Kourouvacilis’s injuries. The

respondent also had never communicated with Walter “Grez”,

whose true name is Walter Grzebien, and thus had no reasonable

basis for filing interrogatory answers which identified Grzebien as

an expert for Kourouvacilis

12. On August 31, 1989, the respondent filed answers

to interrogatories propounded by Avis. The interrogatories

falsely identified Walter “Grez”, “Lt. Colburn, Fire Marshall”, Dr

Metz; and Carol “Mathison” as the plaintiff's experts. The

respondent then knew that he had neither consulted nor retained

these or any other persons as experts and that he had never

received an expert opinion from these persons or any qualified

expert identifying any defect in the car as the cause of the fire or

identifying the car fire as the cause of Kourouvacilis’s alleged

physical problems

13. The August 31, 1989, interrogatory answers also

falsely represented that Kourouvacilis had sustained $36,000 in

lost earnings due to her unemployment “for approximately 2

Monson case that she had been available for and had actively

that any defect in the car caused the fire or that her alleged

injuries were caused by the car fire In Support of the motion,

GM attached:

b. the deposition testimony of Walter Grzebien that he

had not seen the car after the fire. had no Opinion on the Cause of

the car fire, and had not been retained as an expert:

disorder

1S. The respondent opposed the motion for summary

judgment without consulting or communicating with Grzebien,

Metz, Mathison, or Colburn. In Support of his Opposition, the

respondent filed an affidavit, signed by Kourouvacilis under the

she had “bills from him for treatment in 1986." The respondent

filed this affidavit knowing that it was false or with reckless

disregard for whether or not the affidavit was false

16. The respondent also filed as part of his opposition

an unsworn statement or: _ Gerz” (“Gerz”

statement) which he had drafted based solely on information

obtained from his client and which his client had taken to Walter

Grzebien on April 13, 1989, to be signed. The statement

asserted:

Based on my experience and training and the

above facts, it is my opinion that her under-the-

hood fire of October 31, 1985 was due to

defective wiring which had been installed by

General Motors in its factory when the car was

made.

Because the “Gerz” statement was not signed under the pains and

penalties of perjury, it did not satisfy the requirements of Mass

R. Civ. P. 56 and was therefore disregarded by the judge

considering the motions for summary judgment

17. After the hearing on the motion for summary

judgment, the respondent approached Grzebien to have him sign

the same statement under oath. The respondent did not tell

Grzebien that his statement would be offered as an expert opinion

on the cause of the car fire, and he did not ask Grzebien whether

or not he had an expert opinion on the cause of the car fire. In

fact, Grzebien did not consider himself an expert and did not have

an expert opinion on the cause of the fire. Grzebien signed the

statement after the respondent inserted the word “probably”

before the words “due to defective wiring” to ally Grzebien’s

concerns that he did not know the cause of the fire. The

respondent notarized Grzebien’s signature and filed the statement

with the court disregarded the notanzed statement because it was

not timely filed.

18 On November |, 1989, the Hampden Superior

Court granted the defendant's motion for summary judgment on

the ground that the plaintiff could not prove that a defect existed

in the car at the time of purchase which caused the car fire.

19. The respondent continued to pursue

Kourouvacilis’s case against GM and Avis after the tnal court

granted summary judgment even though he had no

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