Kerlinsky, In re

• Decision Date: 14 January 1999
• Parties: In the Matter of Louis KERLINSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 503

704 N.E.2d 503

428 Mass. 656

In the Matter of Louis KERLINSKY.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 5, 1998.

Decided Jan. 14, 1999.

Louis Kerlinsky, pro se.

Nancy E. Kaufman, Assistant Bar Counsel.

Before WILKINS, C.J., and ABRAMS, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

MARSHALL, Justice.

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 1, 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). ¹ Between October, 1994, and March, 1995, a hearing 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), and 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 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). ² The hearing committee issued supplemental findings and a report on August 19, 1996, finding 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 rise 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. ³ The respondent agreed to represent Kourouvacilis on a contingent fee basis in a suit against the other driver, and, in June, 1984, filed suit on behalf of his client. The complaint alleged that the automobile had been seriously damaged in the 1983 accident, that it was unsafe to drive, and that as a result of the accident Kourouvacilis was being treated for migraine headaches by Dr. Lawrence Metz. The respondent later settled that case by negotiating payments of the 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 November, 1987, the respondent agreed to represent Kourouvacilis, again on a contingent fee basis, in a wrongful termination suit against the Commonwealth and Monson (Monson suit). ⁴ In December, 1987, he filed a suit on her behalf that was still pending at the time of respondent's hearing in this disciplinary matter.

In or about November, 1985, the Chevrolet automobile that Kourouvacilis purchased from Avis caught fire while she was operating it; the car was destroyed. The respondent agreed to represent Kourouvacilis on a contingent fee basis in the suit against GM and Avis. The respondent failed to adequately investigate the cause of the automobile fire, ⁵ and failed to have the automobile inspected by an expert before Kourouvacilis's insurer sold it for salvage. Nonetheless, the suit against GM and Avis raised warranty negligence, deceit, fraud, and G.L. c. 93A claims, specifically alleging that the fire was caused by "defective wiring." ⁶

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 had suffered no injuries. ⁷ 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. ⁸ 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 would testify in support of any of his client's claims. In support of his opposition to the defendants' motion for summary judgment, the respondent prepared an affidavit on October 6, 1989, signed by Kourouvacilis, which stated that she had been treated by Dr. Metz after the fire in "October, 1985," and that she had bills that she had received from Dr. Metz for treatment in 1986. He also attempted to file an unsworn statement of "----Gerz," that he prepared, offering Grzebian's "expert opinion." A judge in the Superior Court allowed the defendants' motion for summary judgment. On appeal we affirmed the entry of summary judgment. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 575 N.E.2d 734 (1991).

The respondent also advanced misstatements about Kourouvacilis's employment and alleged wages lost as a result of 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 inconsistent 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...